instruction:
In this task, you will be shown a prompt from a judicial decision and multiple holding statements derived from citations following text in a legal decision.  Holdings represent the governing legal rule when the law is applied to a particular set of facts. There are five answer choices for each citing text. The correct answer is the holding statement that corresponds to the citing text. You should write an incorrect option. Even though there exist multiple wrong answers, we only need a single wrong answer. There is a <HOLDING> token in the position of the citing text prompt where the holding statement was extracted.
question:
Supreme Court rejected Cook’s claim of error on direct appeal, finding that the prosecutor’s comments were not directed at Cook’s decision not to testify, and that the comment about the videotape was invited by Cook’s cross-examination and argument. Cook, 821 P.2d at 741-43. The district court agreed that the comments were either comments on the state of the evidence or invited by Cook’s arguments and cross-examination. In addition, the district court found that, if there was error, it was harmless under Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Comment on the refusal to testify at trial violates a defendant’s Fifth Amendment right against self-incrimination. See Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (<HOLDING>). Also, a prosecutor’s comment on a defendant’s 
 Holding statements: (A) recognizing that the fifth amendment forbids comment by the prosecution on a defendants failure to testify (B) holding that it is improper for prosecutor to comment on accuseds postarrest silence (C) holding fifth amendment prohibits comment on accuseds silence during police custodial interrogation (D) holding fifth amendment prohibits comment on accuseds testimonial silence (E) holding that the fifth amendment  forbids either comment by the prosecution on the accuseds silence or instructions by the court that such silence is evidence of guilt
answer:
recognizing that the fifth amendment forbids comment by the prosecution on a defendants failure to testify


question:
It is axiomatic, however, that states act through their officials and agencies. Thus, under Will, those state agencies and other political subdivisions which carry out the state’s business and have immunity from lawsuits under the Eleventh Amendment constitute “arms of the state.” Pursuant to Will, such entities would not be considered persons under § 1983. Those political subdivisions which are not provided immunity under the Eleventh Amendment, do not rise to the level of “arms of the state” and would, under Will, be considered to be persons for the purposes of § 1983. See Barket, Levy & Fine v. St. Louis Thermal Energy Corp., 948 F.2d 1084, 1086-88 (8th Cir.1991) (bi-state agency is a “person” under § 1983); Magula v. Broward Gen. Medical Ctr., 742 F.Supp. 645, 649 (S.D.Fla.1990) (<HOLDING>). Since the Will decision was handed down, a 
 Holding statements: (A) holding that a county is not an arm of the state for purposes of the eleventh amendment (B) holding that an ohio school district is more like a county or city than it is like an arm of the state and therefore it is not entitled to assert eleventh amendment immunity from suit (C) holding that the anne arundel board of education is an arm of the state for purposes of eleventh amendment immunity (D) holding that the puc is not an arm of the state and rejecting claim of immunity (E) holding that because hospital district is more like a municipality than an arm of the state hospital district did not have eleventh amendment immunity
answer:
holding that a county is not an arm of the state for purposes of the eleventh amendment


question:
Here, Defendants challenge venue pursuant to 28 U.S.C. § 1406(a) rather than Federal Rule of Civil Procedure 12(b)(3). Although many federal courts hold that waiver under Rule 12 applies equally to § 1406(a), there appears to be some disagreement on the issue. Compare, e.g., Gardner v. Mylan Inc., No. 2:09-cv-01289, 2010 WL 2595114, at *2 (S.D.W.Va. June 24, 2010) (indicating that Rule 12 waiver guidelines apply to § 1406(a)); Bosse v. Mertoff, No. 05-CV-02170, 2007 WL 484590, at *2 (D.Colo. Feb. 9, 2007) (“[T]here is significant authority for the proposition that, once a defense of improper venue is waived, a defendant is also foreclosed from seeking a transfer under § 1406.”); with, e.g., Johnson v. United Airlines, Inc., No. 12 C 5842, 2013 WL 323404, at *2 (N.D.Ill. Jan. 25, 2013) (<HOLDING>). Regardless, it is clear that a party can 
 Holding statements: (A) holding that transfer most appropriate under 28 usc  1406a (B) holding that a partys repeated representations that venue was proper in one forum waived its right to bring a subsequent motion under 28 usc  1406a challenging venue (C) holding that motion to transfer also must show either that county where action is pending is improper or that venue is mandatory in another county (D) recognizing conflicting case law regarding whether waiver  under rule 12b3 extends to a request for a transfer under  1406a given that such a transfer is premised on venue being improper in this district (E) holding that transfer was proper remedy for improper venue even though the issue of transfer was not raised until the motion hearing in circuit court
answer:

holding that transfer most appropriate under 28 usc  1406a