* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-10520

(Summary Calendar)

ARTHUR A. COLLINS, INC.,

Plaintiff-Appellant, 

versus

AMERICAN TELEPHONE AND TELEGRAPH 

COMPANY, 

Defendant-Appellee. 

Appeal from the United States District Court

for the Northern District of Texas

(3:94-CV-2842)

November 15, 1996

Before WIENER, PARKER and DENNIS, Circuit Judges. 

OPINION ON REHEARING REGARDING SANCTIONS

WIENER, Circuit Judge:*

In our original opinion, we assessed sanctions against

Plaintiff-Appellant Arthur A. Collins, Inc. (Collins) for filing
2

and prosecuting a frivolous appeal. We did not specify that our

sanctions were levied under Federal Rule of Appellate Procedure 38,

but Collins assumed that we had and claimed that adequate notice

and opportunity to respond, as provided for under that Rule, had

not been given. Out of an abundance of concern, we scheduled and

subsequently held a “show cause” hearing at which Collins’ CEO was

present together with counsel who had represented Collins in this

and prior litigation. Also present were Louisiana counsel retained

by Collins for purposes of the show cause hearing, and counsel for

Defendant-Appellee American Telephone and Telegraph Company (AT&T).

Our show cause hearing and the pleadings and exhibits filed in

connection therewith have convinced us that sanctions were

providently assessed, albeit in an amount that we now determine to

have been inadequate and are therefore increased. Finding the

activities of Collins and its counsel to have been not merely

frivolous and unmeritorious, but objectively vexatious and

harassing as well, we let stand the sanctions heretofore assessed

but augment the quantum thereof as hereafter specified. 

I

FACTS AND PROCEEDINGS

A. Collins I

In December 1990, Collins filed a patent infringement suit

against AT&T in the district court for the Western District of

Texas (Collins I). Collins obtained a favorable jury verdict, and

the court awarded a judgment exceeding $34 million. 
 

1 Collins has never taken issue with the Federal Circuit’s

alternative holding that Mack & Patrusky and the Final Technical

Report rendered Collins’ patent invalid as obvious. 

3

As that case involved issues of patent law, AT&T appealed to

the Federal Circuit, which exercises exclusive appellate

jurisdiction over patent disputes. The Federal Circuit reversed,

holding that Collins’ patent was invalid, and overturning the jury

award. The court rested its holding on two alternative legal

determinations: (1) A “prior art” article written by Guido Granello

(the Granello Article) had anticipated Collins’ patent, and (2) the

patent was invalid as “obvious” in light of two additional prior

art articles (“Mack & Patrusky” and the “Final Technical Report”).1

Collins filed motions for rehearing and for rehearing en banc

before the Federal Circuit, claiming that AT&T had fraudulently

misled the court into misinterpreting the technical data presented

in the Granello Article. In obvious disagreement with, inter alia,

Collins’ attempt to characterize AT&T’s legal and factual arguments

as “fraud on the court,” the Federal Circuit denied Collins’

motions for panel and en banc rehearings. 

Collins then sought a writ of certiorari from the Supreme

Court, but it denied Collins’ application for writs. This was in

May 1994. At that juncture Collins had reached the point at which

even the most aggressive reasonable litigant should have accepted

the finality of an adverse result. But Collins pressed on. 
 

2 William Shakespeare, Romeo and Juliet, act 2, sc. 2. 

4

B. Collins II - “A Rose by Any Other Name . . . .”2

Collins elected to continue its assault on AT&T’s citadel, but

did so obliquely. Forsaking the Western District of Texas for the

Northern District, Collins filed a suit that it creatively

characterized as a state-law tort claim (Collins II). When reduced

to its essentials, however, that second action was purely and

simply a collateral attack on the Federal Circuit’s mandate in

Collins I. The principal thrust of the pleadings in Collins II was

not that the fraud was perpetrated on Collins, the plaintiff, but

on the Federal Circuit court itself. Even so, the amount of

damages that Collins sought for itself for this purportedly

tortious act of fraud on the appellate court was, not so

coincidentally, essentially the same sum it had “lost” when the

Federal Circuit reversed Collins’ patent infringement judgment from

the Western District of Texas. 

The district court for the Northern District of Texas

apparently had no difficulty in seeing through Collins’ ruse. The

court ruled that it lacked subject matter jurisdiction to hear such

a collateral attack on the Federal Circuit’s mandate, absent leave

from that court to do so. Then, assuming arguendo that it did have

jurisdiction over the case, the district court ruled in the

alternative that Collins II was barred by collateral estoppel.

Although the court then dismissed the case, it did so “without
5

prejudice” so as to preserve for Collins the opportunity to do what

it should have done in the first place (if it were not willing to

throw in the towel after the Supreme Court denied writs), i.e., to

entreat the Federal Circuit to set aside its own mandate and grant

leave to Collins to bring an action in district court. 

But Collins both ignored the district court’s implicit

invitation to return to the Federal Circuit for such orders and

opted not to drop the matter altogether in light of the district

court’s unassailable ferreting out of the true nature of Collins’

bogus tort suit. It chose instead to file the instant appeal

directly with us, ostensibly seeking reversal of both of the

district court’s alternative holdings. Like the district court

before us, though, we had no difficulty in concluding that Collins

II was indeed a “wolf in sheep’s clothing,” and affirmed the

judgment of the district court. In addition, though, we imposed

sanctions against Collins for taking a frivolous appeal. As

Collins had not been given notice and an opportunity to respond,

however, we granted its request for such an opportunity by ordering

a “show cause” hearing —— which was ultimately conducted by this

writer on behalf of the panel —— so that all of the panel members

could reconsider the imposition of sanctions vel non and the type

and quantum if imposed. 

II

ANALYSIS

A. Standard for the Imposition of Sanctions
 

3 Farguson v. Mbank Houston, N.A., 808 F.2d 358, 359 (5th

Cir. 1986).

 

4 Clark v. Green, 814 F.2d 221, 223 (5th Cir. 1987); Stelly

v. Commissioner, 761 F.2d 1113, 1116 (5th Cir. 1985).

 

5 Coghlan v. Starkey, 852 F.2d 806, 808 (5th Cir. 1988).

 

6 Id. at 814, quoting Reliance Ins. Co. v. Sweeney Corp., 792

F.2d 1137, 1138 (D.C. Cir. 1986). (emphasis added). 

6

Attorneys and litigants are afforded a “broad umbrella” of

protection against the imposition of sanctions for arguing novel or

aggressive legal positions, as long as any such position is

arguably supported by existing law or by any reasonably based

suggestion for its extension, modification, or reversal.3 On the

other hand, sanctions can and should be imposed against litigants

who burden our limited judicial resources and the financial

resources of their opponents with frivolous appeals. An appeal is

frivolous if the claim advanced is unreasonable or not brought with

a reasonably good faith belief that it is justified.4 We hasten to

add, in light of the protestations of Collins’ counsel, that the

test is an objective one: “Ill purpose is in no way a necessary

element for imposition of sanctions under Rule 38.”5

In like manner, sanctions may be levied against an attorney

pursuant to § 1927. As this court has previously noted, bad faith

is not a necessary element for the imposition of such a sanction:

While the language of § 1927 suggests deliberate

misbehavior, subjective bad faith is not necessary;

attorneys have been held accountable for decisions that

reflect a reckless indifference to the merits of a

claim.6
 

7 Coghlan, 852 F.2d at 818 n. 23.

7

We need not concern ourselves with the standard for imposing

sanctions under § 1927, however, because the attorneys for Collins

have stipulated in open court that if we remain convinced that

sanctions are appropriate, we should render them jointly and

severally against both Collins and its attorneys, and the latter

will indemnify their client. Certainly, an attorney may

voluntarily assume a client’s obligation to pay sanctions that have

been assessed for a frivolous appeal.7

B. Collateral Estoppel

1. A Fifth Bite at the Apple

Collins notes in its brief that the primary basis articulated

in our original opinion for imposing sanctions was that Collins had

already had “four bites at the apple” on its fraud claims, making

those claims clearly subject to collateral estoppel. Collins

contends that collateral estoppel does not apply, and that its

appeal cannot be characterized as frivolous, because Collins has

not yet received a “full and fair opportunity” to litigate its

fraud claim. Collins argues that AT&T did not commit the “fraud”

of which Collins complains until Collins I was on appeal before the

Federal Circuit, and that, because Collins was caught off guard, it

was unable to expose AT&T’s wrongdoing to that court on appeal.

Furthermore, Collins notes that no precedential authority attaches

to the denials of its motions to the Federal Circuit for panel
8

rehearing or for rehearing en banc, or to the refusal by the

Supreme Court to grant certiorari. Therefore, contends Collins, it

has not yet received even one of what it has termed “the phantom

four bites at the apple.”

Indeed, Collins continues passionately and self-righteously to

insist that the merits of its fraud claim have yet to be heard, and

that both the district court and this court erred in determining

that its fraud claim has been finally decided. But, as discerned

correctly by the district court, Collins’ so-called “fraud claim”

is not a new and different claim at all. Even granting to Collins

the full benefit of the doubt with regard to its fervently declared

subjective belief in the validity and separateness of the claim,

Collins cannot make the proverbial silk purse out of this sow’s

ear: The mis-labeled tort suit is truly nothing but an attempt to

re-assert that the Federal Circuit incorrectly interpreted the

Granello Article as a matter of law. Notwithstanding Collins’

attempt to shift the focus away from the Federal Circuit’s decision

and onto the purported impropriety of AT&T’s representation to that

court regarding the Granello Article, there is not and there could

not have been a separate fraud claim of that stripe. More

importantly, it was and remains patently unreasonable for Collins

genuinely to believe otherwise.

The invalidity of Collins’ patent was decided with finality in
 

8 The Federal Circuit invalidated Collins’ patent based on

two alternative legal determinations: that the Granello Article is

anticipatory prior art, and that the patent was obvious in light of

two additional prior art articles with which Collins has never

taken issue. See Collins Licensing, L.P. v. American Tel. & Tel.

Co., 11 F.3d 1072, reported in full at 28 U.S.P.Q.2d (BNA) 1847

(Fed. Cir. 1993).

 

9 We are fully aware, as was the Federal Circuit, that the

Patent Office subsequently found on rehearing that the patent was

valid. Nevertheless, given the initial effectiveness of AT&T’s

arguments to the Patent Office and the fact that AT&T presented the

same argument to the Federal Circuit in its appellate brief,

Collins could have and should have attempted to dispel AT&T’s

purportedly erroneous characterization of the Granello Article to

the Federal Circuit.

9

Collins I,

8 in which Collins had a full and fair opportunity to

argue in support of its interpretation —— and in opposition to

AT&T’s supposedly fraudulent and erroneous characterization of the

Granello Article to the Federal Circuit. AT&T advanced its

argument concerning the Granello Article in its brief to the

Federal Circuit, so Collins had more than ample opportunity to

prepare and articulate a counterargument, either in its reply brief

or during oral argument. Additionally, the Patent Office had

recently invalidated Collins’ patent on the basis of the same

argument made to it by AT&T that AT&T was making to the Federal

Circuit.9 Collins has only itself to blame for failing to take

issue with AT&T’s arguments, particularly the characterization of

the Granello Article, until after the Federal Circuit issued its

opinion. That Collins failed fully to advocate its position before

the Federal Circuit does not give rise to a subsequent fraud claim

against AT&T. 
 

10 Fine v. Bellefonte Underwriters Ins. Co., 758 F.2d 50, 53

(5th Cir. 1985) (holding that the original panel’s misstatement of

the legal elements of an established cause of action had become law

of the case and therefore could not be revisited when the appellant

had filed a motion for rehearing in which it pointed out the

panel’s error, but the motion was denied).

10

Furthermore, Collins did fully articulate a counterargument to

AT&T’s interpretation of the Granello Article in its motion for

rehearing. As this court has noted previously under analogous

circumstances, when “[t]he argument . . . before [a subsequent

panel] was before the original panel, that panel must be presumed

to have considered it on motion for rehearing.”10 The fact that the

Federal Circuit refused to permit Collins to append new expert

affidavits supporting Collins’ explanation of the court’s error is

of no consequence.

Once Collins’ motion for rehearing and suggestion for

rehearing en banc were denied by the Federal Circuit and its

application for a writ of certiorari was denied by the Supreme

Court, the case was over. This finality applied to all issues of

fact and law that were raised or could have been raised, including

the allegedly fraudulent argument made by AT&T to the Federal

Circuit. We are satisfied that the Federal Circuit was perfectly

capable of recognizing the difference between an attempt to commit

fraud on the court and mere differences between the litigants’

respective positions as to the proper interpretation of a highly

technical learned treatise and the legal effects thereof. Thus, as

made clear by the district court, the only avenue remaining open to
 

11 Arrowsmith v. Gleason, 129 U.S. 86, 98, 95 S. Ct. 237, 32

L. Ed. 630 (1889); Marshall v. Holmes, 141 U.S. 589, 599-600, 12 S.

Ct. 62, 35 L. Ed. 870 (1891); Johnson v. Waters, 111 U.S. 640, 647,

45 S. Ct. 619, 28 L.Ed. 547 (1884).

11

Collins was by way of a Rule 60(b) motion to set aside the mandate

—— assuming that some articulable reason existed for doing so.

2. A “Reasonable” Argument for the Extension of Existing Law?

Collins next argues that an “unreversed line” of three Supreme

Court cases provided reasonable support for its tort suit.11 We not

only disagree; we find that argument to be sophistry at best.

First, the line of cases Collins refers to establishes a basis for

equitable review of a final judgment, not for collaterally

attacking such a judgment by characterizing the challenge as an

independent state-law tort claim. More importantly, however,

Johnson, Arrowsmith, and Marshall all predate the creation of Rule

60, which now governs the type of review envisioned by those cases

but which Collins has studiously avoided. If anything, those cases

should have made clear to Collins that its only appropriate

recourse was to seek some sort of equitable review. Then, even

minimal additional research should have lead Collins to the

realization that equitable review of final judgments is now

governed exclusively by Rule 60.

Collins further argues that Bros Inc. v. W.E. Grace

Manufacturing Co., 320 F.2d 594 (5th Cir. 1963), established Fifth

Circuit precedent for the proposition that independent relief is

available against a wrongdoer without attacking the final judgment
 

12 Bros Inc., 320 F.2d at 607-608.

12

as having been improperly obtained. Collins’ reading of Bros Inc.

is specious to say the least. For openers, that case was decided

before the creation of the Federal Circuit, which now exercises

exclusive appellate jurisdiction over patent disputes. Before that

centralization of appeals of patent disputes, it was not uncommon

for patents to be held invalid in one circuit but valid in another.

This court in Bros Inc. did not offer relief without attacking an

appellate mandate as Collins strains to argue; rather, the

Bros Inc. panel recognized that it could do nothing to alter an

incorrect result reached by the 6th Circuit. In Bros Inc. we

provided only limited relief by setting aside our own mandate and

remanding to the district court to determine whether the patent

should be validated within the 5th Circuit; and we did so by way of

a Rule 60 motion!12 So, once again, any bona fide reading of the

authority cited by Collins clearly undermines its theory and

further convinces this court of the unreasonableness —— and thus

the frivolousness —— of Collins’ appeal.

Collins seeks to assure this court that it has great respect

for the policies favoring repose and the finality of judgments,

insisting, however, that it had no choice in this instance but to

bring the underlying tort suit under the competing “maxim that

where there is a wrong there is a remedy.” But Collins also

readily concedes that “[Rule] 60(b) would give [us] a remedy, your
13

Honor. We don’t dispute that.” Collins is speaking out of both

sides of its mouth: It posits that “you have to always balance

repose against the desire to see that justice is done,” yet, when

asked why it chose not to seek to have justice done by way of a

Rule 60 motion, Collins admitted in a rare moment of candor that it

had hoped to recover punitive damages by bringing a state-law based

tort action. This faux “balancing act” purportedly undertaken by

Collins troubles us deeply. 

Its crocodile tears to the contrary notwithstanding, Collins’

appeal to this court was, indeed, an attempt to purloin yet another

bite at the same apple previously masticated; whether it was the

fifth or merely the third or fourth is quibbling. We find it to be

at least unreasonable to belabor the argument that Collins held a

new and unbitten “fraud” apple in its hand. 

We are thus more satisfied than ever that this appeal is one

for which the imposition of sanctions is particularly appropriate:

It reeks of anger, bitterness, and spite, all of which Collins

disingenuously tries to legitimate by wrapping itself in the mantel

of zealous but permissible advocacy. But, like the glass slipper

that would not accommodate Cinderella’s stepsisters’ feet, that

mantel will not fit Collins no matter how it may wriggle to squeeze

into it. We are generally chary about imposing sanctions lest we

chill aggressive advocacy, which lies at the heart of our

adversarial system of justice. In this instance, however, we

affirmatively endeavor to chill the kinds of abusive protraction of
 

13 Memorandum Opinion entered May 11, 1995 (emphasis in

original), quoting Standard Oil, 429 U.S. at 18.

14

litigation that are clearly beyond the outer limits of appropriate

advocacy, as exemplified in the instant appeal of Collins II. 

C. Lack of Jurisdiction

Collins argues at great length that its appeal from the

district court’s decision was not frivolous because the appellate

leave rule was supplanted by the Supreme Court’s opinion in

Standard Oil Co. v. United States, 429 U.S. 17 (1976), or that

Collins at least had a reasonable basis for believing so. We need

waste little paper and ink on Collins’ argument on this point. The

district court clearly and correctly explained in its opinion

dismissing the tort suit that Standard Oil held only that:

recall of an appellate mandate [is] not a prerequisite to

relief for subsequently discovered fraud upon the

district court where relief was sought under Fed. R. Civ.

P. 60(b) in the same district court, because “the

appellate mandate relates to the record and issues then

before the court, and does not purport to deal with

possible later events.”13

It is clear beyond cavil that the district court skewered this

argument by Collins; to have appealed that holding was

quintessential frivolousness. 

In Collins I, AT&T argued its interpretation of the Granello

Article in its appellate brief to the Federal Circuit. The only

reason proffered by Collins for failing to rebut AT&T’s argument at

this juncture is that Collins believed the Federal Circuit, for

procedural reasons, could not reach the issue on appeal. Stated
 

14 Seese v. Volkswagenwerk, A.G., 679 F.2d 336, 337 (5th Cir.

1982); Eutectic Corp. v. Metco, Inc., 597 F.2d 32, 34 (5th Cir.

1979); Tapco Products Co. v. Van Mark Products Corp., 466 F.2d 109,

110 (6th Cir. 1972).

15

simply, by making a tactical decision that included a calculated

risk, Collins gambled and lost. As for Collins’ efforts to recoup

that loss by pursuing Collins II, the law is settled that a

district court is without jurisdiction to alter the mandate of a

circuit court on the basis of matters included or includable in a

prior appeal.14 

Collins’ reading of Standard Oil is not only unreasonable; it

is also lacking in bona fides. Sanctions would be appropriate in

this case, however, even if the appellate leave rule had been

abolished by Standard Oil, as Collins contends. On appeal Collins

has not sought the right to bring a Rule 60 motion in district

court without first obtaining appellate leave. On the contrary,

Collins has clearly and consistently demonstrated that it wants no

part of any Rule 60 motion. Collins filed its fraud-on-the-court

action in a different federal district court than the one that had

decided Collins I. In the Northern District of Texas, Collins went

to great lengths to obfuscate the true nature of what it was doing

when it filed and prosecuted Collins II in that court. Even when

that ploy was unmasked and squelched by the court in Collins II,

however, Collins nevertheless persisted in its vendetta, forging

ahead with an appeal to this court in which Collins merely

continued to belabor its defrocked fraud theory, hoping against
 

15 William Shakespeare, Hamlet, act 3, sc. 2. 

 

16 See Dreis & Krump Mfg. Co. v. International Ass’n of

Machinists, 802 F.2d 247, 255 (7th Cir. 1986), quoted with approval

in Coghlan, 852 F.2d at 809.

16

hope that it might finally reach a sympathetic —— or, more

accurately, a gullible —— ear.

D. Subjective Good Faith - “The Lady Doth Protest Too Much,

Methinks.”15

Collins attempts to bolster its position by arguing vaingloriously that it should not be subjected to sanctions given that

its attorneys consulted with other disinterested attorneys to

assure themselves of the viability of their claims and legal

positions both before filing the tort suit and then again before

appealing to this court. Counsel for Collins collected and

submitted affidavits from each of those other attorneys in an

attempt to show that the former has acted in good faith throughout

these proceedings.

As even the most sophisticated of modern diagnostic scanning

and imaging devices do not let us probe the innermost thoughts of

the brain, we have no palpable evidence to dispute Collins’ selfserving insistence that it acted in subjective good faith. Indeed,

on rehearing, Collins continues sanctimoniously to proclaim its

subjective belief that its fraud claim is justified under the law.

But passion and zeal are not shields against the consequences that

flow from behaving unreasonably or in objective bad faith.16

Regardless of any amount of subjective good faith an appellant
 

17 See Coghlan, 852 F.2d at 813, quoting Brady v. Chemical

Constr. Corp., 740 F.2d 195, 202 (2d Cir. 1984) (“[T]he Second

Circuit has held that an honest belief in the merits of a claim,

and the subjective feeling that a litigant has been denied a fair

hearing, do not excuse an appellate brief that ‘ignores significant

issues and facts while deploying a smokescreen of irrelevant and

tangential issues.”); Id. at 809, quoting Dreis & Krump Mfg. Co. v.

Int’l Ass’n of Machinists, 802 F.2d 247, 255-56 (7th Cir. 1986)

(“It is human nature to crave vindication of a passionately held

position even if the position lacks an objectively reasonable basis

in the law. Although we have no reason to believe that the company

or its counsel was acting in bad faith, ... the company’s briefs

and oral argument failed to identify any arguable error in the

district court’s decision....”).

 

18 See, e.g., Coghlan, 852 F.2d at 812; McDougal v.

Commissioner, 818 F.2d 453, 455 (5th Cir. 1987); Stelly, 761 F.2d

at 1115; Wright v. Commissioner, 752 F.2d 1059, 1062 (1985);

Knoblauch v. Commissioner, 752 F.2d 125, 128 n.4 (5th Cir.), cert.

denied, 474 U.S. 830, 106 S. Ct. 95, 88 L.Ed.2d 78 (1985). 

17

might profess, an appeal is frivolous if it is objectively

unreasonable.17 So, even if we were to credit the ostensible

support that Collins’ counsel drummed up from their brethren at the

Bar through the affidavits filed herein —— which we do not —— those

solicited testimonials gain counsel naught in the arena of

objectivity. 

III

CONCLUSION

Now that we have conducted the rehearing requested by Collins

regarding the sanctions aspect of this case, we are more convinced

than ever that the appeal in Collins II is sanctionably frivolous.

Rule 38 sanctions for frivolous appeals may include single or

double costs as well as attorneys’ fees.18 We have stated

previously that “[e]ven greater sanctions may be imposed under
 

19 Stelly, 761 F.2d at 1115-1116.

18

appropriate circumstances.”19 In our original opinion we assessed

sanctions against Collins in an amount equal to all costs of the

appeal, including the reasonable attorneys’ fees of its opponent.

After the Petition for Rehearing in protest of those sanctions was

filed, we implicitly gave Collins the opportunity to re-think its

position, accept the sanctions initially imposed, and withdraw its

Petition for Rehearing, thereby sparing AT&T and this court further

unproductive expenditures of time, money, and resources. But

Collins was obviously not interested, obstinately pressing on with

its vindicatory —— and, we conclude, vindictive —— crusade. 

We can discern no justification, under the banner of vigorous

advocacy or otherwise, for Collins’ filing and prosecuting this

unjustifiable appeal. Such prolongation of the case left AT&T no

real choice but to undertake additional efforts and expend

additional costs in researching, preparing for, and participating

in the appeal and the rehearing; and the time and resources of this

court were further strained in the process. Collins’ protestations

to the contrary notwithstanding, we are left with the distinct

impression that the appeal was not simply frivolous, but that it

was filed and prosecuted vindictively, vexatiously, and for

purposes of harassment as well. 

We therefore amend our original imposition of sanctions

against Collins by assessing them jointly and severally against
19

Collins and its trial and appellate counsel herein (but not its

additional Louisiana attorneys who were retained for purposes of

this rehearing only) as requested by said counsel, and imposing

sanctions in a sum equal to the costs of the instant appeal,

including, without limitation, AT&T’s reasonable attorneys’ fees

incurred in opposing Collins’ appeal and participating in this

sanctions rehearing. It is our conclusion that this is the

lightest sanction that we can impose and still attain the results

we seek to achieve. The amount we find to be AT&T’s reasonable

attorneys’ fees and related costs —— which we now declare to be

assessed under the aegis of FRAP 38 —— is $91,008.26. That sum,

representing the entire sanction assessed herein, shall be paid

into the registry of this court within thirty (30) days following

the filing of this opinion, in delinquency of which said sum shall

bear interest from the date of said filing until paid in full, at

the rate of 10% per annum. 

AMENDED, and, as amended, AFFIRMED.