The Honorable James L. Graham, Senior United States District Judge for the *

Southern District of Ohio, sitting by designation.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 07a0774n.06

Filed: November 1, 2007

No. 05-5567

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

United States of America, )

) ON APPEAL FROM THE

Plaintiff-Appellee, ) UNITED STATES DISTRICT

) COURT FOR THE WESTERN

v. ) DISTRICT OF TENNESSEE

)

Alan Wilkins, )

)

Defendant-Appellant.)

BEFORE: MOORE and GRIFFIN, Circuit Judges, and GRAHAM, District *

Judge.

GRAHAM, District Judge. Defendant-appellant Alan Wilkins was

indicted in the Western District of Tennessee on drug and weapons

charges. In an indictment filed on July 30, 2003, defendant was

charged in Count 1 with being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g), in Count 2 with possession of a

firearm in furtherance of a drug trafficking crime violation of 18

U.S.C. § 924(c), and in Count 3 with possession with the intent to

distribute marijuana in violation of 21 U.S.C. § 841(a)(1). These

offenses were alleged to have occurred on January 1, 2003.

Defendant was also charged with two offenses allegedly committed on

April 3, 2003. Specifically, defendant was charged in Count 4 with

being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g), and in Count 5 with being a felon in possession of six

rounds of ammunition in violation of 18 U.S.C. § 922(g).

On May 12, 2004, defendant filed a motion to sever Counts 1,
2

2 and 3 from Counts 4 and 5 for purposes of trial. The motion was

referred to a magistrate judge for a ruling. In a decision filed

on June 8, 2004, the magistrate judge denied the motion for

severance. The magistrate judge concluded that all counts were

properly joined in the same indictment under Fed.R.Crim.P. 8(a) and

that severance of the counts was not warranted under Fed.R.Crim.P.

14(a). Defendant filed an objection to the decision of the

magistrate judge, but the record does not show that the district

court specifically ruled on this objection. A trial on all counts

of the indictment commenced on December 6, 2004, and the defendant

did not renew his request for severance at any time during the

trial.

The testimony presented at trial revealed that on January 1,

2003, Officer Joseph Cunningham of the Memphis, Tennessee, Police

Department was on routine patrol when he observed a white Chevy van

stopped in the middle of eastbound traffic on Brooks Road. The

driver appeared to be trying to talk to a pedestrian on the south

side of the street through the passenger window of the vehicle. JA

59. Officer Cunningham stopped the van. He checked the vehicle

registration and learned that the license plates on the van were

registered to another vehicle. JA 60. He approached the driver’s

window, while Officer Shane Jordan approached the van’s passenger

window. JA 60; 76.

Officer Cunningham questioned the driver of the van,

identified as the defendant, and learned that defendant did not

have a valid driver’s license. JA 61. Defendant was arrested and

placed in the back seat of Officer Cunningham’s squad car. JA 61.

Officer Cunningham testified that defendant admitted to having a
3

gun in the van, and that defendant consented to the search of the

vehicle. JA 62. During the search, the officers recovered a ninemillimeter pistol from the center console of the van. They also

found spent rounds on the floor board by the driver’s seat, and 1.7

pounds of marijuana, packaged in two large freezer bags, located

between the second and third rows of seats. JA 64-65; 78-79; 82;

195.

The evidence at trial further revealed that on April 3, 2003,

Memphis police officers responded to a 911 emergency call made by

defendant’s wife, Lisa Wilkins. Mrs. Wilkins told Officer Erskin

Caldwell that defendant had shot the tires of her vehicle. JA 131.

The officers observed a vehicle with three flat tires, and

recovered six .45 caliber shell casings from the ground around the

vehicle. JA 132. The defendant then arrived at the scene and

stated, “The bitch knocked on my door and I shot her tires out

because every time the police are called, she is not here.” JA

133-34; 147. Defendant also told the officers that the gun was

located on the top shelf of a bedroom closet in an apartment

located at 3496 Mediterranean, where he sometimes stayed with his

girlfriend, Jolene Helm, when estranged from his wife. JA 134-36,

248. The police went to the apartment and were admitted by a woman

who showed them the location of the pistol. JA 143-44. The

officers retrieved a .45 caliber Llama-Max-1 handgun, magazine clip

and holster from a closet in the apartment. JA 134-36; 140.

As part of its case in chief, the government called Officer

Moore, the supervisor of the Communications Bureau of the Memphis

Police Department, to authenticate the audio tape of the 911 call

made by Lisa Wilkins. JA 125.
4

The government also presented the testimony of Brian Weaks, a

special agent with the Bureau of Alcohol, Tobacco, Firearms and

Explosives. Agent Weaks testified that while serving a grand jury

subpoena on Helm, he left business cards in the neighborhood asking

anyone with information concerning Helm’s whereabouts to contact

him. JA 208-09. Agent Weaks testified that he received a message

that someone identifying himself as Alan Wilkins had called and

stated that someone was looking for his girlfriend. JA 209. Agent

Weaks called the phone number provided and explained that he had a

grand jury subpoena to serve on Ms. Helm. The man then asked, “Is

this about when I shot all those tires out?” JA 209.

Lisa Wilkins testified that she had no recollection of the

shooting on April 3, 2003. JA 153. She agreed that prior to

trial, she had informed the prosecutor that there was a ninety-nine

percent chance that her voice was captured on the tape. However,

she further testified at trial that although it was possible that

the recorded voice was hers, it might not be. JA 170-71. Mrs.

Wilkins also testified concerning her activities on January 1,

2003. She claimed that she purchased the firearm recovered from

the van, that she placed the firearm in the van for her protection,

and that she accidentally left the firearm in the vehicle when the

van had ignition problems. JA 171-75. 

Defendant stipulated to his felon status at trial and admitted

the possession of marijuana charge. JA 56; 236-37; 276. He also

testified that he recognized his wife’s voice on the 911 tape. JA

268. He denied knowing that the nine-millimeter handgun was in the

van prior to its discovery by the police. JA 237-39. He also

denied having a weapon at the time his wife’s tires were shot on
5

April 3, 2003, and stated that his son had a gun. JA 250.

The jury returned a verdict of guilty on all counts. The

district court imposed a sentence of seventy months on Count 1,

sixty months on Count 3, and seventy-one months on Counts 4 and 5,

to run concurrently, and a sentence of sixty months on Count 2, to

run consecutively to the other counts, resulting in a total

sentence of one hundred and thirty-one months. Defendant now

pursues the instant appeal.

I.

Defendant first argues that Counts 1, 2 and 3 were not

properly joined in the same indictment with Counts 4 and 5, thereby

violating Fed.R.Crim.P. 8(a). That rule provides:

The indictment or information may charge a defendant in

separate counts with 2 or more offenses if the offenses

charged–whether felonies or misdemeanors or both–are of

the same or similar character, or are based on the same

act or transaction, or are connected with or constitute

parts of a common scheme or plan.

Rule 8(a). This court has held that Rule 8(a) should be construed

in favor of joinder, although the failure to meet the requirements

of the rule constitutes misjoinder as a matter of law. United

States v. Chavis, 296 F.3d 450, 456 (6 Cir. 2002). “Whether th

joinder was proper under Rule 8(a) is determined by the allegations

on the face of the indictment.” Id.

Defendant correctly argues that the offenses in Counts 1

through 3, allegedly committed on January 1, 2003, were not a part

of the same act or transaction as the offenses in Counts 4 and 5

which were allegedly committed on April 3, 2003. There is also no

language in the indictment which indicates that the offenses

committed on January 1, 2003, were “connected with or constitute
6

parts of a common scheme or plan.” Rule 8(a). However, Counts 1,

4 and 5 are offenses “of the same or similar character[.]” Rule

8(a). Both Count 1 and Count 4 charged the defendant with being a

felon in possession of a firearm in violation of 18 U.S.C. §

922(g), and Count 5 charged the defendant with being a felon in

possession of six rounds of ammunition in violation of 18 U.S.C. §

922(g). We therefore conclude that the joinder of Counts 4 and 5

with Count 1 in the same indictment was proper. Counts 2 and 3

were a part of the same act or transaction as Count 1, and thus

those counts were also properly joined in the same indictment with

Counts 1, 4 and 5.

Defendant also argues that the district court should have

severed Counts 1, 2 and 3 from Counts 4 and 5 for a separate trial

pursuant to Fed.R.Crim.P. 14. Rule 14 permits a defendant to move

for severance in situations in which joinder of multiple offenses,

although proper under Rule 8, would be prejudicial to the

defendant. Zafiro v. United States, 506 U.S. 534, 538 (1993).

However, a Rule 14 motion must be renewed at the close of the

evidence or it is waived. United States v. Harris, 293 F.3d 970,

975 (6 Cir. 2002)(citing United States v. Hudson, 53 F.3d 744, 747 th

(6 Cir. 1995)). Since defendant did not renew his motion for th

severance at the close of evidence, we find that the defendant has

failed to preserve this issue for appeal.

II.

Defendant’s next claim of error challenges the decision of the

district court to permit the government to play the tape of Mrs.

Wilkins’ 911 call relating to the April 3, 2003, offenses during

the testimony of Officer Moore, who was called as a witness to
7

authenticate the tape. After the tape was played, defense counsel

moved to strike the tape on the basis that it contained unsworn

statements. JA 125. Counsel also argued that the statements on

the tape might be inconsistent with Mrs. Wilkins’ testimony,

thereby confusing to the jury, but he conceded that the tape might

be admissible to impeach Mrs. Wilkins after she testified. JA 125-

26. The trial court permitted the tape to be played on the grounds

that it constituted self-authenticating evidence of the call. JA

126. The government later called Mrs. Wilkins as a witness, and

during her direct examination, the trial court granted the

government’s request to question her as a hostile witness. JA 164.

The 911 tape was played during her testimony, and she was

questioned as to whether it was her voice on the tape. JA 165-71.

She testified that it was possible that her voice was on the tape,

but that it might be or might not be, despite her earlier statement

to counsel on Friday of the previous week that she was ninety-nine

percent sure that the voice was hers. JA 164, 171. Defense

counsel did not object to the playing of the tape during Mrs.

Wilkins’ testimony, and defendant does not contend that the playing

of the tape during her testimony was error. Rather, he argues that

he was prejudiced by the earlier playing of the tape, which

resulted in the jury hearing the tape twice.

This court reviews the district court’s evidentiary rulings

for abuse of discretion. United States v. Henley, 360 F.3d 509,

518 (6 Cir. 2004). Relevant evidence may be excluded if its th

probative value is substantially outweighed by the danger of unfair

prejudice. Fed.R.Evid. 403. However, the district court has broad

discretion in balancing probative value against potential
8

prejudicial impact. United States v. Layne, 192 F.3d 556, 573 (6th

Cir. 1999). Even when there is an abuse of discretion, that error

is harmless “unless it is more probable than not that the error

materially affected the verdict.” United States v. Martin, 897

F.2d 1368, 1372 (6 Cir. 1990). th

Playing the tape permitted Officer Moore to verify that this

particular call had been made and was in fact received by the

Communications Bureau at the date and time in question. The

playing of the tape also provided background information as to why

Officer Caldwell was dispatched to the scene. The tape contained

relevant and probative evidence. See United States v. Lloyd, 462

F.3d 510, 516 (6 Cir. 2006)(911 tape of statements by bank th

employees concerning the robber was relevant and probative

evidence.) Although defense counsel argued before the trial court

that the tape contained unsworn statements, he describes Mrs.

Wilkins’ statements as being “hysterical, frantic and desperate.”

Defendant’s Brief, p. 14. Thus, the statements arguably fell

within the hearsay exception for excited utterances under

Fed.R.Crim.P. 803(2), and were admissible as evidence.

Defense counsel argued below that the government was

attempting to impeach Mrs. Wilkins before she testified. However,

there is no evidence that the prosecutor knew prior to Mrs.

Wilkins’ testimony at trial that she would refuse to admit to

making the statements on the tape, particularly since she basically

told him the Friday before trial that the voice on the tape was

hers. The tape contained relevant evidence independent of any

impeachment value, and it did not become impeaching evidence until

after Mrs. Wilkins testified. The playing of the tape was a valid
9

means of assisting the jury in determining whether Mrs. Wilkins in

fact made the 911 call. Although defendant speculates that the

fact that the jury heard the tape twice had an impact on the jury’s

weighing of Mrs. Wilkins’ credibility, there is no reason to

conclude that playing the tape twice caused the jurors to discredit

her testimony any more than they would have if they had only heard

the tape once.

Defendant further contends that it was prejudicial for the

jury to twice hear the “hysterical, frantic and desperate” voice on

the tape. However, the presence of emotion in the voice on the

tape was relevant to assist the jury in determining whether Mrs.

Wilkins was telling the truth on the stand. The mere fact that the

voice on the tape was hysterical is not sufficient to show unfair

prejudice. See Lloyd, 462 F.3d at 517 (emotions of robbery victims

evidenced in voices on tape insufficient to create danger of unfair

prejudice).

Even assuming that there was any error in the first playing of

the tape, that error was harmless. There was ample evidence to

support defendant’s conviction for his possession of a weapon and

ammunition on April 3, 2003. Defendant himself admitted that the

voice on the tape was that of his wife. JA 268. There is evidence

that defendant told Officer Caldwell at the scene that “I shot her

tires out because every time the police are called, she is not

here.” JA 133-34; 147. Agent Weaks testified that when he talked

to an individual who identified himself as the defendant, the man

asked, “Is this about when I shot all those tires out?” JA 209.

Defendant has failed to show prejudice resulting from the playing

of the 911 tape during Officer Moore’s testimony, and this claim of
10

error is without merit.

III.

Defendant also argues that the district court failed to give

adequate instructions on how to consider the multiple counts

alleged in the indictment. The record does not disclose any

objection by defendant to the instructions given by the court.

Where a defendant fails to object to the jury instructions at

trial, we review for plain error only. United States v. Newsom,

452 F.3d 593, 605 (6 Cir. 2006); Fed.R.Crim.P. 30(d)(“Failure to th

object [to jury instructions] in accordance with this rule

precludes appellate review, except [for plain error] under Rule

52(b).”). “Plain error requires a finding that, taken as a whole,

the jury instructions were so clearly erroneous as to likely

produce a grave miscarriage of justice.” United States v. Combs,

33 F.3d 667, 669 (6 Cir. 1994)(quoting United States v. Piccolo, th

723 F.2d 1234, 1241 (6 Cir. 1983)). th

In reviewing for plain error, we must determine whether (1)

there was an error in the district court, (2) the error is plain,

(3) the plain error affected the defendant’s substantial rights,

and (4) such error seriously affects the fairness, integrity or

public reputation of judicial proceedings. United States v.

Thomas, 11 F.3d 620, 629-30 (6 Cir. 1993). th

In this case, the district court instructed the jury as

follows:

The defendant has been charged with five separate crimes.

The number of charges is no evidence of guilt. It is

your duty to separately consider the evidence that

relates to each charge, and to return a separate verdict

for each one. For each charge, you must decide whether

the government has presented proof beyond a reasonable

doubt that the defendant is guilty of that particular
11

charge.

Your decision on one charge, whether it is guilty or not

guilty, should not influence your decision on any of the

other charges.

JA 314-15. This instruction is almost identical to those upheld by

this court in United States v. Cody, 498 F.3d 582 (6 Cir. 2007), th

and Chavez, 296 F.3d at 462, as being sufficient to caution the

jurors concerning their consideration of multiple counts and to

render harmless any error in the joinder of counts. The reasoning

in Cody and Chavez is even more compelling in this case in light of

our holding above that the counts in defendant’s indictment were

properly joined under Rule 8(a). We presume that the jury followed

the trial court’s instruction. Chavez, 296 F.3d at 462. This case

involved only two incidents, the evidence presented was not

complicated or confusing, and the jury was capable of considering

each count separately in determining whether the government had met

its burden or proof. No error, plain or otherwise, occurred in the

district court’s instructions to the jury concerning the manner of

deliberation on multiple counts.

IV.

Prior to oral argument, the parties were given the opportunity

to brief the issue, raised sua sponte by this court, of whether we

should recognize plain error in the wording of Count 2 of the

indictment and the jury instructions given by the district court on

that count. Defendant raised no objection in the district court or

on appeal concerning the wording of Count 2 or the jury

instructions on that count. However, “this Court has discretion to

correct plain errors affecting important rights of criminal

defendants, even when not raised on appeal.” United States v.
12

Graham, 275 F.3d 490, 521 (6 Cir. 2001). See also United States th

v. Pugh, 405 F.3d 390, 401-02 (6 Cir. 2005)(Fed.R.Crim.P. 52(b) th

permits a court of appeals, at its discretion, to address issues

under plain error analysis sua sponte).

We find that the defendant waived any technical error in the

indictment by failing to challenge the defect in a motion made

before trial pursuant to Fed.R.Crim.P. 12(b)(3)(B). See United

States v. Kakos, 483 F.3d 441, 444 (6 Cir. 2007). However, th

defendant’s failure to object to the indictment does not preclude

review by this court to ascertain whether any harm to defendant’s

substantive rights stemmed from an error in the indictment, such as

harm caused by erroneous jury instructions. Id. at 444-45 (citing

United States v. Adesida, 129 F.3d 846, 849 (6 Cir. 1997)). We th

conclude that it is appropriate to exercise our discretion to

review the jury instructions on Count 2 of the indictment. Since

defendant raised no objection to the court’s charge on Count 2, his

conviction on that count may be overturned only if there was plain

error in the charge which affected his substantial rights. Lloyd,

462 F.3d at 514.

Count 2 purports to charge the defendant with an offense under

18 U.S.C. § 942(c)(1)(A). That section provides that “any person

who, during and in relation to any crime of violence or drug

trafficking crime ... uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm” shall be

subject to an additional consecutive term of incarceration. 18

U.S.C. § 924(c)(1)(A). This court held in United States v. Combs,

369 F.3d 925, 933 (6 Cir. 2004), that § 924(c)(1)(A) criminalizes th

two separate and distinct offenses: (1) using or carrying a firearm
13

during and in relation to any crime of violence or drug trafficking

crime; and (2) possessing a firearm in furtherance of any such

crime. The proofs required for each offense are distinct. Id. at

930-32.

For purposes of the use or carry offense, the “use” of a

firearm connotes more than mere possession of the firearm, and

requires some active employment of the firearm by the person

committing the drug offense. Combs, 369 F.3d at 932. The term

“carry” means that the firearm must be on the person or

accompanying the person, such as conveying the firearm in a motor

vehicle. Id. To “carry” a firearm, the defendant must physically

transport the firearm, but the firearm need not be immediately

available for use. Id. at 933. The “during and in relation to”

element requires that the firearm “furthered the purpose or effect

of the crime and that its presence or involvement was not the

result of coincidence.” United States v. Warwick, 167 F.3d 965,

971 (6 Cir. 1999). th

In contrast, the “in furtherance of” element of the possession

offense requires a higher standard of participation by the

defendant than the “during and in relation to” element of the use

or carry offense. United States v. Mackey, 265 F.3d 457, 461 (6th

Cir. 2001). The government must show that the firearm was

possessed to advance or promote the commission of the underlying

drug trafficking offense, and that there was “a specific nexus

between the gun and the crime charged.” Id. at 462. The

possession charge does not require that the defendant actively

employ or physically transport the firearm; rather, it is

sufficient if the firearm is strategically located for quick and
14

ease of use. Id.

Count 2 reads as follows:

On or about January 1, 2003, in the Western District of

Tennessee, the defendant, ALAN WILKINS[,] during, in

relation to and in furtherance of a drug trafficking

crime, did unlawfully, knowingly and intentionally

possess a firearm, to wit: an EAA (Tanfoglio) model:

Witness, 9mm pistol, in violation of Title 18, United

States Code, Section 924(c).

Count 2 contains all of the elements of the possession

offense, but also includes the language “during, in relation to”

applicable to the use or carry offense. Count 2 is sufficient to

charge a possession offense. See United States v. Cobbs, 233

Fed.App’x 524, 532-33 (6 Cir. 2007). However, since that count th

contains no allegations that the defendant used or carried a

firearm, Count 2 does not charge a use or carry offense under §

924(c), and the language “during, in relation to” is potentially

confusing surplusage.

When a count charging one type of offense under § 924(c)(1)(A)

also contains some or all of the elements of the other type of

offense under § 924(c), a danger arises that the jury will convict

the defendant on an offense not charged in the indictment, or that

the jury may reach a non-unanimous decision. See United States v.

Savoires, 430 F.3d 376, 380 (6 Cir. 2005); Combs, 369 F.3d at 934- th

36. When a § 924(c) count contains language relating to more than

one offense, jury instructions can alleviate any prejudice to the

defendant. See Cobbs, 233 Fed.App’x at 533 (affirming conviction

on possession charge where surplus “during and in relation to”

language in the indictment was not included in the jury

instructions and the trial court instructed solely on the

possession offense); Lloyd, 462 F.3d at 514 (noting that “proper
15

jury instructions can mitigate the risk of jury confusion[.]”);

United States v. Davis, 306 F.3d 398, 416 (6 Cir. 2002)(no th

prejudice where jury instructions only charged on use and carry

offense). Thus, we must examine the charge in this case to

determine if plain error occurred.

In instructing the jury, the district court read Count 2 as it

was written in the indictment to the jury. Tr. 19-20. The court

later stated, “In Count 2, the defendant is charged with possession

of a firearm in furtherance of a drug trafficking crime.” Tr. 27.

However, when instructing the jury on the applicable statute, the

court read only the part of the statute relevant to the use and

carry offense, stating, “Any person who, during and in relation to

any crime of violence or drug trafficking crime for which the

person may be prosecuted in a court of the United States, uses or

carries a firearm, shall be guilty of a crime.” Tr. 27.

Compounding this error, the district court then stated, “Under

Count 2, the defendant is charged with using or carrying a firearm

during the commission of the drug trafficking crime which is

charged in Count 3.” Tr. 27.

The district court also referred to both § 924 offenses in

defining the elements of Count 2. The court described the second

element as being “that the defendant knowingly carried a firearm

during and in relation to the commission of, or knowingly possessed

a firearm in the furtherance of, the crime charged in Count 2.”

Tr. 28. The court then stated, “The second element the government

must prove beyond a reasonable doubt is that the defendant

knowingly possessed a firearm in furtherance of the commission of

the crime charged in Count 3.” Tr. 28. The court then proceeded
16

to define the terms “possession” and “possess a firearm in

furtherance of the crime.” Tr. 29. Thus, the instructions mixed

the elements of the use or carry offense with those of the

possession offense. This constituted error, as well as plain

error. See Savoires, 430 F.3d at 381.

The government argues that the error was not prejudicial,

noting that the district court did give a correct charge on the

elements of the possession offense, and did not specifically define

the elements “use,” “carry,” or “during or in relation to.”

However, the fact that the charge included a correct definition of

the possession offense does not alter the fact that it also

contained extraneous and contradictory language relating to the use

or carry offense. Further, the fact that the court did not

specifically define the terms “use,” “carry,” or “during or in

relation to” actually heightened rather than diminished the risk of

prejudice. Those terms have specific meanings in the context of a

§ 924(c) offense, and the failure to define those terms makes it

more likely that the jurors simply used the common, everyday

meaning of those terms in considering the evidence rather than

their more specific meanings. In addition, the facts of this case

are such that the jury could have found that the defendant carried

a firearm during and in relation to his marijuana offense while

concluding that the government had failed to meet the higher

standard of possessing the firearm “in furtherance of” that drug

offense.

Since the court’s instructions mixed the elements of the two

offenses and potentially authorized a conviction for an offense

which was not charged in the indictment, the error affected
17

defendant’s substantial rights. See Savoires, 430 F.3d at 380-81

(instructions on possession charge which included elements of use

offense authorized conviction for non-existent offense); Combs, 369

F.3d at 935-36 (intermixing elements of both offenses created risk

that defendant was ultimately convicted for use offense instead of

possession offense for which he was indicted). This error

undermined the fairness of defendant’s trial, see Savoires, 430

F.3d at 381, and affected the integrity of the judicial

proceedings. United States v. Lowe, 172 Fed.App’x 91, 96-7 (6th

Cir. 2006). Defendant’s conviction on Count 2 resulted in the

addition of sixty months to his total sentence of incarceration.

We conclude that plain error occurred in the court’s charge on

Count 2, and that defendant’s conviction on Count 2 must be

reversed.

V.

For the foregoing reasons, we affirm defendant’s convictions

on Counts 1, 3, 4, and 5 of the indictment. We reverse the

defendant’s conviction on Count 2, and remand this case to the

district court for further proceedings consistent with this

opinion.