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828 F.2d 20 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.John L. SMITH, Petitioner-Appellant,v.Edwin MEESE, P. W. Keohane, Norman Carlson, Johnetta Norman,and Anna B. Wells, Respondents-Appellees. No. 87-5202 United States Court of Appeals, Sixth Circuit. September 1, 1987. ORDER Before NATHANIEL R. JONES, WELLFORD and RALPH B. GUY, J., Circuit Judges. 1 This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs of the parties, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure. 2 Smith was given a federal sentence in 1979 for assault with intent to kill and pandering. He was paroled in 1984; but he violated the conditions of his parole in 1986. The 28 U.S.C. Sec. 2241 petition alleges that by applying the 'sgt. time and the industry good time' he has served his entire sentence. The district court dismissed the case for failure to exhaust administrative remedies. 3 The attack by a federal prisoner on the execution of a sentence by challenging the computation of his parole of sentencing credit is made by filing a 28 U.S.C. Sec. 2241 petition in the district court having jurisdiction over his custodian. Cohen v. United States, 593 F.2d 766, 770-71 (6th Cir. 1979); Wright v. United States Bd. of Parole, 557 F.2d 74, 76-77 (6th Cir. 1977). Exhaustion of administrative remedies is required before relief will be considered. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973); Webster v. Frey, 665 F.2d 88 (6th Cir. 1981); Atkins v. Michigan, 644 F.2d 543 (6th Cir.), cert. denied, 452 U.S. 964 (1981). Exhaustion of administrative remedies has not been alleged in this court nor the district court. We conclude that the district court did not err in dismissing the case. 4 It is ORDERED that the judgment of the district court be and hereby is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.

-------------------------------------------------------------------------------- TENTH COURT OF APPEALS Chief Justice Tom Gray Justice Rex D. Davis Al Scoggins McLennan County Courthouse 501 Washington Avenue, Rm 415 Waco, Texas 76701-1373 Phone: (254) 757-5200 Fax: (254) 757-2822 Clerk Sharri Roessler March 19, 2015 In accordance with the enclosed Memorandum Opinion, below is the judgment in the numbered cause set out herein to be entered in the Minutes of this Court as of the 19[th] day of March, 2015. 10-14-00184-CR JAMES KYLE GRAHAM v. THE STATE OF TEXAS - ON APPEAL FROM THE 85[TH] DISTRICT COURT OF BRAZOS COUNTY - TRIAL COURT NO. 13-03696-CRF-85 - AFFIRMED - Memorandum Opinion by Justice Davis: "This cause came on to be heard on the transcript of the record of the Court below, and the same being considered, because it is the opinion of this Court that there was no error in the judgment, it is ordered, adjudged and decreed by the Court that the judgment be in all things affirmed, and that the appellant pay all costs in this behalf expended and that this decision be certified below for observance."

354 N.E.2d 170 (1976) Theodore W.E. HAMMER, Appellant, v. STATE of Indiana, Appellee. No. 975S228. Supreme Court of Indiana. September 15, 1976. *171 John D. Clouse, Evansville, for appellant. Theodore L. Sendak, Atty. Gen., K. Richard Payne, Deputy Atty. Gen., Indianapolis, for appellee. DeBRULER, Justice. Appellant, Theodore W.E. Hammer, was charged with armed robbery, Ind. Code § 35-13-4-6 (Burns 1975), and kidnapping, Ind. Code § 35-1-55-1 (Burns 1975). After a trial by jury, he was found guilty of both charges. He was sentenced to ten years for armed robbery and to life imprisonment for kidnapping. He filed a timely motion to correct errors which was overruled. On appeal, he raises five issues for review: (1) whether appellant was denied equal protection of the law when the court denied his Petition of Election to be treated as a drug abuser, pursuant to Ind. Code § 16-13-6.1-16 (Burns 1976 Supp.), because he had committed a crime of violence which is a statutory exception; (2) that the court erred in giving, on its own motion, an instruction which included the sentence "[By] the non-enforcement of the law and its penalties in all criminal cases where it is shown by the evidence, beyond a reasonable doubt, to have been violated, contempt for the law is bred among the very class that it is intended to restrain," when the idea of classes is repugnant to the Constitution; (3) that the court erred in giving the jury a verdict form for armed robbery which provided for the jury's assessing the punishment within the range of ten to thirty years, without the benefit of a pre-sentence report; (4) that the court erred in refusing to give two instructions that the jury should give the benefit of the doubt to the defendant when the evidence was conflicting and when either of two interpretations was reasonable; (5) that the court erred in refusing to give three instructions on offenses which appellant argues are lesser included offenses of kidnapping, namely: assault, assault and battery, and assault and battery with intent to commit a felony. The evidence was that appellant, whom the victim had seen and talked to briefly on three occasions, robbed a service station attendant using a shotgun and a knife and threatening the attendant. After robbing him, he kept the shotgun on the attendant, told him to close up and drive appellant where he wanted to go. In the car, during the twenty minute ride, appellant kept poking the attendant in the ribs with the barrel of the gun. As directed, the attendant let appellant out in a remote area, waited thirty minutes, and then drove home. He was able to identify a photograph of appellant a week after the crime. *172 (1) Appellant argues that Ind. Code § 16-13-6.1-16 is unconstitutional. That statute reads: "A drug abuser charged with or convicted of a crime is eligible to elect treatment under the supervision of the department instead of prosecution or imprisonment, as the case may be, unless (a) the crime is a crime of violence, (b) the crime is that of selling a narcotic or dangerous drug, (c) the drug abuser has a record of two or more prior convictions of a crime of violence, (d) other criminal proceedings, not arising out of the same incident, alleging commission of a felony are pending against the drug abuser, or (e) the drug abuser is on probation or parole and the appropriate parole or probation authority does not consent to that election, or (f) the drug abuser elected and was admitted to a treatment program on two prior occasions within any consecutive two-year period. An eligible drug abuser may not be admitted to a treatment program, however, unless the authorities concerned consent as hereinafter set forth. [IC 1971, 16-13-6.1-16, as added by Acts 1974, P.L. 59, § 1, p. 242]." Appellant argues that the exception for those charged with violent crimes denies him the equal protection of the law guaranteed by the Fourteenth Amendment and Art. 1, § 23 of the Constitution of Indiana. Before trial, appellant petioned to be treated as a drug abuser. He stated that he met all the qualifications except for the nature of the crimes charged, and that, despite that exception, the equal protection provisions of the two Constitutions dictated that he be eligible for treatment as a drug abuser. On appeal, he notes that the statute recognized that people may commit crimes because their will is bent by drugs. The statute also implicitly recognizes drug addiction as an illness. Therefore, he argues, if someone commits a violent crime [while a drug user] he is more likely to be strongly addicted and more in need of treatment. Consequently, it is not reasonable to exclude those most addicted. Appellant's petition raised the constitutional issue, but he presented no evidence to support his implicit argument that there is no rational basis for the exception. It is possible that concern for the safety of other drug abusers undergoing treatment at the drug abuse centers was the basis for this exception. However, we do not know whether the physical facilities are such that possibly dangerous drug abusers may be treated separately. More important, we do not know if the Legislature had in mind other rational bases relating to the type of treatment received and the type of physical facilities available, consistent with the constitutional mandate that the Indiana Penal Code be founded on the principle of reformation. Indiana Constitution, Art. 1, § 18. When any issue is raised which cannot be resolved without a factual hearing, and no such hearing took place at the trial court level, we have no basis for a decision. Hardin v. State, (1970) 254 Ind. 56, 257 N.E.2d 671. The State had no opportunity to defend the constitutionality of the statute. A decision at this level on this issue without the presentation of evidence by both parties and cross-examination cannot be made. (2) We agree with appellant that the court's instruction, that non-enforcement of the law would breed contempt for the law "among the very class that it is intended to restrain," is an unfortunate choice of words. It may imply, as appellant asserts, that he is in the class who must be restrained, since he has been charged with a crime. However, this instruction does not offend the Fourteenth Amendment merely by its mention of "class." As appellant notes in his brief, we recognize many classes: the middle class, the working class, the wealthy class. Only if one is granted privileges denied to *173 another class, without a rational basis, is a classification system improper. Appellant has no such argument to make here. He argues only that "talk of class is anathema to the American ideal" and that appellant is in the class referred to in the instruction, those charged with crime. As distasteful as we find this instruction, we do not find that its use was reversible error. (3) Appellant argues that it was error to permit the jury to determine the number of years appellant should be sentenced for armed robbery, without first considering a pre-sentence report. We have recently considered this issue in the constitutional context appellant suggests. Pulliam v. State, (1976) Ind., 345 N.E.2d 229, 241-243. In this case, appellant was sentenced to the minimum ten years which the armed robbery statute provides, so that the issue is moot on appeal. (4) Appellant charges court error in not giving two instructions to the effect that doubts raised by conflicting evidence or evidence susceptible to two interpretations should be resolved in favor of the defendant. Since there were only two witnesses for the State, the gas station attendant and a police officer, and there was no conflicting evidence on any material issue or any element of the crime, such an instruction would have been meaningless. (5) Appellant argues that his instructions on lesser included offenses of kidnapping should have been given. Indiana Code § 35-1-39-2 (Burns 1975) provides: "[In all cases where the offense charged does not consist of different degrees,] the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or information." Appellant was charged by information: "[Appellant, on November 5, 1971,] did then and there unlawfully kidnap and forcibly carry off [the victim] from a place within this state... ." Appellant requested instructions on assault, assault and battery, and assault and battery with intent to commit a felony. Assault is defined as an attempt "to commit a violent injury upon the person of another." Ind. Code § 35-13-4-7 (Burns 1975). Assault and battery is committed when one "in a rude, insolent or angry manner, unlawfully touches another." Ind. Code § 35-1-54-4 (Burns 1975). Assault and battery with intent to commit a felony other than a felonious homicide is so defined. Ind. Code § 35-1-54-3 (Burns 1975). Comparing these statutory definitions with the offense charged, we cannot agree with appellant that one could not "forcibly" act without committing either an assault or an assault and battery. One can kidnap or carry off another forcibly, without attempting a violent injury or unlawfully touching the victim in a rude, insolent, or angry manner. The kidnapper could use threats only or could threaten the victim with a gun or knife. Therefore, the elements of the offenses of assault and assault and battery are not necessarily included in kidnapping. The court correctly refused appellant's tendered instructions. We find no error and affirm the judgment of the trial court. HUNTER and PRENTICE, JJ., concur. GIVAN, C.J., and ARTERBURN, J., concur in result.

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0194p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BRECKINRIDGE HEALTH, INC., et al. ┐ Plaintiffs-Appellants, │ │ > No. 16-6269 v. │ │ │ THOMAS E. PRICE, in his official capacity as Secretary │ of the United States Department of Health and Human │ Services, │ Defendant-Appellee. │ ┘ Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 3:15-cv-00251—Joseph H. McKinley Jr., Chief District Judge. Argued: April 27, 2017 Decided and Filed: August 23, 2017 Before: GUY, SILER, and DONALD, Circuit Judges. _________________ COUNSEL ARGUED: David M. Dirr, DRESSMAN BENZINGER LAVELLE PS, Crestview Hills, Kentucky, for Appellants. Carleen M. Zubrzycki, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: David M. Dirr, Mathew R. Klein, Richard G. Meyer, DRESSMAN BENZINGER LAVELLE PS, Crestview Hills, Kentucky, for Appellants. Carleen M. Zubrzycki, Michael S. Raab, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.  No. 16-6269 Breckinridge Health, Inc., et al. v. Price Page 2 ______________________ AMENDED OPINION ______________________ BERNICE BOUIE DONALD, Circuit Judge. Various Kentucky hospitals (collectively, “Appellants”) sought Medicare reimbursement for certain state taxes they paid on their gross revenue. The United States Department of Health and Human Services (“HHS”) offset the amount of Appellants’ Medicare reimbursement by the Medicaid Disproportionate Share Hospital (“DSH”) payments Appellants received, reasoning that those payments effectively refunded the taxes paid. The district court affirmed this decision. Because the net effect of the Medicaid DSH payment was to reimburse Appellants for the tax, HHS’s decision was not arbitrary, capricious, or manifestly contrary to the Medicare statute. Accordingly, we AFFIRM the district court’s judgment. I. Appellants are Critical Access Hospitals and are reimbursed by Medicare for the reasonable and necessary costs of providing services to Medicare patients. The federal Medicaid program requires states to create a plan to provide additional payments to hospitals, like Appellants, that serve a disproportionate share of low-income patients. 42 U.S.C. § 1396a(a)(13)(A)(iv). In Kentucky, these DSH payments are matched at 70% by the federal government. Kentucky’s contribution to DSH programs comes from two sources: Kentucky Provider Tax Revenue (“KP-Tax”) and payments from state university hospitals. The KP-Tax is a 2.5% tax on the gross revenue of various hospitals, including Appellants. Ky. Rev. Stat. § 142.303(1). The KP-Tax revenue is deposited into the Medical Assistance Revolving Trust (“MART”), Ky. Rev. Stat. § 205.640(2), which in turn is used to fund the DSH payments, Ky. Rev. Stat. § 205.640(3)(a). The amount of DSH payments a hospital receives is unrelated to the amount of KP-Tax it paid. Also, during the years at issue, DSH payments covered only approximately 45% of the costs Appellants incurred providing care to indigent patients. Appellants filed cost reports in 2009 and 2010 claiming their entire KP-Tax payment as a reasonable cost for reimbursement under the Medicare Act. Up until that point, they had  No. 16-6269 Breckinridge Health, Inc., et al. v. Price Page 3 received full reimbursement under the reasonable cost statute. However, for 2009 and 2010, the Medicare Administrative Contractor denied full reimbursement, offsetting the KP-Tax cost by the amount of Medicaid DSH payments Appellants received. The Provider Reimbursement Review Board (“PRRB”) upheld the offsets, concluding that when Appellants received a Kentucky Medicaid DSH payment, they were actually receiving a refund of some or all of the KP-Tax they paid. So it concluded that the reimbursable Medicare cost “actually incurred” was the gross amount Appellants paid for the KP-Tax, minus the Medicaid DSH payments it received. Appellants appealed this decision, but the Administrator of the Centers for Medicare and Medicaid Services issued a final decision declining to modify the PRRB’s decision. Appellants then filed the instant action, asserting violations of the Administrative Procedure Act. The parties filed cross-motions for summary judgment. The district court upheld the offset decision. Relying heavily on Abraham Lincoln Memorial Hospital v. Sebelius, 698 F.3d 536 (7th Cir. 2012), the district court agreed with the PRRB that the net economic impact of Appellants’ receipt of the DSH payment in relation to the cost associated with the KP-Tax assessment indicated that the DSH payments served to reduce Appellants’ expenses such that they constituted a refund. So, the district court concluded that the KP-Tax payment was properly offset by the DSH payment. Next, the district court rejected Appellants’ argument that the PRRB’s decision was inconsistent with the Final Rule of August 16, 2010, which, according to Appellants, requires a payment to be made specifically for the purpose of reimbursing a tax in order for the claimed reimbursement to be offset by the payment. The district court concluded that the Rule merely requires evidence that the DSH payment and the KP-Tax are related prior to offsetting the KP-Tax by the DSH payment. Finally, the district court rejected Appellants’ argument that the offset decision deviated from longstanding practice, reasoning that an agency does not establish policy simply by not taking administrative action.1 1 Appellants have not raised this argument on appeal, so we decline to consider it. See Shirvell v. Gordon, 602 F. App’x 601, 606 (6th Cir. 2015).  No. 16-6269 Breckinridge Health, Inc., et al. v. Price Page 4 II. Where, as here, Congress left it up to HHS to determine what constitutes a reasonable cost meriting reimbursement, we give its judgment controlling weight unless it is “arbitrary, capricious, or manifestly contrary to the statute.” Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984). Our inquiry is not whether the HHS’s interpretation is the best one; instead, we give substantial deference to its interpretation unless an “alternative reading is compelled by the regulation’s plain language or by other indications of the Secretary’s intent.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (quoting Gardebring v. Jenkins, 485 U.S. 415, 430 (1988)). In the Medicare context, “broad deference is all the more warranted when, as here, the regulation concerns a complex and highly technical regulatory program, in which the identification and classification of relevant criteria necessarily require significant expertise and entail the exercise of judgment grounded in policy concerns.” Atrium Med. Ctr. v. HHS, 766 F.3d 560, 568 (6th Cir. 2014) (quoting Thomas Jefferson Univ., 512 U.S. at 512) (internal quotation marks omitted). III. a. Under the Medicaid program, a state plan must provide that payments made to hospitals include an upward rate adjustment for hospitals that serve a disproportionate number of low- income patients that have special needs. 42 U.S.C. § 1396a(a)(13)(A)(iv); Owensboro Health, Inc. v. HHS, 832 F.3d 615, 618 (6th Cir. 2016). The purpose of this adjustment is to give relief to those hospitals that have few privately insured patients to counteract the losses incurred from a large volume of uninsured patients. Owensboro Health, 832 F.3d at 618–19 (quoting H.R. Rep. No. 103-111, at 211 (1993)). In Kentucky, this upward adjustment, or DSH payment, is determined by regulation. 907 KAR 10:820 § 4. Under Kentucky law, providers are also required to pay a 2.5% tax on gross revenues. Ky. Rev. Stat. § 142.303(1). The provider taxes, or KP-Tax assessment payments, are deposited into the MART fund. Ky. Rev. Stat. § 205.640(2). These “provider tax revenues and state and  No. 16-6269 Breckinridge Health, Inc., et al. v. Price Page 5 federal matching funds shall be used to fund the disproportionate share program.” Ky. Rev. Stat. § 205.640(3)(a). b. A hospital may also enter into an agreement with the Secretary to render services to Medicare patients, in most circumstances without charge, in return for payments made by Medicare. 42 U.S.C. § 1395cc(a). To be reimbursed by Medicare, hospitals must provide adequate data, based on financial and statistical records, of the costs they incurred. 42 C.F.R. § 413.24(a). Medicare will then reimburse the hospital based on a method of apportioning the costs it will bear. 42 C.F.R. § 413.50(a). Hospitals providing services to Medicare patients are reimbursed for the reasonable costs of providing care to those beneficiaries. 42 U.S.C. § 1395x(v); 42 C.F.R. § 413.9(a). Which of the reasonable costs are “actually incurred” by a provider is determined by regulation, 42 U.S.C. § 1395x(v)(1)(A), and the Secretary has broad discretion to determine the reasonable costs that may be reimbursed, Battle Creek Health Sys. v. Leavitt, 498 F.3d 401, 410 (6th Cir. 2007). The regulations define reasonable costs to include direct and indirect costs of providing services. 42 C.F.R. § 413.9(b)(1). In short, the goal of this reimbursement scheme is to prevent covered individuals from bearing the costs of services, while ensuring that the Secretary does not bear the costs for non-covered patients. 42 C.F.R. § 413.9(b)(1). Retroactive adjustments to the Medicare reimbursement amount are appropriate where the amount is deemed either inadequate or excessive. 42 U.S.C. § 1395x(v)(1)(A). To this end, the regulations provide that refunds—“amounts paid back or a credit allowed on account of an overcollection”—reduce the reimbursement amount. 42 C.F.R. § 413.98(b)(3). Refunds are “clearly reductions in costs,” so must be taken into account in determining the “true cost” of services, or the “net amount actually paid for them.” 42 C.F.R. § 413.98(d). c. The district court relied on Abraham Lincoln in reaching its conclusion that the offset applied here was appropriate. Though there are factual differences between Abraham Lincoln and this case, the Seventh Circuit’s sound reasoning and the similarities to the core structure of  No. 16-6269 Breckinridge Health, Inc., et al. v. Price Page 6 the scheme at issue here naturally lead us to conclude that HHS’s decision to uphold the offset was not arbitrary, capricious, or manifestly contrary to the legislative scheme. In Abraham Lincoln, the agency found that the amount of the tax (“Tax Assessment”) paid by the hospitals to the State of Illinois was a reasonable cost eligible for Medicare reimbursement, but was subject to an offset by payments the hospitals received from the state Medicaid fund. Abraham Lincoln, 698 F.3d at 540. The Tax Assessment was required to be deposited into a fund that also included other monies, such as federal matching funds and “any other money received for the Fund from any other source.” Id. at 545. Under the Illinois legislative scheme, certain hospitals were entitled to receive Medicaid “Access Payments” derived from that fund. Id. A hospital’s Tax Assessment was contingent upon its receipt of Access Payments and approval from the Center for Medicare and Medicaid Services (“CMS”) of the Access Payments and the Tax Assessment. Id. at 545–46. In affirming the agency’s judgment, the Seventh Circuit first rejected the hospitals’ argument that the offset decision was a misapplication of the regulatory definition of “refund.” Id. at 548. Under a plain reading of the state legislation—including provisions that (1) the Tax Assessment was not due until the hospitals received access payments, and (2) the Access Payments were not due until the Tax Assessment took effect—the court concluded that the Access Payments clearly served to reduce expenses like the Tax Assessment. Id. at 549. This conclusion found further support in the facts that hospitals may only be reimbursed for their net costs, and that the Access Payments were made from the fund in which the Tax Assessment was deposited. Id. Next, the Seventh Circuit rejected the argument that the agency incorrectly decided that the hospitals did not “actually incur” the cost of the Tax Assessment. Id. at 551. It reasoned that, under the regulations’ net cost approach, it was appropriate to look to the link between the Tax Assessment and the Access Payments to determine the economic impact of receiving the payment on the tax costs. Id. at 551–52. Because, in determining reasonable costs, we must look to the totality of the circumstances, the court rejected the hospitals’ argument that the costs of the Tax Assessment were actually incurred because they were billed for those costs and paid them. Id. at 552. This argument ignored the regulations’ requirement that reimbursable costs be  No. 16-6269 Breckinridge Health, Inc., et al. v. Price Page 7 reduced by amounts that defray costs and ignored the real net economic impact of the Access Payments. Id.; see also 42 C.F.R. § 413.98(d) (noting that refunds are “clearly reductions in costs,” so must be taken into account in determining the “true cost” of services, or the “net amount actually paid for them.”) The fundamental elements of the Illinois and Kentucky schemes are the same: under both systems, a tax is paid into a fund, that tax is commingled with other sources, and Medicaid payments derived from that fund are made to hospitals. Appellants are correct that there are differences between the instant case and Abraham Lincoln. But these distinctions do not compel a contrary result. For instance, Appellants point to the fact that, unlike in Kentucky, in Illinois hospitals do not pay the Tax Assessment until after they received the Access Payments and receive a refund if the Access Payment is not made. According to the Seventh Circuit, this indicated a legislative intent that Access Payments would reduce the Tax Assessment expenses. Abraham Lincoln, 698 F.3d at 549. Nonetheless, there is a similar indication of congressional intent here: Kentucky law states that “provider tax revenues and state and federal matching funds shall be used to fund the disproportionate share program.” Ky. Rev. Stat. § 205.640(3)(a) (emphasis added). It seems plausible then, that when a provider receives a payment from that fund, the payment serves at least as a partial refund of the tax. As Appellants repeatedly insist, we should look to totality of the circumstances, so we are not limited by the lack of precise similarity between the two systems. Therefore, that the congressional intent in Kentucky was expressed differently than that in Illinois does not undermine our reliance on Abraham Lincoln. Appellants highlight other distinctions, like the fact that under the Illinois scheme, the tax and payments are subject to agency approval and hospitals do not have to incur additional costs by treating non-Medicaid patients. However, these differences do not make the net economic effect of the Appellants’ DSH payments out of a fund consisting of their KP-tax payment any less of a refund.2 Importantly, our goal is not to find the best way to interpret the statute, but 2 We are sympathetic to the fact that Appellants have incurred costs of providing indigent care that have not fully been reimbursed. However, we cannot accept their argument that because they still bear 55% of the costs of providing indigent care, they must receive the full reimbursement for their KP-tax assessments. This would require us to determine the net economic effect of DSH payment on all of the costs incurred, not simply on the KP-tax cost incurred. Under this logic, hospitals would have to be reimbursed fully for every cost they paid up until the point that they are fully compensated for indigent care. This would render null the refund provisions in all cases where a  No. 16-6269 Breckinridge Health, Inc., et al. v. Price Page 8 rather simply to determine whether a contrary result is compelled by the law or congressional intent. See Thomas Jefferson Univ., 512 U.S. at 512. We do not find so here. Under the guidance provided in Abraham Lincoln, HHS’s offset decision was not arbitrary, capricious, or manifestly contrary to the Medicare statute. Appellants rely on Loyola University of Chicago v. Bowen, 905 F.2d 1061 (7th Cir. 1990), in support of their claim that HHS cannot shift costs to non-Medicare patients. This reliance is misplaced. First, aside from the existence of an offset issue, Loyola does not involve a factual scenario remotely similar to the one here. There, the University sought Medicare reimbursement under provisions allowing it to be reimbursed for the reasonable costs of medical services, including the cost of certain medical educational activities. Id. at 1064. The designated intermediary, however, reduced the University’s reimbursement by fifty percent of the costs of residents and interns working in the University’s outpatient clinic. Id. The Seventh Circuit concluded that this decision was erroneous. Id. at 1073. Unlike Appellants suggest, however, in Loyola, HHS did not impermissibly try to shift the costs of training residents and interns onto non-Medicare patients. Rather, HHS contended that the University attempted to do this, but the court disagreed, concluding that the University sought reimbursement only for patient care activities involving Medicare beneficiaries. Id. To the extent Appellants argue that allowing Medicaid DSH payments to refund the KP-Tax violates 42 U.S.C. § 1395x(v)(1)(A), by requiring individuals not covered by Medicare to bear costs of services provided by covered individuals, Appellants provide no explanation as to how this scheme requires non-Medicare patients to bear those costs. In sum, Appellants incurred a reimbursable Medicare cost when they paid taxes on their gross revenue. However, they also received a Medicaid DSH payment to cover some of the costs of providing care to a disproportionate number of low-income patients. Because the DSH payments Appellants received derived from the fund into which Appellants’ KP-tax expenditures were placed, the net effect of the DSH payment is to reduce, at least in part, the costs Appellants incurred in paying the KP-tax. Therefore, it constituted a refund notwithstanding the fact that it hospital is not completely compensated for this care; there is no indication that Congress intended this effect. We, therefore, resolve only the narrow question of whether the net economic effect of the DSH payment was to reimburse Appellants for the amount they paid in KP-Taxes, not the amount paid for uncompensated care generally.  No. 16-6269 Breckinridge Health, Inc., et al. v. Price Page 9 was not labelled as such. See Kindred Hospitals East, LLC v. Sebelius, 694 F.3d 924, 928 (8th Cir. 2012) (“Because there was a true reduction in [the plaintiff’s] costs incurred because of the pool, the payments it received from the pool looked like refunds, acted like refunds, and were appropriately treated as such, regardless of the label.”) d. Lastly, although Appellants insist that “[t]he Final Rule does not set out a blackletter rule that disbursements to providers must offset taxes associated with the disbursements,” Appellant Br. 13 (emphasis added), the Rule makes clear that, in determining the net amount of taxes incurred by a provider, the tax reimbursed should be reduced by the amount received associated with that tax. The Rule provides, in relevant part: In situations in which payments that are associated with the assessed tax are made to providers specifically to make the provider whole or partly whole for the tax expenses, Medicare should similarly recognize only the net expense incurred by the provider. Thus, while a tax may be an allowable Medicare cost in that it is related to beneficiary care, the provider may only treat as a reasonable cost the net tax expense; that is, the tax paid by the provider, reduced by payments the provider received that are associated with the assessed tax. 75 Fed. Reg. 50,363 (August 16, 2010). Appellants cling to the word “specifically” in the first sentence, maintaining that payments that are associated with the tax must be made specifically for the purpose of making the provider whole for the taxes paid in order for an offset to be appropriate. However, the subsequent sentence undermines that contention and clarifies that for a tax to be reduced by a separate payment, the payment need only be “associated with the tax.” Appellants set forth no meaningful argument that the DSH payments, derived from a fund consisting of the KP-Tax, is not “associated with” that tax. IV. For the aforementioned reasons, we AFFIRM. 

918 S.W.2d 605 (1996) Ronnie Lee ALLEN and Jackie N. Allen, Appellants, v. Edwin J.T. TOLON, M.D., Appellee. No. 11-95-269-CV. Court of Appeals of Texas, Eastland. February 22, 1996. *606 Benton Musslewhite, Houston, for appellants. Michael Feehan, Marguerite O'Connell, Nicole Andrews, Dunn, Kacal, Adams, Pappas & Law, Houston, for appellee. Before ARNOT, C.J., and DICKENSON and WRIGHT, JJ. DICKENSON, Justice. This medical malpractice claim was filed more than three years after the one-time examination of the patient by the doctor. The patient and his wife claim that the doctor was negligent in failing to diagnose cancer when the patient was examined by the doctor for rectal bleeding. The patient and his wife claim that this negligence was the proximate cause of damages which could have been prevented if the doctor had made a proper diagnosis or referral. The trial court granted summary judgment that the patient, Ronnie Lee Allen, and his wife, Jackie N. Allen, take nothing from Edwin J.T. Tolon, M.D. The summary judgment proof shows that Dr. Tolon examined the patient on only one occasion: May 15, 1991. The Allens' first lawyer sent a "notice of claim letter" to Dr. Tolon on August 28, 1992, but the lawsuit was not filed until July 10, 1994. We affirm. Statute of Limitations Section 10.01 of the Medical Liability and Insurance Improvement Act[1] specifically provides: Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided, this subchapter applies to all persons regardless of minority or other legal disability. (Emphasis added) Points of Error Appellants have briefed four points or error. They argue that the trial court erred in granting summary judgment for appellee because (Point One) a strict application of Article 4590i, section 10.01 would be unconstitutional under the "open courts" provision of the Texas Constitution; (Point Two) there was a genuine issue of material fact as to fraudulent concealment; (Point Three) there was a genuine issue of material fact as to whether appellants filed their lawsuit within two years after they should have discovered their causes of action under the Texas Deceptive Trade Practices-Consumer Protection Act; and (Point Four) there was a genuine issue of material fact as to whether their cause of action "could even have arisen" until they secured the services of an expert. *607 The "Open Courts" Provision Appellants cite that portion of TEX. CONST. art. I, § 13 which states that: "All courts shall be open, and every person for an injury done ... shall have remedy by due course of law." Our Supreme Court held in Neagle v. Nelson, 685 S.W.2d 11 (Tex.1985), that the two-year limitation period in Article 4590i, section 10.01 was unconstitutional under the "open courts" provision: [T]o the extent that it purports to cut off an injured person's right to sue before the person has a reasonable opportunity to discover the "wrong" and bring suit. See also LaGesse v. PrimaCare, Inc., 899 S.W.2d 43, 45 (Tex.App.—Eastland 1995, writ filed); Adkins v. Tafel, 871 S.W.2d 289, 294 (Tex.App.—Fort Worth 1994, no writ). The summary judgment proof before us shows that the patient and his wife discovered their claim for medical malpractice more than a year before the limitations period expired; consequently, the two-year statute of limitations in Article 4590i, section 10.01 does not violate the "open courts" provision of the Texas Constitution. Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987), makes it clear that: This statute adopted an absolute two-year limitations period and abolished the "discovery rule" in health care liability claims. See also LaGesse v. PrimaCare, Inc., supra; Adkins v. Tafel, supra. The first point of error is overruled. Fraudulent Concealment There is no summary judgment proof of any fraudulent concealment, and the patient and his wife had the burden of supporting their allegation of fraudulent concealment with summary judgment proof. Nichols v. Smith, 507 S.W.2d 518, 520 (Tex.1974); Warner v. Sunkavalli, 795 S.W.2d 326, 328 (Tex. App.—Eastland 1990, no writ). Appellants refer to entries dated May 15, 1991, on the doctor's chart for Ronnie Allen. That chart was attached to the doctor's motion for summary judgment, and it showed: Pt complains of rectal bleeding. After exam it was noted pt has external Hemorrhoids. Dr. recommends further test Pt doesn't at this time want test. (no money) Pt was encouraged to do routine sigmoidoscopy.... Anusol supp. 1 at Bedtime return if bleeding continues[2] Appellants also refer us to Ronnie Lee Allen's affidavit which was attached to their response to the doctor's motion for summary judgment. That affidavit states in relevant part: I went to Dr. Edwin J.T. Tolon on May 15, 1990 (sic) and Dr. Tolon examined me, he recognized that I had problems in colon rectal area but he failed to test me as he should have and he failed to refer me to anyone to perform any tests.... Someone told me in August of 1992 that if Dr. Tolon had run tests upon me when he first examined me it may have prevented my colostomy. About this time I went to see a lawyer. He told me that he could not pursue my case because he could not determine whether I had a cause of action without consulting an expert witness. He explained to me that he was required to have an expert witness under the medical malpractice statute in order to file suit upon my behalf. Sometime between March and May of 1994 I was discussing my problem with Ms. Gloria Chaplin and she told me to contact Mr. Benton Musslewhite because he handles medical malpractice suits when other lawyers refuse to handle the cases. I did not discover that I had a cause of action against Dr. Tolon until I met with Mr. Musslewhite in 1994.... Mr. Musslewhite then sent out a notice letter and filed suit. (Emphasis added) This summary judgment proof does not raise a fact issue on fraudulent concealment. As noted above, the "discovery rule" was abolished *608 by Article 4590i, section 10.01. The second point of error is overruled. Deceptive Trade Practices Appellants argue that their claims under the Deceptive Trade Practices-Consumer Protection Act, TEX. BUS. & COM. CODE ANN. § 17.41 et seq. (Vernon 1987 and Supp.1996) are not barred because of the "discovery rule" provided by Section 17.565. However, we note that appellants have no claim under the Deceptive Trade Practices-Consumer Protection Act because of the provision in Article 4590i, section 12.01(a), which clearly states: Notwithstanding any other law, no provisions of Sections 17.41-17.63, Business & Commerce Code, shall apply to physicians or health care providers as defined in Section 1.03(3) of this Act, with respect to claims for damages for personal injury or death resulting, or alleged to have resulted, from negligence on the part of any physician or health care provider. The third point of error is overruled. Cause of Action—Expert Witness Finally, appellants argue that there is a genuine issue of material fact as to whether their cause of action against the doctor "could even have arisen" until they secured the services of an expert witness. We disagree. It is true that a patient cannot prevail against his doctor for malpractice, either in diagnosis or treatment, unless he "proves by a doctor of the same school of practice as the defendant" that the diagnosis or treatment complained of was negligent and that it was a proximate cause of the injuries. See Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949). This requirement of proof does not toll the statute of limitations. See and compare LaGesse v. PrimaCare, Inc., supra; Adkins v. Tafel, supra. Appellants also refer to Section 13.01 of Article 4590i. This section requires a patient, not later than the 90th day after the date the claim is filed, to either file "an expert report" or file a cost bond for each physician or health care provider who has been sued. This requirement does not toll the statute of limitations. It does not prevent the filing of the lawsuit. The fourth point of error is overruled. The judgment of the trial court is affirmed. NOTES [1] This act is codified at TEX.REV.CIV.STAT. ANN. art. 4590i (Vernon Pamph.1996). [2] We will disregard those portions of the medical records which show that further tests were suggested to the extent that they conflict with the patient's summary judgment proof. We have viewed the summary judgment proof in the light most favorable to the non-movant's version of the facts.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-2242 FREDERICK LEWIS, Plaintiff - Appellant, v. JEFFERY L. NEWTON, CJM; WALTER J. MINTON; JOAN LAFLAND; PAULA MCKENZIE, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Senior District Judge. (3:14-cv-00431-JRS) Submitted: July 31, 2015 Decided: September 24, 2015 Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Mark J. Krudys, THE KRUDYS LAW FIRM, PLC, Richmond, Virginia, for Appellant. Carlene Booth Johnson, PERRY LAW FIRM, Dillwyn, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Frederick Lewis filed a civil action against various officials and staff at Riverside Regional Jail in Prince George County, Virginia, alleging claims under 42 U.S.C. § 1983 (2012) for Eighth Amendment and due process violations, as well as a Virginia state law claim for false imprisonment. The district court granted Defendants’ motion to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(6), finding that Defendants were entitled to qualified immunity and that Lewis’ claims otherwise failed as a matter of law. On appeal, Lewis challenges the court’s consideration of records appended to the motion to dismiss. A district court is required to consider documents incorporated into the complaint, Cozzarelli v. Inspire Pharms. Inc., 549 F.3d 618, 625 (4th Cir. 2008), and documents attached to a motion to dismiss that are integral to and relied on in the complaint, Zak v. Chelsea Therapeutics Int’l, Ltd., 780 F.3d 597, 606-07 (4th Cir. 2015). In addition, a court may take judicial notice of matters of public record in considering a motion to dismiss. Sec’y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007). Therefore, the district court did not err in considering the documents provided by the parties. Our review of the record also confirms that, in declining to release Lewis earlier, Defendants acted reasonably, as a 2 matter of law, in response to the ambiguous and changing information provided by the state courts. We therefore conclude that the district court appropriately dismissed Lewis’ action. Accordingly, we affirm the district court’s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 3 

177 Kan. 225 (1954) 277 P.2d 594 GAYLENE SHANKS, a Minor, by M.K. SHANKS, as the Natural Guardian and Next Friend of Said Minor, Appellant, v. LUCILLE GILKINSON, Appellee. No. 39,542 Supreme Court of Kansas. Opinion filed December 11, 1954. Evart Garvin, of St. John, argued the cause, and Robert Garvin and Morris Garvin, both of St. John, and Hubert B. Sanders, of Stafford, were with him on the briefs for the appellant. S.R. Blackburn, of Great Bend, argued the cause, and Tudor W. Hampton and Jerry M. Ward, both of Great Bend, were with him on the briefs for the appellee. The opinion of the court was delivered by PARKER, J.: This was an action to recover damages for personal injuries sustained by the plaintiff while riding as a passenger in the defendant's automobile. The appeal is from an order sustaining a demurrer to the petition. *226 The petition sets out the facts on which the propriety of the ruling on the demurrer depends and should be quoted at some length. For present purposes it suffices to recite only those allegations governing the question whether the guest statute (G.S. 1949, 8-122b) has application. So limited such pleading, which we pause to note contains allegations clearly sufficient to state a cause of action for ordinary negligence as distinguished from gross and wanton negligence, reads: "... That the plaintiff Gaylene Shanks was born December 22, 1940, and is now 12 years of age. That M.K. Shanks is the father, natural guardian and next friend of said minor. "That the defendant Lucille Gilkinson was at all times hereinafter mentioned employed as Home Demonstration Agent of Stafford County, Kansas, by the Stafford County Agricultural Extension Council. That a part of the duties of the said Lucille Gilkinson, as Home Demonstration Agent of Stafford County, Kansas, consists of sponsoring, working with, and assisting 4-H Clubs of Stafford County, Kansas, and the members of the various 4-H Clubs of Stafford County. That the said Lucille Gilkinson, as Home Demonstration Agent of Stafford County, requested the Plaintiff Gaylene Shanks to attend a 4-H Club Camp to be held and conducted at Hays, Kansas, on June 4, 1952. That prior to June 4, 1952, the said Lucille Gilkinson contacted the said Plaintiff Gaylene Shanks, together with her parents M.K. Shanks, her father, and Eva Mae Shanks, her mother, and requested that the said Gaylene Shanks attend the 4-H Club Camp at Hays, Kansas, and advised the plaintiff and her parents that if the said Plaintiff Gaylene Shanks was permitted to attend the said 4-H Club Camp at Hays, Kansas, that the said Lucille Gilkinson, as Home Demonstration Agent of Stafford County, would sponsor and chaperon the said Gaylene Shanks, together with other 4-H Club members of Stafford County attending said camp; and further informed and advised the said parents of said plaintiff and the said plaintiff, that the said Lucille Gilkinson would furnish transportation for the said Gaylene Shanks from the court house at St. John, Kansas, to the 4-H Club Camp at Hays, Kansas, and return. "Plaintiff further alleges that a part of the duties of the said Lucille Gilkinson, as Home Demonstration Agent of Stafford County, consisted in procuring members of the various Stafford County 4-H Clubs to attend the 4-H Club Camp meetings, and particularly the 4-H Club Camp meeting at Hays, Kansas, to be held on June 4, 1952; and that her duties further consisted of accompanying and sponsoring the members of various Stafford County 4-H Clubs in the attendance of said meetings, including the Plaintiff Gaylene Shanks as a member of the Corn Valley 4-H Club. That a part of the duties of the said Lucille Gilkinson, as Home Demonstration Agent of Stafford County, Kansas, consisted of furnishing transportation in her automobile to 4-H Club members of Stafford County attending 4-H Club Camps, including the 4-H Club Camp at Hays, Kansas; and, that in addition to the salary received by the said Lucille Gilkinson, the said Lucille Gilkinson was paid mileage by the Stafford County Agricultural Extension Council for transportation of Stafford County 4-H Club members *227 from St. John, Kansas, to the said 4-H Club Camp at Hays, and return from said camp to St. John, Kansas. That the mileage paid by the said Stafford County Agricultural Extension Council to the said Lucille Gilkinson included compensation and payment for the transportation of the Plaintiff Gaylene Shanks to the said 4-H Club Camp at Hays, Kansas, and return to St. John, Kansas. Plaintiff further alleges that for the month of June 1952 the Defendant Lucille Gilkinson received her salary as Home Demonstration Agent of Stafford County, Kansas, together with mileage compensation for transportation of the plaintiff together with other 4-H Club members of Stafford County, Kansas, as above set forth. "Plaintiff alleges that on June 4, 1952, the Plaintiff Gaylene Shanks was brought to the Stafford County Court House at St. John, Kansas, by her mother Eva Mae Shanks, where she was met by the said Defendant Lucille Gilkinson and placed in the care of the said Lucille Gilkinson for the purpose of being transported by her, all as hereinbefore set forth, to the 4-H Club Camp meeting to be held at Hays, Kansas, on said day. That the said Defendant Lucille Gilkinson took the said plaintiff together with three other members of Stafford County 4-H Clubs into the automobile owned by the said defendant, and on said date left the City of St. John, Kansas, enroute to Hays, Kansas, for the purpose of attending the said 4-H Club Camp meeting at Hays, Kansas, all as hereinbefore set forth ..." (Emphasis supplied.) Following the filing of the foregoing petition defendant moved to make it more definite and certain by setting out the facts having to do with mileage alleged to have been paid her by Stafford County in connection with her duties as Home Demonstration Agent and by stating whether in using her automobile on the particular trip in question she would receive the same mileage regardless whether she had taken passengers, including the plaintiff. This portion of the motion was overruled by the trial court and we think properly so. Another paragraph of the same motion moved to strike out certain allegations of the petition with respect to negligence with which we are not now concerned except to say that it was overruled. It appears that somewhere along the line the petition was amended but the record before us fails to disclose the amendment or how it was made. In any event the matter is of no consequence to the issues and is mentioned here solely for the purpose of showing it was not overlooked; and as a reason for continued reference to the involved pleading as the petition. Without further attack on portions of the pleading now under consideration defendant demurred to the petition on the ground it failed to state facts sufficient to constitute a cause of action. At first this demurrer was overruled. Approximately a month later, and on its own motion, the trial court set aside its former *228 ruling and sustained such demurrer. Thereupon plaintiff perfected the instant appeal. In a general way it may be stated there is no conflict between the parties regarding the primary issue involved on appellate review. All contentions advanced respecting such issue revolve around the provisions of G.S. 1949, 8-122b which reads: "That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle." Boiled down and stripped of all excess verbiage appellee's arguments are to the effect the allegations of the petition from which we have quoted are of such character as to compel the conclusion appellant was a guest, within the meaning of that term as used in the foregoing statute. On the other hand appellant contends the allegations of the petition, are such as to preclude application of, or bring her within the scope of such statute. The reason for the positions taken by the respective parties, although not here important or decisive of the issue, are obvious. If the statute has no application, as appellant contends, it is clear from an examination of the entire pleading she has pleaded facts sufficient to state a cause of action based on ordinary negligence. If, as appellee contends, those facts establish appellant was a guest in the automobile at the time of the accident in question it must be conceded there is grave doubt as to whether allegations of the petition are sufficient to establish the gross and wanton negligence required to recover under such statute. In approaching a decision of the all decisive issue raised by the parties it must be remembered that a demurrer admits all facts well pleaded by the opposing party and should not be sustained unless in the face of the admitted facts it clearly appears the pleader has failed to state a cause of action. In the instant case, since the portion of the motion directed at allegations of the petition relating to application of the guest statute was properly overruled, the admitted facts must be favorably construed and given the benefit of all inferences. See, e.g., Moffet v. Kansas City Fire & Marine Ins. Co., 173 Kan. 52, 244 P.2d 228; Morris v. Dines Mining Co., 174 Kan. 216, 223, 256 P.2d 129; Roehrman v. D.S. & O. Rural Electric Cooperative Ass'n, 174 Kan. 498, 503, 256 P.2d 872; *229 Emrie v. Tice, 174 Kan. 739, 258 P.2d 332; Donie v. Associated Co., Inc., 176 Kan. 95, 100, 268 P.2d 927. Reviewing allegations of the petition heretofore quoted in the light of the rules to which we have previously referred we do not believe it will add anything to the body of our law or serve any useful purpose to labor the allegations of such pleading. It suffices to say that when carefully analyzed such allegations, particularly those emphasized, charge in clear and concise language that by previous arrangement the mileage to be paid appellee by the Stafford County Agricultural Extension Council for the trip in question included compensation and payment for the transportation of the appellant to the 4-H Club Camp at Hays, also that appellee accepted and received mileage compensation from such Council for transporting appellant in her automobile on the date of the accident. Accepting, as we must, those well pleaded facts as true we have no difficulty in concluding that appellant was not a guest, within the meaning of that term as used in the guest statute, on the date in question and that therefore, since other allegations of the petition were sufficient to charge ordinary negligence, the trial court erred in sustaining the demurrer to the petition. In reaching the foregoing conclusion we have purposely refrained from discussing or attempting to apply divers cases relied on by the parties which may have some bearing on their respective rights if and when this case is tried upon its merits. All we here hold is, that under the allegations of the petition when accepted as true, appellee was to receive pay on the date in question for transporting appellant in her automobile and that in that situation appellee cannot be heard to say appellant was her guest, within the meaning of that term as used in the statute, at the time of such accident. The order and judgment of the trial court in sustaining the demurrer to the petition is reversed with directions to set such order and judgment aside.

976 F.2d 726 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Michael MCNATT, Plaintiff-Appellant,v.John COLEY; Thurmond Lee, Defendants-Appellees. No. 92-6603. United States Court of Appeals,Fourth Circuit. Submitted: August 31, 1992Decided: September 18, 1992 Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (CA-91-579-CRT-BO) Michael McNatt, Appellant Pro Se. Neil Clark Dalton, North Carolina Department of Correction, Raleigh, North Carolina, for Appellees. E.D.N.C. Affirmed. Before SPROUSE and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge. OPINION PER CURIAM: 1 Michael McNatt appeals from the district court's order denying relief under 42 U.S.C. § 1983 (1988). Our review of the record viewed in a light most favorable to McNatt does not indicate that the appellees were deliberately indifferent to any of McNatt's medical needs. See Estelle v. Gamble, 429 U.S. 97 (1976). Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. AFFIRMED

167 A.2d 606 (1961) Leona Gallagher ROMMEL, Appellant, v. WEST AMERICAN INSURANCE COMPANY, Appellee. No. 2679. Municipal Court of Appeals for the District of Columbia. Submitted January 16, 1961. Decided February 8, 1961. *607 Hyman J. Cohen, Washington, D. C., for appellant. Paul J. Sedgwick and Frederick H. Livingstone, Washington, D. C., for appellee. Before HOOD and QUINN, Associate Judges, and CAYTON (Chief Judge, Retired) sitting by designation under Code § 11-776(b). CAYTON, Acting Judge. This was an action against an insurance company on an agreement of compromise. Judgment was for defendant and this appeal followed. In a memorandum opinion the trial court stated the facts as follows: "Plaintiff was injured in Virginia while a guest in an automobile of one, Rommel, in December of 1956. Settlement negotiations were carried on over a period of almost two years during which time no agreement was reached, and during which time the insurance company dealt with plaintiff as Leona P. Gallagher. In July, 1958, an adjuster went to her place of business, where she was known as Mrs. Gallagher, and an agreement was reached under which for $675.00 plaintiff would settle her claim in full. As the adjuster prepared a form of release, Mrs. Gallagher advised him that her name was Leona Gallagher Rommel and that she had married the company's insured on August 17, 1957, almost a year before the disputed negotiations. This was the first time the insurance company knew of the marriage and the adjuster immediately declined to go forward with the settlement." The court also stated: "The evidence showed that the plaintiff was Mrs. Leona P. Gallagher at the time of the accident, out of which her claim arose; that she was at that time and still is engaged actively in business in which, for reasons of convenience, she continued to use the name of Gallagher after she had married Rommel. On the basis of the testimony, the Court is convinced that there was no fraud in her failure to reveal her marriage to Rommel until the adjuster was in the process of writing out a release pursuant to the agreed settlement." But the court held that the mere innocent failure to reveal her marital status vitiated the otherwise valid contract of settlement. This case was here before on appeal from a summary judgment in favor of defendant insurance company. Rommel v. West American Insurance Company, D.C. Mun.App., 158 A.2d 683, 685. Holding among other things that the law favors the settlement of controversies we reversed, and referring to defendant's claim that there was no consideration for the agreement (because a married woman may not sue her husband in tort), we said: "A valid compromise of a claim does not require that the claim be valid. Usually it is a disputed claim, and release of a claim may be sufficient consideration even though the claim is without merit." We held that the mere fact that Mrs. Rommel did not make disclosure of her marriage did not constitute fraud as a matter of law; that if her silence concerning her *608 marriage was a deliberate concealment intended to induce the company to make settlement with her, it would be a fraud which would vitiate the contract; but that on the other hand, if her failure to disclose her marriage was innocent and free from intent to misrepresent, then there was no fraud. We now review the situation in the light of the facts presented at the trial. Fraud plays no part here, for the trial judge specifically ruled that there was no fraud in appellant's failure to reveal that she had married Rommel. The judge referred to it as an "innocent failure to reveal this material fact" and ruled that it vitiated the compromise agreement which was otherwise valid. We cannot agree with that view. Assuming arguendo that appellant's marital status was a material fact,[1] there was no evidence whatever to indicate any attempt at concealment. Thousands of married women use their single names (and even assumed names) in an entirely legitimate way for business or professional reasons. That was the situation here. There was no evidence that appellant hid anything from the insurance company. She told the adjuster her married name when the time came for signing a release and receiving a check. In our earlier opinion we mentioned that as far as the record showed, appellant had no legal advice during her negotiations with the insurance company and was unaware of the legal consequences of her marriage upon her tort claim. The same is true of the trial record which is now before us. The negotiations were apparently between her and the insurance adjuster who was at least as sophisticated as she in such matters. There was no evidence to suggest any overreaching on her part or any conduct calculated to induce a settlement by deceit. Based on the evidence and on what we have said above, as well as in our earlier opinion, we conclude that it was error to deny recovery in this case. Reversed with instructions to enter judgment for plaintiff. NOTES [1] In our earlier opinion we cited a number of decisions reflecting the fluidity of the law on this subject.

601 F.2d 972 UNITED STATES of America, Appellee,v.Lorin Hugh SMITH, Appellant. No. 79-1056. United States Court of Appeals,Eighth Circuit. Submitted May 17, 1979.Decided July 27, 1979. Mark W. Peterson, Minneapolis, Minn., argued and on brief, for appellant. Richard E. Vosepka, Asst. U. S. Atty., Minneapolis, Minn. (argued), Andrew W. Danielson, U. S. Atty. and Paul C. Engh, Legal Intern, Minneapolis, Minn., on brief, for appellee. Before LAY, BRIGHT and HENLEY, Circuit Judges. BRIGHT, Circuit Judge. 1 Lorin Hugh Smith appeals from one of his three convictions for knowingly and intentionally possessing or distributing heroin, in violation of 21 U.S.C. § 841(a)(1) (1976). Smith was tried upon a three-count indictment charging him with distribution of approximately two and one-half grams of heroin on October 31, 1977 (count I), distribution of approximately six grams of heroin on November 3, 1977 (count II), and possession with intent to distribute of approximately six grams of heroin, also on November 3, 1977 (count III). A jury found Smith guilty on all counts. The district court sentenced Smith to fifteen years' imprisonment on each count to be followed on each count by a three-year special parole term, all of the sentences to run concurrently. 2 Smith appeals only the conviction on count III, which he alleges rests upon insufficient evidence. The Government contends that it presented ample evidence to sustain that conviction but also suggests that this court need not hear the merits of the appeal, because the count III sentence runs concurrently with the sentences on the unchallenged convictions and reversal of the count III conviction will not affect the terms or conditions of Smith's punishment. We apply the concurrent sentence doctrine and decline to hear the merits of the appeal. 3 Under concurrent sentence doctrine, an appellate court may, in its discretion, decline to review the validity of a defendant's conviction where (a) the defendant has received concurrent sentences on plural counts of an indictment, (b) a conviction on one or more of those counts is unchallenged or found to be valid, and (c) a ruling in the defendant's favor on the conviction at issue would not reduce the time he or she is required to serve under the sentence for the valid conviction(s). United States v. Moore, 555 F.2d 658, 661 (8th Cir. 1977); United States v. Williams, 548 F.2d 228, 233 n. 16 (8th Cir. 1977); Sanders v. United States, 541 F.2d 190, 193 (8th Cir. 1976). A reviewing court will not, however, apply the concurrent sentence rule "in cases where its application would be substantially prejudicial to a defendant or expose him to a substantial risk of adverse collateral consequences that might flow from an invalid but unreversed conviction." Sanders v. United States, supra, 541 F.2d at 193.1 4 Here Smith asserts that application of the concurrent sentence rule would be inappropriate because, under the regulations governing parole release decisions, he faces more lengthy incarceration if the count III conviction is allowed to stand than if it were overturned. Upon a careful examination of the record and of the applicable Parole Commission regulations, we conclude that the conviction and sentence on count III in fact impose no additional penalty upon Smith. 5 Smith faces concurrent sentences to definite fifteen-year prison terms for his convictions on counts I and II, which he does not challenge on this appeal, with additional special parole terms not material here. Under 18 U.S.C. § 4205(a) (1976), Smith must serve at least five years, one-third of those concurrent prison terms, before becoming eligible for parole.2 Smith's additional conviction and concurrent fifteen-year sentence on count III will not affect his parole eligibility under the statute. 6 In addition to the above statutory rule bearing on the length of Smith's incarceration, the United States Parole Commission has promulgated guidelines purporting to establish an objective system for determining the release date of a given federal prisoner. See 44 Fed.Reg. 26542 Et seq. (1979), to be codified in 28 C.F.R. § 2.20 (Parole Commission Final Rules). The Parole Commission's use of these guidelines, in effect, amounts to a deferred sentencing decision in which the "normal" range of time an offender should actually serve before release on parole is numerically determined by reference to the guidelines table. The coordinates of this table consist of the characteristics of the offense, or "offense severity," and the offender's "salient factor score," a point system measure of the offender's rehabilitative potential. The offense severity rating establishes a minimum period of imprisonment which may be increased by the salient factor score. See Parole Commission Final Rules, Supra, 44 Fed.Reg. at 26543; Edwards v. United States, 574 F.2d 937, 942 (8th Cir.), Cert. dismissed, 439 U.S. 1040, 99 S.Ct. 643, 58 L.Ed.2d 700 (1978). 7 Under the current guidelines, the offense severity rating applicable to Smith's convictions depends upon the quantity of opiates (here, heroin) he possessed or sold. Thus, possession or sale of less than 1.0 grams of 100 percent pure heroin indicates "moderate" severity; less than five grams of pure heroin rates as "high" severity; between five and fifty grams of pure heroin equals "very high" severity; and more than fifty grams of pure heroin calls for the "greatest" severity rating. See Parole Commission Final Rules, Supra. 8 A laboratory analysis determined that the approximately two and one-half grams of "cut" heroin at issue in count I contained approximately 2.7 percent pure heroin, while the six grams at issue in count II consisted of approximately 8.5 percent pure heroin.3 Smith does not appeal from his convictions on these counts charging him with sale of a total of approximately 0.58 grams of pure heroin, placing him in the "moderate" offense severity category. 9 The Government failed to obtain possession of the six grams of presumably "cut" heroin at issue in count III, and no chemical analysis of that substance was performed. The record furnishes no reasonable means of estimating or inferring the amount of pure heroin in the count III substance.4 Therefore, the Parole Commission in determining offense severity cannot increase the total amount of heroin already established for counts I and II by any quantity of heroin from count III. 10 Finally, the Parole Commission's rules treat multiple offenses occurring within the brief span of days pertinent here as a single offense behavior for purposes of calculating an offender's salient factor score. See United States v. Holder, 560 F.2d 953, 956 (8th Cir. 1977).5 Thus, Smith's conviction on count III does not result in any increase in his salient factor score beyond the score based on counts I and II alone. 11 We conclude that allowing Smith's conviction on count III to stand will neither increase the amount of time he must serve under his sentences for the count I and II convictions nor cause him any adverse collateral consequences. Accordingly, we apply the concurrent sentence doctrine and decline to review the merits of Smith's conviction on count III. 12 HENLEY, Circuit Judge, concurring. 13 I agree that Smith's conviction on count III should stand, but I reach that conclusion on the merits of the case. 14 As Judge Bright's opinion reflects, the substance which was the subject of count III was never recovered and no chemical analysis of that substance was performed. In arguing that the evidence is insufficient to support conviction, defendant says also that while circumstantial evidence in some instances may be sufficient to support conviction, in this case there simply is not enough and that the government's key witnesses are not credible; that indeed their testimony contains inconsistencies. 15 We, of course, view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). 16 Without detailing the evidence, it suffices to say that the evidence shows (1) the price paid for the substance, which had the appearance of heroin, was high, (2) the possession and related sale were in clandestine circumstances, (3) there had been previous heroin transactions among the same parties including one earlier on the same day, (4) shortly after the sale defendant undertook to elude a police officer by driving at high speed through a residential neighborhood; (5) the witnesses Dowdy and Neumann identified the substance as heroin. 17 While it must be conceded that in some respects the testimony of Dowdy and Neumann was inconsistent, on the whole the evidence was adequate to convince the jury of the guilt of the defendant beyond a reasonable doubt. Cf. United States v. Atkins, 473 F.2d 308 (8th Cir.), Cert. denied, 412 U.S. 931, 93 S.Ct. 2751, 37 L.Ed.2d 160 (1973). 18 Thus, I would affirm. 1 The Sanders court further explained: In determining whether to apply the rule in a given case, the court should consider whether it was likely that evidence relevant to counts on which the defendant was improperly convicted affected the finding of guilt on another count or on other counts, and whether the fact that the defendant was convicted on plural counts affected the length of his sentence or the thinking of the sentencing judge on the question of whether or not the defendant should be placed on probation. The court should also consider whether an unreversed invalid conviction might be used as a "prior conviction" should the defendant be charged later under a recidivist criminal statute, and whether the plural but concurrent sentences are adversely affecting or are likely to affect adversely such things as the place or conditions of the defendant's confinement. (541 F.2d at 194.) 2 18 U.S.C. § 4205(a) provides in pertinent part: (a) Whenever confined and serving a definite term or terms of more than one year, a prisoner shall be eligible for release on parole after serving one-third of such Term or terms * * * . (Emphasis added.) 3 The record discloses that pure heroin almost invariably is greatly diluted by combination with a biologically neutral "cutting agent" prior to street sale 4 As already noted, different samples of cut heroin possessed by Smith on occasions only a few days apart contained widely varying percentages of pure heroin. In addition, the record discloses that the prices of these samples bore no systematic relation to their heroin content 5 (T)he salient factor score, which is also used in assessing a prisoner's eligibility for parole, establishes a point rating based in part on the offender's number of prior convictions. Multiple offenses are considered as a single conviction, for rating purposes, where the various counts arise from a single offense behavior. For example, when a defendant is convicted of several heroin sales occurring within a limited time period, say two months, those offenses are treated as a single behavior and rated as a single conviction. (United States v. Holder, supra, 560 F.2d at 956 (emphasis added) (footnote omitted).)

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 M. LEONE MATTHEWS, 8 Petitioner-Appellee, 9 v. NO. 31,252 10 STEPHEN M. JONES, 11 Respondent-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 13 John F. Davis, District Judge 14 William M. Mast 15 Bernalillo, NM 16 for Appellee 17 Stephen M. Jones 18 Kayenta, AZ 19 Pro Se Appellant 20 MEMORANDUM OPINION 21 WECHSLER, Judge. 22 Stephen M. Jones (Appellant) appeals the district court’s denial of his motion 23 to set aside decree of dissolution of marriage and motion to divide undivided  1 community property. On August 11, 2011, this Court filed a notice of proposed 2 summary disposition proposing to affirm the district court. Appellant filed a 3 memorandum in opposition to proposed summary disposition, which we have duly 4 considered. We affirm the district court. 5 Appellant filed the motion to set aside the 2006 decree and divide property 6 pursuant to Rule 1-060(B) NMRA. [RP 36 ¶¶ 8-9] This rule states: 7 On motion and upon such terms as are just, the court may relieve a party 8 or his legal representative from a final judgment, order or proceeding for 9 the following reasons: 10 11 (1) mistake, inadvertence, surprise or excusable neglect; 12 (2) newly discovered evidence which by due diligence could 13 not have been discovered in time to move for a new trial under Rule 14 1-059 NMRA; 15 (3) fraud (whether heretofore denominated intrinsic or 16 extrinsic), misrepresentation or other misconduct of an adverse party; 17 (4) the judgment is void; 18 (5) the judgment has been satisfied, released or discharged, or 19 a prior judgment upon which it is based has been reversed or otherwise 20 vacated, or it is no longer equitable that the judgment should have 21 prospective application; or 22 (6) any other reason justifying relief from the operation of the 23 judgment. The motion shall be made within a reasonable time, and for 24 reasons (1), (2) and (3) not more than one-year after the judgment, order 25 or proceeding was entered or taken. 26 Our calendar notice proposed to interpret Appellant’s Rule 1-060(B) motion in 2  1 district court as invoking reasons (1), (2), or (3). Subparagraph (6) of Rule 1-060(B) 2 requires that motions based on reasons (1), (2) or (3) be brought within one year, 3 whereas Appellant’s Rule 1-060(B) motion was not filed until over four years after 4 the judgment. 5 Appellant’s memorandum in opposition asserts that the judgment was void due 6 to various purported defects in the district court’s actions. [MIO 4-5] Where a motion 7 is brought pursuant to Rule 1-060(B)(4) asserting that a judgment is void, the one-year 8 limitation does not apply, as a void judgment can be challenged at any time. See, e.g., 9 Eaton v. Cooke, 74 N.M. 301, 393 P.2d 329 (1964) (holding that there is no time limit 10 for appeal of judgment that is void for lack of jurisdiction). 11 Appellant does not specify why any of the purported defects in the district court 12 proceedings render the judgment void. He asserts, for example, that “[a]ffidavits and 13 documents submitted to prove a default order were misapplied and omitted necessary 14 and vital information regarding the character and disposition of the marital estate 15 including real and personal property” and further that “[t]here are elements of fraud. 16 [MIO 4 ¶ 4; MIO 5 ¶ 10] First, Appellant could have challenged these affidavits and 17 documents he questions in district court, had he entered an appearance in the action. 18 Second, to the extent that his arguments assert fraud, he could have brought a motion 19 for relief from the judgment within one year pursuant to Rule 1-060(B)(3). Third, as 3  1 the district court pointed out, where there is an allegation that the district court failed 2 to distribute property upon entry of a judgment of dissolution of marriage, relief may 3 be sought through an independent action brought pursuant to NMSA 1978, Section 4 40-4-20(A) (1993). [RP 135] Where Appellant pursued none of these three avenues 5 of relief from the purported errors, we fail to see any denial of due process that would 6 render the judgment void, nor does Appellant cite any authority for the proposition 7 that the judgment is void. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 8 1329, 1330 (1984) (stating that if appellant fails to cite supporting authority this court 9 will assume there is none). 10 For the reasons stated above and in our notice of proposed summary 11 disposition, we affirm the district court. 12 IT IS SO ORDERED. 13 _______________________________ 14 JAMES J. WECHSLER, Judge 15 WE CONCUR: 16 _______________________________ 17 CYNTHIA A. FRY, Judge 18 _______________________________ 4 1 MICHAEL E. VIGIL, Judge 5 

Order issued November 20, 2014 In The Court of Appeals For The First District of Texas ———————————— NO. 01-14-00767-CV ——————————— SHIRLEY LENOIR, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SHANA LENOIR AND CHRISTOPHER MCKNIGHT, INDIVIDUALLY AND AS NEXT FRIEND OF NAYLA MCKNIGHT, Appellants V. U.T. PHYSICIANS, Appellee On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2012-35806 MEMORANDUM ORDER OF DISMISSAL Appellants, Shirley Lenoir and Christopher McKnight, filed a notice of appeal on September 12, 2014, appealing from the trial court’s August 14, 2014 order granting Appellee U.T. Physician’s plea to the jurisdiction. On October 31, 2014, appellants filed “Appellants’ Unopposed Partial Dismissal of Appellee Insperity Peo Services, L.P.” No other party has filed a notice of appeal, and no opinion has issued. Further, although the certificate of conference in the motion indicates appellees could not be reached, more than 10 days have passed and no party has objected to the motion. See TEX. R. APP. P. 10.1(a)(5), 10.3(a). Accordingly, we GRANT the motion and ORDER that appellants’ appeal from the trial court’s order be dismissed as to appellees Insperity Peo Services, L.P.. See TEX. R. APP. P. 42.1(a)(1), 42.1(b). Appellants’ appeal remains pending as to appellee U.T. Physicians. It is so ORDERED. PER CURIAM Panel consists of Justices Keyes, Higley, and Brown. 2 

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 09a0223n.06 Filed: March 24, 2009 No. 07-1917 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ) v. ) On Appeal from the United States ) District Court for the Western LORNE EUGENE OSBORN, ) District of Michigan ) Defendant-Appellant. ) Before: BOGGS, Chief Judge; and GILMAN and ROGERS, Circuit Judges. BOGGS, Chief Judge. Lorne Osborn, having been deprived of his opportunity to appeal because of ineffective assistance of counsel, now takes a belated appeal as of right from his 2004 conviction for the manufacture of marijuana plants. He raises two alleged errors in his sentence, arguing that it should be vacated because the sentencing judge relied on acquitted conduct and because his sentence was imposed pursuant to the mandatory Guidelines scheme invalidated by United States v. Booker, 543 U.S. 220 (2005). In addition, he argues that should we vacate his sentence and remand for resentencing, we should also vacate the district court’s decision to run his sentence consecutively with an unrelated state sentence. Because we agree that the sentence violates the rule of Booker, we remand for the limited purpose of resentencing under the now advisory Guidelines. No. 07-1917 United States v. Osborn I In 2002, during the course of a lawful search of the residence shared by Osborn and Kraig Earl Roberts, police discovered 754 marijuana plants. Osborn eventually pled not guilty to the charge of manufacturing more than 100 marijuana plants. After a jury trial, he was found guilty of a lesser-included offense – the manufacturing of 50-99 marijuana plants. At sentencing, the district court calculated the initial offense level at 22, based on the total number of seized marijuana plants. Osborn, having two prior convictions for crimes of violence, was found to be a career offender, and the court accordingly increased his offense level by 10 and assigned him a criminal history category of VI. Under the then-mandatory guidelines, this offense level and criminal history carried a Guidelines range of 210 – 260 months of imprisonment. The court, explaining that it had “carefully considered the factors in 18 U.S.C. Section 3553,” sentenced Osborn to 210 months of imprisonment. The court imposed this bottom-of-the- Guidelines-range sentence because it did “not appear that much is accomplished by sentencing him to above the bottom of the guideline range.” At the time, Osborn had also been convicted and sentenced for an unrelated state offense that he committed after his arrest but prior to his federal conviction.1 Because his term of imprisonment for his state offense had not yet been discharged, Osborn argued that the sentences should run concurrently with each other. The court recognized that it had discretion under U.S.S.G. 1 Osborn was convicted in a Michigan court on July 18, 2002 for “Operating Under the Influence” and for “Resisting and Obstructing a Police Officer,” and sentenced to 38 to 60 months of imprisonment. He served 56 months on this sentence and is now in federal custody. -2- No. 07-1917 United States v. Osborn § 5G1.3(c) to run the federal sentence consecutively or concurrently to the state punishment in order to “achieve a reasonable punishment for the instant offense,” and decided that the sentences were to be consecutive. Osborn requested that his attorney file an appeal, but no papers were filed on his behalf after the notice of appeal. Some years later, Osborn petitioned the district court pro se under 28 U.S.C. § 2255, alleging ineffective assistance of counsel for failure to perfect his appeal. His original trial counsel admitted that he had failed to pursue Osborn’s appeal as requested. The district court granted the petition and gave Osborn leave to file an appeal. This appeal followed. II A Osborn concedes that under our decision in United States v. White, 551 F.3d 381 (6th Cir. 2008) (en banc), the sentencing court’s reliance on the total number of marijuana plants found (and not just the convicted conduct) was permissible. Accordingly, he now presses only his Booker claim. Under our case law, a sentence such as Osborn’s, imposed under the prior understanding that the Guidelines were mandatory, is plain error (Osborn failed to object below to the mandatory application of the Guidelines), and we presume that such an error affected the defendant’s substantial rights so as to entitle him to a new sentencing hearing under the now- advisory Guidelines regime. See United States v. Barnett, 398 F.3d 516, 525-28 (6th Cir. 2005). The government, however, can rebut the presumption of prejudice on a showing that “the trial record -3- No. 07-1917 United States v. Osborn contains clear and specific evidence that the district court would not have, in any event, sentenced the defendant to a lower sentence under an advisory Guidelines regime.” Id. at 529. The government acknowledges that this showing is not an easy one to make, but alleges that this is the rare case in which the record actually contains clear and specific evidence that the sentence would have been the same under an advisory regime. Specifically, the judge’s decision as to whether Osborn’s sentence was to run consecutive or concurrent with the federal sentence was, by law, based on the judge’s discretion in light of the § 3553(a) factors. See U.S.S.G. § 5G1.3(c). This is the same decision-making process a district court judge now uses to sentence a defendant under the advisory regime. Accordingly, the government argues that we should be confident that Osborn would have received the same sentence if the judge had understood that the Guidelines were not binding. We disagree. First, as seductive as the government’s reasoning may be, the proposition that an exercise of discretion against the defendant rebuts the prejudice presumption has been flatly rejected as insufficient to demonstrate that the court’s view of the Guidelines – later determined to be erroneous – did not affect the length of the sentence. See Barnett, 398 F.3d at 529 (holding that a “middle-of-the-range sentence . . . is insufficient to rebut the presumption that Barnett was prejudiced . . . .”); see also United States v. Hudson, 405 F.3d 425, 445 (6th Cir. 2005) (“As careful as the judge’s deliberations were, these reflections, offered at a time when the Guidelines were considered mandatory, do not constitution ‘clear and specific evidence’ that the judge would today . . . [impose the same] sentence . . . .”). Second, a bottom-of-the-range sentence like Osborn’s tends to bolster the presumption even where other portions of the record cut against resentencing -4- No. 07-1917 United States v. Osborn because it suggests an “even greater chance” that the district court would have imposed a lower sentence had it known that the Guidelines were advisory. United States v. Trammel, 404 F.3d 397, 402 (6th Cir. 2005). Third, the district court’s decision to run Osborn’s sentences consecutively was not parallel to post-Booker sentencing in an important way: it was made subsequent to and independent of the calculation of a mandatory Guidelines range. Cf. Oregon v. Ice, 129 S. Ct. 711, 717 (2009) (distinguishing between the imposition of a sentence for a discrete crime and the decision to run that sentence concurrently or consecutively with another sentence). Indeed, the application note to § 5G1.3 expressly distinguishes between the concurrent/consecutive decision and a downward departure that alters the length of a sentence. See U.S.S.G. § 5G1.3, comment. (n.3(E)) (“Unlike subsection (b), subsection (c) does not authorize an adjustment of the sentence for the instant offense . . . .”). Even on the best view of the government’s argument, then, we are in doubt as to whether the district court’s sentence was independent of its mandatory view of the Guidelines. In fact, the record contains ambiguity that cuts against a finding that the presumption has been rebutted. While it is clear that the sentencing judge understood his discretion to impose a “reasonable” sentence, he also emphasized in the course of exercising that discretion that the Guidelines were mandatory: “The punishment is what it is. The reasonable punishment under the guidelines will begin when he’s completed his [state] sentence . . . .” (emphasis supplied). This could be interpreted as an indication that the district court thought that the punishment mandated by the Guidelines should not be affected by the fact of a wholly unrelated state offense. Cf. Nelson v. United States, 129 S. Ct. 890, 892 (2009) (per curiam) (holding that it was error for a district court to presume a within-the-Guidelines sentence was reasonable). This reading finds additional support -5- No. 07-1917 United States v. Osborn in the district court’s explanation in support of the determination that it saw “no basis . . . to run this sentence concurrently.” Because arriving at a reasonable sentence from scratch is different from arriving at it by declining to find an otherwise mandated sentence unreasonable, the court’s conclusion that it was reasonable is likely a product of adhering to the Guidelines. See Hudson, 405 F.3d at 445. Even if this reading is ultimately incorrect and the sentencing court’s decision did approximate the post-Booker sentencing process, the plausibility of an interpretation that the court felt bound by the Guidelines defeats any claim that the record clearly and specifically establishes a lack of prejudice. Accordingly, we hold that Osborn’s sentence was plain error that affected his substantial rights and that he is entitled a sentence imposed under the proper, advisory Guidelines regime. B There is a dispute about what comes next. Specifically, the parties disagree over whether the sentencing hearing on remand should include a relitigation of the decision to run Osborn’s sentence consecutive to the unrelated state sentence. It should not. (For clarity, we underscore that the district court’s decision on that score was not in error, see United States v. Owens, 159 F.3d 221, 230 (6th Cir. 1998), and that it is not affected by our decision today.) Whatever sentence the district court imposes will therefore be consecutive to the (now discharged) state sentence. Nevertheless, Osborn also argues that the district court should be free to consider, in its application of the § 3553(a) factors, the fact that his federal sentence is consecutive to a state -6- No. 07-1917 United States v. Osborn sentence because it bears on the total length of his incarceration. We express no opinion as to the merit of the argument that a defendant’s unrelated state sentence affects the reasonableness of his federal sentence, but agree that the current sentencing scheme permits a district court to acknowledge the fact of an unrelated state sentence. To the extent that our admonition that “consideration of post- sentencing factors is incompatible with the limited scope of a Booker remand,” United States v. Keller, 498 F.3d 316, 324 (6th Cir. 2007) (emphasis supplied), bars the district court from considering Osborn’s time served, Osborn argues and we agree that the court need not do so in order to take into account the fact of a consecutive sentence (whether or not discharged). In short, as in other Booker remands that occurred before this case, the district court is to correct the Booker error and sentence Osborn, under an advisory guideline regime, to a reasonable sentence. See, e.g., United States v. Haynes, 468 F.3d 422, 426 (6th Cir. 2006) (“Remands ‘in light of Booker’ are concerned with sentencing . . . . ”); United States v. Settle, 414 F.3d 629, 632 (6th Cir. 2005) (“On [Booker] remand, the district court must impose a reasonable sentence that takes into account the sentencing factors set forth at 18 U.S.C. 3553(a), as well as the Sentencing Guidelines.”) III For the above reasons, we VACATE Osborn’s sentence and REMAND for resentencing consistent with this opinion and with the Supreme Court’s decision in Booker. -7- 

346 F.2d 123 David KING, Defendant, Appellant,v.UNITED STATES of America, Appellee. No. 6472. United States Court of Appeals First Circuit. May 28, 1965. Joseph S. Oteri, Boston, Mass., for appellant. Edward J. Lee, Asst. U.S. Atty., with whom W. Arthur Garrity, Jr., U.S. Atty., was on brief, for appellee. Before ALDRICH, Chief Judge, BREITENSTEIN,1 Circuit Judge, and GIGNOUX, District Judge. ALDRICH, Chief Judge. 1 The defendant having been found guilty by a jury of a narcotic offense, and having admitted, orally, that this made him a second offender, the court sentenced him forthwith as such without awaiting the government's written filing of a copy of his prior conviction pursuant to 26 U.S.C. 7237(c)(2). This rapidity was out of consideration for the defendant, so that he would not have to serve 'bad time' before the commencement of his minimum sentence. If it was error, any prejudice has been removed by the government's subsequent compliance with the statute. 2 The only question of moment is whether the grand and petit juries properly represented 'a cross-section of the community.' Thiel v. Southern Pacific Co., 1946, 328 U.S. 217, 220, 66 S.Ct. 984, 90 L.Ed. 1181. It appears by stipulation that the jury commissioners had made the omissions from the venire which we held not to be error in Gorin v. United States, 1 Cir., 1963, 313 F.2d 641, cert. den. 374 U.S. 829, 83 S.Ct. 1870, 10 L.Ed.2d 1052, and in Katz v. United States, 1 Cir., 1963, 321 F.2d 7, cert. den.375 U.S. 903, 84 S.Ct. 193, 11 L.Ed.2d 144, and some others in addition. Jurors were drawn from 29 cities and towns, including Boston. As to Boston, only, the list from which the commissioners selected had been compiled by the Boston election commissioners and apparently omitted all persons exempted from jury duty by the Massachusetts statute. Mass. G.L. c. 234 1. It omitted, accordingly, persons between the ages of 21 and 25, and over the age of 70, whom the federal statute would have included. 28 U.S.C. 1861. 3 The difference in viewpoint between ages 21 and 25 would not seem to us of any great significance. Nor would there seem to be any substantial effect upon the composition of a jury as a result of eliminating such persons over 70 as might be competent to stand duty. We regard it as highly speculative whether the decisional outlook of such excluded persons would be different than that of persons a mere few years older, or a few years younger. The mere fact that there might be fewer young persons on the jury, and fewer of the oldest, than the exact proportion of such persons existing in the community does not of itself make a jury nonrepresentative. Cf. Hoyt v. Florida, 1961, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118. In this particular case any consequences were particularly minimal, as the elimination of these two age groups has not been shown to have occurred other than from the Boston drawings. Even this has not been shown to have been deliberate. 4 The government, quite properly, points out that we need not reverse simply to impress upon the district court the inadvisability of accepting the Massachusetts jury exemptions as appropriate in the federal court. Cf. King v. United States, 8 Cir., 1948, 165 F.2d 408, cert. den. 334 U.S. 848, 68 S.Ct. 1499, 92 L.Ed. 1771. It calls our attention to the fact that the district court, upon discovery of this hiatus in the lists supplied by local authorities, has taken steps to assure that future juries will be drawn from the broader age bases. 5 The judgment of the district court will be affirmed. 1 By Designation

523 F.2d 891 13 Fair Empl.Prac.Cas. 441,10 Empl. Prac. Dec. P 10,407Emmet WINDSOR, Appellant,v.BETHESDA GENERAL HOSPITAL and Servicemaster HospitalCorporation, Appellees. No. 74-1980. United States Court of Appeals,Eighth Circuit. Submitted May 13, 1975.Decided Sept. 30, 1975. David A. Lang, St. Louis, Mo., for appellant. Stanley H. Chorlins, Clayton, Mo., for appellee, Bethesda General Hospital. Gerald D. Skoning, Chicago, Ill., for appellee, Servicemaster Hospital Corp. Before LAY, ROSS and WEBSTER, Circuit Judges. WEBSTER, Circuit Judge. 1 Emmet Windsor filed a complaint in the United States District Court for the Eastern District of Missouri alleging that the defendants, Bethesda General Hospital (Bethesda) and Servicemaster Hospital Corporation (Servicemaster), by whom he had been employed and supervised, respectively, had discriminated against him on account of his race and color, in violation of his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq., and 42 U.S.C. § 1981. The District Court granted defendants' motion to dismiss, holding that (1) the Title VII claim was concededly time barred1 and (2) no claim had been alleged under 42 U.S.C. § 1981.2 Because we conclude that a claim was alleged under 42 U.S.C. § 1981, we reverse and remand. 2 Taking plaintiff's well-pleaded facts as true, the following facts emerge as the basis of Windsor's § 1981 claim: 3 Windsor began working in the housekeeping department of Bethesda in 1970. His work was supervised by Servicemaster pursuant to a contract for janitorial and maintenance services existing between Servicemaster and Bethesda. 4 After a year's satisfactory service, Windsor was asked to take on a second job at another hospital, also under the supervision of Servicemaster. He did so, but was terminated from the second job after working for about one month. Windsor then filed a complaint with the Missouri Commission on Human Rights asserting that his discharge was on account of his race. 5 Thereafter, Windsor began to have difficulties with his supervisors at Bethesda, one of whom had overseen his work at the other hospital. He received verbal and written reprimands for poor quality work and for excess absenteeism, and was ultimately dismissed from his job for these reasons. Windsor was denied eligibility for unemployment compensation by Bethesda for several months following his discharge. 6 Shortly before he was terminated at Bethesda, Windsor, believing that the problems he was having with his supervisors were the result of unlawful racial discrimination, filed a second complaint with the Missouri Commission on Human Rights. This charge was forwarded to the Equal Employment Opportunity Commission, which found probable cause to believe that unlawful discrimination had occurred, but was unable to effect an acceptable conciliation agreement. Following receipt of a "right to sue" letter, Windsor filed this action in the District Court. See 42 U.S.C. § 2000e-5(f). 7 In a civil rights action, pleadings are to be liberally construed. Cody v. Union Electric, 518 F.2d 978, 979 (8th Cir. 1975); Cruz v. Cardwell, 486 F.2d 550, 551-52 (8th Cir. 1973); Escalera v. New York City Housing Authority, 425 F.2d 853, 857 (2d Cir.), Cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970); Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968); Barnes v. Merritt, 376 F.2d 8, 11 (5th Cir. 1967). Only where the plaintiff could prove no state of facts which could entitle him to relief is a district court warranted in granting a motion to dismiss. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Lewis v. Chrysler Motors Corp., 456 F.2d 605, 607 (8th Cir. 1972); Springfield Television, Inc. v. City of Springfield, 428 F.2d 1375, 1381 (8th Cir. 1970); Great Atlantic & Pacific Tea Co. v. Amalgamated Meatcutters and Butcher Workmen, Local No. 88, 410 F.2d 650, 652 (8th Cir. 1969). 8 In the case before us, plaintiff has set forth a valid cause of action under 42 U.S.C. § 1981,3 which we have held applicable to private actions for employment discrimination based upon race. Brady v. Bristol-Meyers, Inc., 459 F.2d 621, 622-23 (8th Cir. 1972); See Carter v. Gallagher, 452 F.2d 315, 325-26, 327-28 (8th Cir.), Cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972). In paragraphs 6 and 7 of his complaint, Windsor alleges (1) that defendants have enforced work rules and regulations unequally among black and white employees, (2) that he was discharged, in part, for being absent from work while white employees with similar or identical attendance records received only written warnings or a "second chance", and (3) that Bethesda refused to qualify him for eligibility for unemployment insurance, while white dischargees in similar situations were qualified for such benefits. Buttressed by factual allegations elsewhere in the complaint, each of these allegations is sufficient to withstand a motion to dismiss. Compare Forester v. California Adult Authority, 510 F.2d 58, 61 (8th Cir. 1975); Ellingburg v. King, 490 F.2d 1270, 1271 (8th Cir. 1974). 9 Because the District Court may have intended its order to be a grant of summary judgment under Fed.R.Civ.P. 12(c) or 56,4 we have examined the record to determine whether the applicable portions thereof could demonstrate the absence of a genuine issue remaining for trial.5 In order to meet this burden, defendants would have had to demonstrate conclusively that Windsor was not discriminated against because of his race. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The defendants sought to limit this burden by demonstrating through the plaintiff's own deposition that his § 1981 action was based entirely upon a claim of retaliation6 and that all other claims had been abandoned. The District Court accepted this assessment of the record, stating: 10 The language of § 1981 is quite clear that actions based upon retaliatory practices do not come within the limits of the statute. Tramble v. Converters Ink Company, 343 F.Supp. 1350, 1354 (N.D.Ill., 1972). 11 We do not reach the question of whether retaliation by employment discrimination is embraced within § 1981, because retaliation was but one form of discrimination alleged in the complaint. We do not find in plaintiff's deposition any basis for concluding that allegations of unequal enforcement of rules, disparate firing practices, and disparate handling of unemployment insurance were not genuine issues for trial. 12 Assuming, without deciding, that a plaintiff can be shown by his deposition to have abandoned a portion of his cause of action, we find no positive evidence of abandonment here. Windsor did state several times during his deposition that he felt he had lost his job at Bethesda in retaliation for the complaint he filed at the other hospital, Incarnate Word Hospital. Viewing his testimony as a whole, however, a reasonable man could interpret Windsor's remarks as meaning that the racial discrimination which was initiated at Incarnate Word continued at Bethesda when his former supervisor was transferred there. When reviewing the entry of summary judgment, we must resolve all inferences in favor of the non-moving party. United States v. Diebold, Inc.,369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). Applying this standard, we cannot say that Windsor had abandoned the well-pleaded allegations of racial discrimination in his complaint. See Longo v. Pittsburgh & L. E. R. R., 355 F.2d 443, 444-45 (3d Cir. 1966); Zirin Laboratories International, Inc. v. Mead-Johnson & Co., 208 F.Supp. 633, 634-35 (E.D.Mich.1962). Since genuine issues remain for trial, the motion, viewed as one for summary judgment, must likewise be denied. See 6 J. Moore, Federal Practice P 56.11(4), at 2194 (2d Ed. 1974). 13 In summary, we hold that the plaintiff has alleged claims for relief under 42 U.S.C. § 1981 which have not been abandoned and that dismissal was prematurely and improvidently ordered.7 The order of dismissal is vacated and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion. 1 At oral argument before the District Court, Windsor conceded that the action for violation of Title VII was not timely in that it had not been filed within the time period prescribed by statute. See 42 U.S.C. § 2000e-5(e). Windsor does not contest this holding 2 Defendants filed a motion to dismiss and for summary judgment. Although affidavits, exhibits, and a deposition on file were advanced and briefed by the parties, and apparently considered by the District Court, it would appear from the language of the order and the absence of a judgment that the District Court acted on the basis of a motion to dismiss. We reach the same result upon this record if we consider the action taken by the District Court to have been in the nature of summary judgment 3 42 U.S.C. § 1981 provides: Equal rights under the law All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 4 See note 2, Supra 5 "Summary judgment is an extreme remedy, one which is not to be entered unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances." Ozark Milling Co. v. Allied Mills, Inc., 480 F.2d 1014, 1015 (8th Cir. 1973). Accord, Saal v. Mielke, 492 F.2d 1184, 1185-86 (8th Cir. 1974); Rotermund v. United States Steel Corp., 474 F.2d 1139, 1143-44 (8th Cir. 1973); Luick v. Graybar Electric Co., 473 F.2d 1360, 1362-63 (8th Cir. 1973); Cervantes v. Time, Inc., 464 F.2d 986, 993 (8th Cir. 1972), Cert. denied, 409 U.S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257 (1973); Giordano v. Lee, 434 F.2d 1227, 1230-31 (8th Cir. 1970), Cert. denied, 403 U.S. 931, 91 S.Ct. 2250, 29 L.Ed.2d 709 (1971). In Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962), the Supreme Court set forth the standard that should be applied when one party to a lawsuit in federal court makes a motion for a summary judgment: Summary judgment should be entered only when the pleadings, depositions, affidavits, and admissions filed in the case 'show that (except as to the amount of damages) there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Rule 56(c), Fed.Rules Civ.Proc. This rule authorizes summary judgment 'only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, . . . (and where) no genuine issue remains for trial . . . (for) the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.' Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627 (64 S.Ct. 724, 728, 88 L.Ed. 967) (1944). 6 Paragraph 6(c) of the complaint alleges: The defendants have taken to reprisals against the plaintiff when he protested the discriminatory treatment. Such reprisals came in the form of the harassment, threats, and the unequal enforcement of rules, regulations, and policies. The end result of which was to facilitate the dismissal of plaintiff from employment with the defendants. 7 See note 2, Supra

T.C. Summary Opinion 2006-14 UNITED STATES TAX COURT KRISTIN J. CALITRI, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 22760-04S. Filed January 30, 2006. John C. Mullaney, for petitioner. Michael J. Proto, for respondent. DEAN, Special Trial Judge: This case was heard pursuant to the provisions of section 7463 of the Internal Revenue Code in effect at the time the petition was filed. Unless otherwise indicated, subsequent section references are to the Internal Revenue Code of 1986, as amended, and all Rule references are to the Tax Court Rules of Practice and Procedure. The decision to be entered is not reviewable by any other court, and this opinion should not be cited as authority.  - 2 - This matter is before the Court on petitioner’s Motion for Litigation and Administrative Costs filed pursuant to section 7430 and Rule 231.1 Respondent filed a response to petitioner’s motion. Respondent agrees that petitioner: (1) Has exhausted her available administrative remedies within the Internal Revenue Service (IRS); (2) has not unreasonably protracted the court proceedings; (3) has claimed a reasonable amount of costs; (4) has substantially prevailed with respect to the amount in controversy and with respect to the most significant issue presented in the court proceedings; and (5) has met the net worth requirements as provided by law. Respondent does not agree, however, that petitioner is a prevailing party, because he contends that his position in the court proceedings was substantially justified. The parties have not requested a hearing in this case and the Court concludes that a hearing is not necessary to decide this motion. See Rule 232(a)(2). Accordingly, the Court rules on petitioner’s motion based on the parties’ submissions and the record in this case. 1 Although petitioner’s motion is captioned Motion for Litigation and Administrative Costs, all of the costs sought in the motion are, by definition, litigation costs, because petitioner’s costs were incurred either in connection with the preparation or filing of the petition with the Court or after the filing of the petition with the Court. See sec. 7430(c)(1); sec. 301.7430-4(c)(3), Proced. & Admin. Regs. Therefore, the Court will treat petitioner’s motion as a motion for the recovery only of litigation costs.  - 3 - Background At the time the petition in this case was filed, petitioner resided in Warwick, Rhode Island. For the years in issue, petitioner was self-employed and operated a business called K.S. Gabrielle Interiors which provided the selection and installation of custom-made draperies, bedspreads, blinds, and floor coverings. As part of her business, petitioner maintained sample books for fabrics, blinds, and shades, as well as sample carpeting for display to customers. Petitioner’s daily routine included several visits to customers’ homes to provide, among other things, advice for selecting proper styles and colors, measurements, and price estimates. On November 18, 2003, respondent sent to petitioner an initial appointment letter, requesting her to meet with an examining agent on January 8, 2004. At the same time, respondent issued to petitioner a Form 4564, Information Document Request (IDR), which was directed at obtaining books and records that would substantiate petitioner’s cost of goods sold and business expenses claimed on her returns. On March 5, 2004, respondent forwarded to petitioner Form 872, Consent to Extend the Time to Assess Tax, and Publication 1035, Extending the Tax Assessment Period, requesting that petitioner agree to extend the period of limitations for respondent to assess the 2000 and 2001 taxes. In the absence of  - 4 - an extension, respondent’s earliest period of limitations would have expired on October 16, 2004. On June 29, 2004, respondent issued a statutory notice of deficiency for 2000 and 2001 after it was evident that petitioner would not consent to extend the period of limitations for 2000. Respondent determined deficiencies in petitioner’s Federal income taxes of $7,852.28 for 2000 and $2,090.63 for 2001. The statutory notice of deficiency included adjustments2 to petitioner’s tax returns, because she failed to substantiate her cost of goods sold and business expenses. On October 18, 2004, petitioner filed Form 1040X, Amended U.S. Individual Income Tax Return, for year 2000, to claim a dependency exemption deduction for her daughter, a child tax credit, and head of household filing status. Petitioner did not sign the Form 1040X, and she did not include any documentation to support her claims. Around November of 2004, petitioner retained John C. Mullaney as her attorney to file a petition with the Court and to represent her in the appeals process within the IRS. On November 29, 2004, petitioner filed a petition with the Court. The petition alleges that “Revenue Agent issued Statutory Notice of deficiency because taxpayer refused to extend statute of 2 The correct computation of petitioner’s self-employment adjusted gross income adjustments and self-employment taxes for 2000 and 2001 will be determined by the parties’ resolution of the issues of petitioner’s cost of goods sold and substantiation of business expenses.  - 5 - limitations. He would not accept any documentation to support deductions. [Eighty percent] of all deductions can be substantiated”. Moreover, petitioner contends in the petition that she was entitled to: (1) Head of household filing status, (2) a dependency exemption for her daughter, (3) an earned income credit, and (4) a child tax credit. On September 12, 2005, the parties submitted a stipulation of settlement, signed by the parties’ counsel, which reflects the resolution of petitioner’s Federal income tax liabilities for 2000 and 2001. Discussion Requirements Under Section 7430 Section 7430(a) authorizes the award of reasonable litigation costs incurred in a court proceeding which is brought by or against the United States in connection with the determination, collection, or refund of any tax, interest, or penalty under the Internal Revenue Code. The taxpayer must establish that the taxpayer: (1) Is the prevailing party, (2) has exhausted available administrative remedies, (3) has not unreasonably protracted the court proceedings, and (4) has claimed litigation costs that are reasonable. Sec. 7430(a) and (b)(1), (b)(3). A taxpayer must satisfy each of the respective requirements before litigation costs under section 7430 may be awarded. See Rule 232(e). Upon satisfaction of these requirements, a taxpayer  - 6 - may be entitled to reasonable costs incurred in connection with the court proceeding. Sec. 7430(a)(1) and (2), (c)(1). Respondent concedes that petitioner has established all of the requirements except for the requirement that petitioner be a prevailing party. To be a prevailing party, the taxpayer must substantially prevail with respect to either the amount in controversy or the most significant issue or set of issues presented, and satisfy the applicable net worth requirements under 28 U.S.C. section 2412(d)(2)(B)(2000). Sec. 7430(c)(4)(A). The taxpayer will nevertheless not be treated as a prevailing party if the Commissioner’s position in the court proceeding was substantially justified. Sec. 7430(c)(4)(B). The Commissioner has the burden of proving that his position was substantially justified. See sec. 7430(c)(4)(B)(i); Rule 232(e). Respondent concedes that petitioner has satisfied the requirements of section 7430(c)(4)(A). Respondent contends, however, that petitioner should not be treated as a prevailing party, because respondent’s position in the court proceeding was substantially justified. Substantial Justification The Commissioner’s position is substantially justified if, based on all of the facts and circumstances and the legal precedent relating to the case, the Commissioner acted reasonably. See Pierce v. Underwood, 487 U.S. 552 (1988);  - 7 - Anthony v. United States, 987 F.2d 670, 674 (10th Cir. 1993). The Commissioner’s position may be incorrect but nevertheless be substantially justified “if a reasonable person could think it correct”; that is, if the position has a “reasonable basis both in law and fact”. Pierce v. Underwood, supra at 566 n.2; Huffman v. Commissioner, 978 F.2d 1139, 1147 n.8 (9th Cir. 1992), affg. in part, revg. in part and remanding T.C. Memo. 1991-144; sec. 301.7430-5(c)(1), Proced. & Admin. Regs. A position has a reasonable basis in fact if there is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Pierce v. Underwood, supra at 564-565; Huffman v. Commissioner, supra. The relevant inquiry is “whether * * * [the Commissioner] knew or should have known that [her] position was invalid at the onset”. Nalle v. Commissioner, 55 F.3d 189, 191 (5th Cir. 1995), affg. T.C. Memo. 1994-182. The Court looks to whether the Commissioner’s position was reasonable given the available facts and circumstances at the time that the Commissioner took his position. See Maggie Mgmt. Co. v. Commissioner, 108 T.C. 430, 442-443 (1997); DeVenney v. Commissioner, 85 T.C. 927, 930 (1985). The fact that the Commissioner eventually loses or concedes a case does not by itself establish that the position taken is  - 8 - unreasonable. Estate of Perry v. Commissioner, 931 F.2d 1044, 1046 (5th Cir. 1991); Swanson v. Commissioner, 106 T.C. 76, 94 (1996); Sokol v. Commissioner, 92 T.C. 760, 767 (1989). It remains, however, a factor to be considered. Estate of Perry v. Commissioner, supra; Powers v. Commissioner, 100 T.C. 457, 471 (1993), affd. in part, revd. in part and remanded on another issue 43 F.3d 172 (5th Cir. 1995). The position of the United States that must be examined in light of the substantial justification standard with respect to the recovery of litigation costs is the position taken by the Commissioner in the answer to the petition. See Huffman v. Commissioner, supra at 1148; Bertolino v. Commissioner, 930 F.2d 759, 761 (9th Cir. 1991). In this case, no answer was filed since an answer is not generally required in a small tax case. See Rule 173(b). Respondent’s position has not changed between the issuance of the notice of deficiency and the time petitioner partially substantiated her claims. It is appropriate to look at the position maintained by respondent during the pendency of the case. See sec. 7430(c)(7)(A). Reasonable Basis in Fact Petitioner claims that respondent’s position is unreasonable because: (1) Petitioner was not given an opportunity during the audit to present documentation that would substantiate her cost  - 9 - of goods sold and business expenses, (2) respondent refused to proceed with the audit unless petitioner agreed to extend the period of limitations to assess the 2000 and 2001 income taxes, and (3) respondent failed to follow certain guidelines under Internal Revenue Manual pt. 4.10.2.2.2 (May 14, 1999), regarding when returns should be examined. The Court has reviewed a copy of respondent’s Examining Officer’s Activity Record (Activity Record), copies of petitioner’s correspondence with respondent, and other relevant evidence, and is persuaded that petitioner had numerous opportunities, prior to the issuance of the statutory notice of deficiency, to present documentation that would substantiate her cost of goods sold and business expenses. According to the Activity Record, petitioner requested and was granted a rescheduling of the initial January 8, 2004, meeting to February 3, 2004. On the day before the February 3, 2004, meeting, petitioner phoned and left a message with the examining agent to cancel the meeting. By letter dated February 13, 2004, petitioner requested a meeting “after the filing season ends April 15, 2004”, so that her accountant could review her records and prepare for the examination. The examining agent made numerous telephone calls to petitioner during the weeks of March 5, March 12, and March 29, 2004, to reschedule the meeting, but petitioner failed to return the calls. On March 26, 2004, respondent’s group manager left  - 10 - petitioner a voice message stating that a statutory notice of deficiency for 2000 and 2001 would be issued if petitioner failed to contact respondent by April 1, 2004. The examining agent made several more attempts to contact petitioner during the week of April 5, 2004. The Activity Record further indicates that on April 8, 2004, petitioner informed the examining agent by phone that she declined to extend the assessment period and that she wanted to schedule a meeting on May 3, 2004. This is corroborated by petitioner’s followup letter dated April 8, 2004, where she stated that both she and her accountant would be available on May 3, 2004, and that the additional time would give her accountant an opportunity to review her records as her accountant was not the original preparer of the returns. The examining agent agreed to a May 3, 2004, meeting. The Activity Record indicates, however, that petitioner appeared without her accountant on the date of the meeting. While petitioner could have produced the books and records requested by respondent at the May meeting, she did not do so. According to the Activity Record, petitioner told the examining agent that she needed 3 additional weeks to produce the books and records, because her accountant was on vacation. Respondent’s position in the statutory notice of deficiency of June 29, 2004, premised the adjustments primarily on petitioner’s lack of substantiation. Tax deductions are a matter  - 11 - of legislative grace with a taxpayer bearing the burden of proving entitlement to the deductions claimed. Rule 142(a)(1); INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992). Taxpayers bear the burden of substantiating the amount and purpose of any claimed deduction. See Hradesky v. Commissioner, 65 T.C. 87 (1975), affd. per curiam 540 F.2d 821 (5th Cir. 1976). Taxpayers are required to maintain sufficient records to establish the amounts of income and deductions. Sec. 6001; Higbee v. Commissioner, 116 T.C. 438, 440 (2001); sec. 1.6001-1(a), Income Tax Regs. It was reasonable for respondent to refuse to concede the adjustments until he had received and verified adequate substantiation for the items in question. See Harrison v. Commissioner, 854 F.2d 263, 265 (7th Cir. 1988), affg. T.C. Memo. 1987-52; Sokol v. Commissioner, supra at 765; Beecroft v. Commissioner, T.C. Memo. 1997-23; Simpson Fin. Servs., Inc. v. Commissioner, T.C. Memo. 1996-317; McDaniel v. Commissioner, T.C. Memo. 1993-148. Petitioner’s counsel met with respondent’s Appeals officer on March 8, 2005. He provided documentation to the Appeals officer to substantiate some of petitioner’s claimed business expense deductions and head of household filing status at the conference. Petitioner’s counsel, by letters dated March 9 and May 10, 2005, provided additional supporting documentation to substantiate some of petitioner’s remaining claims. The  - 12 - Appeals officer, after examining the documentation furnished, sustained some of the adjustments in the statutory notice of deficiency, but he conceded that petitioner was entitled to head of household filing status, a dependency exemption, and the earned income credit. The parties settled shortly thereafter. A significant factor in determining whether the position of the Commissioner is substantially justified as of a given date is whether, on or before the date, the taxpayer has presented “all relevant information under the taxpayer’s control and relevant legal arguments supporting the taxpayer’s position to the appropriate Internal Revenue Service personnel”. Sec. 301.7430- 5(c)(1), Proced. & Admin Regs. Most of the changes to petitioner’s adjustments were based on the Appeals officer’s determination that petitioner was entitled to head of household filing status, child dependency exemption and earned income credit. Petitioner did not raise any of these legal arguments or provide the relevant documentation to the examining agent while her returns were being examined. Therefore, respondent’s position was not unreasonable even though respondent eventually conceded that petitioner is entitled to certain deductions and credits. Petitioner alleges in her motion that respondent “refused to deal with [her]” unless she consented to an extension of the limitations period to assess taxes. As discussed above, respondent made numerous attempts to “deal” with petitioner,  - 13 - prior to the issuance of the statutory notice of deficiency. From the time when respondent sent petitioner the initial appointment letter in January 2004, to the time when the parties finally met in May 2004, petitioner had canceled two meetings and had established a history of not responding to telephone calls and document requests from respondent. Therefore, it was not unreasonable under the circumstances for respondent to issue a statutory notice of deficiency to avoid the expiration of the period of limitations when petitioner refused to consent to an extension. See Wasie v. Commissioner, 86 T.C. 962, 970-971 (1986); Chaum v. Commissioner, 69 T.C. 156, 163 (1977). Petitioner contends that it was respondent’s delay in commencing the audit that caused the shortage of time for examination. Petitioner further contends that respondent failed to adhere to the guidelines under Internal Revenue Manual pt. 4.10.2.2.2 (May 14, 1999), which provide that the examination and disposition of income tax returns is to be completed within 26 months for individual returns after the due date of the return, or the date filed, whichever is later. There is a rebuttable presumption of no substantial justification if the IRS “did not follow its applicable published guidance in the administrative proceeding”. Sec. 7430(c)(4)(B)(ii). “Applicable published guidance” is defined as “final or temporary regulations, revenue rulings, revenue procedures, information releases, notices, announcements, and if  - 14 - issued to the taxpayer, private letter rulings, technical advice memoranda, and determination letters”. Sec. 7430(c)(4)(B)(iv). The Internal Revenue Manual does not constitute “applicable published guidance”, because it is not among the IRS pronouncements enumerated under section 7430(c)(4)(B)(iv). Moreover, the provisions of the Internal Revenue Manual govern only the internal affairs of the IRS; they do not have the force and effect of law. Valen Manufacturing Co. v. United States, 90 F.3d 1190, 1194 (6th Cir. 1996); United States v. Horne, 714 F.2d 206, 207 (1st Cir. 1983). See generally Reich v. Manganas, 70 F.3d 434, 437 (6th Cir. 1995) (“Internal operating manuals * * * do not carry the force of law, bind the agency, or confer rights upon the regulated entity.”). Procedures in the Internal Revenue Manual do not confer rights on taxpayers. United States v. Horne, supra; United States v. Mapp, 561 F.2d 685, 690 (7th Cir. 1977). Accordingly, the fact that respondent did not complete his examination of petitioner’s returns within 26 months as recommended by Internal Revenue Manual pt. 4.10.2.2.2 (May 14, 1999), does not trigger a rebuttal presumption of no substantial justification pursuant to section 7430(c)(4)(B)(iv). The Court finds that respondent’s position on the substantiation issue was reasonable and sufficiently supported by the facts and circumstances in petitioner’s case and existing legal precedent. See Pierce v. Underwood, 487 U.S. 552 (1988).  - 15 - Petitioner is not a “prevailing party” within the meaning of section 7430(c)(4)(B), because respondent has established that his position is substantially justified. Accordingly, petitioner’s motion for litigation costs is denied. Reviewed and adopted as the report of the Small Tax Case Division. To reflect the foregoing, An appropriate order and decision will be entered. 

24 Cal.App.2d 681 (1938) VERA NEW, Appellant, v. MUTUAL BENEFIT HEALTH & ACCIDENT ASSOCIATION (a Corporation), Respondent. Civ. No. 5875. California Court of Appeals. Third Appellate District. February 2, 1938. W. Coburn Cook and Gilbert Moody for Appellant. Decoto & St. Sure for Respondent. Pullen, P. J. Vera New, appellant herein, the widow of Lavon B. New, together with the special administrator of the estate of New, deceased, brought this action against the Mutual Benefit Health & Accident Association, a corporation, to recover certain benefits under an insurance policy written by the defendant. Two causes of action are set out in the complaint. In the first the widow asks for the $2,000 death benefit provided by the policy. In the second cause of action the special administrator asks for disability and hospital benefits. Defendant interposed a general demurrer to each of the causes of action. The court sustained the demurrer to the first cause of action without leave to amend, and from the judgment upon that order, plaintiff Vera New has taken this appeal. The complaint discloses that on April 1, 1935, for a premium of $25 in advance, and $15 quarterly thereafter, defendant issued the policy here in question. The insured paid the advance premium of $25 upon delivery of the policy, and on May 1, 1935, paid the quarterly premium of $15. On June 23, 1935, the insured received bodily injuries through accidental means, which caused his death. The appellant sets forth in her complaint the policy sued upon, and claims that it contains a provision which attempts to limit the liability of the defendant in the event of loss of life within the first policy year, and alleges such provision to be without consideration, inequitable, and in violation of the laws of the state of California, in its contents, form, placement, and type. The policy provides as follows: "PART A. SPECIFIC LOSSES. If the insured shall, through accidental means, sustain bodily injuries as described in the Insurance Clause, which shall, independently and exclusively of disease and all other causes, immediately, continuously and wholly disable the Insured from the date of the accident and result in any of the following specific losses within thirteen weeks, providing in case of loss of life the policy shall then have been continuously in force more than *683 one year, the Association will pay: ... For Loss of Life ... $2,000.00 ..." To overcome the apparent limitation set forth above requiring that in case of loss of life the policy shall have been continuously in force more than one year, appellant alleges in paragraph VI of her complaint: "That said policy of insurance contains a provision unlawfully attempting to limit the liability of the defendant in the event of loss of life within the first policy year. That said provision was placed in said policy without consideration and in contravention of the laws of the State of California, of the terms of the policy, and of the express contract of the defendant and the insured whereby the latter paid a premium for insurance, as stated in the policy, against loss of life caused by accident within the period the said policy was in force. That said provision is inequitable, unjust, lacks mutuality, and is an attempted forfeiture of the benefit for loss of life with the forfeiture based upon the occurrence of the very event to which the benefit applies. That said provision does not comply with the laws of the State of California for policies of insurance in its contents, form, placement, nor type, and is void and does not provide an exception to the liability of the defendant." [1] Upon demurrer the trial court held that the foregoing paragraph VI stated only conclusions of law drawn from the policy itself, in that the only question the court was called upon to determine was whether the policy on its face was, as a matter of law, defective in the particulars alleged in said paragraph, and accordingly sustained the demurrer. The distinction between conclusions of law and statements of fact is at times difficult to distinguish. The difference between the two is stated in 21 California Jurisprudence, page 28, as follows: "Ultimate facts have been defined as the logical conclusion deduced from certain primary facts evidentiary in character, and conclusions of law are those presumptions or legal deductions which, the facts being given, are drawn without further evidence." Applying this definition to the paragraph in question, it would appear that the only proof that could be offered in support of the allegations of the foregoing paragraph would be the contract of insurance itself, which is made a part of the complaint. It would then appear that the allegations *684 in paragraph VI are questions of law which the court would have to determine from the law as applied to the policy and not from any evidence outside of the complaint. The rule applicable to such a pleading as here involved is stated in Miles v. McFarlane, 104 Cal.App. 513 [286 P. 507], to the effect that while the allegation of an asserted fact which is stated in the form of a conclusion would be sufficient in the absence of a special demurrer, it is inadequate when the recited facts upon which it depends fails to support the conclusion. There the allegation in regard to the reversion of title was based upon the assumption that it occurred "under the terms of the contract". The contract was made a part of the complaint and contained no provision for a forfeit or default in payment of instalments. The court then held that the complaint therefore failed to allege title or right of possession in the selling corporation. It would seem, therefore, that here the allegations of the complaint are insufficient in that it fails to state the ultimate facts. [2] Appellant next claims the provision in the policy is invalid as a matter of law. She contends that the assured lost his life by accident within the terms of the policy, and that the defendant refused to pay the indemnity solely because such loss of life occurred within the first policy year. This claim is based upon the construction placed upon the policy by the plaintiff that the policy covered the contingency of death occurring within the first year. However, an examination of the policy makes clear that the insured paid his premium for a policy of accident and health insurance for the first year, and that the company made no promise to pay for the loss of life during the first year, and expressly covered protection from loss by sickness or accident only and no more, during that specified period, the primary purpose being to pay to the insured specific benefits in the event of disability caused by reason of accident or disease, the death benefit being an incidental provision, and definitely by the terms of the policy not made effective during the first year. According to the interpretation of plaintiff the death benefit was the only protection in the policy, and she claims that inasmuch as this risk was not covered for the first year, the insured received nothing for his money. One has but to look at the policy, however, to find that during the year the assured was protected against the loss of one or both of his eyes, his hands, or his feet, as well as for the loss of time *685 through total or partial disability caused by accident or disease, and the benefit of hospitalization if such contingency arose. Observation and insurance practice teaches that persons who are about to engage upon duties more dangerous than those to which they have been formerly accustomed are likely to take out policies of insurance, which is one reason that insurance companies are justified in charging larger premiums for smaller risks during the first year of the policy than during the subsequent years. Plaintiff argues that under the policy the company could collect a large premium for the first year and then cancel the policy, thereby causing a loss to insured. But in consideration of the premium for the first year the insured received coverage for that year for loss due to sickness or accident, and if the policy should be canceled at the end of the first year he has received all of the protection for which he paid. [3] Plaintiff claims that the omission of the death benefit is an exception in the policy, but an examination of the policy itself seems to indicate that the provision for refusing to pay the death benefit in the first year is in the nature of an exclusion of a risk. Plaintiff also contends that the provision which limits recovery for death until the policy has been in force one year is void as it violates various provisions in the Insurance Code, and in particular the provisions of the Insurance Code sections 10360, 10310, 10390. Section 10360 provides that if a disability policy, issued in this state, shall contain a provision limiting the amount of indemnity to a sum less than the amount stated in the policy, such provision shall be set forth in the words and figures and in the order specified in subsequent sections. Section 10310 provides that no disability policy shall be issued or delivered in this state if it purports by reason of the circumstances to reduce any indemnity to an amount less than that provided for under ordinary circumstances unless such portion is printed in bold-face type and given greater prominence than any other portion of the text of the policy. And section 10390 declares that if a policy is issued in violation of the provisions of the Insurance Code the same is valid but the policy shall be read and construed as provided *686 by the code, and in any conflict in the provisions of the policy and the code, the code shall control. But we find no conflict with or violation of the code in the terms of the policy before us. The disputed portion of the policy rather than being a limitation of the promised indemnity is an integral part of the provision itself, and therefore cannot come within the prohibition of section 10360. So also in regard to the provisions of section 10310, the same reasoning applies. The disputed provision does not reduce an indemnity but entirely excludes a risk. In Kirkby v. Federal Life Ins. Co., 35 Fed.2d 126, suit was brought by a beneficiary after death of insured, caused by asphyxiation from inhaling gas from the exhaust of his motor. The policy agreed to pay for loss of life caused by specific enumerated causes, of which asphyxiation was not one. It was claimed that the policy could not be so limited because the limitations were not set forth in conformity with the statute, which provided that any portion of the policy which purported, by reason of circumstances, to reduce any indemnity, shall be printed in bold-face type. The court held that parties could contract for whatever risks they wished to, and if no uncertainty or ambiguity was found courts could not create one. So here the company made no promise to pay the beneficiary any sum whatever in the event of the death of the insured within one year of the issuance of the policy, the only promise being to pay the beneficiary in the event of death occurring after one year, and thereby definitely excluding such risk during the first year of the policy. It is not a stipulation limiting the amount of indemnity to a lesser amount to be paid for a risk included in the agreement, as the risk of death was in no manner a part thereof. The promise definitely was to pay for death only after one year. No interpretation of this provision has been found in the California reports, but we are referred to First Texas Prudential Ins. Co. v. Smallwood et al., (Tex. Civ. App.) 242 S.W. 498. The laws of Texas contain a provision similar in effect to our Insurance Code, and in that case the court reached a conclusion in accordance with our construction of section 10360 of the Insurance Code. In American Nat. Ins. Co. v. Walker, (Tex. Civ. App.) 256 S.W. 950, also a Texas case, the court said: "... Here the face of the policy provided that, if the insured died within *687 six months from the date of the policy, the benefit was limited to $123.00. The contract is one which the parties had a legal right to make. It does not contravene any statute or rule of public policy. We conclude that the court did not err in ruling upon that question," and when the contract provides for certain risks for which the company shall or shall not be liable, and have made no exceptions, the conclusive presumption is they intended none. To the same effect is Hopkins v. Connecticut General Life Ins. Co., 225 N.Y. 76 [121 N.E. 465]; Drogula v. Federal Life Ins. Co., 248 Mich. 645 [227 N.W. 692]. For the foregoing reasons the judgment from which this appeal is taken must be affirmed, and it is so ordered. Thompson, J., and Plummer, J., concurred.

311 F.3d 1241 Eldon Carl BRANCH, Plaintiff-Appellant,v.FARMERS INSURANCE COMPANY, INC., and Farmers Group, Inc., Defendants-Appellees. No. 00-6385. United States Court of Appeals, Tenth Circuit. November 20, 2002. Michael W. Hinkle, Oklahoma City, OK, and Shannon L. Edwards of Monnet, Hayes, Bullis, Thompson & Edwards, Oklahoma City, OK (Gary B. Homsey and Kevin Hill of Homsey, Cooper, Hill & Associates, Oklahoma City, OK, with them on the briefs), for Plaintiff-Appellant. Eric S. Eissenstat of Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, OK (Burck Bailey and Dino E. Viera of Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, OK, and Gary S. Chilton of Holladay, Chilton & DeGiusti, Oklahoma City, OK, with him on the brief), for Defendants-Appellees. Before EBEL, McKAY, and CUDAHY,* Circuit Judges. McKAY, Circuit Judge. 1 Appellant Branch owned rental property insured against various hazards including hail by Appellee Farmers Insurance Company, Inc. Appellant's roof suffered hail damage during the Fall of 1998. Appellant, unsatisfied with the method Appellees employed in determining the amount of payment due Appellant, brought suit in the United States District Court for the Western District of Oklahoma. The district court granted summary judgment to Appellees. 2 Appellant contests the method of calculating losses under the Actual Cash Value provision of his dwelling policy. The policy defines "Actual Cash Value" to mean "replacement cost of the property at the time of loss less depreciation." Aplt.App. at 165. The district court held that the cost to tear off damaged shingles and the labor cost to install new shingles were both subject to depreciation. Finding that Appellees had correctly adjusted Appellant's damages within the policy's provisions, the district court granted summary judgment to Appellees on Appellant's fraud and bad faith claims. 3 Appellant Branch appealed the district court's decision. The issues on appeal are whether the cost to tear off damaged shingles is subject to depreciation, whether the labor cost of installing shingles is subject to depreciation, and whether the district court erred in granting summary judgment on Appellant's fraud and bad faith claim. 4 At the time of appeal, a conflict existed in the Western District of Oklahoma regarding the proper application of depreciation to roof replacement claims under an actual cash value policy provision. Furthermore, there was no relevant state case law to assist us in determining these issues consistent with Oklahoma state law. Accordingly, we certified three questions to the Oklahoma Supreme Court and held this case in abatement pending a response. On March 12, 2002, the Oklahoma Supreme Court issued its response. On September 10, 2002, the Oklahoma Supreme Court denied Appellant's Petition for Rehearing. We now issue this opinion consistent with the direction given to us. The Oklahoma Supreme Court opinion is attached hereto and by reference made a part of this opinion. 5 We reverse the district court's holding that the labor cost to remove damaged shingles is depreciable. We affirm the district court's holding that the labor to install new shingles is subject to depreciation. Because Farmer's interpretation of the actual cash value provision was a reasonable position taken in litigation of a legitimate coverage dispute, we affirm the district court's grant of summary judgment against Appellant's fraud and bad faith claims. See Thompson v. Shelter Mut. Ins., 875 F.2d 1460, 1462 (10th Cir. 1989) (holding no breach of good faith duty occurs when insurer litigates a legitimate coverage dispute based on a reasonable interpretation of an insurance policy provision). 6 We AFFIRM in part, REVERSE in part, and REMAND this proceeding to the district court for entry of judgment consistent with this opinion. ATTACHMENT 2002 OK 16 7 Eldon Carl BRANCH, Plaintiff, 8 v. 9 FARMERS INSURANCE COMPANY, INC., and Farmers Group, Inc., Defendants. 10 No. 96,790. 11 Supreme Court of Oklahoma. 12 March 12, 2002. 13 Rehearing Denied September 9, 2002. 14 Insureds brought federal court actions against property insurers to challenge depreciation of tear-off and labor costs in calculating payment for hail damage to roof. The United States District Court for the Western District of Okalhoma, Miles-LaGrange, J., 123, F.Supp.2d 590, and Ralph Thompson, J., permitted depreciation of labor costs in one case. Appeals were taken. The Court of Appeals, McKay, J., certified questions. The Supreme Court, Winchester, J., held that: (1) actual cash value (ACV) is not replacement cost less depreciation, but is determined by the broad evidence rule; (2) labor costs for a new roof were "replacement costs" and, therefore, could be depreciated when using the replacement costs less depreciation method of valuing a loss; (3) layer of roofing to be torn off was "debris" within the meaning of policy provision requiring the insurer to pay reasonable expenses to remove debris caused by a covered loss; and (4) the labor cost to tear off the shingles was not subject to depreciation. 15 Questions answered. 1. Insurance § 2181, 2182 16 "Actual cash value" (ACV) is not replacement cost less depreciation; rather, ACV is determined by the broad evidence rule requiring consideration of all relevant factors and circumstances existing at the time of loss, including purchase price, replacement cost, appreciation or depreciation, the age of the building, the condition in which it has been maintained, and market value. 17 See publication Words and Phrases for other judicial constructions and definitions. 2. Insurance § 2172, 2185 18 "Replacement cost" is the sum of those costs an insured is reasonably likely to incur in replacing his covered loss. 3. Insurance § 2182 19 Labor costs for a new roof were "replacement costs" and, therefore, could be depreciated when using the replacement costs less depreciation method of valuing a loss covered by a homeowners' insurance policy. 20 See publication Words and Phrases for other judicial constructions and definitions. 4. Insurance § 2140; 2182 21 Layer of roofing to be torn off was "debris" within the meaning of homeowners' policy provision requiring the insurer to pay reasonable expenses to remove debris caused by a covered loss, and, thus, the labor cost to tear off the shingles was not subject to depreciation. 22 See publication Words and Phrases for other judicial constructions and definitions. 5. Insurance § 1713 23 An insurance policy is a contract. 24 Federal Certified Question. 25 ¶ 0 The United States Court of Appeals for the Tenth Circuit has certified questions of law pursuant to the Oklahoma Uniform Certification of Questions of Law Act, 20 O.S. 1991, §§ 1601-1611. The plaintiff, Eldon Carl Branch, purchased a homeowner's policy from the defendant, Farmers Insurance Company, Inc., which provided for payment of replacement cost in the event of a covered loss. The plaintiff's roof was damaged during a storm. The Tenth Circuit certified the following questions: "(1) In determining actual cash value, using the replacement costs less depreciation method, may labor costs be depreciated? (2) In determining replacement cost less depreciation, are labor costs of removing a damaged roof necessarily included or may roof tear-off be separately covered as `debris removal?' (3) If tear-off costs are properly included as necessary replacement costs and labor costs are depreciable generally, may the labor costs incurred during tear-off also be depreciated?" CERTIFIED QUESTIONS ANSWERED 26 Gary B. Homsey, Kevin Hill, Homsey, Cooper, Hill & Associates; Shannon L. Edwards, Monnet, Hayes, Bullis, Thompson & Edwards, Oklahoma City, OK; for Plaintiff. 27 Burck Bailey, Eric S. Eissenstat, Dino E. Viera, Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, OK, for Defendants. 28 Richard C. Ford, Rustin J. Strubhar, Crowe & Dunlevy, Attorneys for Amici Curiae State Farm Fire & Casualty Company, and State Farm General Insurance Company. 29 WINCHESTER, J. 30 ¶ 1 The United States Court of Appeals for the Tenth Circuit has certified three questions of law pursuant to the Oklahoma Certification of Questions of Law Act, 20 O.S.1991, §§ 1601-1611. The court states that it has heard oral arguments in two substantially similar diversity cases appealed from the United States District Court for the Western District of Oklahoma, Branch v. Farmers Ins. Co., 123 F.Supp.2d 590 (W.D.Okla.2000), and Davis v. Mid-Century Ins. Co., CIV-96-2070-T (W.D.Okla. March 26, 1998) (Westlaw 1998 WL 1285714). The federal court informs us that it is aware of the case of Redcorn v. State Farm Fire and Casualty Co., 55 P.3d 1017 (2002) where the United States District Court for the Western District of Oklahoma has certified a question substantially similar to the first question certified by the Tenth Circuit. The answer to the certified question in Redcorn is being handed down contemporaneously with the answers to those presently before us. 31 ¶ 2 The facts reported by the Tenth Circuit are as follows. The plaintiffs in these cases purchased homeowner's policies from various insurance companies. Those policies provide for roof surface repair and replacement coverage and separate coverage for "debris removal" following a covered loss. Hail and wind damaged the plaintiffs' roofs causing a total loss. The insurers do not dispute coverage. The insurers determined replacement cost, including materials and labor, and reduced that amount by depreciating both those components of the total cost. The plaintiffs contend that neither the labor associated with installing a new roof, nor the labor incurred during tear-off of damaged roofs are depreciable. The Tenth Circuit has certified the following questions: 32 "(1) In determining actual cash value, using the replacement costs less depreciation method, may labor costs be depreciated? 33 "(2) In determining replacement cost less depreciation, are labor costs of removing a damaged roof necessarily included or may roof tear-off be separately covered as `debris removal?' 34 "(3) If tear-off costs are properly included as necessary replacement costs and labor costs are depreciable generally, may the labor costs incurred during tear-off also be depreciated?" 35 ¶ 3 In the Davis case, the insurer figured the cost to tear off and replace the old damaged roof. The insurer then reduced this total amount by fifty percent for depreciation based on the roof's age in ratio to its estimated life. The plaintiffs argued that neither the labor for the tear-off, nor the labor for replacement should be subject to depreciation. In construing the plaintiffs' policy, the federal district court in Davis found that both the plaintiffs and the insurers suggested reasonable interpretations of the provisions regarding depreciation of labor. As a result, the court determined that an ambiguity existed in the policy as to whether the cost of labor associated with replacement of the roof was subject to depreciation. In that regard, the court concluded that the materials were properly subject to depreciation, but labor costs to replace the roof should not have been depreciated. Concerning the question of debris removal, representatives of the insurer testified that the damage caused to the plaintiffs' roof in this case resulted in the roof surfacing becoming debris. The court found that the plaintiffs' policy regarding debris removal was unambiguous, and that it was a separate item of coverage not subject to depreciation. 36 ¶ 4 Like the Davis case, the insurer in Branch depreciated the tear-off cost and the labor cost for installing a new roof to replace one that had been destroyed by wind and hail. The insurer paid the balance to the plaintiff, who was the insured. He sued, alleging that the insurer breached the terms of the insurance policy by depreciating the labor for tear off and installation. The federal district court in Branch found that tear-off costs and installation costs were reasonably likely in replacing a roof and therefore were included within the meaning of "replacement cost." The court further found that the term "replacement cost" was unambiguous, and it was proper to depreciate the cost of labor. 37 I. IN DETERMINING ACTUAL CASH VALUE, USING THE REPLACEMENT COSTS LESS DEPRECIATION METHOD, MAY LABOR COSTS BE DEPRECIATED? 38 ¶ 5 The Davis case included an endorsement to the plaintiffs' policy that provided, "Loss to roof surfacing will be settled at Actual Cash Value." The Branch case provided, "[W]e will settle covered losses to the roof surfacing ... on a replacement cost less depreciation basis." The Davis policy measures the loss at "actual cash value," and the Branch policy measures the loss at "replacement cost less depreciation." The question from the Tenth Circuit appears to make these terms equivalent, but they are not. A. ACTUAL CASH VALUE IN DAVIS. 39 ¶ 6 Actual cash value in Oklahoma is determined by the "broad evidence rule" as described in Rochester American Ins. Co. v. Short, 1953 OK 4, 252 P.2d 490. The Court-approved Syllabus in Rochester American Ins. Co., 1953 OK 4, ¶ 0, 252 P.2d at 490, explains the relation between actual cash value and the broad evidence rule. Syllabus 3 provides that actual cash value of a building totally destroyed by fire is a matter of fact to be determined by a consideration of all relevant factors and circumstances existing at the time of loss. Some relevant factors listed in Rochester include purchase price, replacement cost, appreciation or depreciation, the age of the building, the condition in which it has been maintained and market value. Rochester American Ins. Co., 1953 OK 4, ¶¶ 11-18, 252 P.2d at 493 494. While replacement cost and depreciation are considerations in determining actual cash value, the two terms of the Davis and Branch policies are not equivalent. 40 ¶ 7 The plaintiff, in Rochester American Ins. Co., argued that cost of reproduction was the exclusive measure of recovery. But the Court answered by quoting McAnarney v. Newark Fire Ins. Co., 247 N.Y. 176, 159 N.E. 902, 56 A.L.R. 1149, that "Indemnity is the basis and foundation of insurance law." The goal of indemnity is to place the insured in as good a condition, so far as practicable as he would have been if no fire had occurred. McAnarney added that to effectuate complete indemnity, every fact and circumstance tending to aid in formation of a correct estimate of the loss should be considered by the trier of fact. McAnarney, 247 N.Y. at 184, 159 N.E. at 904-905. 41 ¶ 8 Like this Court in Rochester American Ins. Co., the Supreme Court of Indiana also quoted McAnarney in deciding Travelers Indemnity Co. v. Armstrong, 442 N.E.2d 349 (Ind.1982). That case cited four methods in determining actual cash value of losses,1 but identified the fourth test, the broad evidence rule originating with McAnarney, as the majority rule. Travelers Indemnity Co., 442 N.E.2d at 356. The Indiana court called the broad evidence rule a flexible rule that permitted an appraiser, court, or jury to consider any relevant factor in determining actual cash value of damaged property. Travelers Indemnity Co., 442 N.E.2d at 356. 42 ¶ 9 The Davis court found an ambiguity regarding whether the cost of labor associated with roof replacement may be depreciated in an actual-cash-value policy. This Court has previously held that the interpretation of a contract and whether it is ambiguous is a matter of law for the Court to determine and resolve accordingly. Dodson v. St. Paul Ins. Co., 1991 OK 24, ¶ 12, 812 P.2d 372, 376. The term "actual cash value" is found in the standard fire insurance policy, 36 O.S.Supp. 2000, § 4803 (G).2 Subsection B of that statute provides that "no policy or contract of fire insurance shall be made, issued or delivered by any insurer or by any agent or representative thereof, on any property in the state, unless is shall conform as to all provisions, stipulations, agreements, and conditions, with such form of policy." Because the term "actual cash value" is a statutory term that has been construed by this Court in the Rochester American Ins. Co. case, it has a specific meaning that is not ambiguous. 43 ¶ 10 The Rochester American Ins. Co. case involved the destruction of a building, in contrast to the Davis case that involves the destruction of a roof. The issue is how the broad evidence rule applies to the destruction of a roof. The Davis court found that the roof had a fixed life expectancy of twenty years. It had been in place ten years. The court concluded that replacement cost less depreciation was the primary factor to be considered in applying the broad evidence rule. This determination is permissible under the broad evidence rule. The court correctly acknowledged that the presentation of a different factual scenario could mandate that other factors be given more weight, but observed such a scenario was not before the court. B. REPLACEMENT COST LESS DEPRECIATION IN BRANCH. 44 ¶ 11 Replacement cost is correctly defined by the Branch court as "the sum of those costs an insured is reasonably likely to incur in replacing his covered loss." The court cited the holding in Gilderman v. State Farm Ins. Co., 437 Pa.Super. 217, 226, 649 A.2d 941, 945 (1994). The Branch court then found that the term "replacement cost" was unambiguous and subject to only one reasonable interpretation. Therefore, since labor to install a new roof was a cost the insured was reasonably likely to incur in replacing his roof, the cost of labor was included within the meaning of "replacement cost." Because labor was included within that definition, it was proper to depreciate both materials and labor when calculating the loss suffered by the insured. We agree with the conclusion of the Branch court. 45 ¶ 12 A roof is the product of materials and labor, and the roof's age and condition are also relevant facts in setting the amount of a loss. Depreciation in insurance law is not the type that is charged off the books of a business establishment, but rather it is the actual deterioration of a structure by reason of age, and physical wear and tear, computed at the time of the loss. Travelers Indemnity Co., 442 N.E.2d at 353. 46 C. SUMMARY AND ANSWER FOR CERTIFIED QUESTION NUMBER 1. 47 ¶ 13 In summary, actual cash value is determined by the broad evidence rule. The Davis court determined that under the broad evidence rule, "replacement cost less depreciation" was the proper measure for the loss of the roof under the facts before that court. The Branch policy contained an endorsement providing for "replacement cost less depreciation" to settle covered losses to roof surfacing. Therefore, in both cases, the losses of the two roofs were measured in the same manner. A roof is the product of both materials and labor, just as a building in Rochester American Ins. Co. was the product of both materials and labor. Depreciation was one of the factors considered in determining the loss in the Rochester case. We answer the first question certified to us by the Tenth Circuit that labor costs may be depreciated when using the replacement costs less depreciation method. 48 II. IN DETERMINING REPLACEMENT COST LESS DEPRECIATION, ARE LABOR COSTS OF REMOVING A DAMAGED ROOF NECESSARILY INCLUDED OR MAY ROOF TEAR-OFF BE SEPARATELY COVERED AS `DEBRIS REMOVAL?' 49 ¶ 14 Our answer to the first certified question was that replacement cost includes the labor involved in replacement, and therefore is subject to depreciation under a "replacement cost less depreciation" endorsement in the insurance policy. The second question asks whether, given the rule cited, debris removal must be included in "replacement cost less depreciation." The Tenth Circuit observes that the insurance industry does not appear to have a uniform practice on whether labor costs incurred during tear-off are depreciable. Both the Davis and Branch policies contain identical endorsements regarding debris removal. They provide: "We will pay your reasonable expenses to remove debris caused by a covered loss to covered property under Section 1 [Branch reads `SECTION I']—Property." In Davis, the insurance adjuster recommended tear off and removal of one layer of roofing, and included this labor in the total cost of replacement. This labor cost of tear off was reduced by fifty percent for depreciation based on the roof's age. In Branch, the insurance adjuster recommended tearing off two layers of old roof surfacing. A depreciation factor of thirty-five percent was applied, based on the adjuster's estimate of the age and condition of the old roof and the average life of a similar composition shingle roof. The plaintiffs in the two cases assert that the labor involved in tearing off the old roof surface should not have been depreciated. 50 ¶ 15 The federal district courts in the two cases reach different conclusions. In Davis, the court listed as an undisputed fact that the roof surfacing had become debris. The court found that the parties' respective arguments regarding depreciation of expenses for debris removal presented a close question. The court observed that the policy appeared to set out debris removal as a separate item of coverage, not subject to depreciation, but also found merit in the insurer's explanation of its adjustment practices regarding including debris removal as one of the costs associated with replacement. The court concluded that the policy should be construed to give effect to the language of the endorsement providing coverage for debris removal without deduction for depreciation. 51 ¶ 16 In Branch, the insurer asserted that the plaintiff's existing roof surfacing was not debris, and therefore the tear off was an integral part of the total replacement cost. The court defined "debris" as "Scattered remains: RUINS," and "Discarded waste." Webster's II New Riverside University Dictionary 351 (1984). The court found no evidence to indicate that the plaintiff's old roof surfacing constituted debris. The court observed that the undisputed facts showed that the plaintiff's roof remained useful and was repaired a full year after the storm that caused the damage. There was no evidence that he had to remove any scattered or fallen shingles after the storm. The court further stated as undisputed that tearing off the plaintiff's old roof surfacing was necessary to the proper installation of a new roof. 52 ¶ 17 An insurance policy is a contract. The same principles generally apply to the construction of a policy of insurance as apply to any adhesion contract. Dodson v. St. Paul Ins. Co., 1991 OK 24, ¶ 10, 812 P.2d 372, 376. In Johnny F. Smith Truck & Dragline Service v. United States, 49 Fed.Cl. 443 (2001), the Court of Federal Claims resolved a contract dispute between the plaintiff and the United States regarding debris removal in a flood damaged area. The dispute involved the definition of "debris." That court used a similar definition as the Branch court: "1. a. The scattered remains of something broken or destroyed; rubble or wreckage. b. Carelessly discarded refuse; litter." American Heritage Dictionary of the English Language (4th ed.2000). 53 ¶ 18 If a roof has been damaged by wind or hail to the degree that it must be replaced, then the damaged portion is rubble or wreckage. If the whole roof must then be torn off to repair or replace the damaged portion, then those materials also must be considered wreckage. Farmers Union Mutual Ins. Co. v. Oakland, 251 Mont. 352, 825 P.2d 554 (1992). See also, Manduca Datsun, Inc. v. Universal Underwriters Ins. Co., 106 Idaho, 163, 168, 676 P.2d 1274, 1279 (Idaho Ct.App. 1984). Replacement costs include the cost of the labor to install the new materials forming the new roof. Removing damaged materials, and materials that have to be removed as a result of storm damage to the roof in order to install the new roof, must all be treated as rubble, or in the contract language, debris. If the insurer intended to exclude debris removal of damaged roofing products, it could have done so. To answer the question of the 10th Circuit, labor costs to tear off an old roof are not included as a necessary part of the replacement costs of installing a new roof. 54 II. IF TEAR-OFF COSTS ARE PROPERLY INCLUDED AS NECESSARY REPLACEMENT COSTS AND LABOR COSTS ARE DEPRECIABLE GENERALLY, MAY THE LABOR COSTS INCURRED DURING TEAR-OFF ALSO BE DEPRECIATED? 55 ¶ 19 We have answered that tear off of the old roof is not included as a necessary part of the replacement costs of installing a new roof. The debris removal clauses in the insurance policies before this Court are identical, and do not mention depreciation. Therefore, the labor costs in debris removal may not be depreciated. 56 ¶ 20 CERTIFIED QUESTIONS ANSWERED. 57 ¶ 21 CONCUR: HARGRAVE, C.J.; HODGES, LAVENDER, OPALA, WINCHESTER, JJ. 58 ¶ 22 CONCUR IN PART; DISSENT IN PART: WATT, V.C.J. (JOINS BOUDREAU, J.); SUMMERS (JOINS BOUDREAU, J.), BOUDREAU (BY SEPARATE WRITING), JJ. 59 ¶ 23 RECUSED: KAUGER, J. 60 BOUDREAU, J., concurring in part and dissenting in part, WATT, V.C.J., and SUMMERS, J. joining. 61 ¶ 1 I concur in part and dissent in part. 62 ¶ 2 I concur in the majority's answers to the second and third certified questions. 63 ¶ 3 I dissent from the majority's answer to the first certified question for the reasons stated in my dissent to Redcorn v. State Farm Fire and Casualty Co., 2002 OK 15, 55 P.3d 1017 which is being handed down contemporaneously. I would hold that in determining actual cash value using the replacement costs less depreciation method, labor costs may not be depreciated. Notes: * Honorable Richard D. Cudahy, Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit, sitting by designation 1 The other methods cited as minority rules are (1) Replacement cost, without deduction for depreciation, (2) The market value test, and (3) The replacement cost with deduction for depreciationTravelers Indemnity Co., 442 N.E.2d at 355. 2 Section 4803 was last amended by 1993 Okla. Sess.Laws, ch. 222, § 1

215 N.W.2d 885 (1974) 191 Neb. 484 In the Matter of the ESTATE of LeRoy TICHOTA, Deceased. Henry NIEMEYER, Appellant, v. The ESTATE of LeRoy TICHOTA, Deceased, and William Tichota, Administrator of the Estate of LeRoy Tichota, Deceased, Appellees. No. 39216. Supreme Court of Nebraska. March 14, 1974. Erickson, Sederstorm & Johnson, Omaha, for appellant. Jewell, Otte, Gatz, Magnuson & Collins, Norfolk, for appellees. Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, NEWTON, and CLINTON, JJ., and CHADDERDON, District Judge. SPENCER, Justice. This case involves the question of whether a liability insurer is liable for interest on that portion of a judgment recovered against its insured by a third party which is in excess of the principal amount limited by the policy where the policy requires the insurer to pay "all interest accruing after entry of judgment until the company has paid or tendered or deposited in court such part of such judgment as does not exceed the limit of the company's liability thereon." The trial court held there was no liability for interest on the excess judgment. Plaintiff appeals. We reverse. *886 Plaintiff, who was seriously injured in an automobile accident on February 1, 1970, recovered a judgment against appellants on March 28, 1972, in the amount of $170,000. Dairyland Insurance Company had issued a $20,000 maximum liability policy to decedent and had previously paid out $12,450 for other claims arising out of the same accident. It was obligated to pay the balance of $7,550 towards plaintiff's judgment, but chose instead to appeal the award without posting a supersedeas bond. Plaintiff sought by garnishment to recover the amount due and owing under the terms of the policy and also interest on the entire amount of the judgment from the date of its entry until the balance of the policy limit was tendered or paid. Plaintiff's claim for interest on the entire amount of the judgment against the garnishee's insured was based upon the following contractual provision appearing in the Dairyland policy in force on the day of the accident. "2 Defense Settlement Supplementary Payment "With respect to such insurance as is afforded by this policy for bodily injury liability and property damage liability, the company shall: "(b)(2) pay all expenses incurred by the company, all costs taxed against the insured in any suit and all interest accruing after the entry of judgment until the company has paid or tendered or deposited in court such part of such judgment as does not exceed the limits of the company's liability thereon. * * * and the amounts so incurred, except settlement of claims and suits, are payable by the Company in addition to the applicable limit of liability of this policy." (Emphasis supplied.) Dairyland admitted liability for $7,550, plus interest at 8 percent from the day of judgment. The trial court entered judgment for this amount but denied plaintiff's claim for interest at 8 percent on the remaining $162,450. For several years this legal issue has engendered a considerable amount of litigation, resulting in a split of authority. As of 1961, the positions adopted by the courts on either side are summarized in 76 A.L. R.2d at pages 984 to 987. After suggesting that the jurisdictions were fairly evenly divided, the annotator at page 987 states: "However, there seems to be a trend in favor of holding the insurer liable for interest on the entire amount of the judgment, as illustrated by the two most recent cases in which prior opposite holdings were disapproved. (Illinois and Texas) Thus, if a prognostication may be made as to which view uncommitted jurisdictions are more likely to adopt, the choice would be in favor of extending the liability of the insurer to the entire amount of the judgment because of the seemingly greater appeal of the arguments advanced in support of this theory, as best exemplified in River Valley Cartage Co. v. Hawkeye-Security Ins. Co. (1959), 17 Ill.2d 242, 161 N.E.2d 101, 76 A.L.R.2d 978." Since that annotation, the Later Case Service to 76 A.L.R.2d, pp. 983 to 996, indicates that 10 states have followed those permitting interest on the entire judgment and only 1 is contra, so at the present time the overwhelming weight of authority is that the insurer is liable for interest on the entire amount of the judgment. In River Valley Cartage Co., Inc. v. Hawkeye-Security Ins. Co. (1959), 17 Ill.2d 242, 161 N.E.2d 101, 76 A.L.R.2d 978, Justice Schaefer, after referring to the division of opinion on the point at that time, said: "It might be enough to say that the ambiguity evidenced by this division of opinion should be construed against the insurer. * * * But we believe that there are other and stronger reasons for holding that the phrase creates liability for interest on the entire judgment. "In the first place, the insurer's language compels such a conclusion. The phrase referring to interest uses the term `judgment' without qualification while in the same clause the phrase limiting the duration of *887 the liability for interest refers to `such part of the judgment as does not exceed the limit of the company's liability thereon.' Obviously the insurer knew how to qualify the term `judgment' to achieve the result that it urges. It did not do so. "In addition, the realities of the relationship between the insurer and the insured argue against the insurer's interpretation. Under the terms of the policy the insurer had complete control of any litigation from which it might incur liability. The insured can not settle with the plaintiff without releasing the insurer from its obligation. Any delay that may cause the accumulation of interest is thus the responsibility of the insurer. And until it has discharged its obligations under the policy it should bear the entire expense of this delay." The majority interpretation of this clause takes cognizance of the realities suggested by Justice Schaefer. Further, it does not strain the wording of the clause to reach this conclusion. Rather, as Justice Schaefer holds, the language compels such a conclusion. It accords the words used their ordinary meaning and holds the insurer responsible for all the interest accruing after judgment, until such time as it has tendered into court the amount due on the policy, exactly as the clause dictates. The insurance industry itself has adopted the majority view and in fact strongly urged its adoption by all called upon to interpret the clause. See, Ramsey, "Interest on Judgments Under Liability Insurance Policies," Insurance Law Journal, No. 414 (July 1957), pp. 407, 411; Risjord and Austin, "Standard Family Automobile Policy," Insurance Law Journal, No. 411 (April 1957), p. 201; Gowan, "Provisions of Automobile and Liability Insurance Contracts," 30 Insurance Counsel Journal (1963), 96, 98. We agree with the majority. The clause in question should be construed to require interest on the entire amount of the judgment until the company has paid, tendered, or deposited in court that part of the judgment which does not exceed the limit of the company's liability thereon. This would appear to be the only fair result and the only construction possible under our law. Without question, if there is an ambiguity in the language used, as the earlier cases seemed to suggest, it should be construed most strictly against the insurance company which is responsible for that language. The wording itself, "all interest accruing after the entry of the judgment until the company has paid or tendered or deposited in court such part of such judgment as does not exceed the limit of the company's liability thereon" cannot reasonably be interpreted otherwise. The insurer was capable of employing apt words to differentiate between a judgment and the company's portion thereof. As the majority cases suggest, the insurance company controls the litigation and the insured acts at his peril in settling without the company's approval or consent. If we were to follow the minority rule, the insurer could litigate the entire case on appeal merely in an effort to save the amount of its coverage and thereby cause interest on the excess of the judgment to accumulate against the insured. Any such delay that may cause the accumulation of interest thus ought to be the responsibility of the insurer. Unlike the insured, the company may relieve itself of liability for excess interest by paying, tendering, or depositing in court such part of the judgment as does not exceed the limits of the company's liability. For the reasons given, the judgment is reversed and the cause remanded to the trial court for further proceedings in conformity with this opinion. Reversed and remanded.

224 Ga. 819 (1968) 165 S.E.2d 296 GAINESVILLE STONE COMPANY v. PARKER et al. 24922. Supreme Court of Georgia. Submitted November 13, 1968. Decided November 21, 1968. Rehearing Denied December 5, 1968. Howard T. Overby, Palmour & Palmour, J. E. Palmour, Jr., for appellant. R. Wilson Smith, Jr., John H. Smith, for appellees. *820 MOBLEY, Justice. The petitioners, appellees herein, own a tract of land adjoining a tract on which the defendant, as lessee, operates a stone quarry and crushing business, incident to which the defendant constructed a dam for impounding water from a stream which flows through the petitioners' land. The petitioners brought an action against the defendant alleging that it had raised the height of the dam and spillway so as to back up water, flooding several acres of their land, and that dust and residue from crushed stone has been deposited over their land, causing a quagmire, which has destroyed the value thereof. It is further alleged that the acts were premeditated and malicious, to force the petitioners to sell their land. The petitioners prayed for an injunction and for damages. The jury rendered a verdict in favor of the petitioners, finding that a tort or trespass had been committed by the defendant upon the petitioners, awarding damages of $5,000, and finding against punitive damages. Judgment for injunction and damages was entered accordingly. The defendant filed a motion for new trial on the general and seven special grounds, which was denied. Notice of appeal was filed from the judgment of the trial court which made the verdict of the jury the court's judgment. The notice of appeal recited that motion for new trial was filed and denied, but did not specifically appeal from that judgment. In its enumeration of errors the appellant complained in the first five grounds of the admission of, and of the failure to admit, certain evidence, and in the sixth ground alleged that the court erred in denying the appellant's motion for new trial. 1. Any misunderstanding resulting from the decision in Hill v. Willis, 224 Ga. 263 (161 SE2d 281), is cleared up by the opinion in Tiller v. State, 224 Ga. 645 ( SE2d ), where this court held that if an "error is included in a motion for new trial, the ruling on the motion for new trial will become the law of the case unless on appeal the ruling on the motion for new trial is enumerated as error or the ruling on the motion for new trial is specifically appealed from in the notice of appeal," and further held: "Therefore, if such error is included in the motion for new trial, jurisdiction of the question for decision *821 by the appellate court is acquired in either of two ways: First, by specifically appealing from the ruling on the motion for new trial in the notice of appeal and presenting such error in the charge in an enumeration of error, or, second, by filing the notice of appeal from other appealable judgments and enumerating as error the ruling on the motion for new trial." This case falls under the latter, as the notice of appeal was from an appealable judgment, the judgment entered on the verdict, and in the enumeration of errors the ruling denying the motion for new trial was enumerated as error. Thus the appellees' contention that the law of the case was fixed by the denial of the motion for new trial, unappealed from, and that the case should be affirmed for that reason, is without merit. 2. Enumeration of error 1 complains that the court erred in refusing to admit certain testimony of W. E. Parker (one of the appellees) in evidence. The evidence as to whether Parker devoted virtually all of his time to raising chickens was, as the court held, irrelevant and immaterial on the issue of damage to his property by reason of the flooding of a number of acres, depriving him of pasture for his three or four cows, or on the question of damage to his cows, or on any other issue in the case. 3. The testimony of a witness that, if the spillway stops up, the water will rise, and if it is stopped up entirely to the level or top of the dam, it will back up, flowing over and damaging other property, is not subject to the objection that it is a conclusion without facts upon which it is based and decides the issue the jury is to pass upon. The witness had experience in assisting in building and repairing dams and apparently was qualified to state his opinion on the subject. His testimony did not decide the issue the jury was to pass upon. Enumeration of error 2 is without merit. 4. Enumeration of error 3 complains that the witness was not qualified to testify as to the value of the land in controversy, because the evidence did not show that he had had an opportunity for forming a correct opinion as to its value and did not qualify under Code § 38-1709, which provides: "Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article, but may testify *822 as to value, if he has had an opportunity for forming a correct opinion." The witness was asked if he was familiar with the market value of land in that community, and answered, "I think so, sir, about as much as anyone else," and testified further that he had sold some land in the community to the State, that he knew of other properties that had been sold, and that, in his opinion, the land was worth $500 an acre. This evidence qualified the witness under Code § 38-1709 to testify as to the value of the land. 5. It was not error, as contended in Enumeration of error 4, to admit evidence of a Professor of Agronomy at the University of Georgia that he had examined the land in controversy, made borings therein, and that the sand and silt found thereon rendered it unsuitable for growing crops, trees, or pasture grass, and that he knew no use that could be made of it. The witness qualified as an expert and could testify whether the land in that condition could be put to use in farming. 6. Enumeration of error 5 complains that the court erred in admitting testimony of the witness Parker set out in the record from page 165 through page 172. In the brief for the appellant it is contended that the witness was permitted to testify as to the value of his land and a lease based entirely on an offer made therefor to him (see State Hwy. Dept. v. Parker, 114 Ga. App. 270 (2b) (150 SE2d 875)), and that he testified as to the value without giving his reasons therefor and showing that he had "an opportunity for forming a correct opinion," citing Hoard v. Wiley, 113 Ga. App. 328 (1b) (147 SE2d 782). The testimony as to value of the property was not based entirely on an unaccepted offer. The witness did give reasons for his opinion as to value, and there was a showing that he had an opportunity for forming a correct opinion as to the value. He testified that he was familiar with values of land in the neighborhood, that he knew of other properties that had been sold and conveyed, that he did have an opinion as to the value of the property on which the encroachment was claimed, and that he had had offers made to him, from all of which he formed an opinion that the land was worth $500 per acre, and in his *823 opinion that was its reasonable market value. This ground is without merit. 7. The sixth enumeration of error alleges that: "The court erred in denying appellant's motion for a new trial." In regard to this the brief states: "As to the sixth enumeration of error it is pointed out that the correction of the errors herein complained of requires a new trial." Since the rulings in Enumeration of errors 1-5 are all adverse to the appellant, the court did not err in denying the motion for new trial. Judgment affirmed. All the Justices concur. Frankum, J., concurs specially. FRANKUM, Justice, concurring specially. While I concur in the judgment of affirmance, I must disagree with the ruling in Division one of the opinion for the reasons set forth in my dissent in Tiller v. State, 224 Ga. 645, supra. I would, therefore, affirm the judgment on those enumerations of error raising issues included in the motion for a new trial without considering such enumerations of error on their merits, in accordance with what was held in Hill v. Willis, 224 Ga. 263, supra. See Bryan v. State, 224 Ga. 389 (162 SE2d 349).

535 U.S. 1081 LANDAUv.SHANNON. No. 01-9020. Supreme Court of the United States. May 20, 2002. 1 C. A. 3d Cir. Certiorari denied.

62 F.3d 393 U.S.v.Rodas** NO. 94-30702 United States Court of Appeals,Fifth Circuit. June 29, 1995 Appeal From: E.D.La., No. CR-94-0201-F 1 AFFIRMED. ** Conference Calendar

226 B.R. 809 (1998) In re Earll HOLDEN and Carol Holden, Debtors. Earll HOLDEN and Carol Holden, Plaintiffs, v. UNITED STATES of America, by its agency the INTERNAL REVENUE SERVICE (IRS), Defendant. Bankruptcy No. 96-10549-FGC, Adversary No. 97-1020. United States Bankruptcy Court D. Vermont. October 14, 1998. *810 M.A.D. Ranaldo, Assistant U.S. Attorney, Burlington, Vermont and P. Sklarew, Assistant Chief, Northern Civil Trial Section, Tax Division, U.S. Dept. Justice, Washington, D.C., for the United States of America, IRS (IRS). G. Walsh, Vermont Legal Aid, Inc., Springfield, VT, for Earll and Carol Holden (Debtors). MEMORANDUM OF DECISION DENYING IRS' MOTION IN LIMINE TO EXCLUDE EVIDENCE OF MENTAL SUFFERING AND/OR RECONSIDERATION FRANCIS G. CONRAD, Bankruptcy Judge. Before us[1] is a motion by IRS, to preclude Debtors from introducing evidence in support of their claim for emotional damages incurred as a result of the IRS's alleged wilful violation of the automatic stay (Motion). The Motion is denied because emotional damages may be compensable under § 362(h).[2] Debtors may introduce evidence in support of their claim for damages for emotional distress. The credibility of the expert witnesses and weight attributed to the evidence will be determined by us at trial. BACKGROUND Debtors filed a Chapter 13 petition on May 23, 1996. IRS was listed as a "Schedule E" creditor for $184.92, which represented an underpayment for 1992 personal income taxes. A Chapter 13 plan was confirmed September 19, 1996; however, the Holdens experienced a change of circumstances and certain debt obligations fell into arrears. Debtors planned to use a pending $2,050.00 tax refund to bring themselves current. The refund was not received and upon inquiry, it was determined that IRS had frozen the refund due to the bankruptcy filing and the outstanding debt to the IRS. IRS told Debtors that if they agreed to pay the pre-petition debt out of the refund, IRS would pay the balance over. No relief from the automatic stay was ever obtained.[3] Three months of mortgage payments had *811 fallen into arrears and the Holdens received notice of acceleration due to the accounts' delinquency. Receipt of the tax refund would have deflected this situation. Debtors home was now in jeopardy and the mortgagee was a neighbor. Others on their neighbor's block would soon know the Holdens' precarious situation. Hence, Debtors' claim for emotional distress.[4] DISCUSSION In the interest of avoiding another freeze on future refunds, the Debtors seek a declaratory judgment that the IRS's act of demanding payment for a pre-petition debt during an active Chapter 13 without first obtaining relief from the automatic stay violated 11 U.S.C. § 362(a)(6) and (7). Debtors allege that this seizure of a post-petition refund and earned income credit without notice or without an opportunity to timely object violated their Fifth Amendment right to procedural due process. At a pre-trial conference held June 8, 1998, it became clear that Debtors intended to introduce evidence on Mrs. Holdens' claim of panic disorder. IRS claims that emotional damages should not be permitted in a stay violation dispute. Holding steadfast to their belief and not wanting to waste the government's time and resources and the Debtors' time with unnecessary depositions if medical testimony would not be allowed, IRS asked for a preliminary ruling on this issue. Trying to satiate all needs, we ruled from the bench and denied IRS' request to exclude evidence. Transcript June 8, 1998 at p. 8. (Tr.) We reasoned then, as we reason now, that actions taken by those in authority, particularly government agencies and its officials, can inflict severe angst on those living through those actions. Whether intentional or not, the fact that "the government" has spoken is enough to send those on the receiving end of a government message into a downward emotional spiral. In this instance, Mrs. Holden alleges that her panic disorder was aggravated by IRS actions and caused emotional distress. IRS is also concerned that we will spend needless hours attempting to get to the core of Mrs. Holden's panic disorder and then have to determine whether or not it was aggravated by the IRS' action. Allowing a plaintiff to prove its case is never a waste of time. Isn't this what due process is all about. All litigants are allowed their day in our court. IRS will of course, have its opportunity to cross examine and rebut any testimony. IRS tries to persuade us not to hear evidence on the issue of damages for emotional distress by dissecting the definition of actual damages under 11 U.S.C. § 362(h).[5] Their argument suggests that the Bankruptcy Courts that have dealt with this issue have summarily concluded that damages for emotional distress were warranted without any coherent analysis of what the damages really were. We looked at the opinions suggested by the IRS. These courts awarded damages for emotional stress only after concluding that there was a stay violation. Having reached that conclusion, the courts were compelled to utilize a standard for assessing damages. In In re Flynn, 169 B.R. 1007, 1023 (Bankr. S.D.Ga.1994), debtor was awarded $5,000.00 for emotional distress due to the embarrassment, humiliation and shame suffered as a result of an unauthorized IRS levy. Recognizing that damages from mental anguish can be difficult to prove, Chief Judge Davis did not refrain from allowing such an award. "The natural and powerful emotional reactions cannot be dismissed as `fleeting' or `inconsequential.'" 169 B.R. at 1023. In the Flynn case, debtor felt an "overpowering sense of humiliation, embarrassment and shame occasioned by the levy and its consequences." Id. On appeal, the District Court affirmed the award of emotional damages despite the fact that no medical testimony was produced. In re Flynn, 185 B.R. 89, 93 (S.D.Ga.1995) *812 We are aware that in another case Judge Davis denied a debtor's claim for mental anguish damages after finding that IRS had wilfully violated the automatic stay when it sent a notice to her employer that the IRS was placing a levy on her wages. Debtor had been informed of this levy from the dispatcher on the job. Washington v. IRS (In re Washington), 172 B.R. 415 (Bankr. S.D.Ga.1994) Judge Davis opined that the debtor merely suffered embarrassment at work where the levy was placed on her wages. Debtor's "mental anguish caused by this event [was] fleeting and inconsequential." Id. at 427 The levy was released almost immediately so there was no interruption in her wage payment. Id. at 418. In In re Matthews, 184 B.R. 594, 601 (Bankr.S.D.Ala.1995), the IRS' seizure of a tax refund post-petition was found to violate the automatic stay. Debtors were awarded $3,000.00 for the loss of use of their funds and stress. The Court found the IRS' actions "clearly inappropriate" and recognized that these damages are not easily calculable. "A damage award [under 362(h)] must not be based on mere speculation, guess, or conjecture." 184 B.R. at 600 (citations omitted.) In In re Davis, 201 B.R. 835, 837 (Bankr. S.D.Ala.1996), IRS' levy on the debtor's bank account was held a wilful violation of the automatic stay and debtors were awarded $300.00 for the embarrassment and inconvenience of bounced checks at the local level. 201 B.R. at 837. Mindful of the IRS' concern that many of the courts that have dealt with this issue did so in a conclusory fashion, allowing evidence on this issue will place us in a position to factually support our conclusion. In order to provide the desired intelligent analysis, we need to hear testimony and allow evidence on the issue. Alternatively, the IRS has argued that if emotional damages are to be awarded then they should be restricted to those instances where there is intent to inflict emotional distress or physical contact or the threat of physical contact. We won't adopt this theory because we believe § 362 contemplates damages for emotional distress. Emotional distress is an actual injury. Our emotions can wreak havoc with our nervous system, often having physical side effects. Emotional distress is not an ethereal proposition or an intangible concept. The stress is felt not by the inanimate object, the check bouncing or the account freezing. Rather, the emotions belong to and are felt by the owner of the bounced check and the frozen account. Perhaps the Courts that have ruled IRS wilfully violated the stay and awarded damages for mental suffering felt that an indepth discussion for the basis of the award would be rhetorical. After all, one tends to become distraught when a tax refund does not arrive or when checks bounce at the local merchants, or when access is denied to a checking or savings account. The internal agonizing of "I can't pay my bills" or "I'll be evicted" begins. Legitimate human emotions are brought to bear when one's rights are trampled on. We need to hear medical testimony as to how deep the suffering was, if any, and review the medical records, to the extent they are properly admitted. CONCLUSION Having established a claim for relief under the Bankruptcy Code, the Holdens may claim emotional distress. We will hear evidence on this issue and decide if damages are justified. We would be remiss if we didn't allow a litigant to prove a case. Emotional damages need to be proven and to that end, medical testimony is mandated. The Motion to exclude this evidence is denied. So Ordered. NOTES [1] Our subject matter jurisdiction over this controversy arises under 28 U.S.C. § 1334(b) and the General Reference to this Court under Part V of the Local District Court Rules for the District of Vermont. This is a core matter under 28 U.S.C. §§ 157(b)(2)(A), (B), (C), (K), and (O). This Memorandum of Decision constitutes findings of fact and conclusions of law under Fed. R.Civ.P. 52, as made applicable by Fed. R.Bkrtcy.P. 7052. [2] All citations are to the Bankruptcy Code, Title 11, United States Code, unless otherwise noted. [3] The issue of whether this "freeze" was inappropriate has been remanded back to this Court after an appeal by Debtors. [4] We make no finding as to the claim's validity. [5] 11 U.S.C. § 362(h) provides that "[a]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages."

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 05-2679 ___________ Julia A. Strong, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. America’s Center Food Service * Partners/Levy Restaurant Limited * [UNPUBLISHED] Partnership, * * Appellee. * ___________ Submitted: July 6, 2006 Filed: July 14, 2006 ___________ Before COLLOTON, BEAM, and HANSEN, Circuit Judges. ___________ PER CURIAM. Julia A. Strong appeals the district court’s1 application of judicial estoppel to bar her employment-discrimination suit. Satisfied that the district court properly exercised jurisdiction over this case, see Crosby v. Monroe County, 394 F.3d 1328, 1331 n.2 (11th Cir. 2004), we conclude that the district court did not abuse its discretion in dismissing the case based upon judicial estoppel. Strong represented in 1 The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri. her earlier bankruptcy proceeding that she had no such suit, the bankruptcy court relied on that representation in granting her a no-asset discharge, and allowing Strong to proceed with this claim after her discharge would give her an unfair advantage. See Stallings v. Hussman Corp., 447 F.3d 1041, 1046-49 (8th Cir. 2006) (standard of review; factors informing court’s judicial-estoppel analysis); Barger v. City of Cartersville, Ga., 348 F.3d 1289, 1295-96 (11th Cir. 2003) (affirming application of judicial estoppel in action against employer where plaintiff failed to list claims against employer in bankruptcy schedule, "knew about the claims, and had a motive to conceal them from the bankruptcy court" (internal marks omitted)); Burnes v. Pemco Aeroplex, Inc. (In re Burnes), 291 F.3d 1282, 1288 (11th Cir. 2002). Accordingly, we affirm the judgment of the district court. See 8th Cir. R. 47B. We also deny Strong’s request for appointed appellate counsel. ______________________________ -2- 

536 F.Supp.2d 843 (2008) Ramona LONGS, as Executor of the ESTATE OF Mary BUCHANAN, Plaintiff v. WYETH, et al., Defendants. No. 1:03 CV 2042. United States District Court, N.D. Ohio, Eastern Division. February 29, 2008. *844 *845 Benjamin H. Anderson, Anderson Law Office, Cleveland, OH, Linda C. Love, Michael L Williams, Williams Love O'Leary Craine & Powers, Portland, OR, .for Eric L. Alexander, Reed Smith, M. Sean Laane, Arnold & Porter, Washington, DC, George E. McDavid, Melissa G. Graff, Reed Smith, Princeton, NJ, David R. Cooper, Cooper & Walinski, Toledo, OH, for Defendants. ORDER SOLOMON OLIVER, JR., District Judge. Plaintiff Ramona Longs[1] ("Plaintiff" or "Longs") brings the above-captioned lawsuit as executor of the estate of decedent Mary Buchanan ("Buchanan"), alleging product liability claims against Defendants Wyeth, et al. (collectively, "Defendants" or "Wyeth").[2] Now pending before the court are Defendants' Motion for Partial Summary Judgment Based on Federal Preemption (ECF No. 34); Defendants' Motion for Summary Judgment Based on Lack of Evidence of Proximate Causation (ECF No. 31); and Defendants' Motion for Partial Summary Judgment Relating to Punitive Damages (ECF No. 33). For the reasons stated below, the Motions are denied as moot to the extent that they address Plaintiffs failure to warn claim, which Plaintiff has withdrawn. Consequently, Plaintiffs failure to warn claim is hereby dismissed with prejudice. Furthermore, Defendants' Motion for Partial Summary Judgment Based on Federal Preemption (ECF No. 34) is granted in part and denied in part; Defendants' Motion for Summary Judgment Based on Lack of Evidence of Proximate Causation (ECF No. 31) is granted, and Defendants' Motion for Partial Summary Judgment Relating to Punitive Damages (ECF No. 33) is denied as moot. As a result of the above rulings, Plaintiffs case is hereby dismissed in its entirety. I. FACTS AND PROCEDURAL HISTORY According to Plaintiff, Buchanan ingested the diet pill Redux for several months during 1996 and 1997. (Am. Compl.ś 6.) In November, 2001, Buchanan was diagnosed with primary pulmonary hypertension ("PPH"). (Id. ś 7.) Buchanan died on December 18, 2003, allegedly as a result of PPH. (Id.) Defendants marketed and sold the drug Redux. (Answer 2-3, 8, ECF No. 4.) Redux was approved by the FDA in April, 1996. (See FDA Approval Letter, Defs.' Ex. A, ECF No. 33.) Redux became available to the public in June, 1996 (4/30/96 *846 Letter, Defs.' Ex. E, ECF No. 31) and was taken off the market on or about September 15, 1997. (Answer ś 26.) Plaintiffs Amended Complaint alleges the following claims: (1) product liability, which encompasses both design defect, pursuant to O.R.C. § 2307.75, and failure to warn, pursuant to O.R.C. § 2307.76; (2) negligence; and (3) wrongful death, pursuant to O.R.C. § 2125.01 et seq. (Am. Compl.śś 14-22.) Plaintiff seeks economic and non-economic damages (id. at 9), as well as punitive damages, pursuant to O.R.C. § 2307.80(C). (Id. ś 13.) On October 3, 2007, Plaintiff filed a Notice of Withdrawal of Claim of Failure to Warn. (ECF No. 35.) In the Notice, Plaintiff stated that she intended to pursue only her design defect and negligence claims, and that she continued to seek punitive damages. (Id. at 1-2.) The court held oral arguments on January 17, 2008, at which the parties addressed Defendants' Motion for Partial Summary Judgment Relating to Punitive Damages and Defendants' Motion for Summary Judgment Based on Lack of Evidence of Proximate Causation. At oral argument, both parties indicated that they rested on their briefs as to Defendants' Motion for Partial Summary Judgment Based on Federal Preemption. (1/17/08 Oral Argument Tr. ("1/17/08 Tr.") at 44) (on file.) II. SUMMARY JUDGMENT STANDARD Federal Rule of Civil Procedure 56(c) governs summary judgment motions and provides: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . . In reviewing summary judgment motions, this court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 153, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943-44 (6th Cir.1990). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Thus, in most civil cases the Court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252, 106 S.Ct. 2505. However, "[c]redibility judgments and weighing of the evidence are prohibited during the consideration of a motion for summary judgment." Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir.1999). Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Moreover, "the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C.Cir.1988)). The non-moving party is under an affirmative duty to point out specific facts in the record as it has been established that create a genuine *847 issue of material fact. Fulson v. City of Columbus, 801 F.Supp, 1, 4 (S.D.Ohio 1992). The non-movant must show "mere than a scintilla of evidence to overcome summary judgment"; it is not enough to show that there is slight doubt as to material facts. Id. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise, provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). III. MOTION FOR PARTIAL SUMMARY JUDGMENT BASED ON FEDERAL PREEMPTION Defendants argue that Plaintiff's claims are preempted by the Federal Foci!, Drug, and Cosmetic Act ("FDCA" or the "Act"), 21 U.S.C. § 391 et seq., which is enforced by the Food and Drug Administration ("FDA"), 21 U.S.C. § 393(b). Initially, Defendants primarily argued in support of their Motion that Plaintiff's failure to warp claim was preempted, anticipating, that Plaintiff would seek to introduce evidence that Defendants' warnings about the risk of PPH from Redux should have been stronger, or should have contained a "black box" warning. In support of this argument, Defendants cited the FDA's new drug labeling rules, which were issued in January, 2006. The preamble to these rules states that the "FDA believes that under existing preemption principles, FDA approval of labeling under the act, whether it be in the old or new format, preempts conflicting or contrary State law." 71 Fed. Reg. 3922, 3934. The court notes that because Plaintiff has withdrawn her failure to warn claim, this argument is no longer pertinent. Thus, this portion of Defendants' Motion is denied as moot. Defendants also argued that all of Plaintiff's claims are preempted because they conflict with the FDA regulatory process. As discussed below, the court finds that the FDCA preempts some, but not all, of Plaintiff's claims. The purpose of the FDA is to (1) promote the public health by promptly and efficiently reviewing clinical research and taking appropriate action on the marketing of regulated products in a timely manner; (2) with respect to such products, protect the public health by ensuring that â . . . . . (B) human . . . drugs are safe and effective;. . . . 21 U.S.C. § 393(b). In other words, the FDA is responsible for regulating which drugs are on the market and the warnings such drugs must provide. As such, Plaintiffs strict liability and negligence claims that Redux was an "unreasonably dangerous" drug for which no warning would have been adequate directly conflicts with the FDA's authority to determine which drugs are sufficiently safe and effective to be, marketed. Although Plaintiff asserts that she alleges only that Defendants should not have marketed Redux, and that she does not argue that the FDA did anything wrong, the court finds that her claim that Redux should never have been placed on the market interferes with the FDA's objectives.. Consequently, all claims relating to pre-FDA approval are preempted by the FDA. In addition, to the extent that Plaintiff alleges fraud-on-the-FDA or that Defendants concealed or misrepresented information to the FDA, these claims are preempted, as well. However, the FDCA does not preempt all product liability claims. Congress has *848 expressly stated that the FDCA is not intended to preempt a state law unless it directly conflicts with the Act: Nothing in the amendments made by this Act to the Federal Food, Drug, and Cosmetic Act shall be construed as invalidating any provision of State law which would be valid in the absence of such amendments unless there is a direct and positive conflict between such amendments and such provision of State law. Section 202 of the Drug Amendments of 1962 (Public Law 87-781, Title II, section 202, 76 Stat. 780, 793) (Oct. 10, 1962). Furthermore, in its most recent regulations, the FDA expressly stated that it "recognizes that FDA's regulation of drug labeling will not preempt gall State law actions." 71 Fed.Reg. 3922, 3936. The court notes that numerous product liability suits about defectively designed drugs are litigated and resolved pursuant to state law without any discussion of federal preemption. E.g., Saraney v. TAP Pharm. Prods., No. 1:04 CV 02026, 2007 WL 148845, 2007 U.S. Dist. LEXIS 3113 (N.D.Ohio Jan. 16, 2007); Yanovich v. Sulzer Orthopedics, Inc., No. 1:05 CV 2691, 2006 WL 3716812, *11, 2006 U.S. Dist. LEXIS 90332, at *33 (N.D.Ohio Dec. 14, 2006); Kennedy v. Merck & Co., Inc., 2003 Ohio 3774, 2003 WL 21658613 (Ohio App.Ct.2003). In fact, the only court that appears to have addressed the issue of whether the FDCA preempts product liability claims brought under the Ohio Products Liability Act ("OPLA") summarily found that claims for defective design and negligence in keeping a product on the market were not preempted. In In re Diet Drugs Prods. Liab. Litig. ("Mingus v. Wyeth," or "Mingus"), No. 04-23744, 2006 WL 1071545, at *3 (E.D.Pa. Apr.21, 2006), the court held that the plaintiff's claims that "Wyeth designed a defective product and was negligent in not taking Redux off the market sooner tha[n] it did. . . . [i]n essence, . . . that Wyeth failed in its post-approval duties" were not preempted. Furthermore, Defendants have cited nothing in the FDCA, FDA regulations, or case law that suggests that the FDA intended to preclude all design defect claims. Therefore, the court finds that Plaintiffs post-FDA approval design defect claims, under strict liability and negligence, are not preempted. Finally, Plaintiff also contends that Defendants are collaterally estopped from arguing preemption because they previously litigated this issue in Mingus, No. 04-23744, 2006 WL 1071545, discussed above. In Mingus, a different plaintiff suffering from PPH, also allegedly caused by ingesting Redux, brought claims for negligence and strict liability against, the same Defendants as in the instant case. Id. at *1. As here, the plaintiff in Mingus withdrew her failure to warn claim and pursued her other claims based on a design defect theory. Id. The court in Mingus addressed several of the issues present in the instant case, and ultimately denied the defendants' motion for summary judgment. Id. at *4. The parties to the instant case do not dispute that the Mingus action was not decided on the merits because the parties ultimately settled. Plaintiff's argument that Mingus collaterally estops Defendants in this case is not well-taken. The Sixth Circuit has explicitly rejected the idea "that a district court's denial of summary judgment is entitled to preclusive effect. . . ." Kovacevich v. Kent State Univ., 224 F.3d 806, 835 (6th Cir.2000). In addition, the fact that the Mingus court declined to vacate its summary judgment order after the parties settled, as Plaintiff pointed out during oral argument, does not create any preclusive effect Furthermore, there is also a good *849 argument to be made that preclusion is not appropriate regarding federal preemption because the issue is primarily legal in nature. For these reasons, Defendants are not precluded from litigating any issue in the instant case. Accordingly; the court grants in part and denies in part Defendants' Motion for Partial Summary Judgment Based on Federal Preemption. (ECF No. 34.) IV. MOTION FOR SUMMARY JUDGMENT BASED ON LACK OF EVIDENCE OF PROXIMATE CAUSATION As discussed above, to the extent that Defendants' Motion seeks summary judgment on Plaintiffs failure to warn claim, the Motion is denied as Moot. Furthermore, for the reasons discussed abaci& "the court rejects Plaintiffs argument that Defendants are collaterally estopped from bringing this Motion. A. Design Defect Claim The OPLA governs product liability claims brought under Ohio law. Within the OPLA, O.R.C. § 2307.75 provides, the standard for, proving a design defect claim. The success of a potential design defect claim hinges, at least in part, on whether the, warnings provided, to physicians[3] about the product were adequate. Where the warning is found to be inadequate, a plaintiff is entitled to a rebuttable presumption that the inadequate warning proximately caused her to ingest the drug, which the defendants must then rebut. A plaintiff must also prove that ingestion of the drug proximately caused her injury. O.R.C. § 2307.73(A); Seley v. G.D. Searle & Co., 67 Ohio St.2d 192, 199-200, 423 N.E.2d 831 (1981); Kennedy, 2003 Ohio 3774, at P17, P34, P36, 2003 WL 21658613. On the other hand, Ohio statute provides that where a warning for an ethical drug is found to be adequate, then no design defect exists as a matter of law. The statute provides, in pertinent part: (D) An ethical drug or ethical medical device is not defective in design, or formulation because some aspect of it is unavoidably unsafe, if the manufacturer of the ethical drug or ethical medical device provides adequate warning and instruction under section 2307.76 of the Revised Code concerning that unavoidably unsafe aspect. O.R.C. § 2307.75(D) (emphasis added). In the instant case, Redux constitutes an "ethical drug," which is defined as "a prescription drug that is prescribed or dispensed by, a physician or any other person who is legally authorized to prescribe or dispense a prescription drug." O.R.C. § 2307.71(4). The parties disagree about the adequacy of the Redux warnings. Defendants argue that, by withdrawing her failure to warn claim, Plaintiff has conceded that Defendants' warnings were adequate. However, Plaintiff argues that it has not conceded that the warnings are adequate and that the adequacy of the warnings is a factual issue, for the jury. 1. Burden of Proof Regarding Adequacy of Warnings The parties disagree as to which party bears the" burden of proof as to the adequacy of the warnings under Section 2307.75(D). Plaintiff argues that Defendants *850 bear the burden of proving that the warnings were adequate, while Defendants argue that Plaintiff bears the burden of proving that the warnings were inadequate. The statute itself does not state which party bears the burden. In In re Meridia Prods. Liab. Litig., 328 F.Supp.2d 791, 815 (N.D.Ohio 2004), aff'd, Meridia v. Abbott Laboratories, 447 F.3d 861 (6th Cir.2006), the court stated: Generally, an adequate warning is a defense to design defect claims levied against prescription drugs. See, e.g., Ohio Rev.Code § 2307.75(D) ("An ethical drug . . . is not defective in design or formulation because some aspect of it is unavoidably unsafe, if the manufacturer of the ethical drug . . . provides an adequate warning and instruction . . . concerning that unavoidably unsafe aspect."); RESTATEMENT (SECOND) OF TORTS § 402A cmt. k ("There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. . . . Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous."). (emphasis added). Another court in the Northern District of Ohio has quoted the statement from In re Meridia that "[g]enerally, an adequate warning is a defense to design defect claims," although the court did not expressly state that the defendant bore the burden of proof. Yanovich, No. 1:05 CV 2691, 2006 WL 3716812, *11, 2006 U.S. Dist. LEXIS 90332, at *33. Plaintiff cites Mingus, No. 04-23744, 2006 WL 925006, 2006 U.S. Dist. LEXIS 17557 (E.D.Pa.2006), which relied on In re Meridia in concluding that Defendants bear the burden to prove that their warnings were adequate. The Mingus court held: The wording of § 2307.75(D) in our view makes the provision an affirmative defense. It does not require plaintiff` to prove that the warning is inadequate. Rather, it provides a safe harbor for drug manufacturers if their warning is adequate. Unless the manufacturer proves that the warning is adequate, the safe harbor will not apply. In In re Meridia Products Liability Litigation, the District Court for the Northern District of Ohio read § 2307.75(D) in the same way we do. 328 F.Supp.2d 791 (N.D.Ohio 2004). The court stated, "Generally, an adequate warning is a defense to design defect claims levied against prescription drugs." Id. at 815 (emphasis added). Id. at 2006 WL 925006, *1, 2006 U.S. Dist. LEXIS 17557 *2. The court finds that it is unclear whether the In re Meridia court intended its statement that "[g]enerally, an adequate warning is a defense to design defect claims levied against prescription drugs" to mean that "defense" was synonymous with "affirmative defense." Furthermore, none of the sources that In re Meridia cites state that the defendant bears the burden of proof regarding the adequacy of warnings. As previously stated, Section 2307.75(D) does not allocate the burden of proof. Neither does the Restatement (Second) of Torts § 402A (1965), which interprets section 2307.75(D), or its comments. Although clearly not dispositive, it is worth noting that the Ohio Jury Instructions state that the plaintiff bears the burden of proof. The comments to the jury instructions state, in pertinent part: [O.]R.C. 2307.75(D)(E)(F). The statute does not specify whether the plaintiff or defendant carries the burden *851 of proof or even the burden of producing evidence in subsections (D), (E) and (F) of R.C. 2307.75. Courts have placed the burden of proof on plaintiff. Jacobs v. E.l. Dupont De Nemours & Co. (6th Cir.1995), 67 F.3d 1219, 1242, McGrath v. General Motors Corp., 26 Fed.Appx. 506 (6th Cir.2002), Bloomer v. Van-Kow Enterprises, No. 64970, 1994 WL 173651 (Ohio App.1994). Ohio Jury Instructions § 351.05 (italics omitted). The cases that the Ohio Jury Instructions cite all state that the plaintiff bears the burden for claims brought under Section 2307.75(F), which precludes liability for products where there is no "technically feasible alternative design." None of the cases cited discuss the burden of proof in Section 2307.75(D) claims. In McGrath, 26 Fed.Appx. at 506, 510 (6th Cir.2002), the Sixth Circuit held that the plaintiff bears the. burden`of production as to Section 2307.75(F), stating that "[t]he subsection does not state whether the plaintiff or defendant bears the burden of production of an alternative design. Under Ohio case law, plaintiffs bear the burden of production." The McGrath court cited Jacobs v. E.I. DuPont De Nemours & Co., 67 F.3d 1219, 1242 (6th Cir.1995), for this proposition. The court in Bloomer v. Van-Kow Enters., 1994 WL 173651, "2-3, 1994 Ohio App. LEXIS 1937, at *7-*8 (Ohio S.Ct.App. 1994), also allocated the burden to the plaintiff to establish the feasibility of an alternative design. The fact that the Sixth Circuit has placed the burden on the plaintiff for subsection (F) weighs in favor of placing the burden on the plaintiff for subsection (D). As such, a review of the statute and the case law suggests that the court in Mingus was not correct in concluding that the defendant bears the burden of proving the adequacy of warnings. While, admittedly, one reading of In re Meridia, is that an adequate warning is an affirmative defense to a design defect claim, that court did not explicitly discuss which party bore the burden of proof. Furthermore, in cases involving Section 2307.75(F), which provides another exception to design defect liability without allocating the burden, courts have placed the burden of proof on the plaintiff. Therefore, for these reasons, the court finds that Plaintiff bears the burden of proving that Defendants did not provide adequate warnings. 2. Defendants' Warnings Are Adequate as a Matter of Law Even assuming, arguendo, that Defendants bear the burden of proving that the Redux warnings were adequate, Defendants have presented sufficient evidence, which was uncontradicted by Plaintiff, to demonstrate that the warnings provided were adequate as a matter of law. Courts use the following non-exclusive factors to determine whether a warning is adequate as a matter of law: 1. the warning must adequately indicate the scope of the danger; 2. the warning must reasonably communicate the extent or seriousness of the harm that could result from misuse of the drug; 3. the physical aspects of the warning must be adequate to alert a reasonably prudent person to the danger; 4. a simple directive warning may be inadequate when it fails to indicate the consequences that might result from failure to follow it and, . . . 5. the means to convey the warning must be adequate. Saraney, No. 1:04 CV 02026, 2007 WL 148845, *5, 2007 U.S. Dist. LEXIS 3113, at *16 (quoting Pittman v. Upjohn Co., 896 S.W.2d 425, 429 (Tenn.1994)). In the instant case, the second factor is not relevant because Plaintiff does not allege Misuse of the drug. Similarly, the fourth' factor is not relevant because the warnings *852 given were more detailed than a simple directive. Accordingly, the court will analyze whether the warnings satisfy the first, third, and fifth factors. The first warning regarding the risk of PPH from Redux was provided in April, 1996, when the FDA approved the drug to be placed on the market. That warning, sent in a letter to health professionals, stated, in relevant part: Side Effects and Contradictions . . . . . There is also a small risk of a serious, potentially life-threatening cardiovascular condition, primary pulmonary hypertension (PPH) associated with the use of all types of prescription weight loss drugs. This risk is estimated to be about 18 cases per 1,000,000 users per year. In the general population, the yearly occurrence of PPH is 1 to 2 cases per 1,000,000 people. (4/30/96 Letter, Defs.' Ex. E at 3, ECF No. 31-6.) On the first Redux label, the warning about PPH appeared at the beginning of the warnings section, it was written in all bold typeface, and it contained all of the above-quoted information. (4/29/96 Redux Label, Defs.' Ex.`I at 1, ECF No. 31-10.) Four months later, a second warning letter was sent out to health care professionals, entitled "Important Update in Redux (dexfenfluramine hydrochloride capsules) C-IV" in bold typeface. (8/22/96 Letter, Defs.' Ex. F, ECF No. 31-7.) This letter explained that a final report, which had reclassified data and included ten previously-excluded cases, indicated that the risk of PPH was more prevalent than earlier stated. After repeating the statistics given in the previous warning, the letter stated: In the final report, the risk [of PPH] was calculated to be about 23 times higher for patients using anorexigens for 3 or more months compared to hohusers. The incidence of PPH for patients taking anorexigens, including Redux, is now estimated to be between 23 and 46 cases per million patients per year. . . . . . Although the incidence of PPH, for patients taking anorexigens remains small, PPH is a serious disorder with an estimated 4-year mortality rate of 45%. Therefore, it is very important that Redux not be prescribed for cosmetic weight loss. Redux is indicated for use only in those patients who have a body mass index (BIVII) of at least 30 kg/m (which is approximately 30 percent over desirable weight) or a BMI of at least 27 kg/m (which is approximately 20 percent over desirable weight) in the presence of other risk factors (e.g., hypertension, diabetes or hyperlipidemia). In order for the labeling of Redux to be consistent with the [final report on PPH] and to allow you to counsel your patients with accurate information, we are working with [the] FDA to revise product labeling appropriately. In the interim, this letter provides an overview of the . . . data to use as a reference in treating your obese patients. As indicated in the current labeling, patients should be advised to report immediately any deterioration in exercise tolerance. Treatment should be discontinued in patients who develop new, unexplained symptoms of dyspnea, angina pectoris, syncope, or lower extremity edema. These patients should be evaluated for the etiology of these symptoms and the possible presence of PPH. (Id. at 1-2) (footnotes omitted). The new labels were sent to health care professionals in December, 1996, along with a third letter explaining the changes *853 made to the labels due to the, findings described in the previous letter. (12/96 Letter, Defs.' Ex. G, ECF No. 31-8.) The December, 1996, letter stated, in pertinent part: REDUX IS AN APPETITE SUPPRESSANT, AND APPETITE SUPPRESSANTS INCREASE THE RISK OF DEVELOPING PRIMARY PULMONARY HYPERTENSION, AN OFTEN FATAL DISORDER. Use of appetite suppressants for longer than 3 months is associated with a 23-fold increase in the risk of developing PPH, a serious, potentially life-threatening cardiovascular condition. A 2-year case-control study identified 95 PPH cases; 30 of these had been exposed to appetite suppressants in the past, and 18 of the 30 had used appetite suppressants for longer than 3 months. Therefore, the risk associated with the long-term use of appetite suppressants was estimated to be about 23 to 46 cases per 1 million persons per year. (Id. at 1.) A copy of the new label was included with this third letter, The new label provided the updated informational the study results and the increased risk of PPH in regular typeface. In addition, the above-quoted paragraph that appears in boldface and all capital letters also appeared in boldface and all capital letters on the new label. (10/23/96 Redux Label, Defs.' Ex. I at 3, ECF No. 31-10.) As to the first factor, the court finds that the warnings clearly indicate the scope of the danger, namely, to what degree the use of diet aids such as Redux increase the risk`of PPH, a fatal disease. As to the third factor, the court finds that the physical aspects of the warnings â use of capital letters and bold typeface and the placement in the warning section of the label â would alert a reasonably prudent physician to the danger. As to the fifth factor, the court finds that the labels and use of letters mailed directly to health care professionals about the change in labeling was an appropriate and sufficient means to convey the warnings. The instant case is factually similar to Yanovich, No, 1:05 CV 2691, 2006 WL 3716812, *11, 2006 U.S. Dist. LEXIS 90332, at *33, aff'd, Yanovich v. Zimmer Austin, Inc., No. 07-3058, 2007 WL 4163860, *11, 2007 U.S.App. LEXIS 27696, at *30 (6th Cir. Nov. 21, 2007), which granted summary judgment for the defendants on a design defect claim and, like here, did not involve a failure to warn claim. The Yanovich court found that the warnings were adequate as a matter of law where die defendants had presented evidence regarding the adequacy of the warnings and the "plaintiffs [had] provide[d] no evidentiary support that the warnings were inadequate and [did] not designate expert medical testimony on the sufficiency of defendants' warnings." No. 1:05 CV 2691, 2006 WL 3716812, "12-13, 2006 U.S. Dist. LEXIS 90332, at *35-*36 (emphasis added). In the instant case, Defendants have submitted evidence that Buchanan's physician, Dr. Evelyn Erokwu ("Dr.Erokwu"), recalls receiving letters from. Wyeth about Redux, as well as evidence demonstrating that the three letters discussed above were in fact mailed to Dr. Erokwu at her office. (Dep. of Eveyln Erokwu ("Dr. Erokwu Dep.") 48-49, 52, 56, ECF No. 31-2.) At her deposition, Dr. Erokwu reviewed these letters and testified that while she did not have a specific memory, of reading them previously, it was her standard practice to read letters containing prescription information about drugs that she prescribes. (Id. at 47-48, 53-65, 58) The letters were dated. between April and December, 1996, which means that the warnings were in *854 effect during the time Buchanan allegedly took Redux. Furthermore, it is undisputed that Plaintiff did not present any evidence to demonstrate that the warnings provided were inadequate, and instead argued solely that adequacy of the warnings was an issue of fact because Defendants bore the burden of proof. Consequently, as in Yanovich, Plaintiff has provided no evidence to controvert Defendants' evidence as to the adequacy of the warnings. Because the court finds that the warnings in the instant case were adequate as a matter of law, Plaintiff's design defect claim fails under Section 2307.75(D). Therefore, the court grants summary judgment for Defendants on Plaintiffs strict liability design defect claim. B. Negligence Claim 1. Plaintiffs Allegations of Negligence Plaintiff has not clearly stated the nature of her negligence claim. In her Amended Complaint, she states that Defendants had a duty to manufacture, promote, and sell only safe drugs, and the duty to investigate and disclose material facts about risks associated with their drugs. Defendants breached their duty by . . .[4] putting Redux on the market in 1996, when Defendants knew the active ingredient in th[is] drug[], namely, dexfenfluramine, was unreasonably dangerous. Defendants further breached their duty by . . . failing to update the drug['s] labels, failing to adequately monitor the effects of the drug[], failing to make timely . . . warning to the medical profession, failing to timely and accurately report to the FDA all adverse drug experience information obtained, and concealing and misrepresenting the results of studies to physicians and to the public. (Am.Compl. ś 19.) Elsewhere in the Amended Complaint, Plaintiff further stated: 10. Dexfenfluramine, . . . in the form of . . . Redux, caused so many adverse health effects that it was and is unreasonably dangerous, no matter what warnings are given about the diseases it causes. At the time of its manufacture, the foreseeable risks associated with using dexfenfluramine exceeded the benefits associated with its use. Defendants had an obligation to know, analyze, and report relevant scientific and medical information relating to . . . and dexfenfluramine use. However, defendants failed to properly monitor for reports of adverse effects associated with such use. Further, defendants failed to perform adequate research and testing of the drug. Defendants concealed [and/or] misrepresented . . . [to] physicians and the public . . . the risks associated with such use. 11. Defendants widely promoted dexfenfluramine as safe, until September 15, 1997. On or about that date, Defendants withdrew . . . Redux from the market at the urging of the FDA, due to extremely high rates of serious adverse events. Defendants knew or should have known sooner that dexfenfluramine was a dangerously defective product, [and] they should never have marketed Redux . . . (Id. śś 10-11.) At oral argument, Plaintiff's counsel sought to distinguish her design defect claim from her negligence claim by stating that the design defect claim focused on *855 whether the product was too dangerous to be used, whereas the negligence claim was "almost entirely focused on Wyeth's conduct." (1/17/08 Tr. at 26.) Plaintiff furthered characterized her negligence claim as alleging Defendants' failure to investigate the early warning signs that led to the drug being taken off the market and Defendants' failure to take the drug off the market sooner. (Id.) The court finds that to the extent that Plaintiffs Complaint alleges claims for negligent misrepresentation or negligent failure to investigate or negligence in putting Redux on the market, these claims are preempted by the FDCA because, as previously discussed, they conflict with the FDA's regulatory authority. However, Plaintiffs allegations can also be read to comprise claims for general negligence and negligent design, which are not preempted by federal law. 2. Whether Plaintiffs Negligence Claim Survives the OPLA Courts have held that some common law negligence claims, but not all, were abrogated by the enactment of the OPLA; In Carrel v. Allied Prods. Corp., 78 Ohio St.3d 284, 677 N.E.2d 795, 798-99 (1997), the Ohio Supreme Court held that negligent design claims were not precluded, reasoning that, "[a]ccording to principles of statutory construction, the General Assembly will not be presumed to have intended to abrogate a common-law rule unless the language used in the statute clearly shows that intent." As the language of the OPLA did not state that it was intended to "abolish common-law actions sounding in negligence," the court found that the negligent design, claims survived. Id. at 798. In Tomplcin v. Am. Brands, 219 F.3d 566, 575 (6th Cir.2000), the Sixth Circuit held that the OPLA abrogated the plaintiffs negligence claim, but specifically distinguished Carrel on the ground that the Tompkin, plaintiff did not allege a negligent design claim. However, the Ohio Court of Appeals has held that a negligence claim was not preempted where the plaintiffs cause of action arose prior to the April 7, 2005, amendment of the OPLA, which provided that the OPLA is "intended to abrogate all common law product liability causes of action." Luthman v. Minster Supply Co., 2008 Ohio 165, P13 (Ohio Ct.App2008). As in Luthman, the instant Plaintiffs cause of action arose prior to the amendment of the OPLA, and thus is arguably not precluded. As previously indicated, the Sixth Circuit provides Mat Plaintiffs general negligence claim has been abrogated by the OPLA, and state law precedent provides that her negligent design claim has not been abrogated. However, even if the court were to find that Plaintiffs general negligence claim is not preempted, under Luthman, Plaintiffs negligence and negligent design claims fail on the merits because, as discussed below, she has not presented evidence that' Defendants' actions or inactions proximately caused Buchapan's injury and death. 3. Merits of Plaintiffs Negligence Claim Whether Plaintiffs negligence claim is characterized as a general negligence claim and/or a negligent design claim, Plaintiff has not met her burden to defeat summary judgment because she has not presented evidence showing that Defendants' negligence proximately caused Plaintiffs injury or death. In Defendants' briefing, Defendants presented evidence in support of their Motion for Summary Judgment â in the form of Redux labels, FDA approval letters, and warning letters sent to physicians â that the warnings about the increased risk of PPH from Redux were adequate and that *856 Defendants informed physicians and updated the warnings when new information became available. Defendants' evidence indicates that they provided the first Redux warning label in April, 1996, when it was approved by the FDA; that they distributed a second letter in August, 1996, explaining that final results indicated that the risk of PPH was higher than previously stated; that they distributed the third letter along with the updated labels in December, 1996; and that Redux was ultimately taken off the market in September, 1997. Defendants also provided deposition testimony demonstrating that Buchanan's doctor, Dr. Erokwu, had received these warning, letters. Furthermore, Defendants presented evidence that Dr. Erokwu recalled receiving information specifically about Redux's risk of PPH, and she testified that she was aware of the risk of PPH from diet drugs generally. (Dr. Erokwu Dep. at 57, 95-96.) Dr. Erokwu also recalled prescribing a diet pill for Buchanan, but did not recall which drug or for how long she prescribed it. (Id. at 93-94.) Dr. Erokwu also stated that it was her practice to discuss the risks of diet drugs with her patients before prescribing them. (Id. at 95-96.) Consequently, Defendants argue, Plaintiff cannot show that Buchanan's injury and death were proximately caused by anything that Defendants either did or did not do. Plaintiff did not present any evidence in response and instead argued that Defendants should have known that Redux was so dangerous that no warning would have been adequate and that, the drug should have been taken off the market sooner. Consequently, in the face of Defendants' evidence, Plaintiff has not put forward any evidence that Defendants did not take appropriate steps in providing adequate warnings about Redux, that Defendants should have taken Redux off the market sooner, or that Defendants' alleged failure to take Redux off the market sooner proximately caused Buchanan's injury and/or death. Under these circumstances, the court finds that Plaintiff has not met her burden of presenting evidence which creates a genuine issue' of material fact. Therefore, the court grants summary judgment for Defendants on Plaintiff's negligence claim. C. Wrongful Death Claim Consequently, as the court has granted summary judgment for Defendants on Plaintiffs design defect and negligence claims, the court hereby grants summary judgment on Plaintiff's wrongful death claim pursuant to O.R.C. § 2125.01 et seq. V. MOTION FOR PARTIAL SUMMARY JUDGMENT ON PUNITIVE DAMAGES As the court has granted summary judgment to Defendants on all of Plaintiffs claims, Defendants' Motion for Partial Summary Judgment Relating to Punitive Damages (ECF No. 33) is hereby denied as moot. VI. CONCLUSION For the reasons stated above, to the extent that Defendants' Motions address Plaintiffs failure to warn claim, the Motions are denied as moot. Consequently, Plaintiffs failure to warn claim is hereby dismissed with prejudice. Furthermore, Defendants' Motion for Partial Summary Judgment Based on Federal Preemption (ECF No. 34) is granted in part and denied in part; Defendants' Motion for Summary Judgment Based on Lack of Evidence of Proximate Causation (ECF No. 31) is granted, and Defendants' Motion for Partial Summary Judgment Relating to Punitive Damages (ECF No. 33) is denied as moot. As a result of the above rulings, *857 Plaintiff's case is hereby dismissed, in its entirety. IT IS SO ORDERED. NOTES [1] The within case was originally brought, by Mary Buchanan, who was terminated due to her death. The Amended Complaint named Ramona Longs, as well as two other persons, all in their individual capacities; however, all claims by individual plaintiffs were dismissed by agreement of both parties. (See ECF Nos. 32, 38, 11/28/07 Order [non-document].) Consequently, the sole remaining Plaintiff is Ramona Longs in her role as executor. Therefore, the court will refer to Plaintiff in the singular throughout this Order. [2] The docket indicates that the remaining Defendants are Wyeth (formerly known as American Home Products Corporation), Wyeth-Ayerst Laboratories Company, Wyeth Pharmaceuticals, Inc., and Wyeth Pharmaceuticals. All entities are represented by the same counsel. Plaintiff's Amended Complaint alleges that Wyeth has assumed liability for each of the other Defendants, which are either wholly-owned subsidiaries of Wyeth (i.e., Wyeth-Ayerst Laboratories Company and Wyeth Pharmaceuticals, Inc.) or divisions of Wyeth (i.e., Wyeth Pharmaceuticals). (Am. Compl. ś 5, ECF No. 18.) [3] Plaintiff does not dispute that the "learned intermediary" doctrine, applies, which states that the adequacy of a product's warning is determined by "whether the doctor, rather than the patient, would reasonably understand the risks," Meridia Prods. Liab. Litig. v. Abbott Labs., 447 F.3d 861, 867 (6th Cir.2006) (emphasis added); see O.R.C. § 2307.76(C). Consequently, the court's discussion of the disputed warnings refers to those warnings provided to physicians, not to Buchanan. [4] The court has deleted all references to Pondimin, another drug that Defendants' manufactured that contained dexfenfluramine, because there are no allegations or evidence that Plaintiff ever ingested Pondimin.

575 So.2d 750 (1991) James GREEN, Appellant, v. Richard L. DUGGER and 13TH Judicial Circuit, Appellees. No. 90-03059. District Court of Appeal of Florida, Second District. March 1, 1991. *751 James Green, pro se. Robert A. Butterworth, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellees. PER CURIAM. James Green appeals the summary denial of his motion for postconviction relief. We previously authorized belated appellate review pursuant to State ex rel. Shevin v. District Court of Appeal, Third District, 316 So.2d 50 (Fla. 1975), and now affirm the trial court's order in part and reverse in part. Green entered a plea of guilty to armed robbery. In his motion he alleges that he did so with the understanding he would receive a sentence of seventeen years in prison. While this is the sentence that was imposed, the court also included a term of ten years probation to commence at the expiration of the prison sentence. Green complains that this was not part of the plea agreement and that he was not forewarned that the court could consider the option of consecutive probation. If this allegation is true Green might be entitled to relief. Orleman v. State, 527 So.2d 303 (Fla. 2d DCA 1988). In denying the motion, the trial court failed to attach sufficient documentation from the record to refute this particular claim. After remand the trial court should re-examine the files and records in this case in an effort to determine whether anything therein conclusively refutes Green's claim that his plea agreement was violated by the addition of probation to his sentence. If such record evidence can be located, the court may again deny the motion, attaching the exhibits to its order. Otherwise an evidentiary hearing may be necessary to resolve this portion of Green's motion. Should the court determine that Green's allegations are factually correct, it should vacate the probationary portion of the split sentence or, if unwilling to do so, afford Green an opportunity to withdraw the plea. Green also asserts that the sentence is "in excess of the maximum allowed by law." There is no merit to this contention, and the trial court properly denied relief on this ground. See Committee Note, Fla.R. Crim.P. 3.701(d)(12). Affirmed in part, reversed in part, and remanded with instructions. CAMPBELL, A.C.J., and LEHAN and THREADGILL, JJ., concur.

178 F.3d 1281 U.S.v.Patrick Gawrysiak, a/k/a Patrick Gray NO. 97-5751 United States Court of Appeals,Third Circuit. March 17, 1999 Appeal From: D.N.J. ,No.96cr006761 1 Affirmed.

566 P.2d 335 (1977) The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF JEFFERSON, State of Colorado, a body politic and corporate, The Jefferson County School District No. 1, a Quasi-Municipal Corporation, Darrell M. Pickney, and John A. Topolnicki, Plaintiffs-Appellees, v. The CITY AND COUNTY OF DENVER, State of Colorado, a Municipal Corporation, the City Council of the City and County of Denver, State of Colorado, the Board of County Commissioners of the City and County of Denver, State of Colorado, and Julian L. Cook, Defendants-Appellants. No. 27138. Supreme Court of Colorado, En Banc. June 13, 1977. Rehearing Denied July 25, 1977. *336 Patrick R. Mahan, City Atty., Richard J. Scheurer, Asst. City Atty., Golden, Robert H. Sonheim, Arvada, George J. Robinson, Lakewood, for plaintiffs-appellants. Max P. Zall, City Atty., Herman J. Atencio, Asst. City Atty., David J. Hahn, Denver, for defendants-appellants. CARRIGAN, Justice. On October 23, 1973, the Denver City Council by ordinance annexed to Denver certain unincorporated territory lying in *337 Jefferson County. The plaintiffs, collectively here referred to as Jefferson County, brought this action to set aside the annexation. The trial court found for Jefferson County, holding the ordinance void. We reverse. This annexation was initiated by a petition signed by Julian L. Cook and the mayor of Denver. Cook was the owner of an undivided interest in all the property to be annexed except a fifty-foot strip of land owned by Denver. One month after the petition was filed, it was amended to correct the description of the fifty-foot strip owned by Denver. The Denver City Council approved the annexation without holding a public hearing or an annexation election. I. ALLEGED PETITION DEFICIENCIES. Where the annexation petition has been signed "by the owners of one hundred per cent of the area proposed to be annexed, exclusive of streets and alleys . . ." and no "additional terms and conditions are to be imposed . . .," the statute[1] dispenses with the otherwise required notice, hearing and election and allows the expedited annexation ordinance procedure employed here. Jefferson County argues that this annexation did not qualify for the expedited procedure because Julian L. Cook, who signed the petition, was merely a tenant-in-common holding an undivided interest in the land annexed. It is contended, therefore, that since the petition was not signed by the other tenants-in-common, one hundred percent of the "landowners," as defined in the statute, did not sign the petition. In our view, however, the General Assembly has predetermined this issue in its definition of the term "landowner" for purposes of annexation: "'Landowner' means the owner in fee of any undivided interest in a given parcel of land . . . . For the purpose of determining the compliance with the petition requirements . . . a signature by any landowner as defined in this subsection (8) shall be sufficient so long as any other owner in fee of an undivided interest in the same area of land does not object in writing to the city council of the annexing municipality within fourteen days after the filing of the annexation petition."[2] The general assembly's power over annexation is limited only by express constitutional provisions and the quoted legislative definition of "landowner" controls our determination of the issue. See Fort Collins-Loveland Water District v. City of Fort Collins, 174 Colo. 79, 482 P.2d 986 (1971).[3] Because one hundred percent of the landowners signed the petition the requirements of the statute were met. 1965 Perm.Supp., C.R.S. 1963, 139-21-6(1)(h).[4] Likewise, the requirement of court approval was obviated. 1965 Perm.Supp., C.R.S. 1963, XXX-XX-XX(1).[5] It is further asserted that the annexation map failed to delineate individual ownership boundaries within the area to be annexed and that the map and the school board resolution did not accompany the petition. The annexation map, however, clearly shows the fifty-foot strip owned by Denver as described in the amended petition. A second map of the area, also made a part of the record in this case, shows the fifty-foot *338 strip both as described in the original petition and as described in the amended petition. All the rest of the property was owned by Cook and his cotenants. The annexation map erroneously indicates that the fifty-foot strip was owned by the Denver Water Board rather than by the City and County of Denver, but we consider this error insubstantial, since the signature pages attached to the petition clearly show that the strip belonged to the City and County of Denver. The map and school board resolution did accompany the petition. As we recently decided in another case,[6] there is substantial compliance with the requirement of 1965 Perm.Supp., C.R.S. 1963, 139-21-6(1)(e)(i)[7] that copies of the annexation map accompany the petition where the map is available to the city council whether or not it is physically attached to the petition. Likewise, the school board's resolution authorizing the addition of the subject territory to its district must be before the city council. 1967 Perm.Supp., C.R.S. 1963, 139-21-4(5).[8] Here, both the map and school board resolution were on file with the Denver Clerk and Recorder. In its resolution, the city council recited that the petition was accompanied by a map and school board resolution. Since these documents were available for the city council's inspection and consideration prior to passage of the annexation ordinance, we hold that there was substantial compliance with the requirements that the documents accompany the petition. Jefferson County also argues that the amended signature pages, attached to the amended petition, were improper. Clearly the amendment itself was not improper. The amended description made no changes in the external boundaries of the property to be annexed. The amended description and a map illustrating the correction of the internal boundary lines separating Denver's fifty-foot strip from the Cook property, all within the area to be annexed, were available to the city council when the annexation ordinance was considered and approved. This Court has previously upheld an annexation where the property description had been amended. Adams v. Colorado Springs, 178 Colo. 241, 496 P.2d 1005 (1972). It is true that Exhibit A, consisting of the signature pages, contained a typographical error which caused Range 69 West to read Range 60 West. The property description was retyped correctly, however, on each signature page. The ordinance, city council resolution, school board resolution and annexation map each referred to Range 69 West. This obvious typographical error, considered in context, is insubstantial. The signature pages themselves failed to set out the date of each signature, as required by statute. 1965 Perm.Supp., C.R.S. 1963, 139-21-6(1)(d)(ix).[9] Jefferson County has not alleged that any prejudice resulted from this technical oversight. The dates on the verifications accompanying the signatures show that signing took place prior to filing the documents. There is no claim that any of the signatures are stale. 1965 Perm.Supp., C.R.S. 1963, 139-21-6(1)(f).[10] Indeed it is obvious that they are not stale, for both of the property owners who signed the petition are parties to this action advocating that this property be annexed. Next, the County claims that, since the act contains no provision for annexation of peripheral public ways, sections of Kipling and Belleview avenues were improperly annexed. Kipling and Belleview Avenues adjoin a portion of the perimeter of the area to be annexed which is non-contiguous with Denver. The adjacent sections of *339 these public ways were annexed to their respective midlines. This Court has previously upheld the annexation of peripheral tax-exempt lands. Board of County Comm'rs v. City and County of Denver, 170 Colo. 56, 459 P.2d 292 (1969). Facing the precise issue now being considered here, the Colorado Court of Appeals upheld annexation of a non-contiguous peripheral public way to its midline. Board of County Comm'rs v. City and County of Denver, Colo.App., 548 P.2d 922 (1976). The legislature has not restricted or prohibited annexation of a public way to the midline. We decline to create by judicial interpretation such a limitation on the power of annexation. See Board of County Comm'rs v. City and County of Denver, 170 Colo. 56, 459 P.2d 292 (1969). The final attack on the application process is the claim that it was deficient because Denver failed to hold an election. It is argued that the annexation imposed additional terms and conditions upon the area annexed and therefore an election was required by 1965 Perm.Supp., C.R.S. 1963, XXX-XX-XX(1)(c).[11] By its terms, however, the ordinance[12] approved the annexation unconditionally. Jefferson County argues that even though the ordinance did not expressly impose additional terms or conditions, such terms and conditions were imposed both by a private agreement signed by Julian Cook and by pre-existing Denver ordinances. These contentions are not persuasive. In another Board of County Comm'rs v. City and County of Denver case[13] decided recently, we held that private agreements entered into by one whose land is being annexed, if binding at all, are the landowner's personal obligations and not terms and conditions affecting the area to be annexed.[14] Unless the ordinance itself imposes terms and conditions upon the annexed area, the requirement of an election is not triggered. Pre-existing ordinances do not impose additional terms and conditions on the area to be annexed. They are merely general laws which become applicable to new territory upon annexation. The existence of these laws may be considered by landowners, and, where applicable, by qualified resident electors, as a factor in deciding whether to consent to the annexation. Hence, no election is triggered where one hundred percent of the landowners, by petitioning for annexation, have already consented to be governed by the annexing city's ordinances. Absent such unanimous consent, an election is required whether or not the annexing city's ordinances impose "terms and conditions" on the land to be annexed. 1965 Perm.Supp., C.R.S. 1963, 139-21-6.[15] II. ALLEGED ORDINANCE DEFICIENCIES. Jefferson County asserts that the present annexation does not comply fully with Denver's annexation policies. We have decided recently, in another of the cases brought by Jefferson County, that a city may determine its annexation policy with respect to each annexation.[16] Therefore, for purposes of this annexation, Denver has repealed, by implication, its prior inconsistent annexation policy ordinances. Neither did Denver abuse its discretion in determining that this petition complied with the Municipal Annexation Act of 1965. While the application process was far from faultless, as we have determined above, it *340 substantially complied with the statutory requirements. It is true, as claimed, that the transcripts of the City Council meetings during which the annexation ordinance and resolution were approved do not contain any discussion of the annexation. However, other testimony showed that committee and other meetings were held which were not transcribed. This absence of formal recorded discussion, standing alone, does not prove abuse by the city council of its discretion. Our review of the record reveals an adequate basis for the council's approval of both the ordinance and the resolution. III. ANNEXATION OF UNINCORPORATED LAND. Finally, Jefferson County argues that Denver cannot annex an area that is not part of an incorporated city or town. This assertion is based on Colo.Const. Art. XX, Sec. 7 which requires that Denver have only one school district and that territory annexed from contiguous "municipalities" be added to the Denver school district. Since there is no express provision for additions to the Denver school district except from contiguous "municipalities," Jefferson County concludes that the Constitution precludes Denver's annexing unincorporated territory. We have held, however, that Article XX, Section 7 was not intended to limit annexations, but merely to require any school districts or parts of school districts, in annexed territory, to be consolidated into Denver's School District No. 1.[17] Accordingly, we reverse the trial court and remand the cause with directions to enter a judgment upholding the annexation. ERICKSON, J., dissents. GROVES and LEE, JJ., do not participate. NOTES [1] Municipal Annexation Act of 1965, 1965 Perm.Supp., C.R.S. 1963, 139-21-6(1)(h); now Colo.Sess.Laws 1975, ch. 275, XX-XX-XXX(1)(g) at 1081. C.R.S. 1963, as amended, was in effect at the time of this annexation. [2] 1965 Perm.Supp., C.R.S. 1963, XXX-XX-XX(8); now Colo.Sess.Laws 1975, ch. 275, XX-XX-XXX. [3] It should be noted that 1965 Perm.Supp., C.R.S.1963, XXX-XX-XX(8) has not been challenged on the ground that it does not provide for notice to the cotenants. In this regard, see Fort Collins-Loveland Water District v. City of Fort Collins, 174 Colo. 79, 482 P.2d 986 (1971) (dictum to the effect that the legislature may deny right of notice in annexation cases). [4] Now Colo.Sess.Laws 1975, ch. 275, XX-XX-XXX(1)(g) at 1081. [5] Now Colo.Sess.Laws 1975, ch. 275, XX-XX-XXX(1) at 1091. [6] Board of County Comm'rs v. City and County of Denver, Colo., 565 P.2d 212 (1977). [7] Now Colo.Sess.Laws 1975, ch. 275, XX-XX-XXX(d) at 1090. [8] Now Colo.Sess.Laws 1975, ch. 275, XX-XX-XXX(1)(d) at 1079. [9] Now Colo.Sess.Laws 1975, ch. 275, XX-XX-XXX(1)(c)(viii) at 1080. [10] Now Colo.Sess.Laws 1975, ch. 275, XX-XX-XXX(1)(e) at 1081. [11] Now Colo.Sess.Laws 1975, ch. 275, XX-XX-XXX(1) at 1084. [12] Denver Ordinance 645, Series 1973. [13] Supra note 6. [14] The City and County of Denver and the school board, who did not require the remaining cotenants to sign the memorandum agreements, have taken no further steps which would bind persons not assenting to the annexation. [15] Now Colo.Sess.Laws 1975, ch. 275, XX-XX-XXX at 1080-1083. [16] Supra note 6; see also Aurora v. Andrew Land Co., 176 Colo. 246, 490 P.2d 67 (1971). [17] Supra note 6.

465 Pa. 134 (1975) 348 A.2d 391 COMMONWEALTH of Pennsylvania v. Aubran Wayne MARTIN, Appellant. Supreme Court of Pennsylvania. Argued October 8, 1974. Decided November 26, 1975. *135 *136 *137 *138 *139 *140 *141 *142 *143 *144 Mark J. Goldberg, Pittsburgh, for appellant. Jess D. Costa, Dist. Atty., Washington, Richard A. Sprague, Sp. Prosecutor (Asst. Dist. Atty., Philadelphia), for appellee. Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ. OPINION POMEROY, Justice. In the early morning of December 31, 1969 Joseph Yablonski, his wife Margaret and their daughter, Charlotte were shot to death as they slept in their home in Clarksville, Washington County, Pennsylvania. Approximately a month later Aubran Wayne Martin, the appellant, was arrested in Ohio and charged with the murders. After extradition to Pennsylvania he was tried by a jury and on November 12, 1971 was found guilty of three counts of murder in the first degree. The jury recommended that the death penalty be imposed. Post-trial motions were denied in September, 1972 by the court en banc. A year later the sentence of death was imposed on appellant on each of the three counts. This appeal followed. It is not necessary for purposes of this opinion to give a detailed recitation of the sordid facts surrounding these murders. Various factual aspects of the crimes will be mentioned hereinafter as the discussion of the legal issues warrants. Suffice it here to recount that Joseph Yablonski was a stormy petrel in the United Mine Workers of America who in 1969 waged a vigorous but losing campaign for the presidency of that organization. *145 Claude Edward Vealey, Paul Gilly and Aubran Wayne Martin were hired to assassinate Yablonski for the sum of $5,200.[1] Martin was a late substitute in this conspiracy for one James Phillips, who had withdrawn after he, Vealey and Gilly had spent some months in seeking, unsuccessfully, the right opportunity for the assassination. The principal evidence against Martin came from the testimony of his co-conspirator Vealey; evidence filling out and corroborating his story came from federal and State law enforcement personnel, and others. According to Vealey, Martin entered the room of Charlotte Yablonski and shot her twice with a .38 caliber revolver, killing her. Immediately thereafter Vealey, in an adjacent bedroom occupied by Mr. and Mrs. Yablonski, tried to shoot them, but his rifle jammed and the clip fell to the floor. Gilly came to his aid, fixed the rifle, and fired once at the Yablonskis. Martin also entered the Yablonski bedroom and fired four times at Jock and Mrs. Yablonski. Vealey then took Martin's revolver and for good measure shot Yablonski three more times. It was Martin, according to his companions, who took a money clip containing about $240 dollars from the bedroom dresser, which later was split among the three. Their mission accomplished, the murderers left the scene, and on their return journey discarded weapons, ammunition, gloves and stolen film canisters in the Monongahela River and along the roadside. *146 When they had returned to Cleveland, Vealey and Martin were paid off by Paul Gilly. Some eighteen errors are assigned, all of them directed to the purported necessity of a new trial. We are satisfied that no error of substance occurred, and will therefore affirm the three convictions of murder. The death sentences, however, will be vacated and the case remanded for resentencing. The arguments advanced on behalf of appellant may be conveniently grouped into those pertaining to alleged errors which occurred prior to the commencement of the trial proper, those pertaining to errors in the admission of evidence at trial, and errors in the charge. We shall consider them in that order, followed by consideration of the sentencing. I. Alleged Pre-Trial Errors 1. Change of venue. Appellant urges that massive and inflammatory pre-trial publicity in Washington County foreclosed the possibility of a fair trial, and that the trial court thus erred in refusing the motion for change of venue.[2] *147 The newspaper accounts admitted into evidence at the change of venue hearing were comprised of one story which described picketing at the United Mine Workers headquarters in Washington, D.C. by supporters of Jock Yablonski; four relating to the denial of Martin's motion for continuance of the trial; one relating to an arrest of appellant's brother; and nine relating to the change of venue motion. In four of these 15 articles mention is made of a statement given by Claude Vealey in June which had implicated Martin, three of the articles mentioning that implication. This court has many times said that "It is clearly established that the grant or refusal of a change of venue or of a continuance is within the sound discretion of the trial Court." Commonwealth v. Richardson, 392 Pa. 528, 540, 140 A.2d 828, 835 (1958). See also Commonwealth v. Powell, Pa., 328 A.2d 507 (1974); Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680, 683 (1974), appeal dismissed, 419 U.S. 1065, 95 S.Ct. 651, 42 L.Ed.2d 661 (1974); Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974); Commonwealth v. Swanson, 432 Pa. 293, 248 A.2d 12, (1968), cert. denied, 394 U.S. 949, 89 S.Ct. 1287, 22 L.Ed.2d 483 (1969); Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58 (1971). In Hoss, supra, where we upheld a refusal to change the venue, we reviewed the considerations bearing on the exercise of discretion as delineated in Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) and Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed. 2d 751 (1961). We identified three factors as having particular relevancy: length of time between arrest and trial; the effort of the trial court to abate publicity; and *148 whether publicity had caused prospective jurors to form an opinion of guilt. Addressing those factors as they apply to the case at bar, the record shows the following: (1) Martin's trial (voir dire) commenced on November 3, 1971, twenty-one months following his arrest. For about a year and a half of that time Martin was in Ohio, and fighting against extradition to Pennsylvania. In Hoss the time span was five months, which we called a "lengthy time period." 445 Pa. at 106, 283 A.2d at 63. The twenty-one month period in this case was more than sufficient to permit the tide of publicity which followed the Yablonski slayings and subsequent arrests to ebb. (2) In the instant case, as in Hoss, the trial court released an administrative memorandum or order as early as April 29, 1970 seeking to abate publicity.[3] So far as appears, the restrictions thus imposed were observed both by counsel in this case and by the news media. *149 (3) With reference to fixed opinions of guilt by veniremen, the voir dire examination is, of course, the proper occasion to develop the facts. "The voir dire examination is the proper place to determine whether a defendant's public notoriety has resulted in a prospective juror's prejudice." U.S. v. Hoffa, 367 F.2d 698 (7th Cir. 1966), vacated on other grounds, 394 U.S. 310, 89 S. Ct. 1163, 22 L.Ed.2d 297 (1969). This is the normal rule and practice in Pennsylvania. Commonwealth v. Jones, 452 Pa. 299, 304 A.2d 684 (1973); Commonwealth v. McGrew, 375 Pa. 518, 525, 100 A.2d 467, 470 (1953). In the case at bar, 107 veniremen were asked whether they had heard, read or seen anything about the facts of the case, and 97 answered in the affirmative. On the other hand, only 23 of the 221 persons examined stated that they had formed a fixed opinion of guilt. In Hoss, the corresponding ration was 26 out of 138. Cf. Irvin v. Dowd, supra. It is established that only those jurors who possess fixed, unalterable opinions of guilt are erroneously not excused. As the Supreme Court of the United States stated in Irvin v. Dowd, supra: "To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." 366 U.S. at 723, 81 S.Ct. at 1642. It is clear to us, therefore, that appellant did not establish at the voir dire examination that a fair and impartial jury could not be empanelled. Indeed, our own examination of the pre-trial publicity indicates that while it was extensive, it was, as in Hoss, basically "factual in nature" and concerned largely with "reports of the procedural developments of the case." See 445 Pa. at 105, 283 A.2d at 63. The journalists showed remarkable *150 restraint in their reporting. It is worth remarking that although the order denying the change of venue was without prejudice to a renewal of the motion at the conclusion of the voir dire, no such motion was made.[4] It is true, of course, that there can be pre-trial publicity so sustained, so pervasive, so inflammatory and so inculpatory as to demand a change of venue without putting the defendant to any burden to establish a nexus between the publicity and actual jury prejudice. Denial of due process of law is found to be inherent in the situation. Such a case was Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973), cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973).[5] See also Sheppard v. Maxwell, 384 U.S. 333, 352, 86 S.Ct. 1507, 16 L.Ed.2d 600, 614 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). It is enough to say that the egregiously prejudicial elements of Pierce are absent in the case at bar. 2. "Keyman" Jury Selection Appellant has challenged the "keyman" jury selection process as it operates in Washington County. There appear to be two aspects to appellant's argument. First, there is a claim that this process involves an improper delegation of authority by the jury commissioners to the "keymen" under the Act of April 10, 1867, P.L. 62, § 2, 17 P.S. § 942. Second, it is asserted that the "keyman" *151 process denied appellant his right to a fair trial, to due process of law and to equal protection of the laws because it resulted in a jury which did not reflect a representative cross section of the community. The issue was properly preserved for appeal. (1) The selection of and qualifications of jurors in Washington County, a County of the third class, are governed by the Act of April 16, 1925, P.L. 244, as amended, 17 P.S. § 1322, et seq. and the Act of April 10, 1867, P.L. 62, § 2, 17 P.S. § 942. The Act of 1925, as amended, 17 P.S. § 1332, provides that the jury board in third class counties is to consist of the judges of the court of common pleas and the two elected jury commissioners and that one of the judges and the two commissioners shall constitute a quorum of the board. The Act of 1867 provides for the method of selecting persons to serve as jurors: "It shall be the duty of said jury commissioners, president judge, or additional law judge of the respective district, or a majority of them, to meet at the seat of justice of the respective counties, at least thirty days before the first term of the court of common pleas, in every year, and thereupon proceed, with due diligence to select, alternately, from the whole qualified electors of the respective county, at large, a number, such as at the term of the court of [common] pleas next preceding shall by the said court be designated, of sober, intelligent and judicious persons, to serve as jurors in the several courts of such county during that year; and the said jury commissioners, president judge, or additional law judge, or a majority of them, shall, in the mode and manner now directed by law, place the names of persons so selected in the proper jury wheel, and the said jury wheel, locked as now required by law, shall remain in the custody of the said jury commissioners, and the keys thereof in the *152 custody of the sheriff of said county." 1867, April 10, P.L. 62, § 2. (emphasis added) The Washington County "keyman" system operated in the following manner. The prospective jurors were selected by the elected jury commissioners, one Democrat and one Republican, and a judge of the court of common pleas,[6] each providing one-third of the 2,000 names placed in the jury wheel. Each jury commissioner mailed out 402 questionnaires, one to each of the party committee members in every precinct in Washington County, requesting the names of 4 prospective jurors. Each commissioner received approximately 90% of the questionnaires back, thus obtaining the names of 1500 to 1600 names by this method. In addition, each commissioner received from other sources between 150 and 400 other names. Each jury commissioner then personally selected the 666 prospective jurors which he was responsible for obtaining. The judge obtained names of prospective jurors by personally getting in touch with various civic, fraternal, voluntary, church and veterans organizations throughout Washington County. Appellant contends that these selection procedures are inconsistent with the requirements of the Act of 1867 that the jury commissioners are "with due diligence to select" prospective jurors because the commissioners in effect merely rubber stamp the politicians' choices. A similar challenge was made to the Washington County keymen system in the case of Grove v. Toninecz, 189 Pa.Super. 32, 149 A.2d 547 (1959). The Superior Court, although stating that it was "not approving the method here used as worthy of universal adoption," 189 Pa.Super. at 41, 149 A.2d at 552, found that the provisions of the Act of 1867 requiring that jurors be selected from the "whole qualified electors" of the county was directory and not mandatory and that therefore the *153 "keyman" procedure was not in violation of the Act of 1867. In reaching the conclusion that the language was directory, the Court relied upon the decision of this Court in Commonwealth v. Zillafrow, 207 Pa. 274, 56 A. 539 (1903). We there had this to say of the provision in question: "The statutory provisions alleged to have been disregarded, though not followed literally, were not contravened as to spirit or intent. The provisions themselves are directory in character. They do not prescribe or bear upon the substance of any duty, but merely upon the manner of its performance, and do not differ in this respect from other provisions of the same or analogous acts which have already been held to be directory only." (citations omitted). What the Superior Court said in Grove, supra, would appear to be directly on point in the instant case: "Conceivably, political considerations in some instances might result in the selection of jurors who should never be permitted to serve. But there is nothing in the record to indicate that any of the persons suggested by the commissioners was not qualified or that the defendant in drawing a jury on the trial of this case was in any way prejudiced." 189 Pa.Super. at 41, 149 A.2d at 552. In Commonwealth v. Carroll, 443 Pa. 518, 278 A.2d 898 (1971), this Court upheld the "keyman" system as it operated in Erie County against a challenge similar to the one in this case. The practice in Erie was much like that in Washington County. The two elected jury commissioners contacted the committeemen of the political parties in Erie and leaders of various churches, social, civic and fraternal organizations soliciting names of prospective jurors. This resulted in furnishing half of the names placed in the jury wheel. The other half was supplied by three judges of the court of common pleas, one of whom obtained the names he placed in the wheel by going through the voter registration lists and gathering names. We said of these procedures: "The `keyman' *154 jury selection system has been sustained where there is evidence that the jury commissioners have familiarized themselves with all of the significant elements in the community and have made a special effort to consult leaders from these various population groups." 443 Pa. at 525, 278 A.2d at 901. We find that the evidence here too is adequate to support the finding of the trial court that the jury commissioners familiarized themselves with and consulted the significant segments of the community. Thus we conclude that the Act of 1867 and the Act of 1925 were complied with. (2) The other facet to the "keyman" selection challenge is constitutional: that the Sixth Amendment guarantee of trial by jury — encompassing as it does the "fair possibility for obtaining [on the jury] a representative cross-section of the community," Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1906, 26 L.Ed.2d 446, 460 (1970) — is violated by the system in vogue in Washington County. See also Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Martin claims that the keyman method does not allow for the inclusion, at least in adequate numbers, of the youth, the poor, the unemployed, the blacks, the Democrats and the politically independent of the community. To advance this argument it is not necessary that Martin be a member of all of these groups, or any of them. See Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). But he must establish at least a "prima facie case of invidious discrimination" before "the burden of proof shifts to the State to rebut the presumption of unconstitutional action." Alexander v. Louisiana, 405 U.S. 625, 631-32, 92 S.Ct. 1221, 1226, 31 L.Ed.2d 536, 542 (1972). In Alexander, the claim was principally that the defendant was denied equal protection of the laws and due process of law because he had been indicted by a grand jury which had been empanelled from a venire on which were only a token number of Negroes. After reviewing the operation *155 of the process in the parish involved, the Supreme Court concluded that a "prima facie case of discrimination" had been made out. 405 U.S. at 629-31, 92 S.Ct. at 1224-1226, 31 L.Ed.2d at 541-42. The Court went on to observe: "This Court has never announced mathematical standards for the demonstration of `systematic' exclusion of blacks but has, rather, emphasized that a factual inquiry is necessary in each case that takes into account all possible explanatory factors. The progressive decimation of potential Negro grand jurors is indeed striking here, but we do not rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical improbability alone, for the selection procedures themselves were not racially neutral. The racial designation on both the questionnaire and the information card provided a clear and easy opportunity for racial discrimination." 405 U.S. at 630, 92 S.Ct. at 1225, 31 L.Ed.2d at 542. (Emphasis supplied) See also Turner v. Fouche, 396 U.S. 346, 360, 90 S.Ct. 532, 24 L. Ed.2d 567, 579 (1970); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953). It is a fair reading of these cases that a method of jury selection which violates the Sixth Amendment guarantee of trial by jury must involve not only statistical improbability of inclusion of a particular segment of the community, but an inherently non-neutral — i.e., discriminatory — selection procedure.[7] In the case before us appellant has failed to demonstrate the presence of either of these factors. The only statistical information presented to us is that of the 221 prospective jurors questioned in the voir dire, only 3 were black, but it is said to be unlikely that the keyman selection system *156 would turn up unregistered voters and that "[i]t is common knowledge that this group of unregistered voters include large numbers of blacks and youths." (Brief for appellant at 28) It is also contended that because there are approximately 66,000 registered Democrats and only 29,000 registered Republicans in Washington County, the keyman system "discriminates against political parties and affiliations alone in better than a two-to-one ratio." (id. at 24) These bare allegations, quite unsupported by the testimony of anyone having actual knowledge of the operation of the system or by any interpretive or expert opinion evidence, are insufficient to establish a prima facie case of invidious discrimination against any of the groups allegedly improperly excluded. Nor has there been any specific showing of how the keyman system discriminates against these groups. The fact that a subjective element is present in the selection process does not by itself make the procedure inherently discriminatory. Unlike the situations found to be present in Alexander, Avery and Whitus, supra, appellant has failed to demonstrate that the jury commissioners of Washington County were aware of the age, race, color, political affiliation, etc. of the persons whose names were received in response to their questionnaires, and that the commissioners then had the opportunity to select potential jurors on the basis of such characteristics or affiliations. The paucity of evidence in this record to support the allegation of discrimination in Washington County's jury selection system distinguishes this case from that decided by the Third Circuit Court of Appeals in Smith v. Yeager, 465 F.2d 272 (3d Cir., 1972). The Court there held invalid the keyman system as it operated in Essex County, New Jersey. This was not, however, a ruling of unconstitutionality per se; there was ample statistical evidence of discrimination against blacks; and there was evidence that the jury commissioners had given up seeking the names of potential black jurymen from likely *157 sources. In contrast, the evidence here is that the three persons charged with the duty of selecting potential jurors fulfilled their duties responsibly; they had familiarity with the various significant elements comprising the community and consulted with leaders of those elements to aid them in the selective process. There was no proof that those selected were unqualified and no proof of invidious or systematic discrimination against or exclusion of any group. Cf. Commonwealth v. Jennings, 446 Pa. 294, 300, 285 A.2d 143 (1971). We hold that the attack on the keyman system in Washington County as applied to this case is without merit. 3. Voir Dire Examination Appellant alleges that several reversible errors occurred during the course of the voir dire examination. The principal of these relates to the scope of the voir dire itself, appellant contending that in light of the refusal of the court to grant a change of venue, a more thorough inquiry of prospective jurors should have been permitted. As this Court stated in Commonwealth v. McGrew, 375 Pa. 518, 525, 100 A.2d 467, 470 (1953), "the examination of jurors under voir dire is solely for the purpose of securing a competent, fair, impartial and unprejudiced jury." We also there observed that "the scope of a voir dire examination rests in the sound discretion of the trial Judge and his decisions, even in a challenge for cause, will not be reversed in the absence of palpable error." Id. at 526, 100 A.2d at 471. In the present case the trial judge, the Hon. Charles G. Sweet, permitted defense counsel to ask 20 out of 90 questions submitted; he allowed the Commonwealth to ask three questions, the third dealing with scruples concerning the death penalty; and he himself propounded eleven questions. Without detailing them, *158 we think that the scope of the inquiries put to the panel was sufficiently searching and was well calculated to "securing a competent, fair, impartial and unprejudiced jury." McGrew, supra. We find no abuse of discretion. Appellant complains, specifically, that the judge's question as to whether a juror had formed a "fixed" opinion as to the guilt or innocence of Aubran Wayne Martin was too restrictive; that the question should have been directed to whether any opinion had been formed. This complaint is without merit under our case law. Commonwealth v. Lopinson, 427 Pa. 284, 298, 234 A.2d 552 (1967), vacated on other grounds, 392 U.S. 647, 88 S.Ct. 2277, 20 L.Ed.2d 1344 (1968). ("The only legitimate inquiry in this area was whether or not the juror had formed a fixed opinion in the case as to the accused's guilt or innocence"). See also Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58, 64 (1971); Commonwealth v. Swanson, 432 Pa. 293, 300, 248 A.2d 12, 16 (1968); Commonwealth v. McGrew, supra, 375 Pa. at 525, 100 A.2d 467; Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751, 756 (1961). The complaint is also without foundation in the record. Martin's lawyer was allowed to ask jurors whether they had heard or read anything about the case on television, radio or in the newspapers, and, if so, "what was the opinion you got from that"; he was not limited to "fixed" opinions in that question. The trial judge's rulings concerning three episodes during the several days of the voir dire examination are also asserted as prejudicial error. One incident was that a person identified as a member of the Miners for Democracy (a Yablonski-oriented group) said to three members of the venire panel during a luncheon break that it would be an honor to serve on the Martin jury. It is to be noted that persons addressed were prospective jurors only, and there is no showing that any of *159 them was selected for the petit jury. The rule of presumptive prejudice relative to conversations with a juror during a trial is therefore not applicable. Cf. Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954). The judge conducted a hearing nevertheless, and while he dismissed the incident as trivial, he allowed questions to be asked about it on voir dire. In the absence of any showing of prejudice, we find no error in the court's refusal to strike the entire venire panel. The next occurrence was the discovery that a juror who had been selected and sequestered was a sister-in-law of a Washington County detective. The detective was not a prosecution witness and the potentiality for prejudice found present in some other cases was thus absent here. Cf. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); United States ex rel. Fletcher v. Cavell, 287 F.2d 792 (3d Cir. 1961). In any event, Judge Sweet excused the juror and allowed the defense an extra challenge for cause. We find no abuse of discretion either in not allowing an additional peremptory challenge[8] or in not striking the entire panel of jurors, as the appellant requested. The final incident during the voir dire stage which was claimed to be so prejudicial as to call for a mistrial was the publication in a Washington, Pa. newspaper of a report that two of Martin's alleged co-felons in the Yablonski murders, Paul Gilly and Silous Huddleston, had pleaded guilty; whereas in fact both had pleaded not guilty. At the time the article appeared (Saturday, November 6, 1971) nine jurors had been selected and sequestered. The trial judge, when the matter was called to his attention, informed the incoming venire *160 panel of the inaccuracy, and allowed defense counsel to interrogate the remaining prospective jurors as to this news item. Under these circumstances we find no abuse of discretion in denying the mistrial motion. 4. The "Death-Qualified" Jury At the time of trial, the death penalty was an available option to the jury should the defendant be found guilty of murder in the first degree.[9] Veniremen were questioned by the prosecution as to their views on the death penalty and several challenges for cause because of their responses were sustained, over appellant's objections. The appellant claims that error in these rulings resulted in a "death-qualified" jury. The claimed error is that the trial judge failed to comply with the standards expressed by the Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The nub of the Court's holding is "that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." 391 U.S. at 522, 88 S.Ct. at 1777, 20 L. Ed.2d at 784-85. The Court declined, however, "to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was [i.e., in noncompliance with the above standard]" Id. at 518, 88 S.Ct. at 1775, 20 L.Ed.2d at 782. Indeed, the Court in Witherspoon merely reversed as to *161 the sentence of death; it permitted the conviction itself to stand. See also Moore v. Illinois, 408 U.S. 786, 92 S. Ct. 2562, 33 L.Ed.2d 706 (1972); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) in which the Court refused to apply Witherspoon because Bumper had been sentenced only to life imprisonment and not to death. In the recent case of Commonwealth v. Dukes, 460 Pa. 180, 331 A.2d 478 (1975) we considered and rejected a claim similar to appellant's. There, after reviewing the holdings of Witherspoon and Bumper, we observed: "Consonant with these cardinal decisions of the Supreme Court of the United States, this Court has repeatedly held that in cases in which the death penalty has not been imposed or in which a sentence of death has been imposed but cannot be carried out as a result of the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), noncompliance with the Witherspoon standard of jury selection is irrelevant. [Citations omitted]". Id. at 188-189, 331 A.2d at 482. See also Commonwealth v. Ashburn, 459 Pa. 625, 331 A.2d 167 (1975). Since in the instant case we have determined that the death penalty was not properly imposed, see infra, appellant's challenge falls within the ambit of Dukes, supra, and its antecedents.[10] Appellant's argument relative to the challenges for cause which the trial court sustained proceeds to another claim of due process denial, namely, that the exclusion of jurors with an aversion to the death penalty resulted, if not in a "death-qualified" jury, in one that was at least "conviction prone." Thus it is argued that "the *162 kind of juror who would be unperturbed by the prospect of sending a man to his death is the kind of juror who would too readily ignore the presumption of innocence, and accept the prosecution's version of the facts, and return a verdict of guilty." Appellant's brief at 35. In Witherspoon, supra, the Supreme Court of the United States refused to accede to this argument because the data there before it were "too tentative and fragmentary", 391 U.S. at 517-18, 88 S.Ct. at 1774-75, 20 L.Ed. 2d at 782. This Court likewise rejected the same contention in Commonwealth v. Speller, 445 Pa. 32, 282 A.2d 26 (1971) because it was "without persuasive foundation and is mere speculation." 445 Pa. at 35, 282 A.2d at 28. See also Commonwealth v. Hudson, 454 Pa. 117, 314 A.2d 231 (1974); Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972); Commonwealth v. Roach, 444 Pa. 368, 282 A.2d 382 (1971).[11] We hold the trial court was not in error in following these cases, and that it applied them correctly. *163 5. Pre-Trial Discovery Appellant asserts that his pretrial discovery was unduly limited, and therefore (so we infer) that a prejudicial abuse of discretion was committed. While complaining that the court "summarily denied" his motions for production of documents, etc., appellant overlooks that the prosecution agreed to a production of a large segment of the requested items;[12] that the court ordered discovery in accordance with this consent of the Commonwealth, and held a hearing on the items not agreed to; that although the motion was denied "for overbreadth", the denial was with leave to counsel to refile; that a new motion was filed and another hearing held; that at this hearing it was agreed that still other results of the State's investigation would be made available to appellant,[13] and that the items as to which production or inspection was finally denied boiled down basically to ballistic reports, fingerprints, notes of oral statements made by appellant and statements of co-conspirators.[14] These discovery proceedings were conducted between August 16 and the last week of October. They resulted in giving appellant a considerably broader discovery than he was entitled to by our rules,[15] and the *164 few items appellant was denied were not discoverable under the rule.[16] No "exceptional circumstances or compelling reasons", in the words of Pa.R.Crim.P. 310, see n. 15, supra, were proved to warrant the production that was denied,[17] nor is it alleged that any prejudice resulted from inability to inspect the non-produced items. See Commonwealth v. Caplan, 411 Pa. 563, 192 A.2d 894 (1963); cf. DiJoseph's Petition, 394 Pa. 19, 145 A.2d 187 (1958). There was thus no "summary" action by the trial court and there was no abuse of discretion. Commonwealth v. Mamon, 449 Pa. 249, 297 A.2d 471 (1972). The appellant argues, however, that regardless of the rule of court limiting discovery, "[n]o category of information within the possession of the prosecution is altogether immune from the disclosure duty" of the prosecution under the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant's brief at 10. The rule set forth in Brady is that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective *165 of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196, 10 L.Ed.2d at 218. There is, of course, no doubt that evidence of this nature — that is, evidence that "would tend to exculpate [a defendant] or reduce the penalty," Ibid., — may not, as a constitutional matter be withheld, and that a rule of court to the contrary must give way. Lewis v. Lebanon County Court of Common Pleas, 436 Pa. 296, 301, 260 A.2d 184, 187 (1969). But the Supreme Court has never given Brady the all-encompassing reading now contended for. See, e.g., Giles v. Maryland, 386 U.S. 66, 73-74, 87 S.Ct. 793, 796-797, 17 L.Ed. 737, 744 (1967); Moore v. Illinois, 408 U.S. 786, 794, 92 S.Ct. 2562, 2567, 33 L.Ed. 2d 706, 713 (1972). See also Commonwealth v. Martinolich, 456 Pa. 136, 161 n. 16, 318 A.2d 680, 694, n. 16 (1974). In the case at bar the Commonwealth agreed to supply to appellant any evidence of an exculpatory nature. See n. 12 supra. No such material was forthcoming, however, for the prosecution represented to the trial court, as it does in this Court, that in fact it had in its possession no evidence that would tend to exculpate Martin. Martin contends that it should be the court's judgment, not that of the prosecution, which controls in a matter of such importance. The trial court declined to conduct an in camera inspection of the results of the prosecution's investigation in order to make its own independent appraisal of the evidence. We agree that it had no obligation so to do. As the Court of Appeals for the Fourth Circuit has put it, the rule of Brady "does not make it incumbent upon the trial judge to rummage through the file on behalf of the defendant." United States v. Frazier, 394 F.2d 258, 262 (4th Cir. 1968), cert. denied, 393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445. See also United States v. Harris, 409 F.2d 77, 80-81 (4th Cir. 1969), cert. denied, sub nom. Venning v. United States, 396 U.S. 965, 90 S.Ct. 447, 24 L.Ed.2d 430 *166 (1969); United States v. American Radiator and Standard Sanitary Corp., 433 F.2d 174, 202 (3d Cir. 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 928, 28 L.Ed.2d 231 (1971).[18] II. Alleged Trial Errors We turn now to consideration of alleged errors pertaining to the trial itself. (1) The first of these is a charge that the holding of a night session on the first day of trial was an abuse of discretion and that it deprived appellant of the effective assistance of counsel at that session. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Counsel first objected to the night session on the ground of his need to use the evening hours for conferences in preparation for the next day's session. We recognize that in our system of adversary proceedings a trial is an arduous affair, demanding the closest attention and the most alert responses that counsel can muster, that it is a drain both on nervous energy and physical stamina, and that the day's work is by no means over for the lawyer when the afternoon session comes to a close. In like manner, of course, a trial can be tiring, even to the point of exhaustion, to parties, witnesses, judges, jurors and other court personnel. Normally, therefore, evening sessions are to be avoided. In this *167 case, however, the court decided to order the extra session because the trial had not commenced until the afternoon of that day, the jury had already been sequestered for several days, and a number of witnesses scheduled to testify on the first trial day had come from out-of-State locations. Under these circumstances we cannot say that overruling of the objection was an unreasonable exercise of discretion. Later in the afternoon the objection to continuing the trial into the evening was renewed on the ground that counsel was coming down with a cold or the "flu", but the objection was again overruled. If it were established that counsel was indeed ineffective at the night session by reason of illness, we would have to determine whether prejudice had resulted from such ineffectiveness sufficient to vitiate the remainder of the trial. We have concluded, however, that no ineffectiveness has been shown. Our standard for judging effectiveness of counsel for a defendant in a criminal trial is whether the conduct of the lawyer "had some reasonable basis designed to effectuate his client's interest . . . the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decision had any reasonable basis." Commonwealth ex rel. Washington v. Maroney, supra, 427 Pa. at 604-05, 235 A.2d at 352-53. We have reviewed the record of the session in question against this standard. It lasted not quite an hour and a half. Fourteen witnesses for the Commonwealth were heard. Most of the witnesses were persons who had discovered various objects associated with the crimes, and their testimony was quite routine and unexceptionable. Defense counsel conducted no cross-examination of seven of these witnesses. Several other witnesses recounted an occasion when Jock Yablonski and others searched for a strange automobile whose occupants, it was believed, were seeking to kill Yablonski. Counsel did cross-examine *168 these witnesses, and also another witness who stated that he had sold an automobile to Martin in Cleveland the day of the murders. On this record, it is impossible to say that counsel was in any way ineffective during the night session in question; his choice of witnesses to be examined and of the subject-matter that called for examination appears to have been altogether reasonable. Since appellant was not incompetently served at the session in question, he was not harmed in any way by the trial court's action. It follows that we need not inquire further as to whether an abuse of discretion occurred when the judge refused to accede to the claim of illness. Cf. Commonwealth ex rel. Gallagher v. Rundle, 423 Pa. 356, 223 A.2d 736 (1966); Commonwealth ex rel. Jones v. Maroney, 417 Pa. 567, 209 A.2d 285 (1965). (2) Appellant objected to certain testimony by an F. B.I. Agent, Michel, a witness for the Commonwealth, in which Michel related the contents of an oral statement given him by Aubran Martin during an interview on January 15, 1970, approximately two weeks before he was arrested for the Yablonski crimes. The agent testified that Martin was given his full Miranda warnings, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966), but that the printed form of waiver of rights was not signed "because of the fact he stated he understood his rights fully . . . he said he would be willing to answer questions but not sign the form." Michel then testified that in response to his questions Martin answered that he did not know where he had been on the day of the murder; that he had not bought a car with a girl named Joanne Guinn; and that he did not know any one named "Paul" or "Claude". Notwithstanding that these statements were altogether exculpatory in nature, Martin now contends that testimony as to what he had said should not have been admitted into evidence because, first, prior to making of the statements Martin had declined to sign a written waiver of his Miranda *169 rights and, second, because at no time was he asked by police officers if he was represented by counsel. Appellant's first argument for suppression of Michel's testimony seems to be that the oral statement should not have been admitted because Martin's refusal to sign the written Miranda waiver form is a conclusive indication that his oral waiver was not knowing and intelligent. We do not doubt that in some situations a refusal of a person being questioned to sign a waiver form, even though followed by an apparent willingness to allow further questioning, can be indicative of confusion or ignorance such as to require the police to seek additional assurances of intelligence and understanding before proceeding further. See e.g., United States v. Nielsen, 392 F.2d 849 (7th Cir. 1968); United States v. Jenkins, 440 F.2d 574 (7th Cir. 1971). In other situations the absence of a written waiver has not been thought to vitiate oral statements. See United States v. Crisp, 435 F.2d 354 (7th Cir. 1971), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116 (1971); Hodge v. United States, 392 F.2d 552 (5th Cir. 1968). See also Commonwealth v. Canales, 454 Pa. 422, 311 A.2d 572 (1973). The record here satisfies us that Martin was aware of his rights and voluntarily gave the oral statements now challenged. Although Martin took the stand, he understandably did not dispute these statements, and at the end of the trial his lawyer agreed with the trial judge that there would be no error in not presenting to the jury the matter of the voluntariness of the statements given to Michel. Nor do we accept the argument that as a matter of law the warnings were inadequate because Martin was not asked if he then had a lawyer. We know of no case holding this to be a requirement. Appellant relies upon Sullins v. United States, 389 F.2d 985 (10th Cir. 1968). In that case, however, there was no waiver of Miranda *170 rights. The four defendants testified that they had requested counsel but that these requests were ignored. This was consistent with police testimony that "at no time had any one of the four expressly said that he or she did not want to consult a lawyer before making a statement." 389 F.2d at 988. There is no such evidence in the case before us, nor is there evidence that Martin was in fact represented by counsel at the time of the interview. (3) Claude Vealey, a co-conspirator of Martin, was the chief Commonwealth witness. During cross-examination of Vealey and in an attempt to impeach his credibility, defense counsel confronted him with a document, defendant's Exhibit A, purporting to be a motion by Vealey's lawyer, Elmer A. Guiliani, filed in the Court of Common Pleas of Cuyahoga County, Ohio, to hire an investigator and seeking a writ of habeas corpus in order to avoid extradition to Pennsylvania. The motion stated that Vealey was not in Pennsylvania at the time of being indicted (presumably for the Yablonski murders) or "at any time". Attached to the motion, which was signed by the attorney, was an affidavit (not under notarial seal) purportedly signed by Vealey, that the facts stated in the motion were true. (The notary public who took the affidavit was also Elmer A. Guiliani.) The document had attached to it an authentication under triple seal, in accordance with the acts of Congress,[19] to the effect that it was from the records of "indictment and capias" of Claude E. Vealey in the Court of Common Pleas of Cuyahoga County, Ohio. Vealey stated that he did not remember this pleading nor signing the affidavit and refused to admit that the purported affidavit was his. The trial court, while agreeing that the document was apparently sufficient to show that it was of record in Ohio, did not allow it in evidence, observing, "we have *171 not had it offered through any witness."[20] Indeed, there was no formal motion that it be accepted into evidence. We find no error. The document was no doubt properly entitled to full faith and credit under the acts of Congress as an official record from a judicial proceeding in Ohio, but there was nothing whatever in the record in Ohio or here to indicate that the notary public who purportedly took Vealey's ostensible affidavit was in fact a duly qualified and acting notary public in Ohio; this link was missing. Absent, therefore, any admission by Vealey that he made the affidavit and any testimony from Guiliani that he was a notary public and that he took the affidavit, there was no basis for using the document for cross-examination purposes or for its admission into evidence on an independent basis.[21] (4) During the course of Martin's examination, in response to questions put to him by his lawyer, he admitted that in the past he had committed crimes of burglary, larceny, resisting arrest and disorderly conduct. On cross-examination, the prosecuting attorney was permitted, over objection, to inquire whether Martin had also perpetrated a firebombing. Martin denied that he had done so. In rebuttal, over defense objection, the Commonwealth introduced testimony by Claude Vealey that Martin had told him that he had in fact committed that offense. Appellant asserts that the cross-examination was improper, and hence also the rebuttal testimony. The Act of March 15, 1911, P.L. 20, § 1, 19 P.S. § 711 forbids examination of a criminal defendant as to prior offenses (other than the one with which he is charged) *172 unless, inter alia, the defendant "has given evidence tending to prove his own good character or reputation." The trial court allowed the questioning as to firebombing under this exception to the general statutory proscription. In Commonwealth v. Smith, 432 Pa. 517, 248 A.2d 24 (1968) this Court was faced with a very similar situation: "Two errors are alleged. One is that the court below erred in permitting the appellant to be cross-examined as to his prior arrests which did not result in convictions. The court held that appellant had put his character in issue when, after he was asked if he had had any difficulty with the police, he narrated only two convictions, and emphasized several mitigating circumstances with regard to those. This testimony, the court indicated, led to the inference that appellant's character was good on the whole. He thus held that questions as to prior arrests not leading to convictions were proper under the first exception in the Act of March 15, 1911, P.L. 20, § 1, 19 P.S. § 711. . .. We agree with the analysis of the court below as to this issue." 432 Pa. at 519-520, 248 A.2d at 25.[22] We think the rationale of Smith dictates resolution of the present issue adversely to appellant. He had grasped the initiative by admitting to several seemingly minor offenses of a non-violent character; it was then open to the Commonwealth to show that he had also committed a more serious offense of a violent nature. We *173 note, additionally, that in his charge to the jury the trial court, in referring to this portion of the testimony, properly instructed the jury that they could consider it only "for the narrow purpose of contradicting Martin's statement about his own character."[23] III. Charge on Felony-Murder In the course of his charge to the jury the trial judge, after instructing on the elements of premeditated murder, gave a careful and lengthy charge on the doctrine of felony-murder and its application to this case. Towards the end of this passage of his charge, the court summarized in the following terms: "If you accept the Commonwealth's case in those terms, if you believe that the defendant Martin went in there with a gun and participated in the shooting of these people in their beds, and he did this for hire and for wicked gain, then you have classical first degree murder. If you accept the second theory, the felony murder theory, and you can do that believing either the Commonwealth theory or the defense facts as testified to by Martin, then you could find Martin guilty of murder in the first degree on the felony murder doctrine. The defendant's facts substantially as I explained to you fit the felony murder doctrine." (Emphasis supplied.) *174 At trial the defendant took the position that no charge whatever was warranted on felony-murder,[24] and now argues vigorously that the inclusion of a charge on this subject was prejudicially erroneous and requires a new trial. The thrust of appellant's argument is that neither on the Commonwealth's version of the case, as related in the Vealey testimony, nor on the defense account of what occurred, as testified to by Martin, does the felony-murder doctrine have any place in resolving Martin's guilt or innocence. Under the prosecution version, Aubran Martin was in on the planning stage of the Yablonski slayings, including the burglary of their home; was an active participant not only in both of those crimes, but was himself the thief who took Jock Yablonski's money clip; and that Martin also received in due course his share of the fee for the murders. If the prosecution's theory of what happened is accepted, so appellant's argument does, the sole purpose of the conspiracy among Gilly, Vealey and Martin was to kill the Yablonskis, and the fact that execution of the purpose was preceded by a breaking and entering and followed by a robbery was purely incidental. Under Martin's version of what transpired he was never a party to any plan to kill; he was merely a participant in a scheme to burglarize and rob the Yablonski home, and aided and abetted that scheme by serving as a lookout and driver of the getaway car; he joined with his two confederates in testing firearms before the group *175 set out from Cleveland; he himself carried a rifle to their automobile, and knew that it and a pistol were carried by Gilly and Vealey to the house to be robbed. If this testimony is to be believed, then, appellant's theory continues, the fact that the sole purpose of Gilly and Vealey was to kill the Yablonskis and not to commit burglary or robbery renders the felony-murder rule inapplicable as far as implicating Martin goes. That is to say, under either account of what happened there was then no meeting of the minds — no agreement — as to the purpose for going to the Yablonski home, and Martin cannot be held liable for what his companions did without his knowledge or consent. Whichever version the jury might believe as to the sordid events at Clarksville, Pa. on the morning of December 31, 1969, three stark facts stand out with indisputable clarity: first, the home of Jock Yablonski was burglarized — that is, it was forcibly broken into and entered with the intent to commit a felony;[25] second, after the breaking and entering three persons asleep in the house — Jock Yablonski, his wife and his daughter — were slain in cold blood; third, immediately after the killings, a sum of money ($270) was stolen from the home — that is, a robbery was committed. When these facts are considered in light of the well established principles governing the felony-murder rule in Pennsylvania we must find appellant's arguments to be without merit. See generally Commonwealth v. Yuknavich, 448 Pa. 502, 506-07, 295 A.2d 290 (1972); Commonwealth v. Redline, 391 Pa. 486, 495, 137 A.2d 472, 476 (1958); Act of June 24, 1939, P.L. 872, § 701, 18 P.S. § 4701 (repealed, June 6, 1973, replaced by 18 Pa.C.S. § 2502(a)). The proposition that the felony-murder rule is not applicable where the accompanying felony is after the fact of murder and but incidental to it, is quickly answered *176 by our decision in Commonwealth v. Waters, 445 Pa. 534, 538, 285 A.2d 192, 194 (1971) among others. In Waters we stated: "We considered and expressly rejected this same contention in Commonwealth v. Slavik, 437 Pa. 354, 261 A.2d 583 (1970). There we said: `This contention was recently considered and rejected by this Court in Commonwealth v. Wilson, 431 Pa. 21, 244 A.2d 734. In that case, a conviction of first-degree murder was sustained upon evidence that the defendant first stabbed the victim and then took the victim's wallet and emptied it. The Court, quoting from Commonwealth v. Hart, 403 Pa. 652, 170 A.2d 850, said (431 Pa. page 28, 244 A.2d page 738): "Defendant's highly technical argument amounts to this: Unless the Commonwealth proves that the intention to commit a robbery was formed before the beginning of the fatal assault, the evidence cannot amount to a murder which was committed in the perpetration of a robbery. In other words, defendant would require a televised stopwatch in every robbery or felony-killing to prove that the felonious intent existed before the attack. . ."' 437 Pa. at 357, 358." See also Commonwealth v. Slavik, 437 Pa. 354, 358, 261 A.2d 583 (1970). ("This Court has held that if a homicide occurs in the perpetration or attempt to perpetrate a robbery, a conviction of murder in the first degree will be sustained regardless of when the design to rob was conceived. Commonwealth v. Stelma, 327 Pa. 317, 192 A. 906"); Commonwealth v. Hart, 403 Pa. 652, 170 A.2d 850 (1961); Commonwealth v. Dickerson, 406 Pa. 102, 107, 176 A.2d 421, 424 (1962); ("if a homicide occurs while the defendant is participating in . . . a robbery, it is immaterial when the design to rob was conceived. A felony murder is effected"). Martin's second argument, addressed to his own fact version, that there was "no meeting of the minds" of *177 the conspirators, is novel. But we are not here dealing with the niceties attendant upon the formation of a contract; we are dealing with the ramifications of a criminal conspiracy to commit a felony. That Martin did not know ahead of time that his companions, Gilly and Vealey, were intent on killing and not on robbery is immaterial; he knew that violence might be involved, whether or not planned ahead of time. In Commonwealth v. Yuknavich, 448 Pa. 502, 295 A.2d 290 (1972), the defendant was the driver of a getaway car for a service station robbery. In the course of the robbery the co-felon killed the attendant. Speaking through Justice Nix, we said: "This Court has consistently held that the killing need not be by the defendant in a felony-murder case. It has been established `that in order to convict for felony-murder, the killing must have been done by the defendant or by an accomplice or confederate or by one acting in furtherance of the felonious undertaking.' Commonwealth v. Redline, 391 Pa. 486, 496, 137 A.2d 472, 476 (1958); accord, Commonwealth v. Sampson, 445 Pa. 558, 563, 285 A.2d 480, 483 (1971); Commonwealth v. Moore, 443 Pa. 364, 374, 279 A.2d 179, 185 (1971); Commonwealth v. Williams, 443 Pa. 85, 88, 277 A.2d 781, 783 (1971); Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 228, 261 A.2d 550, 555 (1970); Commonwealth v. Batley, 436 Pa. 377, 390, 260 A.2d 793, 800 (1970). Clearly, where a killing occurs in the commission of a felony, all who participate therein are equally guilty of murder." 448 Pa. at 507, 295 A.2d at 293. The rationale which the Court then gave of the rule reiterated in the above quoted portion of the Yuknavich opinion is equally applicable to the case at bar: "The nature of the felony in this case is such that it should be obvious to anyone about to embark on such a venture that the lives of the victims may be sacrificed in accomplishing the end. A reasonable man can be *178 properly charged with the knowledge that the natural and probable consequences of such an act may well result in death or grievous bodily harm to those involved. It is not unrealistic to ascribe to one who willfully engages in a plan to commit armed robbery, a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, or a mind regardless of social duty. Thus, when dealing with the felony of armed robbery we are merely saying that it is the same malice that is required for common law murder." Id., 448 Pa. at 508, 295 A.2d at 293. See also Commonwealth v. Eiland, 450 Pa. 566, 570-71, 301 A.2d 651, 652-53 (1973). It may be accepted that in some situations the felony-murder rule operates harshly and that the policy of this Court is to restrain the rule within its traditional limits. See Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 261 A.2d 550 (1970). The case before us is totally within those limits, and under any version of the facts cannot be said to impose "the consequences of murder upon a death wholly unintended." Ibid. at 225, 261 A.2d at 553. The trial court committed no error in charging as it did. IV. The Death Sentences The jury returned a verdict on November 12, 1971 that Aubran Wayne Martin was guilty of murder in the first degree. On the following day, pursuant to the "split-verdict" provisions of the Act of June 24, 1939, P. L. 872, Sec. 701, as amended, 18 P.S. § 4701 the jury met to consider penalty. It fixed the penalty at death. Post-trial motions followed, and were denied by the court en banc by an opinion and order entered September 29, 1972. Approximately a year later, on September 19, 1973, a sentencing hearing was held by the trial judge at which the Commonwealth presented testimony and arguments *179 by both sides were heard. The court thereafter pronounced the sentence of death on appellant on each of the three indictments for murder. On June 29, 1972 the Supreme Court of the United States announced its decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Contemporaneously with its decision in Furman v. Georgia, supra, the United States Supreme Court vacated the death penalty in two cases from Pennsylvania which were then before it: Phelan v. Brierley, 408 U.S. 939, 92 S.Ct. 2875, 33 L.Ed.2d 762 (1972) (on certiorari from the U. S. Ct. of Appeals for the 3d Cir.); Scoleri v. Pennsylvania, 408 U.S. 934, 92 S.Ct. 2852, 33 L.Ed.2d 747 (1972) (on certiorari from the Supreme Court of Pennsylvania). See also Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972). The applicability of Furman to the law of Pennsylvania came before this Court in Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972). In Bradley, the Court said: "Appellant's final contention is that the imposition of the death penalty in his case violates the Eighth Amendment's ban against cruel and unusual punishments as applied to the states through the Fourteenth Amendment. In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the United States Supreme Court recently held that imposition of the death penalty under statutes such as the one pursuant to which the death penalty was imposed upon appellant is violative of the Eighth and Fourteenth Amendments. Accordingly, appellant's sentence of death may not now be imposed. See Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972)." (footnote omitted) 449 Pa. at 23-24, 295 A.2d at 845. Bradley's interpretation of the Furman decision has been consistently followed and death sentences imposed have been vacated in every case which has come to us *180 since Furman.[26] Our most recent decision in this line of cases is that of Commonwealth v. Dobrolenski, 460 Pa. 630, 334 A.2d 268 (1975). We were there presented with much the same record and argument as the Commonwealth has offered in the case at bar.[27] What Justice Roberts said in speaking for the Court in Dobrolenski is equally applicable here: "We have repeatedly held that Furman precludes imposition of death penalty under the statute in question. Commonwealth v. Scoggins, 451 Pa. 472, 481, 304 A.2d 102, 108 (1973); Commonwealth v. Ross, 449 Pa. 103, 105, 296 A.2d 629, 630 (1972); Commonwealth v. Lopinson, 449 Pa. 33, 34, 296 A.2d 524, 525 (1972); Commonwealth v. Sharpe, 449 Pa. 35, 44, 296 A.2d 519, 524 (1972); Commonwealth v. Bradley, 449 Pa. 19, 23-24, 295 A.2d 842, 845 (1972); cf. Commonwealth *181 v. Senk, 449 Pa. 626, 296 A.2d 526 (1972). The Commonwealth recognizes this but offers an evidentiary record, not present in those cases, purporting to show that there has been no discrimination in the imposition of the death penalty on the basis of race, wealth, or nature of the proceeding leading to conviction (jury trials vs. pleas of guilty). However, as we recognized in the above cases, Furman holds that `the imposition of the death penalty under statutes, such as here involved, is violative of the Eighth and Fourteenth Amendments.' Commonwealth v. Scoggins, supra, 451 Pa. at 481, 304 A.2d at 108 (emphasis added). Had we viewed evidence of the actual application of the statute as necessary for determination of its constitutionality, we would have directed evidentiary hearings in those cases. As we understand Furman, the constitutional prohibition extends at least to all death sentences imposed pursuant to statutes which give the sentencing authority unfettered discretion in imposition of the death penalty. Because this statute gives such discretion, the constitution forbids the execution of any death sentences imposed under its authority." Id. at 642-643, 334 A.2d at 274. See also Commonwealth v. Coyle, 460 Pa. 234, 332 A.2d 442 (1975), cert. denied, 423 U.S. 844, 96 S.Ct. 81, 46 L. Ed.2d 66 (1975). The death penalty was improperly imposed upon Martin and must be vacated as to each indictment. We will remand for the imposition of legal sentences. The convictions of appellant on each of the three charges of murder in the first degree are affirmed; the sentences of death are vacated, and the case is remanded for resentencing. ROBERTS, NIX and MANDERINO, JJ., concur in the result. EAGEN, J., dissents. NOTES [1] Appellant, who testified on his own behalf, denied he was so hired; his version of the episode was that he agreed with Vealey, with whom he had committed a number of prior burglaries, to steal a valuable collection of coins in Tennessee for a guaranteed payment to him of $2,000; that the Pennsylvania site of the proposed burglary was told to him only after he, Vealey and Gilly had set out from Cleveland, Ohio on December 30, 1969; that once at the Yablonski residence he remained in the automobile as a lookout during the burglary operation and did not enter the house; that the coin collection was not found, but that he received at the scene $90 as his one-third share of cash which was stolen, and later the guaranteed amount; and that he did not learn until five or six days later that murders had been committed at the Yablonski home. The jury, obviously, did not believe Martin's story. [2] The motion was filed on October 28, 1971, four days prior to the scheduled start of the trial on November 1, 1971. Rule 305 of the Pennsylvania Rules of Criminal Procedure (effective January 1, 1965) provides that "no pretrial application shall be considered if made less than ten days before trial unless opportunity therefor did not exist or the defendant or his attorney was not aware of the grounds for the application." The court scheduled a hearing on the motion for November 1, 1971, stating that it would receive as evidence bearing on the motion "anything that has happened from and since the 21st of October at noon." Appellant does not now argue that this limitation was in error, and there is no need, therefore, to detail the chronology of events prior to October 28 which clearly establish that there was opportunity to present a timely application and an awareness of the grounds therefor. Suffice it to say that a motion had been made in August for money to conduct a public opinion survey in the county as a preliminary step to applying for a change of venue. This motion was denied on October 15, the court then stating its opinion that "The newspaper, television and radio coverage of this event has not been legally offensive in tone nor viciously slanted." We have independently reviewed the pre-October 21 material, the most important of which were reports relative to Vealey's confession and guilty plea in June, 1971. We agree with the trial court that it was basically factual and not inflammatory. [3] The memorandum, in relevant part, was as follows: "Law enforcement personnel other than the elected District Attorney and the elected Sheriff are specifically forbidden to give any interviews to any news media concerning the proceedings during the pendency of such proceedings without the prior written approval of the President Judge. By agreement with the County Commissioners, the members of the Commissioners' staff are likewise so forbidden. Elected officials are advised that statements by them could prejudice the outcome of proceedings and the use of discretion is advised. "During the pendency of the proceedings, no media representative or any person other than counsel of record shall interview any grand juror, juror or witness, for the purpose of publication of his testimony, attitudes or views regarding or in any way related to the proceedings whose pendency invokes these rules, and counsel of record are limited to those contacts permitted by the Canons of Ethics or by the Court. "The contempt power will be exercised against any person, who, knowing that the proceedings are pending, disseminates by any means of public communication, an extra-judicial statement related to the defendant or to the issues in the case that goes beyond the public record of the court in the case, that is wilfully designed by that person to effect the outcome of the trial and that seriously threatens to have such an effect or make such a statement intending that it be disseminated by any means of public communication. ("The Rights of Fair Trial and Free Press", section 4.1)." [4] At the opening of trial on Tuesday, November 9, 1971, immediately after selection of the jury had been completed, defense counsel moved for a mistrial or a continuance on the ground that several newspaper articles "during the last few days" had made it impossible for Martin to receive a fair trial. The motion was refused. It is to be noted that as jurors were selected they were immediately sequestered. [5] In Pierce the Court believed that three kinds of newspaper publicity in particular were "inherently prejudicial": (1) reports containing information received from the police that Pierce, the defendant, had confessed to being the "triggerman"; (2) reports that the defendant had a prior record for violent crimes; (3) reports, replete with pictures, that the defendant had participated in a staged reenactment of the murder. [6] The judge in the case at bar was the Hon. Richard DiSalle. [7] Although the case before us involves a petit jury as opposed to a grand jury, the same principles apply. Alexander, supra, 405 U.S. at 626, n. 3, 92 S.Ct. at 1223, 31 L.Ed.2d at 539 n. 3; Pierce v. Louisiana, 306 U.S. 354, 358, 59 S.Ct. 536, 83 L.Ed. 757, 760 (1939). [8] The appellant also makes a broader claim to additional peremptory challenges beyond the allotted twenty because of the magnitude of the pre-trial publicity. The number of challenges is fixed by statute, however, and the court was without power to enlarge it. Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462 (1975). [9] Imposition of the death penalty was in fact recommended by the jury. The recommendation was followed by the trial court at the time of sentencing, which took place in 1973. In the meantime, the Supreme Court of the United States held the death penalty unconstitutional as applied in the State of Georgia. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). On the basis of Furman, this Court in 1972 outlawed the death penalty in Pennsylvania. Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972). The propriety of the imposition of the sentence in this case is discussed infra, part IV. [10] We do not suggest, by not discussing on their merit the several challenges for cause here in question, that the teaching of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) was in fact disregarded by the trial court. [11] Conceding that the cited decisions represent the current state of the case law, appellant claims that the empirical data hitherto found lacking have now been supplied in Professor Hans Zeisel's study, "Some Data on Juror Attitudes Towards Capital Punishment". This study, apparently completed in 1972, was under the auspices of the Center for Studies in Criminal Justice, University of Chicago Law School. From the introduction by Norval Morris, Director of the Center, we learn that a rough draft of the Study was used by defense counsel in their briefs in Witherspoon v. Illinois, supra, and Bumper v. North Carolina, supra. See Witherspoon, 391 U.S. at 517 n. 10, 88 S.Ct. at 1774, 20 L.Ed.2d at 782 n. 10. While we have no reason to doubt the statements that the original data have been augmented and the analysis improved, and have respect for the author of the study, we are not persuaded that the finished study requires us to reach a conclusion contrary to that arrived at in Witherspoon, Bumper and Speller supra. The time period of the Zeisel investigation was 1954-55, the places Cook County, Illinois and Kings County N.Y.; the sampling was of 464 jurors' votes. That this may be adequate for a meaningful study on juror attitudes we have no doubt but its acceptance as a basis for a change of the law of Pennsylvania in this case is a different matter altogether. [12] The Commonwealth agreed to allow the defendant to copy or examine defendant's written confession or statements; any and all exculpatory evidence in its possession; all objects removed from the deceaseds' premises; fingernail scrapings from the victims' bodies; photographs taken at the scene; and the criminal records of all witnesses for the prosecution at the time they are called to testify. As to the autopsy reports, the prosecution advised that they were available from the proper medical authorities. [13] The further agreement was that appellant could inspect the objects removed from the home of the victims, the murder weapons and additional photographs of the scene of the crime. [14] We are advised by the Commonwealth's brief at 18 that a copy of Claude Vealey's confession was given to appellant's counsel several months prior to trial. [15] The applicable rule is Pa.R.Crim.P. 310. It provides that on timely application the court may order that the defendant or his attorney shall be permitted to inspect and copy or photograph "any written confessions and written statements made by the defendant." The Rule then stipulates "No other discovery or inspection shall be ordered except upon proof by the defendant, after hearing, of exceptional circumstances and compelling reasons.. . . In no event, however, shall the court order pretrial discovery or inspection of written statements of witnesses in the possession of the Commonwealth." [16] For suggestions that the Pennsylvania discovery rule should be "liberalized", see Commonwealth ex rel. Specter v. Shiomos, 457 Pa. 104, 110, 112, 320 A.2d 134 (1974) (concurring opinions of Pomeroy, J. and of Nix, J.). See and compare Rule 16 of the Federal Rules of Criminal Procedure; A.B.A. Standards Relating to Discovery and Procedure Before Trial, § 2.1. [17] As an "exceptional circumstance" warranting special treatment, appellant cited to the trial court and here repeats the fact that he had been in Ohio for a number of months after his arrest while contesting extradition, and that this delayed getting into the defense of the Pennsylvania prosecution. He also pointed to his untutored and impecunious condition in life as a "compelling reason". The trial court was not impressed with these contentions, nor are we. [18] The only item not produced which is now said by appellant to be within the Brady category is a psychological report and evaluation of Martin that, it is said, would have been useful to the defense at the penalty phase of the trial. The Commonwealth states that the only such document in its possession was a competency report. This was obtained on court order on motion of appellant made November 1, 1971. We are told that the report, which found Martin competent to stand trial, was given to appellant by the court prior to trial. Appellee's brief at 20-21. [19] Act of May 26, 1790 and June 25, 1948, 62 Stat. 947, 28 U.S.C. § 1738. [20] Attorney Elmer A. Guiliani was not then available as a witness. The court gave permission to have the defense case reopened for the purpose of taking his testimony if the attorney should later appear. This did not happen. [21] None of the following Pennsylvania statutes is applicable to this situation; the Act of August 21, 1953, P.L. 1323, § 20, 57 P. S. § 166; the Act of December 14, 1854, P.L. 724, § 2, 28 P.S. § 222; the Act of April 27, 1876, P.L. 49, § 1, 28 P.S. 223. [22] The only difference between this case and Smith is that in Smith the challenged cross-examination by the prosecution pertained to "prior arrests", whereas in the instant case reference was made only to a crime which Martin allegedy had committed. This difference is, however, of no significance, for the Act of 1911, in describing the areas of prohibited examination, includes offenses which the defendant allegedly "has committed, or been charged with, or been convicted of . . ." [23] In addition to the assignments of error treated above, the appellant has argued that three other rulings of the trial judge were in error and sufficiently prejudicial to require a new trial. These include the introduction into evidence of a photograph claimed to be inflammatory and rulings that the prosecution had not improperly denied defense counsel access to two possibly material witnesses for or during trial. In addition, it is claimed that a remark by the trial judge to both counsel relative to the length of summary arguments to the jury was prejudicial to the defendant. We have examined these alleged errors and find that they are without merit. [24] The objection was made by an interruption of the judge in the course of his charge, not by way of a specific objection or exception to the claimed error at the close of the charge (only a general exception to the charge was taken). This was not the proper procedure. See Pa.R.Cr.P. 1119(b), 19 P.S. (1975 Pamphlet). Because, however, the trial court was fully alerted to the position of the defendant, not only by the interruption, but also by reason of objection to such an instruction before the charge was begun, and in light of the fact that the point was argued to and fully considered by the court en banc on post-trial motions, we do not consider it to have been waived for appeal purposes. Cf. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). [25] Act of June 24, 1939, P.L. 872, § 901, 18 P.S. § 4901 (repealed, June 6, 1973). [26] In an opinion from the bench at the conclusion of oral arguments in the case at bar, the sentencing judge reviewed the salient statutes and decisions and expressed the view that the death sentence was not unconstitutional in Pennsylvania. In the course of his remarks he explained his conclusion as follows: "In order that this matter may be reconsidered by the higher courts, it is necessary that a capital case get there. If all judges sentenced all murderers, even the most depraved and heinous, merely to life in prison, the general effect of Furman v. Georgia would become specific and universal. Because I believe that the Supreme Court of Pennsylvania has been acting in the past month only in deference to Furman v. Georgia, and not as a result of their own moral and legal philosophies — because I believe that Truesdale [Commonwealth v. Truesdale] (449 Pa. 325 [296 A.2d 829] (1972) and Bradley (449 Pa. 19 [295 A.2d 842] (1972) are ipsedixit only and because I believe that the protection of our community and the wickedness of this defendant demands the death penalty, I have elected to sentence Aubran Wayne Martin to death in the manner and form that shall be provided by law at the time his appeals have been exhausted." [27] We have been furnished with an extensive brief amicus curiae by the Legal Defense and Educational Fund in opposition to the Commonwealth's position. In light of our decision that he question of the reach of Furman v. Georgia, supra is no longer an open one in Pennsylvania with respect to the statute under which Martin was sentenced, see Act of June 24, 1939, P.L. 872, Sec. 701, as amended, 18 P.S. § 4701, we have not deemed it necessary to address the arguments tendered by the amicus.

206 F.2d 311 KOCH et al.v.FEDERAL TRADE COMMISSION. No. 11495. United States Court of Appeals Sixth Circuit. July 8, 1953. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Nathan B. Goodnow, Detroit, Mich., Robert D. Dunwoodie and Marshall M. Massey, Detroit, Mich., on brief; Dykema, Jones & Wheat, Detroit, Mich., of counsel, for petitioners. Donovan Divet, Washington, D. C., W. T. Kelley, General Counsel, Robert B. Dawkins, Asst. General Counsel, Washington, D. C., on brief, for respondent. Before ALLEN, MARTIN and MILLER, Circuit Judges. ALLEN, Circuit Judge. 1 This case arises upon a petition to review a cease and desist order issued against the petitioners by the Federal Trade Commission. 2 The complaint alleged that Koch Laboratories, Inc., and petitioners William F. Koch and Louis G. Koch, President and Secretary-Treasurer, respectively, of Koch Laboratories, Inc., were engaged in the manufacture and in the sale and distribution in interstate commerce of certain medicinal preparations designated as "Glyoxylide," "B-Q", and "Malonide Ketene Solution" and that, in the course and conduct of their business, petitioners William F. Koch and Louis G. Koch disseminated and caused to be disseminated, by the United States mails and by various means in commerce, false, misleading and deceptive statements and representations as to the therapeutic value of their aforesaid medicinal preparations for the purpose of inducing the purchase of these preparations. 3 It was alleged that through the use of these statements and representations petitioners represented directly or by implication that their product "Glyoxylide" is an adequate treatment for any type or stage of cancer, leprosy, malaria, coronary occlusion or thrombosis, multiple sclerosis, arteriosclerosis, angioneourotic oedema, obliterative endarteritis, asthma, hay fever, dementia praecox, epilepsy, psoriasis, poliomyelitis, tuberculosis, syphilis, arthritis, and osteomyelitis, any type of allergy or infection, abscess of the prostate gland, septicaemia, and insanity; that the product "B-Q" constitutes an adequate treatment for all infections and their sequelae, including gonorrhea, salpingitis, sinusitis, meningitis, infantile paralysis, septicaemia, streptococcus sore throat, pneumonia, undulant fever, malaria, coronary thrombosis, the allergies, diabetes, cancer, arthritis, and the degenerative diseases; that the preparation "Malonide Ketene Solution" constitutes an adequate treatment for the allergic diseases, infections, diabetes, cancer, double pneumonia, osteomyelitis, and postoperative meningitis, and that through the use of the term "for allergy, cancer, infection" to describe and refer to properties of the aforementioned products, they have represented such products to be of therapeutic value in the treatment of all infections, cancer and allergies. 4 The Commission in its findings of fact in general sustained the allegations of the complaint, held that the advertisements issued by the petitioners violated Sections 5 and 12 of the Federal Trade Commission Act, 15 U.S.C.A. § 41 et seq. and ordered that the advertisements be discontinued. 5 The petitioners in their answer concede that the statements referred to in the complaint appeared in books, pamphlets and circulars published by them. While they contend that this printed matter had been distributed only to members of the medical profession, they admit that Exhibit 16, a booklet on "Chemistry's Victory Over Disease," and Exhibit 17, a booklet on "Clinical Demonstration of the Laws of Chemical Structure that Determine Immunity to Disease and Their Application in the Treatment of Patients" were distributed to customers. Petitioners contended below and reiterate here that the statements as to the case histories included in the publications were entirely truthful, that those as to the operation of the drugs were statements of scientific theories or opinions, which were in fact their honest and well-considered theories, and the therapeutic value of the drugs was shown by the experience of physicians who used them. They also contend (1) that there is no substantial evidence to support a finding that they disseminated advertising to persons not members of the medical profession or that petitioners' advertising contained false representations of material fact, and (2) that, since representations of therapeutic value are statements of opinion, the Commission had no authority to pass upon them. 6 Pertinent copies of the Commission's findings and conclusions are appended herewith as Appendix 1. 7 Sections 5 and 12 of the Federal Trade Commission Act, with certain immaterial omissions, read as follows: 8 Section 5, Tit. 15, U.S.C.A. § 45, 9 "(a) (1) Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce are declared unlawful. 10 * * * * * * 11 "The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations * * * from using unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce." 12 Section 12, Tit. 15, U.S.C.A. § 52, 13 "(a) It shall be unlawful for any person, partnership, or corporation to disseminate, or cause to be disseminated, any false advertisement — 14 "(1) By United States mails, or in commerce by any means, for the purpose of inducing, or which is likely to induce, directly or indirectly the purchase of food, drugs, devices, or cosmetics; or 15 "(2) By any means, for the purpose of inducing, or which is likely to induce, directly or indirectly, the purchase in commerce of food, drugs, devices, or cosmetics. 16 "(b) The dissemination or the causing to be disseminated of any false advertisement within the provisions of subsection (a) of this section shall be an unfair or deceptive act or practice in commerce within the meaning of section 45 of this title." 17 The burden of proof was on the Commission to establish the material allegations of the complaint. This burden was successfully carried. The evidence on issues of fact was largely controverted. However, the record as a whole supports the finding of the Commission that the representations were misleading and false in material matters, that the products have no therapeutic value, and that the advertisements were sent both to members of the medical profession and to lay persons. 18 Thirty-three physicians and scientists testified for the Commission to the effect that petitioners' products had no therapeutic value. Thirty-six witnesses, including twenty-nine physicians, testified on behalf of petitioners. 19 Petitioners urge and the record shows that the Commission's witnesses have had no clinical experience with their products. This objection goes to the weight but not to the competence of the testimony. The general medical and pharmacalogical knowledge of the doctors qualified them to testify as to the lack of therapeutic value of the Koch products. Charles of the Ritz Distributors Corporation v. Federal Trade Commission, 2 Cir., 143 F.2d 676, 679; Dr. W. B. Caldwell, Inc., v. Federal Trade Commission, 7 Cir., 111 F.2d 889; Neff v. Federal Trade Commission, 4 Cir., 117 F.2d 495; John J. Fulton Co. v. Federal Trade Commission, 9 Cir., 130 F.2d 85, certiorari denied November 9, 1942, 317 U.S. 679, 63 S.Ct. 158, 87 L.Ed. 544. 20 Moreover, the clinical data relied on by petitioners were shown by cross-examination to be based upon insufficient diagnosis or to be inaccurate because of such circumstances as the use of conventional treatment along with the product. For example, benign lesions which are inflammatory were shown to be difficult to distinguish from true cancer. A claimed cancer of the oesophagus described in the case histories presented by petitioners was stated by an expert physician testifying for the Commission to present the symptoms of an abscessed throat. One case originated in carcinoma which caused removal of the uterus, ovaries, and tubes of a patient of one of the doctors who testified for petitioners. Radium treatment was also given. Because the patient suffered severe pain and experienced passage of blood through the rectum the doctor testifying for petitioners concluded that there was a metastasis which established that carcinoma of the rectum existed. He took no biopsy to confirm this. The expert testifying for the Commission concluded that the symptoms were those of delayed radium reaction and that there was no metastasis. 21 No biopsy had been taken in many of the cases presented in evidence claimed to involve malignant tumor. One witness for petitioners who stated that he found Glyoxylide more effective in the treatment of tumors than anything else said that he made no laboratory tests, took no biopsies, and diagnosed tumors by palpation. Another doctor who testified as to a number of claimed cures of cancer by the Koch method said that he preferred not to use a biopsy because biopsies cause "traumatism to the growth." This conclusion is disputed by a number of expert physicians. It is the weight of medical authority, as shown by this record, that, while even in biopsies there is a margin of error, microscopic examination of the tissue of a tumor is the most accurate test known for malignancy. 22 The Commission was clearly correct in its conclusion that the evidence relating to the case histories is not determinative as to therapeutic value of the drugs in question. 23 A principal contention is that the order of the Federal Trade Commission invades the protection afforded by Section 15 (a) of the Federal Trade Commission Act, 15 U. S.C.A. § 55. This section reads as follows: 24 "For the purposes of sections 12, 13, and 14 — 25 "(a) (1) The term `false advertisement' means an advertisement, other than labeling, which is misleading in a material respect; and in determining whether any advertisement is misleading, there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the commodity to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual. No advertisement of a drug shall be deemed to be false if it is disseminated only to members of the medical profession, contains no false representation of a material fact, and includes, or is accompanied in each instance by truthful disclosure of, the formula showing quantitatively each ingredient of such drug." 26 Petitioners claim that their material was distributed only to members of the medical profession. They do not assert that it contained any quantitative analysis of each ingredient of the drugs involved. 27 However, petitioners concede that they advertised in a medical journal which was sent primarily to the members of the medical profession but also to lay persons. Moreover, while structural formulae were given, no formulae showing quantitatively the ingredients of the drugs accompanied certain of the advertisements. For example, this omission exists in petitioners' Exhibits 2, 3 and 4. 28 Failure to comply with one of these prerequisites, namely, that an advertisement (1) be disseminated only to members of the medical profession, and (2) be accompanied in each instance by truthful disclosure of the formulae showing quantitatively each ingredient of such drug, would have deprived petitioners of the benefit of the protective provision of Section 15 (a). Here both of the requirements were lacking. Petitioners' briefs do not indicate what formulae are relied on as giving a quantitative analysis of the drugs and, in fact, they do not deny in this court that there is no such analysis. Yet this is a vitally important requirement for the health and safety of the general public. It is essential that physicians and lay customers should be informed as to the proportions and relative weight of each ingredient. The order of the Federal Trade Commission in this respect did not violate, but on the contrary conformed to and carried out the purposes of Section 15 (a). 29 Another main contention is that there is no finding and there is no substantial evidence, exclusive of the question of therapeutic value, that petitioners' advertising contained false representations of material facts. But the complaint alleged violations of § 5 and § 12 as well as of § 15 (a). Section 5 of the statute covers unfair or deceptive acts or practices in commerce. It was shown that these drugs were sold in interstate commerce. Section 12 (a) forbids any "false advertising" for the purpose of inducing, or which is likely to induce, the purchase of drugs. This record shows that the advertising sought to induce the purchase of the Koch products. The representations were misleading and deceptive as to the identity of the diseases claimed to have been cured as well as to the effectiveness of the claimed cure. As hereinbefore indicated, the diagnoses of cancer cases particularly were unreliable. If the tumor was not malignant it was not true cancer. 30 The finding that the representations were deceptive and misleading in a material respect is amply sustained by the evidence. The fact that petitioners made the representations in good faith is immaterial. Decision whether material facts have been misrepresented does not depend upon the good or bad faith of the advertiser. Ford Motor Company v. Federal Trade Commission, 6 Cir., 120 F.2d 175. Cf. Perma-Maid Co., Inc., v. Federal Trade Commission, 6 Cir., 121 F.2d 282; Parke, Austin & Lipscomb, Inc., v. Federal Trade Commission, 2 Cir., 142 F.2d 437. And the mere fact that words and sentences may be literally and technically true does not prevent their being framed so as to mislead or deceive. Bockenstette v. Federal Trade Commission, 10 Cir., 134 F.2d 369; Bennett v. Federal Trade Commission, D.C. Cir., 200 F.2d 362. 31 Petitioners urge that therapeutic value is not a matter of fact but of opinion and that it "can never be a `material fact' that can be falsely represented within the contemplation of the last sentence of Section 15 (a) (1)." 32 The question is definitely posed because the exhibits include a book on "The Chemistry of Immunity," written by Dr. Wm. F. Koch and widely distributed among physicians, which explains in detail his theory of heightening the natural immunity of the body against disease. It also contains a number of case histories, together with photographs of patients before and after taking the Koch remedies. We think that this book does not fall within the provisions of the statutes here involved. It sets forth primarily matter of opinion. Dr. Koch's book is a detailed explanation of his theory and the fact that case histories are appended no more brings it within the reach of these statutes than would an outline of experiments made by Einstein appended to some pamphlet dealing with relativity. We also think that if these provisions of the statutes were construed so as to prohibit dissemination of such a book they would violate the First Amendment to the Constitution of the United States. It was not error for the Commission to consider this book and to quote extracts from it as throwing light upon the existence or non-existence of facts supporting the charge in the complaint, for the book was introduced by the respondents. However, we hold that it is not an advertisement covered by Sections 5, 12, or 15(a). We make a similar conclusion with reference to Dr. Koch's address before the College of Physicians and Surgeons of Quebec in 1939. If the record contained only these two exhibits, the Commission would not have jurisdiction in this proceeding. 33 But the record is not confined to Dr. Koch's book and his address. A number of publications in evidence are plainly advertisements and petitioners so denominate them in their brief. They include, in addition to a concise statement of Dr. Koch's theory, persuasive selling arguments to induce the purchase of the drugs and give detailed price lists. Thus, in respondent's Exhibit No. 2, "Koch's Synthetic Antitoxins," the following list is given: 34 "1:4 Benzoquinone ....... Five dollars per ampoule without syringe or needle Glyoxylide Solution ..... Twenty-five dollars per ampoule with loan of syringe and needle Syringe and needle properly prepared and sterile ..... Two dollars" 35 Booklets which were distributed to the patients of the physicians purchasing Dr. Koch's remedies are also included in the record. These present primarily an advertising feature. 36 In general, the representations made in these publications are couched, not in the language of opinion, but in positive terms. The cases covered are persons in desperate physical condition. The cures are said to be complete and other statements calculated to induce purchase of the Koch products are made without qualification or expression of opinion. These statements taken together are misleading. The advertisements also contain material which, read in light of the case histories, amount to false statements of fact apart from therapeutic value. To head a case history "Cancer of Larynx", "Cancer of Breast", is to make a statement of fact. It is a question of fact whether a tumor is benign or malignant. 37 Moreover, the representations as to the value of the drugs were in positive language. Thus, speaking of the restoration of injured organs by the Koch treatment, the booklet "Important Facts About The Koch Treatment" says: "This treatment has won the highest honors in this regard, since many times cases of cancer of the uterus in the advanced stages have been so thoroughly cured by this treatment that the uterus was perfectly reconstructed in each instance and able to give birth to children. In this way also cancer of the throat has been so thoroughly cured that the vocal cords were reconstructed and the voice restored." In "Chemistry's Victory Over Disease" it is stated: "Cancer has been the challenge to medicine ever since the dawn of history. Here is a cure." Such representations constitute a positive declaration that the drugs have the therapeutic value ascribed to them in the advertisements. To the lay person the declaration that a drug does or does not have a certain effect is a representation of fact. The statement that a cancer case has been cured is a statement of fact. 38 Petitioners base their whole argument on this point upon the assumption that the finding of lack of therapeutic value is the only material finding made by the Commission with reference to false representations of material fact. This assumption ignores other questions of fact upon which the Commission squarely rules. For instance, in this connection, whenever petitioners represent that cancer has been cured after one injection of Glyoxylide, they make several simultaneous statements of fact. They state that the disease cured is true cancer. They represent by implication that the disease is permanently cured. They state that this result has been achieved by a Koch drug. 39 The Commission made findings upon all of these points. Its statement that the evidence of the petitioners was unconvincing because of faulty evaluation and inaccurate diagnoses was a finding of fact. 40 The Commission heard extensive testimony as to the existence of every kind of disease claimed to be cured by Koch treatments. It found as a fact that "very grave doubts" were warranted, as to various cases, whether a number of these diseases actually existed. It heard testimony that the various cases were cured and found as a fact that the improved condition manifested in some cases undoubtedly was attributable to conventional therapeutic treatment rendered prior to the administration of the Koch drug. All of these are findings of fact upon questions of fact and all of them bear upon the misleading, deceptive and false character of the representations found to have been made. 41 The important criterion is the impression that the advertisement is likely to make on the reader. Charles of the Ritz Distributors Corporation v. Federal Trade Commission, supra, 143 F.2d at page 679. The cases relied on by the petitioners arose for the most part under the Food and Drug Act which required the proving of a false or misleading "statement" and which, after 1912, required that a statement with reference to the therapeutic effect of such article should be "false and fraudulent." 37 Stat. 416. Cf. American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90. U. S. v. Johnson, 221 U.S. 488, 31 S.Ct. 627, 55 L.Ed. 823, construed specific statutory language of the Food and Drug Act. L. B. Silver Co. v. Federal Trade Commission of America, 6 Cir., 1923, 289 F. 985, and F. T. C. v. Raladam Co., 283 U.S. 643, 51 S.Ct. 587, 75 L.Ed. 1324, were decided before the passage of the Wheeler-Lea amendment to the Federal Trade Commission Act and involved injury to competition. Under the present Act the Federal Trade Commission has jurisdiction of all cases in commerce affecting the public interest whether or not competition is involved. A principal test as to whether a particular case affects the public interest is whether the misleading or deception of the public is shown. Thus Section 5(a) declares unlawful "Unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce". Section 12 covers the dissemination of false advertising for the purpose of inducing the purchase of food, drugs, etc. Injury to competition need not be shown. Parke, Austin & Lipscombe, Inc. v. Federal Trade Commission, supra, certiorari denied 323 U.S. 753, 65 S.Ct. 86, 89 L.Ed. 603. Cases cited dealing with injury to competition are not controlling here. 42 We deem it unnecessary to discuss in detail other objections raised by the petitioners, all of which have been considered. The record does not show that the Commission imposed the burden of proof upon petitioners. Extensive expert testimony was introduced in support of the charge of the complaint. Physicians of long experience and high standing with reference to diabetes and cancer testified that the drugs involved had no therapeutic value for these diseases. Testimony was given by a number of physicians that these drugs had no therapeutic value with reference to any disease. While it was conceded that the drugs in the dilutions described were harmless, extensive positive testimony was given in support of the complaint. Whether the petitioners rebutted the Commission's case is a question of fact primarily for the Commission to decide. That the Commission termed the petitioners' rebuttal testimony "unconvincing" in no way alters the fact that the burden of proof was amply sustained by the Commission. 43 The impartiality of the hearing is attacked and the decision of the Commission in effect is called perfunctory. In a case which presents over 7,500 pages of testimony, much of it involving detailed accounts of some 150 case histories put into evidence by petitioners, it can hardly be claimed that they were denied opportunity to answer the charges, or that the carefully drawn decision was made without consideration of the record. 44 The proceeding was to the interest of the public. 15 U.S.C.A. § 45(b). 45 As to refusal to open the case for further testimony we note that the case had been reopened in 1945 upon petitioners' motion and further evidence had been presented. The application in question here was filed on December 23, 1947. Among other things it sought to introduce certain testimony with reference to a report of the Department of Agriculture of British Columbia. The trial examiner with whom this motion was filed found that petitioners had sought to take testimony of the same officers of the Department of Agriculture of British Columbia in an application to take depositions filed with the Commission on July 28, 1945. The Commission denied this application, pointing out that this evidence was in existence on October 27, 1944 when the respondents rested their defense. This is the second attempt to introduce evidence as to a report which antedated the second motion to reopen the case by more than three years. It was not an abuse of discretion to deny this motion. 46 Neither was it error, in view of the scope of the case as it developed, to make findings with reference to analogous experiments upon mice and cattle nor to include these findings in the final decision. The petitioners as a part of their case introduced testimony with reference to the use by a veterinarian of Benzoquinone upon a paralyzed dog and upon a cow that had mastitis. 47 The order is not too broad. Bowles v. May Hardwood Company, 6 Cir., 140 F.2d 914, 916; Progress Tailoring Company v. Federal Trade Commission, 7 Cir., 153 F.2d 103. The Commission had wide discretion in its choice of a remedy deemed adequate to cope with unlawful practices in this area of trade and commerce. Jacob Siegel Co. v. Federal Trade Commission, 327 U.S. 608, 611, 66 S.Ct. 758, 90 L.Ed. 888; Federal Trade Commission v. A. P. W. Paper Co., Inc., 328 U.S. 193, 203, 204, 66 S.Ct. 932, 90 L.Ed. 1165. 48 The order of the Federal Trade Commission is affirmed, and the petitioners are ordered to obey the order of the Commission. Appendix I 49 United States of America Before Federal Trade Commission Findings As To The Facts 50 Paragraph One: At the time this proceeding was instituted, the respondent Koch Laboratories, Inc., was a corporation organized, existing and doing business under and by virtue of the laws of the State of Michigan, and maintained its principal office and place of business at 8181 East Jefferson Avenue, Detroit, Michigan. Respondents William F. Koch and Louis G. Koch are individuals who have acted respectively as president and treasurer of respondent Koch Laboratories, Inc. Respondents William F. Koch and Louis G. Koch have been actively engaged in the conduct of the business of respondent Koch Laboratories, Inc., and have directed and controlled the sales and advertising policies of such corporate respondent. 51 Paragraph Four: Among and typical of the statements and representations contained in advertisements in periodicals, pamphlets, circulars and other promotional matter disseminated as aforesaid and caused to be disseminated or mailed by respondents subsequent to March 21, 1938, to doctors of medicine, including homeopathic physicians and other practitioners of the healing arts, including naturopaths, in furtherance of the sale and distribution of their preparations, are the following statements and representations: 52 "The basis of immunity is, after all, the vital principle, the oxidation mechanism. When its catalysis ceases, death is the result. When its activity wanes, the toxins that support pathogenic germ activity, that produce allergy, or that cause cancer, are not destroyed in the body, and can execute their effects. All of these toxins depend upon their free valencies between carbon atoms, between carbon and oxygen, and between carbon and nitrogen for their pathogenic photochemic action. 53 "Our synthetic antitoxins not only activate oxygen, but they activate the toxic free valencies of germ and allergy poisons to accept the activated oxygen and thus become burned to harmless structures. Therefore, our active principles are fundamentally and universally useful. 54 * * * * * * 55 "Synthetic Antitoxins 56 For the Infections — 57 . . . 58 1:4 Benzoquinone, 59 . . . 60 For the Allergies — 61 Malonide . . . 62 Ketene . . . 63 For Cancer, and the Degenerative diseases — Glyoxylide, O=C=C=O 64 * * * * * * 65 "Glyoxylide 66 * * * * * * 67 for Allergy Cancer Infection 68 * * * * * * 69 "B-Q 70 * * * * * * 71 `For the infections and their sequelae. 72 * * * * * * 73 "Angioneurotic Oedema. * * * Condition seemed almost fatal for a half-hour before glyoxylide was given intramuscularly. In less than two minutes relief was perhaps 80 per cent. Recovery complete within one hour." 74 "Obliterative Endarteritis. * * * Obliterative endarteritis, both legs and feet to the knees. Much pain, bedfast. Amputation at knees requested by surgeon. Blood sugar 380. One dose glyoxylide followed in three months by much improvement and in six months by complete recovery. Blood sugar 80. No return of trouble. * * * 75 "* * * Hay fever, asthma, severe sinusitis, generalized, pigmented, itching hives constantly. * * * One dose of glyoxylide was given in May, 1934. Recovery complete in all respects within six months. 76 "Dementia Praecox. * * * Recovery was complete in two years after two injections of glyoxylide solution. * * * 77 "Epilepsy. * * * One dose of glyoxylide solution given August 12, 1929, was followed by a gradual recession of the disease, so that by the twelfth week only a few petit mal were observed and thereafter recovery became complete with no more fits. * * * 78 "Psoriasis. * * * At the time of glyoxylide injection body was generally covered, hair and nails affected. Ears almost separated from scalp. Recovery completed and heart action returned to normal fourteen weeks after one injection of glyoxylide. * * * 79 "* * * Poliomyelitis. * * * Recovery started to show within ten minutes after the first injection [Glyoxylide]. * * 80 "According to reports by expert clinicians more is accomplished in tuberculosis in three months by one dose of Glyoxylide than by five years of sanitarium care. Many of the most advanced cases of tuberculosis of the lungs and bones recover on one dose. 81 "The results in leprosy, malaria, syphilis, multiple sclerosis, and infantile paralysis are good, but no statistical estimates have been made as yet. 82 * * * * * * 83 "Cases of insanity and epilepsy have responded well also. Thus the field of action is general, and the efficiency is extraordinary. 84 * * * * * * 85 "One or two Doses are sufficient generally for complete recovery, where this is possible. 86 * * * * * * 87 "Selection of the Remedy 88 "* * * They are all good. 89 "Arthritis. * * * One dose of glyoxylide was given in December, 1927, pain was soon better and in three months she was able to walk a few steps. In one year recovery had become about ninety per cent of normal and has so remained. * * * 90 "Tubercular Arthritis and Osteomyelitis. * * * One dose of glyoxylide given July 23, 1934, was followed by rapid decrease in the pain and a steady restoration of joint and bone to normal, functionally and structurally, with perfect use of leg and full motion within nine months. * * * 91 "A case of abscess of the prostate with septicemia becoming worse after Sulfathiazole recovered splendidly following a dose of Glyoxylide. 92 "In a series of some three hundred cases of asthma, eczema, and hay fever, over eighty-five per cent made full recoveries on one or two doses of Glyoxylide. 93 "We Recommend BQ 1:4 Benzoquinone In The Treatment Of All Infections And Their Sequelae Including Gonorrhea, Salpingitis, Sinusitis, Meningitis, Infantile Paralysis, Septicaemia, Streptococcus Sore Throat, Pneumonia, Undulant Fever, Malaria, Coronary Thrombosis, The Allergies, Diabetes, Cancer, Arthritis, Degenerative Diseases. * * * 94 "Malonide, ketene solution, has served well in the Allergies, Infections and Cancer, * * *. 95 "A boy of two with double pneumonia and osteomyelitis of the left tibia which had to be opened the full length; the prognosis given by all attendants was early death. Two doses of the Malonide Ketene solution brought full recovery with rapid recuperation. * * * 96 "A case of postoperative meningitis caused by the Staphlococcus Pyogenes Aureus, that had passed beyond the convulsive stage into coma, and was expected to pass on any minute, made a rapid recovery (ten days) on one dose of malonide ketene solution. 97 "An Efficient Single Dose Treatment For Diabetes On a Full Carbohydrate Diet Without Insulin 98 * * * * * * 99 "The period of observation includes scattered cases treated since 1922 and recent systematic studies. The cases treated cover about every type known, including a few of diabetes insipidus. 100 * * * * * * 101 "* * * Through use of the expressions `for the infections,' `for the allergies,' and `for cancer, and the degenerative diseases' to describe and refer to the properties of their preparations, respondents have represented respectively that their products are of therapeutic value in the treatment of all infections, allergies, cancer and degenerative diseases. 102 "Paragraph Six: Designated in respondents' pamphlets and literature as constituting the Koch method, respondents' products have been sold in ampules variously containing two cubic centimeters or two and one-half cubic centimeters of solution and are designed to be administered by intramuscular or by intravenous injection. 103 * * * * * * 104 "To the product `Glyoxylide' respondents ascribe the formula O=C=C=O and in substance designate this preparation in some of the promotional matter as an aqueous solution of one part Glyoxylide to one trillion parts of water. The product `B-Q,' also referred to as `1:4 Benzoquinone,' is an aqueous solution of one to one million parts of water. `1:4 Benzoquinone' is a recognized chemical entity. `Malonide Ketene Solution,' sometimes referred to by respondents as `Ketene,' is stated by respondents to have two components. To the component which respondents designated as `Malonide' they ascribe the chemical formula of O=C=C=C=O, which substance is said to be prepared as an aqueous solution of one part malonide and one trillion parts of water. The formula O=C=C= C=O is the formula of carbon suboxide, a known product. H2C=C=O, the formula of the other component, is referred to also as `Ketene.' `Ketene,' that is, the formula H2C=C=O, is a known product. 105 "Respondent William F. Koch affirms that he has isolated the compound O=C= C=O, designated by him as `Glyoxylide.' In the opinion of other scientific witnesses, including one trained in the field of biochemistry whose testimony was introduced in this proceeding by counsel supporting the complaint, the compound O=C=C=O does not exist. A basis for this opinion is that various attempts to prepare the anhydride of glyoxylic acid, as reported in the scientific literature, have been failures. Assuming that it exists, however, it would constitute the anhydride of glyoxylic acid. If combined with water, O=C=C=O would be transformed into glyoxylic acid and the transition normally would be a rapid one. With respect to the compound `Malonide,' an aqueous solution of carbon suboxide when diluted to 10 to the minus 12 power would become malonic acid probably within an hour. H2C=C=O, or Ketene, combined with water rapidly will form acetic acid, which acid is known to many persons because of its presence in vinegar. 106 "Inasmuch as it is asserted by respondents that their products are identical except with respect to the grade of their activity, further differentiation between them is unnecessary for the purposes of this proceeding. It is apparent, however, from the statements set out hereinbefore, that respondents' products represent highly dilute solutions. With respect to the product `Glyoxylide,' for example, the relationship proportionately between one part O=C= C=O and one trillion parts of water can be said to approximate mathematically that which one second bears in point of time to the total seconds which have elapsed since the year 29,738 B.C. down to the date on which this case was orally argued before the Commission. There is testimony in the record to the effect that certain of the highly dilute solutions under consideration here cannot be distinguished from water by any tests known to chemical science. 107 "Paragraph Seven: The testimony of various scientific witnesses which was introduced into the record by counsel supporting the complaint is to the effect that the oxidation processes have no direct bearing on natural immunity, that the degenerative diseases and allergies are not caused by a defect of the oxidation mechanism of the body, and that although a decline in metabolic processes may cause more susceptibility to some types of infection, other forms of pathogenic germ activity are not dependent on the state of the oxidation mechanism. Moreover, the administration of substances such as thyroid and nitrophenols, which are known to increase oxidation in the body, are not effective treatments for infections, allergic diseases, or degenerative diseases, and in many cases they tend to make the disease worse or adversely affect the patient. In the opinion of certain of the witnesses, no valid scientific basis exists for ascribing to respondents' products any beneficial role whatsoever in connection with carbohydrate or glucose oxidation. 108 "The witnesses testifying in support of the complaint have had wide experience in various fields of medical science, including biochemistry, internal medicine, pediatrics and communicable diseases, pathology, diseases of the metabolism, and degenerative diseases, and they affirm, in substance, that respondents' products, irrespective of the dilution in which they may be used, are of no value in the treatment of any disease or disorder whatsoever. Although these witnesses have not prescribed respondents' products or observed their effects in concrete cases, their broad knowledge, individually and in the aggregate, respecting the fields under inquiry is such that their testimony should be accorded very great weight. 109 "Considered also is the evidence introduced into the record pertaining to several series of scientific experiments entailing the administration in various dilutions of diperoxide of diformaldehyde. The subjects were mice having tumors of spontaneous origin or in which various types of growths had been induced. The experimental procedures also utilized other groups of mice, for purposes of control, which received no injections of the peroxide. The conclusion of the scientific witness who conducted these experiments at an eastern university is that the product there under study had no effect, inhibitory or stimulatory, on such growths. The experiments with diperoxide of diformaldehyde are relevant to a consideration of the products here involved inasmuch as this peroxide is allied to the product designated `Glyoxylide' and appears to have been used earlier by respondent William F. Koch in the treatment of cancer. 110 "The record here further reveals that a commission appointed pursuant to legislation enacted by the Legislative Assembly of the Province of Ontario, Canada, to inquire into treatments offered for cancer, in rendering official report under date of February 7, 1942, to the Minister of Health, stated that, in nine cases of cancer `treated by Glyoxylide' and observed until final termination, no curative or remedial effects were observed from the standpoint either of prolongation of life, regression of tumor or suppression of symptoms. 111 "Paragraph Eight: In opposition to the allegations of the complaint, respondents have introduced testimony and other evidence relating to specific instances in which their products have been administered to human patients or to animals and other testimony respecting the opinions which certain of the witnesses who are doctors of medicine or practitioners of other healing arts have formed as to respondents' products. These opinions, formed primarily on the basis of their use of such preparations, are to the general effect that respondents' products have significant therapeutic value. It is urged by respondents that this testimony including that pertaining to instances of actual use demonstrates that their products have substantial therapeutic value. 112 "It is the view of the Commission that the evidence relating to the case histories of these selected cases is unconvincing and that it constitutes a wholly inadequate basis for a conclusion that respondents' products possess therapeutic value. For instance, very grave doubts are warranted as to the correctness of the diagnoses made in various instances and this is particularly true in certain of the cases where, in the absence of corroborative biopsy, the patient was deemed to have cancer or to have had a recurrence of cancer. The improvement in condition apparently manifested in some instances following administration of one of respondents' products undoubtedly was attributable to such conventional therapeutic treatment as was rendered to the patient previously, simultaneously or subsequently rather than to the effects of the administration of respondents' products. In other instances the particular disease being treated belongs in that category of disorders the symptoms of which may be subject to complete or substantial remission causing them to disappear, perhaps to reappear months or years later, and in still others the diseases themselves are self-limiting and/or their symptoms are of definite duration. 113 "In no single category of the diseases and ailments does the testimony relating to clinical use in specific cases embrace a substantial number of cases, and in reference to more than 20 of such categories the testimony in each instance relates to use of respondents' treatment on one patient. The evaluation of a therapeutic preparation, however, requires study of a substantial number of cases correctly diagnosed. Evaluation, moreover, usually contemplates some knowledge of the ratio of cures to trials. Considering that respondents' products have been in existence for more than two decades, there is a singular lack of test data or information obtained from controlled clinical work to corroborate the representations for therapeutic value used by respondents in promoting the sale of these products. 114 "Paragraph Nine: The preponderant weight of qualified scientific opinion is that the oxidation processes have no direct bearing on natural immunity, that the degenerative diseases and the allergies are not caused by a defect of the oxidation mechanism, and that respondents' products have no beneficial role whatsoever in carbohydrate or glucose oxidation. On the basis of the greater weight of the evidence received in this proceeding, it is the conclusion of the Commission that respondents' preparations possess no therapeutic value and that their use in any dilution will not benefit any disease or condition of the human body or in animals. 115 "Paragraph Ten: The statements appearing in the advertising and promotional matter used by respondents, of which the statements contained in Paragraph Four hereof are typical and which, as found in Paragraph Five hereof, represent directly and by implication that respondents' products have therapeutic value in the treatment of the diseases, disorders and conditions referred to, including those statements which represent directly and by implication that the efficacy of respondents' products and their method of treatment is attested, demonstrated or proved by the results afforded in the clinical use of such preparations, constitute false representations of material facts. The Commission, therefore, finds that such advertisements are false and misleading and constitute false advertisements. 116 "Respondents contend that no public interest exists in this proceeding for the reason that dissemination of the advertising statements has been restricted to members of the medical profession having the requisite training to understand and evaluate therapeutic claims made for medicinal products. As previously stated, respondents' promotional literature has been disseminated to doctors of medicine, including homeopathic physicians, and to practitioners of other healing arts including naturopathy. It is noted, moreover, in this connection that representations phrased in somewhat different language but similar in general import to certain of the advertising statements appearing in Paragraph Four hereinbefore, particularly as they relate to the treatment of cancer, also have appeared in media coming to the attention of the lay public. An example is certain folders furnished by respondents for distribution to patients of practitioners purchasing respondents' preparations. It is not true, therefore, that the dissemination of respondents' advertising matter has been limited to such persons as have the requisite training to accurately appraise the false representations of material facts appearing in the advertising, but, even if that situation had obtained, the provisions of, and the public policy expressed in the Federal Trade Commission Act, as amended, would require the corrective action being taken in this proceeding to eliminate the false representations found to have been made. 117 "Paragraph Eleven: The use by respondents of the advertising matter heretofore described has had the capacity and tendency to deceive and mislead prospective purchasers and purchasers of respondents' products into the belief that the statements and representations are true and, by reason of the erroneous and mistaken beliefs so engendered, to induce the purchase of respondents' products. 118 "Conclusion 119 "The aforesaid acts and practices as herein found have been to the prejudice of the public and constitute unfair and deceptive acts in commerce within the intent and meaning of the Federal Trade Commission Act. 120 "It appears from certain documents which have been filed on behalf of respondents, that subsequent to the institution of this proceeding, the respondent corporation, Koch Laboratories, Inc., was dissolved and that it does not exist as a corporation. In the circumstances, therefore, respondent Koch Laboratories, Inc., is not being included as a party to the order to cease and desist which is issuing separately herein. The documents referred to contain indication also that the sale and distribution of the products here involved have been discontinued by the respondent individuals. In the opinion of the Commission, however, the public interest, in the circumstances here requires issuance of an order prohibiting the respondent individuals from resuming or otherwise continuing the use of the unfair and deceptive acts and practices which were being used at the time and subsequent to the time when the complaint in this case was issued."

20 B.R. 377 (1982) In the Matter Of CANDLEWOOD SHORES ESTATES, INC., Debtor. CANDLEWOOD SHORES ESTATES, INC., Plaintiff, v. Barry M. KLEIN, Defendant. Bankruptcy No. 2-81-00516, Adv. No. 2-81-0800. United States Bankruptcy Court, D. Connecticut. May 13, 1982. *378 Robert C. Brunetti, Danbury, Conn., for plaintiff. David L. Grogins, Danbury, Conn., for defendant. MEMORANDUM AND ORDER ROBERT L. KRECHEVSKY, Bankruptcy Judge. I. Candlewood Shores Estates, Inc., the debtor in a chapter 11 case, seeks in this proceeding[1] to invalidate a recorded mortgage deed from the debtor to Barry M. Klein, the defendant. The gravamens of the debtor's complaint are that the mortgage deed was unauthorized by the debtor and that the mortgage transaction violates statutory and common law principles concerning self-dealing by corporate insiders or officers. II. BACKGROUND The debtor corporation was formed in December, 1962 by the defendant, Leroy Burke and Edward J. Henry, each owning one-third of the issued stock. Several years later, the defendant and Leroy Burke acquired the major portion of Mr. Henry's stock so that thereafter the defendant and Leroy Burke each owned 47% of the stock and Mr. Henry owned 6% of the stock.[2] The business of the debtor has been, and *379 remains, the development of lakefront property in Brookfield, Connecticut, and includes the sales of lots and the maintenance of roads, a water system, and other improvements associated with the project. In general, since the date of incorporation Mr. Burke and the defendant operated the debtor's business with little concern for corporate organizational requirements. Both testified that no stockholder or director meetings have been held since 1962, and neither could recall directors ever having been elected.[3] In 1977, Leroy Burke became ill and moved to Florida. Prior to his leaving, he gave a power of attorney to his nephew, Edward Hawley, who had been an employee of the debtor since 1971. According to the defendant, Burke, upon leaving Connecticut, told the defendant that he, the defendant, should take care of the debtor's business to the best of his ability. During the years between 1977 and 1981, either Leroy or Barbara Burke were in communication with Hawley and the defendant concerning the debtor's business. The information received by the Burkes was not good. Both Hawley and the defendant advised the Burkes that the debtor was losing money and was threatened with an antitrust lawsuit based upon restrictive covenants contained in the deeds utilized by the debtor to convey property. They were told that major road repairs had to be undertaken. Letters were sent periodically by the defendant to the Burkes noting the poor financial condition of the debtor. On three occasions during 1977 and 1978, the defendant went to Florida, visited the Burkes and discussed the debtor's business. The defendant claims that, during this period, he made unsecured loans to the debtor as the debtor had no cash with which to meet its obligations. The defendant testified that while he never told Burke the extent of these loans, Burke was aware that the defendant was making them. In a letter to Burke dated October 3, 1979, the defendant refers to the debtor owing the defendant $2,000.00 for money the defendant personally paid to a Mr. Goldstein. The defendant claimed at trial that at that time he was actually owed $70,685.77 by the debtor.[4] Sometime during the fall of 1979, the defendant, Hawley and David S. Grossman, an attorney retained by the defendant for the debtor, met to discuss the financial condition of the debtor and the antitrust litigation. Hawley testified that the defendant and Attorney Grossman discussed the possibility of a mortgage being placed on the debtor's property for the purpose of "protecting" the property in the event the antitrust suit was lost. He recalled no other statements concerning the purpose of the mortgage. Grossman and the defendant both testified that during this meeting they also discussed the placing of a mortgage on the debtor's property to secure the defendant for the monies he had previously loaned to the debtor. On January 15, 1980, without Hawley's knowledge, a mortgage deed and note were executed by the defendant on behalf of the debtor in favor of the defendant in the amount of $85,000.00. The mortgage note was payable on demand with interest at 6% per annum payable quarterly. The mortgage deed was recorded in the Brookfield land records on February 13, 1981. The defendant does not claim that he ever notified the Burkes, Henry, or Hawley of the execution of this mortgage deed. The testimony of the defendant is clear that at the time the mortgage was executed the debtor was unable to pay its debts as they accrued and that the debtor was insolvent. Upon Mr. Burke's return to Connecticut in January, 1981, he first learned of the execution of the mortgage. The Burkes and Henry took control of the debtor at that point, discharged the defendant, and caused the voluntary chapter 11 petition to be filed.[5] A certified public accountant, *380 retained by the debtor, made an examination of the debtor's receipt and disbursement records. He testified at the hearing that as best he could determine from these records the debtor may owe the defendant $24,516.00 as of December, 1980, for transactions which commenced in 1968. The defendant claims $71,626.00 is due him. He testified that since he often used his personal checks to pay corporate obligations, the debtor's books would not show the correct amount due him. At the trial, the defendant stated that the purpose of the mortgage was two-fold—to protect the assets of the debtor from creditors who were threatening litigation, and to secure his pre-existing loans to the debtor. He acknowledged that he had no explicit authority to execute the mortgage, but claimed it is to be implied from his general conversation with Leroy Burke when Burke told the defendant to do whatever was best for the debtor. In his post-trial brief, the defendant makes the further claims that he had apparent authority to execute the mortgage, that the debtor has ratified the transaction, and that the debtor is estopped to deny such ratification by virtue of its receipt of the benefits from the defendant. III. DISCUSSION A. When officers or directors transact business with their corporations, they are held to a strict standard of fair dealing. If a particular transaction is challenged, a director or officer bears the burden of showing that "any personal dealing with the corporation is fair, in good faith and for adequate consideration." Osborne v. Locke Steel Chain Co., 153 Conn. 527, 534, 218 A.2d 526, 531 (1966). See Hadden v. Krevit, 186 Conn. 587, 442 A.2d 944 (1982); Katz Corp. v. T.H. Canty & Co., 168 Conn. 201, 362 A.2d 975 (1975); Massoth v. Central Bus Corp., 104 Conn. 683, 134 A. 236 (1926). In general, there is nothing improper about a director or officer taking security for a contemporaneous loan to his corporation. 19 Am.Jur.2d Corporations § 1299 (1965); Annot., 31 A.L.R.2d 663 (1953). If the transaction has been fairly conducted and the corporation has received adequate consideration, courts will not set that transaction aside. Indeed, loans from directors or officers may be the last available alternative for an ailing corporation. In Twin-Lick Oil Co. v. Marbury, 91 U.S. 587, 23 L.Ed. 328 (1875), where a director loaned money to his corporation secured by a deed of trust, the Court commented that it would be ill-advised to prohibit such loans because it would deprive the corporation of the aid of "those most interested in giving aid judiciously, and best qualified to judge of the necessity of that aid, and of the extent to which it may safely be given." Id. at 589, 23 L.Ed. at 330. A different rule exists for transactions wherein a director or officer seeks to acquire security for antecedent loans, particularly when the corporation is insolvent or nearly so. "`[W]here a corporation is insolvent in fact, or so nearly so that insolvency is practically certain, director creditors should not be permitted to appropriate the assets of the corporation to secure or pay a past indebtedness to the prejudice of other creditors.'" 3 W. Fletcher, Cyclopedia of the Law of Private Corporations § 908 (rev. perm. ed. 1975) (quoting Jackman v. Newbold, 28 F.2d 107, 111 (8th Cir. 1928)). The rationale behind this rule is that, by taking security for antecedent loans, a director or officer is breaching his fiduciary duties to the corporation and prejudicing the rights of creditors. In Stuart v. Larson, 298 F. 223 (8th Cir. 1924), the court stated: the great weight of authority in this country is that the directors of an insolvent corporation, who are also creditors thereof, have no right to grant themselves preferences or advantages in the payment of their claims over other creditors, and such rule is merely applied common honesty. A director occupies a certain *381 fiduciary position toward the stockholders and creditors. He has better facilities for knowing the condition of the company than have the other creditors, and he ought not to be permitted to use that position to benefit himself at their expense. Id. at 227. To like effect is Albert Richards Co. v. The Mayfair, Inc., 287 Mass. 280, 191 N.E. 430 (1934), a case in which a director took a mortgage from his corporation to protect its assets from creditors. The court observed that directors were to some extent trustees of the corporate property for the creditors, and should not be allowed to use their superior and far more intimate knowledge of the corporation's affairs to the detriment of creditors. There is no finding directly to the effect that the corporation was insolvent at the date of the giving of the mortgage, but that the corporation did not have sufficient assets or prospects of credit to meet the claims of those to whom it was indebted may fairly be inferred from the finding that [the director's] "purpose in procuring the execution and delivery of the note and mortgage was to protect the assets from the landlord and other creditors." 287 Mass. at 289, 191 N.E. at 434. See also Cooper v. Mississippi Land Co., 220 So.2d 302 (Miss.1969); Smith v. Mississippi Livestock Producers Ass'n, 188 So.2d 758 (Miss. 1966). While no Connecticut case appears to exist on the exact issue in this proceeding, Connecticut has specified by statute that self-dealing transactions between a corporation and its directors are voidable unless the self-dealing director sustains the burden of showing that the transaction was fair, in good faith and for adequate consideration. Conn.Gen.Stat. § 33-323 (1981).[6]Cf. Hadden v. Krevit, 186 Conn. 587, 590, 442 A.2d 944, 946 (1982). The defendant having concededly executed the mortgage to protect himself from other creditors of the debtor and to shield assets of the debtor from creditors, I conclude that the mortgage to the defendant is avoidable by the debtor-in-possession under the doctrine of the Stuart and Albert Richards Co. cases, supra. B. I further conclude that the mortgage was never authorized by the debtor, never ratified by it, and that estoppel is not relevant to the present status of the debtor as a debtor-in-possession exercising the powers of a trustee. The defendant admits that there was nothing approaching specific authorization for the mortgage from the other officers and stockholders of the debtor. His attempt to construe a general statement made by Mr. Burke to the effect that the defendant should take care of the business to mean that he was authorized to grant himself a mortgage is unavailing. Burke denies any such intention and the defendant's contention is strained. The defendant had many opportunities to disclose *382 the execution of the mortgage but he never did. There was no ratification. While the defendant may have loaned the debtor monies from time to time, the precise net amount of such loans is open to serious question. Even if all of the defendant's claims were credited, they do not amount to the false sum of $85,000.00 indicated by the mortgage deed which the defendant caused to be placed on the land records.[7] Judgment may enter that the mortgage from Candlewood Shores Estates, Inc. to Barry M. Klein dated January 15, 1980 and recorded in Vol. 133, Page 812 of the Brookfield land records is null and void. This memorandum shall constitute Findings of Fact and Conclusions of Law pursuant to Rule 752 of the Rules of Bankruptcy Procedure. NOTES [1] This action was commenced in the Connecticut superior court on May 20, 1981, and was removed to the bankruptcy court on December 11, 1981. [2] Leroy Burke transferred his stock ownership to his wife, Barbara Burke, in 1977, but continued to be the person to act on behalf of this stock interest. [3] From 1962 to 1981, Leroy Burke was the president and the defendant was the secretary-treasurer of the debtor. [4] Defendant's Exhibit Q. [5] The debtor's petition was signed by Edward J. Henry, as Secretary-Treasurer. [6] Conn.Gen.Stat. § 33-323. Corporate transactions with directors and others. (a) A contract or transaction between a corporation and a director thereof or a member of his immediate family, or between a corporation and any other corporation, firm or other organization in which a director of the corporation and members of his immediate family have an interest, shall not be voidable, and such director shall not incur any liability, merely because such director is a party thereto or because of such family relationship or interest, if: (1) Such family relationship or such interest, if it is a substantial interest, is fully disclosed, and the contract or transaction is not unfair as to the corporation and is authorized by (i) directors or other persons who have no substantial interest in such contract or transaction in such a manner as to be effective without the vote, assent or presence of the director concerned or (ii) the written consent of all of the directors who have no substantial interest in such contract or transaction, whether or not such directors constitute a quorum of the board of directors; or (2) such family relationship or such interest, if it is a substantial interest, is fully disclosed, and the contract or transaction is approved by the affirmative vote of the holders of a majority of the voting power of the shares entitled to vote thereon; or (3) the contract or transaction is not with the director or a member of his immediate family and any such interest is not substantial, subject, however, to the provisions of subsection (b) of this section; or (4) the contract or transaction is fair as to the corporation. [7] Conn.Gen.Stat. § 49-31b (1981) provides that a mortgage deed must furnish information from which there can be determined "the date, principal amount and maximum term of the note." See also First Nat'l Bank & Trust Co. of Bridgeport v. Levy, 17 Conn.Supp. 254 (1951) (underlying policy of Connecticut law is to prevent fraud by giving reasonable notice to interested parties of the extent of the transaction and leave no room for the substitution of fictitious claims).

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS January 9, 2006 FOR THE TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court M. L. COCHRAN, Plaintiff-Appellant, No. 05-3216 v. (D.C. No. 04-CV-1172-JTM) (D. Kan.) RAYTHEON AIRCRAFT COMPANY, Defendant-Appellee. ORDER AND JUDGMENT * Before KELLY, PORFILIO, and BRORBY, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Plaintiff M. L. Cochran, proceeding pro se, appeals the district court’s grant of summary judgment in favor of his former employer, Raytheon Aircraft * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Company, on his claims of race, age, and gender discrimination and retaliation in violation of federal and state employment-discrimination law. After our de novo review of the district court’s determination, Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), we affirm. Cochran, an African American male, was a long-term Raytheon employee. He filed his first discrimination complaint against Raytheon in 2002, alleging a variety of claims arising from failure to promote, unequal terms and conditions of employment, sex discrimination and harassment, race discrimination and harassment, and retaliation. In February 2003, the district court granted Raytheon’s motion for summary judgment on the ground that Cochran had failed to file his lawsuit within ninety days of receiving a right to sue letter from the Equal Employment Opportunity Commission (EEOC). Cochran v. Raytheon Aircraft Co., No. 02-1146-WEB, 2003 WL 1786873 (D. Kan. Feb. 25, 2003) (unpublished) (Cochran I). Cochran did not appeal from that decision. Cochran continued his employment with Raytheon. In May of 2003, he refused his supervisor’s request to perform work, marking the third incident of insubordination during a six-month period. Raytheon suspended Cochran for a period of thirty days, imposing three conditions on his return to work. Cochran was required to (1) undergo a psychological evaluation and make it available to -2- Raytheon, (2) participate in the Employee Assistance Program, and (3) pass a reinstatement urinalysis or alcohol breath test. Cochran did not take any steps to satisfy the conditions and he was discharged on June 23, 2003. Cochran renewed his pursuit of discrimination, harassment, and retaliation charges against Raytheon. In federal district court, Raytheon filed a summary judgment motion. The court carefully analyzed Cochran’s allegations in light of the uncontroverted evidence in the record. For failure to exhaust administrative remedies, the district court first dismissed Cochran’s claims of sex discrimination, sexual harassment, failure to promote, and withholding a sick-leave paycheck. See MacKenzie v. City & County of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005) (stating that, in the Tenth Circuit, administrative exhaustion is jurisdictional prerequisite for discrimination claims). Also, most of these claims had been advanced in Cochran I. The court therefore determined that they were barred by the doctrine of claim preclusion. See Wilkes v. Wyoming Dept. of Employment Div. of Labor Standards, 314 F.3d 501, 504-06 (10th Cir. 2002) (applying claim preclusion where claims arose from the same factual allegations and employment relationship in earlier discrimination case). Finally, the court concluded that Cochran had not established a prima facie case for his remaining claims. Several of the events underlying his claims did not -3- rise to the level of an adverse employment action on the part of Raytheon. See Hillig v. Rumsfeld, 381 F.3d 1028, 1033 (10th Cir. 2004) (holding that conduct that has no more than a de minimus impact on employee’s future job opportunities is not an adverse employment action). Further, Cochran had failed to show (1) that he was performing his duties in a satisfactory manner, see Salguero v. City of Clovis, 366 F.3d 1168, 1175 (10th Cir. 2004) (including satisfactory performance as an element of prima facie case of discriminatory termination); (2) that Raytheon discriminated against males, see Notari v. Denver Water Dep’t, 971 F.2d 585, 590 (10th Cir. 1992) (requiring a reverse discrimination plaintiff to establish background circumstances that support an inference that the defendant is one of those unusual employers who discriminates against the majority); (3) that a causal connection existed between his complaints and a significant adverse action, see Miller v. Auto. Club of New Mexico, Inc., 420 F.3d 1098, 1119 (10th Cir. 2005) (including a causal connection between protected activity and adverse employment action as element of prima facie case of retaliation); and (4) that he was subjected to pervasive or severe harassment or that he was harassed for discriminatory reasons; see Sandoval v. City of Boulder, 388 F.3d 1312, 1327 (10th Cir. 2004) (stating that plaintiff must demonstrate evidence from which a rational jury could find that workplace was permeated with discriminatory -4- harassment ). Accordingly, the district court entered summary judgment in favor of Raytheon. We agree with the thorough analysis conducted by the district court. For the reasons set forth in the district court’s memorandum and order dated May 16, 2005, we AFFIRM. Entered for the Court Wade Brorby Circuit Judge -5- 

United States Court of Appeals For the First Circuit No. 12-1639 UNITED STATES OF AMERICA, Appellee, v. BRIAN K. ROGERS, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge] Before Lynch, Chief Judge, Stahl and Thompson, Circuit Judges. Robert C. Andrews on brief for appellant. Thomas E. Delahanty II, United States Attorney, and Margaret D. McGaughey, Assistant United States Attorney, on brief for appellee. July 2, 2014  Per curiam. Following his conviction for possession of child pornography, defendant Brian Rogers appealed both his conviction and the district court's restitution order requiring him to pay $3,150 to Vicky, the victim who appeared in at least nine video clips found on his computer. We affirmed both the conviction and the restitution order. See United States v. Rogers, 714 F.3d 82 (1st Cir. 2013). The Supreme Court granted certiorari, vacated, and remanded for further consideration in light of its recent decision in Paroline v. United States, 134 S. Ct. 1710 (2014). See Rogers v. United States, 134 S. Ct. 1933 (2014). We have received post-remand briefing from the parties. Defendant argues that the sum of $3,150 does not accord with the causation requirements of Paroline. He is wrong. Paroline concerned the methodology to be used by the district courts for crafting restitution orders, and confirmed such awards were to be made in the exercise of the court's "discretion and sound judgment." 134 S. Ct. at 1728. It did not change any of the standards relevant to defendant's underlying conviction, and defendant does not so argue. We adopt our prior reasoning as to defendant's conviction. See Rogers, 714 F.3d at 86-88. We also affirm the district court's restitution order. We review restitution orders for abuse of discretion. United States v. Kearney, 672 F.3d 81, 91 (1st Cir. 2012). Although the district court did not have the benefit of Paroline at the time it -2- made its decision, we conclude, applying Paroline, that the order is not an abuse of discretion. Paroline requires district courts to "determine the amount of the victim's losses caused by the continuing traffic in the victim's images . . . , then set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant's conduct in producing those losses." 134 S. Ct. at 1728. Those factors include: the number of past criminal defendants found to have contributed to the victim's general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim's general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant's relative causal role. Id. The district court's decision comports with these instructions. The court considered a chart submitted by the government showing the individual amounts of restitution orders to Vicky that had been entered in past cases. The district court excluded past costs and based its award on an estimate of Vicky's future therapy costs, occasioned by defendant's conduct. It first limited the losses to general losses from "continuing" traffic in -3- Vicky's images from the period when defendant had viewed them. It then distinguished the future therapy losses attributable to defendant from the harm resulting from other viewers and from Vicky's therapy needs relating to her father and the difficulty of her relationships with male friends. The court further considered the fact that several other defendants had been sentenced and ordered to pay restitution for possessing images of Vicky, and that defendant viewed the images and may also have shared them through a file sharing program. The court commented that it would select a restitution figure representing the cost of 18 therapy visits, but noted that 50 visits would also have been a reasonable conclusion. The court picked a figure at the low end. On the basis of these factors, the court entered a restitution order of $3,150. This order certainly was not an abuse of discretion in light of Paroline. Consequently, we affirm the district court's restitution order. So ordered. -4- 

NOTE: This order is nonprecedential United States Court of AppeaIs for the FederaI Circuit PETER C. NWOGU, DOING BUSINESS AS, ENVIRONMENTAL SAFETY CONSULTANTS, INC., Plaintiff-Appellan,t, V. UNITED STATES, Defen,dant-Appellee. 2011-5015 ` Appea1 from the United States Court of Federa1 C1aims in case no. 09-CV-268, Judge Marian B1ank Horn. ON MOTION ORDER Peter C. NWogu moves without opposition to file his reply brief out of time. Upon consideration thereof IT ls OR1)ERED THAT: The motion is granted The reply brief is accepted for fi1ing. moon v. Us 2 FoR THE CoURT SEP 2 7 /s/ J an H0rba1y Date J an Horba1y CIerk cc: YaW Akuoko, Esq. David F. D’Alessandris, Esq. S2° “-S¢s22§§SE,H2avS;°“ SEP 2 7 2011 .lAN HORBALY CLERK

108 Cal.Rptr.2d 924 (2002) 90 Cal.App.4th 937 In re EDUARDO C, a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Eduardo C, Defendant and Appellant. No. B142094. Court of Appeal, Second District, Division Four. July 19, 2001. Fay Arfa, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Marc E. Turchin, Acting Senior Assistant Attorney General, William T. Harter, Erika D. Jackson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent. HASTINGS, J. Appellant, Eduardo C, pled guilty to the crime of battery on a school ground. (Pen. Code, § 243.2, subd. (a), all further references will be to this Code unless otherwise noted.) Appellant was placed home on probation for a period of one year and was additionally ordered to register with the local police department as a gang member pursuant to section 186.30. Appellant *925 challenges the order to register on various constitutional grounds, and as applied to him. We conclude the record is devoid of any facts supporting imposition of the duty to register on appellant and we reverse that portion of the sentence. STATEMENT OF FACTS On April 24, 2000, a juvenile petition was filed against appellant alleging a single count: "On or about 01/05/2000 within the County of Los Angeles, the crime of BATTERY ON SCHOOL, PARK, OR HOSPITAL PROPERTY, in violation of PENAL CODE 243.2(A), a Misdemeanor, was committed by said minor, who did willfully and unlawfully use force and violence upon RAYMOND [C] while on school and park property and on the grounds of a public and private [school]." Appellant was arraigned on April 24, 2000, and denied the allegations of the petition. On May 23, 2000, appellant was present for pretrial conference and a plea bargain was apparently reached. Upon inquiry by the court of the bargain agreed to, counsel for appellant replied: "H.O.P. plus 10 days." The court had the prosecutor advise appellant regarding the consequences of his change of plea and obtain waivers of appellant's constitutional rights. At no time during the advisement of the consequences of the plea or the taking of waivers, was appellant advised that he would be required to register as a gang member if he admitted the charges. Appellant did admit the charges and his counsel joined in the waivers and admission. The court then proceeded to sentencing and listed a number of conditions of probation, many of which were designed to direct appellant away from gang related activity. While listing these conditions, the following exchange occurred: "THE COURT: 15(a), this is a big one, do not participate in any type of gang activity. You are ordered to stay [a]way from Azusa 13 gang members and places where they hang out. You are also ordered by the court within 48 hours after you are released from this Ricardo M. time to report to the local police agency in that area. Is that the Sheriffs? "MR. ROSE: That would be Azusa Police Department. "THE COURT: Azusa Police Department to be fingerprinted and photographed and then you're going to be ordered to come back here to show proof that you have done that. "MR. CHEUNG [counsel for appellant]: Your Honor, there's going to be an objection to that condition. "THE COURT: Gang conditions. According to this report, your client is heavily involved in gangs. "MR. CHEUNG: As to registration and fingerprinting, Your Honor. "THE COURT: Well, that's part of Prop. 21. MR. CHEUNG: I understand, Your Honor. "THE COURT: So that if you fail to do that, that's a separate misdemeanor. It's a separate crime. So we'll get to the dates as to when you have to report and when you have to come back." (Italics added.) A timely notice of appeal was filed on June 2, 2000. Further facts will be presented in the following discussion. DISCUSSION Section 186.30, added to the Penal Code by Initiative Measure, Proposition 21, provides as follows: "(a) Any person described in subdivision (b) shall register with the chief of *926 police of the city in which he or she resides, or the sheriff of the county if he or she resides in an unincorporated area, within 10 days of release from custody or within 10 days of his or her arrival in any city, county, or city and county to reside there, whichever occurs first. "(b) Subdivision (a) shall apply to any person convicted in a criminal court or who has had a petition sustained in a juvenile court in this state for any of the following offenses: "(1) Subdivision (a) of Section 186.22. "(2) Any crime where the enhancement specified in subdivision (b) of Section 186.22 is found to be true. "(3) Any crime that the court finds is gang related at the time of sentencing or disposition." Appellant raises numerous facial constitutional challenges to this section, many of which were rejected recently in In re Walter S. (2001) 89 Cal.App.4th 946, 107 Cal. Rptr.2d 752. We conclude that we need not address the constitutional issues because appellant has also raised an "as applied" challenge to section 186.30 which is dispositive. The only justification in the record for the order requiring appellant to register with the Azusa Police Department is the following statement by the court: "According to this report, your client is heavily involved in gangs." We therefore turn to the probation report to which the court was referencing. Under the heading "Elements and Relevant Circumstances of the Offense," the following is contained: "According to the Azusa Police Department, the minor and his aforementioned companions [Donald S. and Jorge S. —no other identification offered] had a physical altercation with the listed victim. Referral documents further indicate that the victim was contacted by the aforementioned companions as he sat in front of Sierra High School. Referral documents along with witness statements further indicate that the victim began to fight with said companions, [¶] Shortly thereafter the minor reportedly arrived on a bicycle. The minor joined the fight and repeatedly struck the victim. School personnel were eventually able to restore order. The victim was reportedly not seriously injured." Next under the title "Victim Statement" the following is set out: "Probation officer spoke with Ramona [R.], who identified herself as being the victim's grandmother. She indicated that the victim was not seriously injured and sustained several facial bruises. She also disclosed that the victim has done his very best to avoid the minor and the other youngsters involved. Since the aforementioned episode, the grandmother disclosed that she along with the victim's mother transferred the victim to another school. This action was taken reportedly in order to insure the victim's continued safety." Under the title "Prior Record," four police contacts are listed as follows: "10-2-97—Azusa Police Department—422.6(a) Penal Code (violate civil rights by force); 242 Penal Code (battery); 186.22(a) Penal Code (participate in criminal street gang); Disposition unknown, [¶] (The minor indicates not recalling circumstances surrounding this incident.) "2-5-98—Azusa Police Department unspecified municipal court infraction; referred to juvenile traffic court. [¶] (The minor indicates being cited by police officers after he was out late at night at a public park.) "2-4-99—Azusa Police Department— 422 Penal Code (terrorist threats); petition sustained on 3-9-99. The minor was placed on formal probation. [¶] *927 (The minor indicates walking with several friends who started to threaten other youngsters standing nearby. The minor denied having any direct involvement in this episode.) "8-17-99—Azusa Police Department—unspecified municipal court infraction; referred to juvenile traffic court. [¶] (The minor indicates not recalling said offense.)" Under the title "Gang Activity," the box "Yes" is checked and the gang name of "Azusa 13" is listed. Below this is the following: "Referral documents indicate that the minor is connected with the above listed street gang. In addition, the minor has `SGV tattooed on his left arm. This particular tattoo is commonly used by gang members in the San Gabriel Valley." Under the heading "Analysis and Plan," the following is discussed: "Before the court is a 17-year-old minor who along with his listed companions chose to attack said victim on school grounds. Referral documents indicate that the victim first began to struggle with the minor's companions, whereupon the minor arrived and joined in. Fortunately school personnel were able to intervene and the victim was not seriously injured. "As indicated, the minor chose to remain silent. Therefore, probation officer was unable to retrieve additional insight into the minor's hostile misbehavior. The present offense is not an isolated incident. "Previously the minor was placed on probation after a petition centering on making terroristic threats was sustained. The minor also has previous police contacts which involved battery, gang activity and unspecified municipal code infractions. Unless appropriate measures are taken, the minor's aforementioned anti-social lifestyle may continue to escalate. "Currently the minor resides with his parents and siblings. The minor's parents essentially viewed him as being well-behaved. However, the father disclosed that the minor occasionally stays out late and prefers to associate with individuals who he does not approve of. "In regards to the present offense, each parent evidently lacked significant insight into the minor's behavior. However, the minor's parents evidentially [sic] realize he needs guidance. They recently enrolled the minor in a counseling program which reportedly will address the minor's academic problems and related issues. Also, the minor's parents recently completed a parenting course. "Despite these efforts, the minor still does not appear to be receiving adequate levels of parental control/supervision. This assessment is supported by the minor's apparent gang connections, questionable school status, prior police contacts, and his involvement in the present offense. The minor needs to receive long-term probation intervention. "Should the above petition be sustained, probation officer would view formal probation as being the best option. If so granted, probation officer would strongly suggest that the minor complete 100 hours of community service. In addition, the minor's formal probation should stress no further gang/victim contact, participation in a family counseling program, participation in an anger management program, adherence to an 8:00 p.m. curfew, satisfactory school attendance/performance and absolute compliance with all mandated conditions." The foregoing report contains substantial information justifying gang-related *928 conditions placed on appellant during his term of probation. (In re Laylah K. (1991) 229 Cal.App.3d 1496, 1501-1502, 281 Cal.Rptr. 6, disapproved on other grounds in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2, 983, fn. 13, 55 Cal.Rptr.2d 771, 920 P.2d 716; In re Michael D. (1989) 214 Cal.App.3d 1610, 1614-1616, 264 Cal.Rptr. 476.) But it does not contain substantial evidence to support imposition of the reporting requirement of section 186.30. There is nothing in the record to satisfy any of the three conditions necessary to impose the reporting requirement. While the entry in the report under date of October 2, 1997, lists as one of the crimes potentially committed a violation of section 186.22, subdivision (a), it also states "Disposition unknown." Thus, appellant may or may not have been convicted of a violation qualifying for treatment under section 186.22, subdivision (b)(1). There is no indication in the report that appellant ever suffered a sentence enhancement to qualify for treatment under section 186.22, subdivision (b)(2). Finally, there is nothing in the record from which a finding can be sustained that the present crime was gang related to qualify for treatment under section 186.22, subdivision (b)(3). DISPOSITION The order requiring appellant to register as a gang member pursuant to section 186.30 is reversed. The judgment is otherwise affirmed. CHARLES S. VOGEL, P.J., and EPSTEIN, J., concur.

928 F.2d 1167 289 U.S.App.D.C. 75 Fred WYLER, Individually and as a Personal Representative ofthe Estate of William Paul Wyler, Deceased, forthe Benefit of Himself and Helen C.Wyler, et al., Appellants,v.KOREAN AIR LINES COMPANY, LTD., et al. Nos. 86-5400, 86-5401, 86-5403 to 86-5413, 86-5415 to86-5427, 86-5429, 86-5431, 86-5515 to 86-5524,86-5562, 86-5596, 87-5016, 87-5091 and 87-5263. United States Court of Appeals,District of Columbia Circuit. Argued Jan. 25, 1991.Decided March 29, 1991.As Amended April 3, 1991. Appeal from the United States District Court for the District of Columbia (Civil Action Nos. 83-02792, et al.). Steven R. Pounian, with whom Milton G. Sincoff, New York City, Donald W. Madole, George E. Farrell and Juanita M. Madole, Washington, D.C., were on the brief, for appellants in 86-5400, 86-5401, 86-5403 to 86-5413, 86-5415 to 86-5427, 86-5429, 86-5431, 86-5515 to 86-5524, 86-5562, 86-5596, 87-5016, 87-5091 and 87-5263. Ned Good, Pasadena, Cal., also entered an appearance, for appellants. Irene M. Solet, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Robert S. Greenspan and Lori M. Beranek, Attys., Dept. of Justice, Washington, D.C., were on the brief, for the Federal appellees in 86-5400, 86-5401, 86-5403 to 86-5413, 86-5415, 86-5416, 86-5424, 86-5427, 86-5429, 86-5431, 86-5515 to 86-5524, 86-5562, 86-5596, 87-5016 and 87-5263. George N. Tompkins, Jr. and Desmond T. Barry, Jr., New York City, were on the brief, for appellees, Korean Air Lines Co., Ltd., et al., in 86-5400, 86-5401, 86-5403 to 86-5412, 86-5415 to 86-5423, 86-5425, 86-5426, 86-5515 to 86-5524, 86-5596 and 87-5091. Before MIKVA, Chief Judge, BUCKLEY and THOMAS, Circuit Judges. Opinion for the Court filed by Chief Judge MIKVA. MIKVA, Chief Judge: 1 On September 1, 1983, a Korean Air Lines ("KAL") Boeing 747 airliner was shot down somewhere over the Sea of Japan by one of the Soviet Union's military aircraft, killing all 269 persons on board. The flight recorders and most of the wreckage were never recovered, so the exact details of what happened remain a mystery. Numerous wrongful death suits were filed against various defendants including KAL and the United States. The suits were consolidated in the United States District Court for the District of Columbia pursuant to 28 U.S.C. Sec. 1407 (1988). Before trial, the district court dismissed several claims against KAL for lack of subject matter jurisdiction and granted summary judgment for the United States on claims that it had breached a duty to warn. At trial, the remaining plaintiffs won a jury verdict and received a judgment including $50 million in punitive damages, which is challenged in a separate appeal. In this appeal, we affirm both pre-trial decisions by the district court. I. BACKGROUND 2 On August 31, 1983, Korean Air Lines Flight 007 ("KE007") left New York's Kennedy Airport bound for Seoul, South Korea, with a stop in Anchorage, Alaska. After refueling there, KE007 took off from Anchorage International Airport at 1300 Greenwich Mean Time ("G.M.T."), or 4:00 a.m. local time. The Anchorage Air Traffic Control ("ATC") Center instructed KE007 to climb and maintain a flight level of 33,000 feet and "proceed direct BETHEL when able." BETHEL, located approximately 360 nautical miles west of Anchorage, is the navigational gateway for Route R20 of the North Pacific Composite Route System, which operates like a multi-lane highway for civilian flights across the Pacific Ocean between North America and Asia. BETHEL also serves as a navigational waypoint at which an airplane can cross-check its position against a radio fix. Route R20 has a series of navigational waypoints with precise geographical coordinates, each about 300 miles apart, that KE007 was expected to follow on a direct path and use for course verification and reporting. (These waypoints were designated BETHEL, NABIE, NUKKS, NEEVA, NINNO, NIPPI, NYTIM, NOKKA, and NOHO.) Anchorage ATC transfers control of aircraft following Route R20 to Tokyo Center at waypoint NIPPI. 3 At the time that these events took place, Anchorage ATC had radar coverage for less than half the distance to BETHEL. The Federal Aviation Administration's ("FAA") Kenai radar installation provided coverage as far as Cairn Mountain, approximately 165 nautical miles west of Anchorage.. The air traffic controller in charge of the first leg of the flight maintained radar surveillance of KE007 up to Cairn Mountain, and then informed the crew that "radar services terminated." From that point on, Anchorage ATC would rely on the crew's position reports (calculated in-flight with the help of the waypoints and on-board systems such as the Inertial Navigation System ("INS")) to track KE007's location and adherence to R20. Approximately 22 minutes after passing out of ATC radar coverage, KE007's pilot reported reaching BETHEL. 4 During the remainder of the flight, KE007 continued to report having reached each successive waypoint up to NIPPI, when Anchorage transferred control to Tokyo. Several of these reports were relayed to Anchorage ATC by another KAL flight, KE015, which had departed Anchorage shortly after KE007 and also was following R20. The air traffic controllers testified that they did not find this practice unusual. At 1432 G.M.T., one controller apparently tried to raise KE007 shortly before it was scheduled to reach waypoint NABIE. His repeated efforts were unsuccessful, but a few minutes later a report was relayed by KE015 that KE007 had reached NABIE. After BETHEL, the only direct transmission from the KE007 crew to ground controllers was a report to Tokyo that the plane was rapidly decompressing. 5 Plaintiffs' liability claims in all of these actions grow from a hypothetical flight deviation that was allegedly apparent on FAA radar shortly after take-off and could be extrapolated across the entire route to the approximate crash site in the Sea of Japan (after flying for about three hours in Soviet airspace and crossing over the Kamchatka Peninsula and Sakhalin Island). Plaintiffs argue that the crew's location reports were fabricated to cover up an error in programming the INS in Anchorage. The validity of this postulated flight path, and the permissibility of inferences drawn therefrom concerning the crew's conduct, are treated in more detail in the district court's opinion denying KAL's motion for partial summary judgment. See In re Korean Air Lines Disaster of September 1, 1983, 704 F.Supp. 1135, 1136-51 (D.D.C.1988). For present purposes, we can assume that the course deviation did occur as plaintiffs suggest, because the government did not dispute this factual claim in its motion for summary judgment. 6 In their claims against the United States, plaintiffs alleged that the government knew that KE007 was proceeding off course and should have warned the crew that they were straying into Soviet airspace. In particular, plaintiffs argue that U.S. Air Force personnel would have seen the course deviation on military radar and were under a duty to advise Anchorage ATC. Shortly after the suits were consolidated, the United States moved to dismiss or, in the alternative, requested summary judgment. The district court dismissed several of the claims, but denied the motion for summary judgment on the duty to warn issue because "plaintiffs had not yet had time to take discovery." In re Korean Air Lines Disaster of September 1, 1983, 597 F.Supp. 613, 618 (D.D.C.1984) (allowing discovery concerning "the existence of a legal duty to warn or advise civilian aircraft in the position of KAL 007"). More than a year later, the court granted the government's renewed motion for summary judgment. See In re Korean Air Lines Disaster of September 1, 1983, 646 F.Supp. 30 (D.D.C.1986) (hereinafter "In re KAL Disaster "). In the interim, the district court also dismissed several claims against KAL for lack of subject matter jurisdiction under Article 28(1) of the Warsaw Convention. See Orders and Memorandum Opinion (D.D.C. July 25, 1985) (hereinafter "Mem.Op."). II. ANALYSIS A. Claims against the United States 7 In their claims against the United States, plaintiffs alleged that the government knew or should have known that KE007 was proceeding off course and that it should have warned the crew of their deviation into Soviet airspace. In granting the government's motion for summary judgment, the district court held that the plaintiffs had failed to establish that any U.S. employee, except the air traffic controllers monitoring KE007's position reports, had a duty to warn civilian aircraft under such circumstances. The court rejected plaintiffs' argument that a brief parenthetical phrase in an internal United States Air Force ("USAF") directive created a duty on the part of Air Force personnel to monitor outbound civilian aircraft on radar and warn of any course deviations, adding that KAL's passengers and crew had not relied on this alleged undertaking anyway. The court also found that there was no triable factual dispute concerning a breach of duty by either the FAA air traffic controllers or the USAF trackers, declining to draw any adverse inference against the government from its inability to submit the radar tapes for that night because of their routine reuse. Lastly, the court held that even if the United States had breached a duty, the deliberate and unlawful act by the Soviet Union was unforeseeable and therefore constituted an independent, superseding cause of the disaster. Because we agree that there was no breach of a legal duty by the government, we do not address the district court's somewhat more troubling foreseeability analysis. 8 At the outset, the government insists that appellants have impermissibly merged the duties of different agencies to contend that the United States generally had a duty to track KAL on military radar and warn it in case it strayed into or near Soviet airspace. It argues that Air Force "trackers" monitoring military radar in Alaska are in no sense like air traffic controllers. The military maintains several radar installations in Alaska as part of the North American Aerospace Defense Command ("NORAD") which provide more extensive coverage than the FAA radar in Anchorage. In 1983, these sites included antennas at King Salmon, Cape Newenham and Cape Romanzof, which together covered an area at least from Cairn Mountain to 200 miles out over the North Pacific Ocean. Air Force personnel assigned to the Regional Operations Control Center ("ROCC") at Elmendorf Air Force Base in Anchorage monitor military radar for aircraft entering into the Alaskan NORAD region primarily to defend against military threats. 9 According to appellants, the USAF radar trackers at ROCC would have seen KE007 on their scopes on its postulated course deviation, but testimony from the trackers on duty that morning suggests that nothing unusual was seen. ROCC automatically records radar data, but tapes from Cape Newenham and Cape Romanzof apparently were erased according to a normal recycling routine. (Appellants suggest that the tapes were intentionally destroyed, but they were unable to discover anything that would undermine the government's explanation.) Appellants also contend that the government had a general duty to monitor and warn, suggesting that the knowledge supposedly available to the USAF trackers could be imputed to the government as a whole so as to trigger the FAA's undoubted duty to transmit such course information to KE007. There is, however, no basis for holding "the United States liable based upon the collective knowledge of its employees." One federal agency "should not be charged with knowledge of what another is doing simply because both are components of the same federal government." J.A. Jones Constr. Co. v. United States, 390 F.2d 886, 891 (Ct.Cl.1968); see also United States v. Currency Totalling $48,318.08, 609 F.2d 210, 215 (5th Cir.1980) (knowledge of customs agent not attributed to government because claimant could not prove that agent had a duty to reveal knowledge). 10 Appellants' reliance on In re "Agent Orange" Product Liability Litigation, 597 F.Supp. 740 (E.D.N.Y.1984), aff'd, 818 F.2d 145 (2d Cir.1987), is misplaced. In that case, the district court observed that "the knowledge of employees of one agency may be imputed to those of another if there is some relationship between the agencies." 597 F.Supp. at 796. The court found that, because numerous government agencies and employees knew of the possible risks associated with dioxin, this widespread knowledge could be imputed to the government as a whole for purposes of finding that the private defendants had a valid government-contractor defense. See id. at 795-99. In this case, by contrast, the Air Force and FAA have clearly delineated duties vis-a-vis control of military and civilian aircraft respectively, and there is no basis for holding the government liable for failure to warn a civilian aircraft if the Air Force knew of the course deviation but the FAA did not. Indeed, even within FAA, imputation of knowledge between different agency operations may not be justified: "[T]he duties of [FAA] air controllers and the procedures that govern them are not analogous to other facets of the FAA operations or the work of other federal agencies." Clemente v. United States, 567 F.2d 1140, 1147 n. 10 (1st Cir.1977), cert. denied, 435 U.S. 1006, 98 S.Ct. 1876, 56 L.Ed.2d 388 (1978). Therefore, we must separately analyze the legal duties of the USAF trackers and the FAA controllers. 11 1. Alleged Breach of Duty by U.S. Air Force Personnel 12 It is well settled that "one who undertakes to warn the public of danger and thereby induces reliance must perform his 'good Samaritan' task in a careful manner." Indian Towing Co. v. United States, 350 U.S. 61, 64-65, 76 S.Ct. 122, 124-25, 100 L.Ed. 48 (1955) (holding that negligent operation of a lighthouse by the Coast Guard is actionable under the Federal Tort Claims Act); see also Patentas v. United States, 687 F.2d 707, 714-15 (3d Cir.1982) (admiralty case). The government contends that both elements of this doctrine are missing here: there was no undertaking by the Air Force to warn, and, even if there had been, KAL's passengers and crew did not rely on it. The district court accepted both arguments. See In re KAL Disaster, 646 F.Supp. at 33-35. 13 Appellants' only basis for alleging that the trackers had a duty to warn appears in an internal USAF directive entitled "Positive Control of Military Aircraft Operating In Airspace Adjacent to the Soviet Union." Regulation 60-1, Alaskan NORAD Region ("ANR")/Alaskan Air Command ("AAC"). The stated purpose of the directive is "to prevent unintentional overflight of Soviet Union airspace by aircraft assigned to, or under the operational control of ANR or AAC." The Regulation creates two restricted zones in or adjacent to Soviet airspace: the Alaskan "Non-Free Flying Area" (covering airspace over and immediately adjacent to the Soviet Union), and the somewhat less restricted Alaskan "Buffer Zone" (adjacent to the Non-Free Flying Area) which was "set up to prevent unintentional overflights of Soviet Union airspace by military aircraft...." Plaintiffs rely on subsection 3(c), which instructs radar trackers to: 14 (1) Check every aircraft about to enter or initially detected in the Alaskan Buffer Zone for a mode II or mode IV SIF code [transponder codes used exclusively by military aircraft]. If a military aircraft is about to enter or is detected in the Buffer Zone, try at once to reach the aircraft.... 15 (2) Perform normal surveillance and track reporting procedures of all aircraft detected in the Buffer Zone. If it looks like an aircraft is lost or may enter the Alaskan non-free flying area, try at once to reach the aircraft on GUARD or AICC [radio frequencies monitored by military airplanes] (tell the nearest Federal Aviation Administration Flight Service Station for civil aircraft).... 16 Regulation 60-1, Sec. 3(c). 17 Appellants argue that this regulation creates an actionable duty running from the U.S. Air Force to the passengers of KE007. However, internal government directives that may benefit the public do not necessarily create duties to third persons. See, e.g., Schweiker v. Hansen, 450 U.S. 785, 789, 101 S.Ct. 1468, 1471, 67 L.Ed.2d 685 (1981); Jacobo v. United States, 853 F.2d 640, 641-42 (9th Cir.1988). For example, the First Circuit rejected survivors' claims against the FAA based on an agency order to its ground personnel requiring that a "[c]lear indication of alleged illegal flight [e.g., excess weight] should be made known to the flight crew and persons chartering the service." Clemente, 567 F.2d at 1143 n. 3. In that case, the court decided that 18 the duty [this order] creates is that of the District Office employees to perform their jobs in a certain way as directed by their superiors. This duty ... is owed by the employees to the government and is totally distinguishable from a duty owed by the government to the public on which liability could be based. 19 Id. at 1144-45. Appellants distinguish Clemente because the FAA ground personnel were not controllers, but the USAF trackers are not controllers either. Furthermore, they are wholly independent of the FAA. 20 Appellants next seek to invoke a more amorphous special relationship (between the government and passengers) to impose a duty of care on the USAF trackers. This is also unavailing because, although a special relationship may expand the scope of an existing duty or undertaking, a legal duty cannot arise in the absence of any undertaking by the defendant to perform some role that relates to the safety of the passengers. An undertaking by the FAA to provide air traffic control services does not mean that USAF trackers have a special relationship with passengers to assure their safety. Appellants rely on this court's decision in Caldwell v. Bechtel, 631 F.2d 989 (D.C.Cir.1980), which held that a firm's contractual undertaking with the Washington transit authority to perform safety engineering services at a subway construction site created a special relationship with employees at the site. In Caldwell, we decided that, because of this special relationship, a failure to advise employees of a toxic condition which had been reported to the transit authority was actionable. In a subsequent decision, we described the holding in Caldwell as "designat[ing] the contract as the duty's source." Long v. District of Columbia, 820 F.2d 409, 418 (D.C.Cir.1987). Unlike the engineering firm in Caldwell, the Air Force has made no undertaking with FAA to advise either ATC or civilian flights about course deviations, and therefore it does not stand in a special relationship with passengers of such flights. 21 The district court also concluded that, even if there had been an undertaking by the government to warn, neither the crew nor the passengers of KE007 relied on that undertaking or were otherwise placed in a worse position. See In re KAL Disaster, 646 F.Supp. at 35. Indeed, the map used by the KE007 crew did not indicate the location of the ANR/ACC Buffer Zone; the crew was advised by the FAA that radar contact had terminated while they were still over Alaska; and neither the crew nor passengers would know about Regulation 60-1 because it had never been made public. Appellants' sole response is that passengers generally rely on the government to assure their safety, but this simply reiterates their special relationship contention and does not prove that the passengers or crew relied on Regulation 60-1. Contrast Beattie v. United States, 690 F.Supp. 1068, 1072-74 (D.D.C.1988) (Although the U.S. Navy had no legal duty to furnish air traffic control services to civilian flights over the Antartic, the government could be held liable for any failure to exercise care in providing such services if "Navy personnel led the crew of the aircraft to believe that certain services would be forthcoming."). 22 Even if Regulation 60-1 creates a duty, it does not, as appellants suggest, require trackers to notify the FAA any time they monitor a civilian flight that appears to be headed towards Soviet airspace or the Buffer Zone; rather, it requires notification only in cases where the flight is already detected in the Buffer Zone and appears to be lost or heading into the Non-Free Flying Area. Even assuming that plaintiffs' projected flight path for KE007 was the actual one, the flight would have entered the Buffer Zone at the outermost range of the closest Air Force radar installation assuming optimum conditions. It was not at that point heading into the Non-Free Flying Area. Furthermore, the government emphasizes the lack of any facts to indicate that the USAF trackers were aware of the flight deviation, and points to statements by the trackers on duty that night saying they did not observe any traffic flying into the Buffer Zone. 23 Appellants argue that an adverse inference on this issue against the government is appropriate because it "destroyed" the radar tapes of that night. See, e.g., Friends for All Children v. Lockheed Aircraft Corp., 587 F.Supp. 180, 189 (D.D.C.) (suggesting that Air Force destruction of crash photos would create adverse inference against the government if it were a party), modified, 593 F.Supp. 388 (D.D.C.), aff'd, 746 F.2d 816 (D.C.Cir.1984). The cases cited by appellants all involved the withholding or destruction of evidence after a discovery order was entered, while here the government insists that the recycling of radar tapes was routine. Appellants contend that the government should have known not to recycle these tapes in light of the disaster. Mere innuendo, however, does not justify drawing the adverse inference requested, and there is absolutely no other evidence supporting appellants' claim that the Air Force radar trackers must have seen KE007 in the Buffer Zone. Therefore, even if they owed KE007 a duty to monitor and warn, we agree that no duty was breached by the Air Force in this case. 24 2. Alleged Breach of Duty by FAA Air Traffic Controllers 25 Although the government does not deny that ATC should have relayed a warning to KE007 had it been advised by the USAF trackers of a deviation, it points out several inaccuracies in appellants' description of ATC duties. Contrary to the appellants' description of FAA regulations, "safety advisories" are only required in cases where the aircraft is too close to the ground or another aircraft, "deviation advisories" are only called for when still in radar contact, and advisories to Soviet controllers are only called for in hijacking incidents. Having made those clarifications, the government argues that there was no evidence at all that the USAF trackers advised the air traffic controllers of any deviation. 26 The government argues that, even if the USAF trackers discovered KE007's course deviation, the air traffic controllers were never advised of it, so they could not have breached any duty to the passengers. Appellants contend that a telephone call was received at ATC, although they have no evidence for this other than an inaudible recording of noise at ATC, and the government introduced sworn statements that no such call was either made or received. Appellants introduced an affidavit by Raymond Yeager, a former FAA accident investigator, which concluded that the audio tape disclosed the words "we should warn him." Even if discernible, there is no indication who said this or whether they were referring to KE007. Appellants make much of the fact that these words were allegedly spoken during the course of repeated attempts by the controller then in charge of KE007 to raise the crew by radio. But the government introduced a sworn statement by this controller explaining that he routinely checked with flights just before they were scheduled to arrive at their next waypoint, but something was preventing a direct broadcast in this case. 27 Thus, the submissions to the district court on the motion for summary judgment were bereft of any evidence that would support appellants' claim that either the USAF trackers or FAA air traffic controllers were ever made aware of KE007's purported course deviation. On this record, the district court properly decided that no legal duty was breached. We need not and do not reach the question of whether the Soviet Union's illegal intercept was unforeseeable and constituted a superseding cause. B. Treaty Jurisdiction under Article 28(1) 28 In ten of the actions on appeal, the district court dismissed the claims of passengers who bought their tickets for KE007 at locations outside of the United States. See Mem.Op. (rejecting arguments that the U.S. was an appropriate forum either because KAL conducted significant business there or because it was a place of destination). Subject matter jurisdiction in the actions against KAL is governed by the Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929 (the Warsaw Convention), which the United States joined in 1934. See 49 Stat. 3000, T.S. No. 876 (1934), reprinted in 49 U.S.C. App. Sec. 1502, note. Article 28(1) of the Warsaw Convention provides: 29 An action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination. 30 Failure to satisfy at least one of these jurisdictional conditions requires dismissal. See Kapar v. Kuwait Airways Corp., 845 F.2d 1100, 1104 (D.C.Cir.1988). The sole issue on appeal from the district court's decision concerns the proper interpretation of the term "domicile" in Article 28(1). 31 Courts in this country have routinely assumed that the French phrase "du domicile du transporteur " in Article 28(1) means the carrier's place of incorporation, which in this instance is Korea. See Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 802 (2d Cir.1971); Eck v. United Arab Airlines, Inc., 360 F.2d 804, 809 (2d Cir.1966). Scholars of comparative law have observed that domicile generally refers to a corporation's headquarters. See, e.g., N. MATTE, TREATISE ON AIR-AERONAUTICAL LAW 426-27 (1981). Appellants argue that "domicile " also means any place where the carrier conducts substantial business activities, which KAL does in the United States. Appellants contend that French domestic law, which has a much broader notion of domicile (akin to minimum contacts for purposes of personal jurisdiction), should govern the interpretation of Article 28(1), and they add that U.S. decisions to the contrary have failed to appreciate the French concept. However, the French definition of "domicile " that would encompass any place of significant business is only relevant for questions of personal jurisdiction within France. Even the French courts have recognized the distinction, refusing to construe Article 28(1) in this manner. See, e.g., Zimonyl v. Varig Airlines, 1978 U.S. Aviation Rpts. 122, 125 (France, Court of First Instance of Paris, 1st Div., Sec. 2, Apr. 28, 1978). Moreover, to do otherwise would effectively render other parts of Article 28(1) redundant; if domicile means any place of substantial business, there would be no need to separately allow suit at the carrier's principal place of business or, except in rare cases, place where a ticket was purchased. III. CONCLUSION 32 In granting summary judgment to the United States, the district court properly found that the government had not breached any legal duty owed to the passengers of KE007. The court also acted correctly in dismissing the claims against KAL on subject matter grounds because we interpret the term "domicile " in Article 28(1) of the Warsaw Convention as a corporation's headquarters and not any place that it does significant business. 33 Affirmed.

2 F.2d 504 (1924) NYQUIST v. UNITED STATES. No. 4023. Circuit Court of Appeals, Sixth Circuit. December 8, 1924. Frederick J. Ward, of Detroit, Mich., for plaintiff in error. Frederic L. Eaton, Asst. U. S. Atty., of Detroit, Mich. (Delos G. Smith, U. S. Atty., of Detroit, Mich., on the brief), for the United States. Before DONAHUE, MACK, and KNAPPEN, Circuit Judges. KNAPPEN, Circuit Judge. Plaintiff in error, with several others, was charged, under section 37 of the Penal Code (Comp. St. § 10201), with conspiring to violate the National Motor Vehicle Theft Act (Act Oct. 29, 1919, c. 89, U. S. Comp. Stat. Supp. 1923, §§ 10418b-10418f), known as the Dyer Act, by transporting in interstate and foreign commerce certain stolen motor vehicles, and by receiving, concealing, storing, and otherwise disposing of the same when a part of and constituting interstate and foreign commerce. The substantial conspiracy charged involved the transportation of stolen vehicles from Detroit, Mich., to defendants Burroughs and Shanley at Bridgeport, Conn., there engaged in dealing in motorcycles and secondhand automobiles, or to one White, at the Marie Antoinette Garage, in New York City, to be paid for by Burroughs or Shanley at a price below the real value, and to be by them sold to others, including plaintiff in error, who seems to have been in fact engaged at New York City in the motorcycle and automobile accessory business and dealing in secondhand automobiles, and to be by him disposed of in Brooklyn or shipped to Europe in export trade, the amount received from Burroughs and Shanley for the stolen cars to be divided among those participating in their theft, concealment, and transportation. Basden, who seems to have had active charge of the transportation, together with two of his Detroit associates, pleaded guilty to the indictment, as did Shanley. On joint trial, Burroughs, Nyquist, and three alleged Detroit conspirators were convicted. Nyquist alone asks review here. Omitting for the present all reference to plaintiff in error, there was substantial and ample testimony of the formation in July, 1919, of a conspiracy of the general nature charged, of its active prosecution until at least the latter part of December, 1919, and of some operation thereunder for a time thereafter. The Dyer Act did not take effect until October 29, 1919, and complaint is made of the admission of testimony of acts occurring prior to that date and of refusal to strike out the same. The substantial argument is that there could be no conspiracy to violate a law not in existence, and that the last car transported in the fall of 1919 had reached New York, and had been sold to plaintiff in error, two days before the Dyer Act took effect. This latter contention will later be referred to. It is, of course, true that an indictment could not lie for a violation of the Dyer Act occurring before its passage. But that is not the case presented. The indictment charges a conspiracy formed, "to wit, on the 29th day of October, 1919"; the overt acts charged are all laid as of dates subsequent thereto. The argument directed to the date of the passage of the act overlooks the essential nature of a conspiracy, which may be established by proof of attendant facts and circumstances raising the natural inference that the defendants were engaged in an unlawful conspiracy. It is *505 not necessary that the conspiracy be expressed in formal agreement. It may be established by inference from concert of action. Davidson v. United States (C. C. A. 6) 274 F. 285, 287; Remus v. United States (C. C. A. 6) 291 F. 501, 512. Persons joining and participating in the conspiracy after its formation are equally liable. Calcutt v. Gerig (C. C. A. 6) 271 F. 220, 222, 223, 27 A. L. R. 543; Rudner v. United States (C. C. A. 6) 281 F. 516, 519. A conspiracy may be a continuous agreement. Brown v. Elliott, 225 U. S. 392, 32 S. Ct. 812, 56 L. Ed. 1136; Rudner v. United States, supra, at page 519. Once established, it may properly be found to continue until consummation of purpose or abandonment. Remus v. United States, supra. It was permissible to show that the fraudulent agreement was entered upon long before the Dyer Act took effect, and was kept up after the passage of that act. Heike v. United States, 227 U. S., at page 145, 33 S. Ct. 226, 57 L. Ed. 450, Ann. Cas. 1914C, 128. The conspiracy charged was not only morally wrong, but was presumably punishable under state statutes previous to the Dyer Act; and if after that act took effect the parties to the conspiracy not only did not withdraw from it, but consciously continued in its prosecution, one or more of the parties performing in the Eastern district of Michigan overt acts thereunder, the parties thereto would be as guilty as if the conspiracy was first formed on or after October 29, 1919. Every overt act committed was the act of all the conspirators, by virtue of their unlawful plot. Brown v. Elliott, supra. And see Grayson v. United States (C. C. A. 6) 272 F. 553. There was substantial testimony tending to support a finding of each of the facts referred to as sustaining a conviction. Under the court's charge, which is not in terms assailed, conviction was permissible only upon such finding. We therefore think the court rightly admitted, and so rightly refused to strike out, the testimony of acts and transactions occurring before October 29, 1919, and although not set forth in the indictment. Plaintiff in error also contends that there was error in the refusal to direct verdict in his favor, and in the submission to the jury of the question of his participation in the conspiracy. We think this proposition not sustainable. We think it not of controlling importance whether or not there was testimony that no cars which left Michigan after October 29, 1919, were intended to go to the persons charged in the indictment, although we think it open to inference that one at least was intended for Burroughs if he would take it. There was, however, evidence that after the date last named Shanley made a trip to Detroit to see Basden about operations under the conspiracy, and that Basden made trips to Bridgeport or New York about Christmas, 1919, and in January, 1920, with reference to the general subject of the conspiracy, at which time Burroughs made the announcement that Basden was to be stationed at the Commodore Hotel, in New York, as a "tracer" of cars. Basden also made a trip to New Orleans somewhere about the holidays. These, if established, were all overt acts committed after the Dyer Act took effect. The most important question arises over the contention that plaintiff in error was not shown ever to have been connected with the conspiracy, and that he did not know the cars bought and shipped were stolen, but was merely imposed upon by Burroughs. Plaintiff in error seems to have begun negotiating for (if not buying) automobiles from Burroughs in August, 1919. He bought of the latter three of the stolen cars shipped from Detroit, viz.: a Buick early in October, 1919, a Hudson about October 8th, and a Cadillac touring car later. There was substantial testimony that each of those cars was bought by Nyquist at prices substantially below the market. The Buick car was shipped by Nyquist to Sweden December 12, 1919. There is substantial testimony tending to show that Burroughs and Nyquist were in intimate personal relations, and tending to rebut the contention of Nyquist's innocence of the real nature of Burroughs' transactions. The wife of White tells of Nyquist spending an evening playing cards and otherwise socially engaged at her apartments, and of "whispering conversations" between those two men, apparently at some time between October, 1919, and the latter part of January, 1920. Basden testifies to a conversation with plaintiff in error in January, 1920, in Kearney's saloon, across from Nyquist's place of business, at which Nyquist is said to have told Burroughs that he had paid a certain detective on the New York police force $1,000, that he was to pay him $4,000 more before he (Nyquist) went to Sweden, and that he was going there to check up the stolen cars that had been sent over there. Nyquist's employé, Thourot, testified that when the Hudson car was bought from Burroughs the latter told Nyquist to put on other license *506 plates, which was done by Thourot under Nyquist's direction; also that Nyquist "had better not keep the car in New York"; that "some one might find it"; whereupon Nyquist asked Thourot to take the car home, as the latter lived in New Jersey, which was done. It was testified that the Hudson car was painted and varnished before its shipment to Europe by plaintiff in error December 12, 1919. Thourot testifies that Nyquist told him that Burroughs brought the Cadillac touring car in question to his house about midnight on Sunday and got him out of bed and sold him the car for $3,000. The check turned out to be for $2,540, was dated November 13, 1919, and was made payable to bearer, a practice said to have been unusual. Nyquist says the car was bought by him on Monday, October 27th (Burroughs having come to his house at 8 or 9 o'clock the previous evening, asking if Nyquist wanted to buy a Cadillac car), and that the check was dated ahead about two weeks for lack of funds. Thourot says the check was dated ahead about ten days, which, if accurate, would mean that it was given about November 3d (one week after October 27th), and thus after the Dyer Act took effect. Burroughs says the check was dated a month ahead. It was open to the jury to believe Thourot. The latter testified that Nyquist had the tires taken off the Cadillac and new tires put on, and had New York license plates put on while the car was in New York, and that the motor number was scratched off when first seen by him. Nyquist says the car remained in his possession after he bought it until early in December, when he sold it to a named Swedish banker, having previously tried to sell it in New York City. The car was found by police authorities crated and about to be shipped to Sweden. The investigator for the Automobile Underwriters' Detective Bureau testified that an examination of the crated car made on December 15, 1919, showed that the number plate on the dash, as well as the motor numbers on the fanshaft housing and on top of the crank case had been altered, the generator number filed off, and the casting number of the transmission mutilated. A representative of the Investigation Bureau of the Department of Justice gave substantial corroboration of this testimony. Assuming that plaintiff in error bought the Cadillac car before October 29th, we think the testimony referred to regarding his statements and actions, including the mutilation of the numbers on the Cadillac car, had a substantial tendency to prove his connection with the conspiracy and its continued existence after October 29th. If he knew, or had reason to believe, that the cars so shipped to Europe had been stolen, their shipment in December, 1919, would constitute a substantial violation of the Dyer Act, unless such situation might be modified by the question mooted by this court, whether the stolen property had previously come to rest. Katz v. United States (C. C. A. 6) 281 F. 129. But this prosecution is not for a substantive violation of the Dyer Act, but for a conspiracy, and we think such shipments, if made with guilty knowledge, were none the less competent evidence of an existing conspiracy and of the participation of plaintiff in error therein. It was not necessary to conviction for conspiracy that it be consummated (Goldman v. United States, 245 U. S. 474, 477, 38 S. Ct. 166, 62 L. Ed. 410), nor need the overt act be a crime (Manning v. United States [C. C. A. 8] 275 F. 29, 32). The matters hereinbefore referred to, as testified to by others and as thought to have a tendency to show guilty knowledge on the part of plaintiff in error, were denied by him. With reference to the motion to direct verdict, we have, of course, stated the case in its aspect most favorable to the government. The fact that, after the Cadillac touring car was seized by the authorities, while awaiting shipment to Europe, plaintiff in error required Burroughs to reimburse him therefor, affects only the weight of the evidence generally. Naturally the seizure of the Cadillac touring car on December 15, 1920, would put an end to whatever unlawful buying and selling relations had previously existed between plaintiff and Burroughs. Several additional questions of minor importance are presented. We content ourselves with saying, without discussion, that we find no reversible error, if, indeed, any error, in any of them. We see nothing to indicate that plaintiff in error has not had a full and fair trial. The judgment of the District Court is affirmed.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE FILED OCTOBER SESSION, 1998 April 13, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9804-CR-00129 ) Appellee, ) GREENE COUNTY ) V. ) HON. JAMES E. BECKNER, JUDGE ) BOBBY DALE FRANKLIN, SR. ) (AGGRAVATED SEXUAL ) BATTERY; AGG RAVATED RAPE; Appe llant. ) RAPE O F A CHILD ) FOR THE APPELLANT: FOR THE APPELLEE: GREG W. EICH ELM AN JOHN KNOX WALKUP District Public Defender Attorney General & Reporter MICHAEL A. WALCHER ELIZABETH B. MARNEY Assistant Public Defender Assistant Attorney General 1609 Co llege Park D rive 2nd Floor, Cordell Hull Building Morristown, TN 37813 425 Fifth Avenue North Nashville, TN 37243 C. BERKELEY BELL, JR. District Attorney General ERIC D. CHRISTIANSEN Assistant District Attorney General 109 South Main Street, Suite 501 Greeneville, TN 37743 OPINION FILED ________________________ AFFIRMED AS MODIFIED THOMAS T. WOODALL, JUDGE  OPINION The Defe ndan t, Bobb y Dale Frank lin, appeals as of right his convictions for aggravated sexual battery, aggravated rape, and rape of a child, following a jury trial in the Criminal Court of Greene County. The convictions are as follows: OFFENSE DATE OF SENTENCE OFFENSE (as alle ged in presen tment) Count O ne: aggravated sexual battery between March twelve (12) years 1990 and ___ 1992 Count T wo: aggravate d sexual battery ___ 1992 twelve (12) years Count Three : aggravated rape summer 1992 twenty-five (25) years Count Four: rape o f a child between ___ twenty-five(25) years 1992 and ___ 1993 Count Five: rape o f a child June 3, 1995 twenty-five (25) years Count Six: rape of a child June 4, 1995 twenty-five(25) years Count Se ven: aggravate d sexual battery between June 5 twelve (12) years and June 9, 1995 Count Eig ht: aggravated se xual battery June 29, 1992 twelve (12) years The trial court ordered his four convictions for rape to run consecutively with each other and conc urrent to the four con victions for aggrava ted sexual battery, for an effective sentence of 100 years. In this ap peal, D efend ant rais es the followin g six (6) issues : -2-  I. Whether the trial cour t erred in adm itting certain testimon y; II. W hether the trial court’s verdict forms were improper; III. Whether Count Fo ur should be dismissed (Count Five o f the presentm ent); IV. W hether the trial c ourt er red in e xcluding certain testimon y; V. Whether the trial court erred in allowing the testimony of Dr. Reardon regard ing penetration; and VI. Whether the trial court committed sentencing errors. After a ca reful review of the reco rd, we affirm the judgm ent of the tria l court. Sum mary o f the Fac ts Testimony at trial revealed that on June 9, 1995, the twelve-year-old victim, T.S. (we will use the initials rather than the full name of the victim), insisted on going to work with her mother. While the mother and d augh ter wer e in the car, the victim started crying a nd sa id that D efend ant, the victim’s stepfather, had raped her. The mother immediately notified authorities and took T.S. to the hospital emergency room to be examined. Dr. Dona ld Verlin Tucker, Jr. examined T.S. at the eme rgenc y room and h is examination revealed a history of sexual abuse consistent with that which she had told him. He tes tified tha t he exa mine d the vic tim five d ays afte r the pe nile penetration had allegedly occurred. He testified that the genitalia examination was norma l except for th e abse nce of a h ymen . -3-  Dr. Peter Reardon, an obstetrician/gynecologist, took a medical history of the victim on June 14, 1995, which included her statement that she had bled for two days after penile penetration on Sunday, June 4, 1995 , and had experienced two other vaginal penetrations, one digitally and one orally. Dr. Reardon discovered two sma ll broken areas on the victim’s hymen when doing a pelvic examination, but found no recent trauma to the vagina or any laceration s. Dr. Re ardon s aid that a “recent trauma ” to the hym en take s abou t six to eight days to heal after being torn and tha t after ten da ys it would lo ok like a he aled wo und. The victim testified at trial about various types of sexual abuse inflicted by Defendant, described the circumstances surrounding each incident of abuse, and gave approximate dates for most incidents based on where the family was living, what car the family was driving, and birthdays of family members. The time span for Defe ndan t’s sexual abuse oc curred over a seven-year period beginning when T.S. was five and ending when she was 12. T.S. testified that her family moved to the “blockhouse” when she was about five years old and that a barn was located on the prope rty. W hile the family live d in the “blockho use,” De fendan t took the vic tim to the barn to feed the cats. In the barn, Defendant placed her on stacked bales of hay, removed her panties, and fondled her. T.S. d id not te ll her mother about this incident before June 9, 1995, although she testified that she believed that this incident occurred in 1987. In 1990, when the victim had finished the second grade, th e family m oved to a house on Snake Hollow Road. At that time, the family owned a red Thunderbird. -4- The victim said that she and Defendant were in the red Thunderbird traveling towards the fam ily’s prior residence, the “blockhouse,” when Defendant began “playing with himself,” pulled to the side of the road, and stopped the car. Defendant then walked to the passenger side of the car, removed the victim’s “b ottom c lothes,” and started rubbing her vagin a and m asturba ting. Defendant ejaculated on T.S. and wiped the ejaculate off with his bandana handkerchief. The victim did not tell her mother about this incident before June 9, 1995, because she was afraid that Defendant might hurt her by “whippin g” her. Up on obje ction by D efenda nt, the trial court instructed the jury to disregard the victim’s statement about Defendant “whipping” her. Defendant moved for a mistrial based on that statement, but the trial court ove rruled it. T.S. testified that while she and Defendant were riding in a red Buick car he had purchased that day, Defendant said he needed to go to his employer’s garage to roll up the windows of his garbage truck. Other proof showed that the vehicle was purchased on June 29, 1992. While the victim was sitting in the Buick, she locked the car doors because she was afraid that Defendant “might try something.” After Defendant told the victim to unlock the doors, he took her out of the car, laid her on a pallet, removed her panties, got on top of her, and began rubbing his penis against her. When the victim said “you promised you wouldn’t do this again ,” Defe ndan t told her that this was the last time. Sometime before her bro ther’s Augu st 22n d birthd ay in an unspe cified year, Defen dant, the victim, and her brother were taking items to the garage at the Snake Hollow Road residence. Defendant sent the victim’s brother to feed the chickens. When Defendant and T.S. were alone in the garage, Defendant rubbed her vagina, -5- masturbated, ejaculated, and wiped the ejaculate off her with his bandana handk erchief. T.S. stated that “this happened several times, abou t four or five times.” On another occasion, Defendant was stan ding be side the B uick with h is pants unzipped and his penis exposed while the victim’s mother was mowing the yard. Defen dant forc ed T.S . to put her m outh on his penis and to pe rform fellatio . During the wintertime after the year 1990, Defendant used Vaseline that was kept on the victim ’s mothe r’s dresse r to pene trate the victim digitally in the adults’ bedroo m. On the Saturday after school ended in 199 5, De fenda nt cam e into th e victim ’s bedroom while victim was reading a book, pulled down her shorts and panties, and said he was checking to see if she had “been with any boys.” Then he performed cunnilingus on her. After telling her he was going to do what he “usually” did, he rubbed her vagina, mas turbate d, ejac ulated , and w iped th e ejac ulate o ff with his bandana handkerchief. Neither the victim’s mother nor brother were at home during this inciden t. On June 4, 1995, again while her mother and brother were away from the house, Defendant penetrated the victim with his penis in the victim’s bedroom. Defendant told T.S. that he would kill her if she told anyone. The victim was crying and bleeding from the penetration and she continued to bleed for two days. -6-  On June 7, 1995, Defen dant, the victim, and her brother went to Kinser Park. They had been on their way to visit the children’s mother at work, but learned that the mother could not get off to see them. As the victim and Defendant walked through the woods at Kinser Park looking for a place to fish, Defendant began playing with the victim’s breasts through her clothes. T.S. said that she tried to get away, bu t Defend ant told he r, “If you try to get a way it ma kes m e want yo u more .” At the co nclus ion of th e victim ’s testimony on direct examination, counsel for Defendant objected to her statement that Defendant had sexually battered her four or five times in the Snake Hollow garage. The basis for defense counsel’s objection was that these were “other bad ac ts” not covered by the Bill of Particulars. Overruling the mo tion for a m istrial, the cou rt stated that the charges could be defined specifically enough to avoid any jury confusion. Same ra Zavaro , a forensic scientist with the TBI, testified that the fitted bottom sheet from the victim’s bed teste d positive for blood and semen. She further testified that after DNA testing on the bed sheet, Defendant could not be excluded as the contributo r of the spe rm on th e victim’s b ed she et. Defendant testified and denied that he ha d mo lested or had sex with his stepdaug hter. The jury found Defend ant guilty of four counts o f aggravated se xual battery and four counts of rape of a child. As reflected in the judgment form, the trial court changed one of the child rape convictions (Count Three) to aggravated rape because the State w as no t able to estab lish tha t it occurred after July 1, 1992, the -7- effective date of the “rape of a child” statute . See Tenn. Code Ann. § 39-13-522; State v. Case, 884 S.W .2d 146, 147 (Tenn. Crim . App. 1994 ). I. Admissibility and Effect of Certain Testimony Defendant argues in this issue that the “State was allowed, over obje ction, to introduce irrelevant prejudicial uncharged conduct.” Specifically, Defendant contends that the victim was allowed to testify about an incident that was time-barred by the statute of limitations. Defendant asserts that the count of the presentment charging this offense had already been dismis sed. H e also conte sts the victim’s testimony that Defendant “whipped her hard” and that he sexually assaulted her “four or five times” in the garage at the Snake Hollow residence. Finally, he argues that it was improper for the victim’s mother to testify that Defendant had threate ned to kill her and to hurt the vic tim. First, Defendant conte nds th at the vic tim was allowed to testify to an allegation of aggravated sexual battery tha t was dism issed as being tim e-barred by the statu te of limitations. This incident allegedly occurred in 1987 when the victim was about five years old . The victim testified that Defendant took her to the barn to feed the cats, and th ere he remo ved he r pantie s and fondle d her. F irst of all, Defendant has waived this claimed error on appeal because he did not enter a contemporaneous objection to the testimony. Tenn . R. App . P. 36(a); State v. Killebrew, 760 S.W.2d 228, 235 (T enn. C rim. App .), perm. to appeal denied (Tenn. 1988). However, even if this issue is addresse d, it is without merit. The record does not indicate what happened to this particular count, so we cannot say whether this count was dismissed or severed. There should be no uncerta inty regard ing the sta tus of a -8- count of a presentment, and it should be noted that it is the responsibility of the appellant to pres ent an adeq uate re cord fo r review on ap peal. R egard less, th is charge would n ot be time -barred, as Tennessee Code Annotated section 40-2- 101(d) and (e) which became effective in 1985, is a pplicable to this cha rge. See Morgan v. State, 847 S.W .2d 538 , 540 (Tenn. Crim . App. 1992 ) (citing 1985 Acts, ch. 478, § 21 ). This sta tute states that prosecution for a ggravated se xual battery, among other offenses, had to commence no later than the date the child attains the age of majority or within four (4) years after the commission of the offense, whic hever occurs la ter. Tenn . Code Ann. § 4 0-2-101 (d). The refore, pro secution would have had to commence in 1991 or before the victim reached the age of 18. In the instant case, commencement of prosecution for this offense occurred in 1997 at which time the victim was only 14 or 15 years old. Second, Defendant has also waived any objection to the victim’s testimony that Defendant took her to the Snake Hollow garage and sexually battered her “four or five times” because Defe ndan t again mad e no c ontem poran eous objec tion to th is testimony. Tenn . R. App . P. 36(a); Killebrew, 760 S.W.2d at 235. At the conclusion of the victim’s testimon y on direct exam ination , defen se co unse l did ob ject to th is statement and a sked for a m istrial. The court said that the charges could be defined spec ifically enough to avoid any jury confusion. Th e trial court did give a jury instruction explaining the limited purpose of the evidence and explained that any evidence that Defendant had committed a crime or crimes other than those charged could not be considered to prove his disposition to commit the charged crimes. The jury is deemed to have followed the court’s instruction, and we find the instruction sufficient to c ure any p rejudice to Defen dant. See State v. Harris , 839 S.W.2d 54, 72 (Te nn. 199 2). -9-  Next, Defenda nt did m ake a conte mpo raneo us ob jection to the vic tim’s testimony that she was afraid of Defendant because he “whipped her hard.” In the presence of the jury, defense counsel asked for an instruction concerning the testimony about the whipping, an d the court instructed that “the jury should disreg ard that and not consider it for any p urpose.” Th e jury is presum ed to have followed the trial court’s instru ction. Id. Moreov er, this tes timony by the witness does not “affirm atively appear to have affected the result of the trial on the merits.” Tenn. R. Crim. P. 52(a). Acco rdingly , any er ror tha t occu rred as a resu lt of this vic tim’s unsolicited statem ent was ha rmless. Te nn. R. App . P. 36(b). Finally, Defendant states that the victim’s mother should not have been allowed to testify that Defendant had threatened to kill her and/or hurt the victim. Defendant did not mak e a contem poraneous objection . See Tenn. R . App. 36(a). In any event, we do not find this evidence to have affected the result of this tria l. Tenn . R. Crim . P. 52(a). T his issue is without m erit. II. Verdict Forms In his seco nd issue , Defend ant claims that the trial court’s verdict forms constituted improper commentary on the facts. The verdict forms submitted to the jury specified the eight charged crimes as follows: [Count One] after the parties moved to Snake Hollow Road (after March, 1990) and before the parties purchased a Buick automobile (June, 1992), when the defendant and the victim, [ ], were in a re d Ford Thund erbird and were g oing to their former residence, the block house; -10-  [Count Two] at the Snake Hollow Road residence in the summer of 1992 during daylight, in the garage; [Count Three] by forc ing [ ], the victim, to perfor m fella tio on [Defendant] at the home on Snake Hollow Road after June 29, 1992, the date of purchase of the Buick automobile and at the back of the Buick; [Count Four] by the digital penetration of [the victim], which occurred in the fall of 1993 and b efore Thanksgiving Day in the defendant’s bedroom; [Count Five] by cunnilingus on June 3, 1995 of [the victim] in her bedroom at the Snake Hollow Road residence; [Count Six] in her [the victim’s] bedroom on Sunday, June 4, 1995; [Count Seven] on Wednesday, June 7, 1995 at Kinser Park while [Defendant] and the victim, [ ], were w alking in the woods; [Count Eight] at the Snake Hollow Road residence between March, 1990 and June 9, 1995 and while the defendant and the victim, [ ], were test-driving the Buick (purchased on 6-28-92) and in the garage of the defendan t’s employer. After reviewing the ve rdict forms, we find that the trial court did not offer unneces sary comm entary on the facts a s alleged by Defe ndant. Rather, the forms conta in enough specific information to comply with the requir emen t that the Sta te elect the particu lar offense s for which conviction s were s ought. See State v. Shelton, 851 S.W.2 d 134 (T enn. 19 93); Burlison v. State, 501 S.W.2d 801 (Tenn. 1973). Since the victim did testify to m any sexu al crimes comm itted by De fendan t, the trial cou rt ensu red un anim ity in the jury’s decisio n by be ing sp ecific in the verdict forms. See Shelton, 851 S.W .2d at 137 . This issu e is withou t merit. III. Dismissal of Count Four -11-  In his third issue, Defendant claims that Count Four should be dismissed because the victim’s testimony as to when the digital penetration occurred did not specify a year. De fendan t contend s that without a specific year the jury could not determine if the digital penetration was “an alleged aggravated rape or a child ra pe.” W e note that the count Defendant is contesting is Count Five in the presentment and Coun t Four on the verdict fo rm and judgm ent. Defendant fails to cite any authority to s upport his argum ent, an d there fore this issue should b e waived . See Tenn . R. App . P. 27(a)(7 ); State v. Dickerson, 885 S.W.2d 90, 93 (T enn. C rim. App .), perm. to appeal denied (Tenn. 199 3). However, even if this iss ue is add ressed , it is without m erit. The count in the presentment Defendant contests alleges the following: [Defen dant], between ___, 1992, and ___, 1993, unlaw fully committed the offense of rape of a child by know ingly engaging in unlawful sexual penetration of [victim], a child less that thirteen years of age, by sticking his finger in side h er vag ina; a c lass A felony in violation of T.C.A. 39-13-522, and against the peace and dignity of the State of Tennessee. Prior to July 1, 1992, the unlawful sexual penetration of a victim less than thirteen (13) years of age wa s design ated as aggrava ted rape . Tenn. C ode An n. § 39-13-502 (a)(4)(1991). That po rtion of the a ggravate d rape s tatute referring to victims under thirteen (13 ) years of age was th en “mo ved to § 3 9-13-52 2.” Sentencing Commission Comments, Tenn. Code Ann. § 39-13 -502. In fairn ess to Defen dant, panels of this Court have indicated that it was codified “as a separate, new crime” at Tenn. Code Ann. § 39-13-522. See State v. Banes, 874 S.W.2d 73, 78, n.4 (Te nn. Crim . App. 19 93), perm . to app eal denied (Tenn. 1994). How ever, the elements of aggravated rape of a child less than 13 years of age ar e identica l to -12- the elements of rape of a child. The classification of the offense as an A felony remained the sam e. See Tenn. Code Ann. §§ 39-13-502(b) and -522(b). The only significant difference is that each sentence for convictions of an offense occurring on or after July 1, 1992, must b e served undim inished b y senten cing cred its. See Tenn. Code A nn. § 39-13-5 23. The un diminished s entencing p rovision of rape of a child requires a showing that the penetration occurred on or after July 1, 1992, before one can be convicted of the offense designated as rap e of a child. If there is insufficient proof that the offense occurred on or after Ju ly 1, 199 2, one could only be convicted of agg ravated rape. T his situation is akin to one where a sentence for a spec ified crim e incre ases after a c ertain d ate. U nder s uch c ircums tances, a person must be sentenced within the parameters of the sentence existing at the time of the offense, not the tim e of sentencing. At trial, the victim’s testimony did not specify when the offense occurred. Testimony in regards to this count was as follows: State: I’ve asked the co urt officer to pass to you Exhib it #16. Would you look at that, please? Do you recogn ize that? Victim: Yes. State: Wh ere was that jar of Va seline ke pt? Victim: On my m other’s dresse r. ... State: Did you ever have occasion to be in [Defendant’s] bedroom? Victim: Yes. State: Did you ever have occasion to . . . . excuse me, let me ask the question this way. On an occa sion th at you w ere in h is bedro om d id it involve Exhibit #16, that jar of Vaseline? -13-  Victim: Yes. State: Do you remember when that occurred? Victim: I know it was in the w inter. State: Do you know whether or not it was before or after Thank sgiving Day? Victim: I believe it was before. State: Do you know what year it was? Victim: I cann ot reca ll. State: W a s it there at the Snake Hollow Road residence? Victim: Yes. State: [D]o you remember whether it was before or after the purchase of the Buick? Victim: I don’t re call. State: W ould you tell the ladies and gentlemen of the jury what happened on the occasion involving the jar of Vaseline? Victim: It was in his bedroom and my mother’s room and [Defendant] had took [sic] the jar of Vaseline and pu t it on his finger and pulled my pants down and he stuck his finger in my vagina and I to ld him that it hurt me. He pulled his finger back out and told me to get up. State: Did you tell your mo ther abo ut that? Victim: No, I did n ot. The foregoing testimony demonstrates that the State did not establish the exact date that th is particular in cident oc curred. The only tim e fram e the vic tim could testify to was tha t it occurred after they m oved to the Snake Hollow residence which was earlier established as being sometime in the year 1990. The count in the presentment dealing with the digital rape states that Defendant stuck his finger -14- inside the victim’s vagina “between ___, 1992, and ___, 1993.” The Bill of Particulars states that the single inc ident of digital penetration occurred be fore Thanksgiving Day of 1993. However, contrary to the State’s argument, this is not enough to satisfy the State’s burden of proving that the incide nt occ urred after Ju ly 1, 1992, in o rder to establish rape o f a child. These d ocume nts were not admitted into evidence and it was the State’s burden to clea rly establish through evidence at trial when the alleged incident occurred. Howeve r, to dismiss this count altogether would be an extreme misplacement of form over substance. The act of “unlawful sexual penetration of a victim ” who “ is less than thirteen (13) yea rs of age,” did not ce ase being a crime at midnight on June 30, 199 2; it merely ceased being codified at Tenn. Code Ann. § 39-13-502. See Tenn. Code Ann. § 39-13-522(a). Again, the elements of aggravated rape and rape of a child are the same and the State did prove beyond a reasonable doubt Defe ndan t’s guilt of the unlawful sexual pene tration o f a child less than thirteen yea rs of age. However, since the State did not clearly establish when the incident occurred, we hold that Defenda nt is guilty of ag gravated rape inste ad of rap e of a child in Coun t Four (C ount Five of the pres entme nt). The judgment must be modified acc ordingly. IV. Excluded Testimony In this issue, Defendant contends that he was prevented from presenting a defense when the trial court excluded testimony that the victim had contact with “sex toys,” that she a ppeare d to eng age in se xual con duct with h er brothe r, that her -15- brother had raped a cousin, and that she had knowledge of the male anatomy and physiology. Evidence of a victim ’s sexual behavior other than the sexual act or acts at issue is governe d by Te nness ee Ru le of Evide nce 41 2. Rule 4 12 doe s apply to cases involving the rape of a child. See State v. Terrell Dion Cowans, C.C.A. No. 02C01-9610-CC-00359, Henry County (Tenn. Crim. App., Jackson, Nov. 20, 1997), perm. to appeal denied (Tenn. 1998). The rule limits the admis sibility of evidence of specific ac ts of sexual conduct of th e victim , as we ll as evid ence of the vic tim’s sexual reputation. At issue is the provision which may permit the admission of sexual behavior of the victim with pers ons other than Defendant “to prove or explain the source of semen, injury, disea se, or knowledge of sexual matters.” Tenn. R. Evid. 412(c)(4)(ii). “Knowledge of sexual matters” is often soug ht to be introdu ced in child sexual abuse cases. Where the State’s proof suggests that the child victim’s knowledge of sexual ma tters resulted solely from the incident with the defendant, the defendant is permitted to show that the victim acquired the familiarity from sexual activity with third persons. Advisory Commission Comments, Tenn. R. Evid. 412. Howeve r, before evidence regarding a victim’s “knowledge of sexual matters” is admissible, the trial court must first determine that the probative value of the evidence outweig hs its unfa ir prejudice to the victim . Tenn. R . Evid. 412 (d)(4). In holding that the evidence was inadmissible, the court stated the following: None of that is admissible except . . . I guess mayb e unless I should have said, specific instances of con duct. So what you have to first have is a spec ific instance of a -16-  victim’s sexual beha vior, is it ad miss ible unless submitted in accordance with such and such? Consent is not an iss ue. If it were someone other than the accused it can on ly be used to rebut or explain scientific or medical evidenc e which is not the ca se. To prove or explain the source of semen, injury, disease or knowledge of sexual matters, which is not the case. Or to prove consent, which is not an issue. ... Somebody playing with . . . I don’t think playing with a vibrator would ever be admissible, that I can conceive. Seeing someone attempting to have sex would not be admissible. The only evidence that I ha ve eve r seen that co uld come in and I think if you read a ll of 412 it’s clear, is . . . have you read the definition of sexual behavior? It means sexual activity of the alleged victim other than the sexual act that’s th e issue in the case. Sexual activity is defined, isn’t it? Let’s loo k at it. The definition of sexual behavior is sexual activity of som eone other th an the defen dant, a nd to b e adm issible it has to be a specific instance of a victim of sexual behavior for the purpose of proving consent which is not an issue, medical evidence which is not an issue, behavior of the acc used w hich is no t an issue . . . . The only thing I’ve seen a court let in are where one said, ‘Yes, I had consensu al sex with her,’ and the n you’ve got to reme mber it sa ys . . . for knowledge of sexual, the fact that someone may have attempted to have sex with the victim or the victim may have played with a so-called, quote, sex toy, does not impute knowledge of copulation. I don’t believe any co urt would stretch it that far. ... I just don’t believe under any stretch of the imagination that any cou rt would e ver allow tho se sub mission s to come in under Rule 412. By com men ts the tria l court m ade in holdin g the e videnc e inad miss ible, it is apparent that the court below found the incide nts had no probative value. We agree with the trial court’s conclusion. A decision regarding Rule 412 will not be -17- overturned absent a showing that the determ ination was a n abu se of th e trial co urt’s discretion. See State v. Sheline, 955 S.W .2d 42, 46 (Tenn . 1997). Defendant has failed to show how denying the evidence was an abuse of the trial court’s discretion. This issu e is withou t merit. V. Admissibility of Dr. Reardon’s Testimony In this issu e, De fenda nt argu es tha t the trial court erred in allowing D r. Reardon to testify as to his impression concerning penetration and in allowing the introduction of Exhibit 30 which was Dr. Reardon’s complete examination of the victim. Defendant fails to cite any au thority in supp ort of this issue a nd it sh ould therefore be treate d as wa ived. Ten n. R. Ap p. P. 27(a )(7); Dickerson, 885 S.W.2d at 92-93; see also Killebrew, 760 S.W.2d at 231-32. In add ition, the record revea ls that Defenda nt did not ma ke a contem poraneous objec tion to the testimon y of Dr. Reardon or any objection to the admission of Exhibit 30 and this issue should be waived fo r these re asons as well. Te nn. R. A pp. P. 36 (a). Defendant’s motion in limine reque sted, in pertinent part, that the trial court redact “[a]ny o ral state men t mad e by the child in this cas e to ph ysician s that is [sic] -18- not for purposes of diagnosis and trea tment.” It should be noted that the rec ord contains no Ord er dispos ing of this m otion. Howeve r, even addressed on the merits, Defendant’s argument must fail. On direct examin ation, Dr. R eardon testified that he took a medical history from the victim, that the history w as im portan t for pur pose s of dia gnos is and treatment, and that the victim had told him of three specific incidents of penetration. Dr. Reardon said that his physical examination led him to conclude that partial penetration by a male penis of th e victim was possible and was consistent with the history that the victim gav e him. T his issue is without m erit. VI. Sentencing In this issue, Defendant argues that the court erred in finding three enhancement factors, finding no mitigating factors, and in ordering the sentences on the four rape co nvictions to be serve d consecu tively. When an accused challenges the length, range, or the manner of service of a senten ce, this cou rt has a du ty to condu ct a de novo review of th e sente nce with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-3 5-401(d). Th is presump tion is "conditioned up on the affirmative showing in the record that the trial court considered the sentencing principles and all relevant fac ts and circ umsta nces." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). -19-  In conducting a de novo review of a sentence, this Court must consider the evidence adduced at trial and the sentencing hearing, the presentence report, the principles of sentencing, the arguments of counsel relative to sentencing alternatives, the natur e of the offe nse, an d the de fendan t’s potential for rehabilitation. Tenn . Code Ann. § 4 0-35-21 0; State v. Parker, 932 S.W.2d 945, 955- 56 (Tenn . Crim App . 1996). If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and principals set out under the sentencing law, and that the trial court's findings of fact are adequately supported by the record, then we may not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v. Fletcher, 805 S.W .2d 785 , 789 (T enn. C rim. App . 1991). Upon review of the record, we find that the trial court considered the proper senten cing princ iples and stated its reasons and findings on the record. Therefore, review by this court is de novo with a presumption of correctness. However, even though trial court considered the proper sentencing principles, we hold, as specified below, that the court e rrone ously applied two en hancem ent factors and failed to consider on e mitigating factor. A. Length of Sentences The trial court found that three enhancem ent fac tors we re app licable to all offenses for which Defendant had been convicted: (a) The personal injuries inflicted upon the victim were particularly g reat; (b) The offense involved a victim and was comm itted to gratify the defen dant’s de sire for plea sure or e xcitement; and -20-  (c) The defend ant abu sed a p osition of p rivate trust. See Tenn. C ode Ann . § 40-35-114 (6), (7) and (15). In applying enhancement factor (6), the trial court stated the following: Now, we’ve had no evidence in the case from psycho logists or psychiatrists about the consequences of the defendant’s criminal acts upon her, although she was very young, and the evidence was that the defendant’s abuse of her sexually began at age five. But I did observe her demeanor while she was testifying and she was very distraught throughou t her testimony, sh e cried and sobbed almost throughou t her testimony. C ertainly the observation this Court would make, in looking at her as compared with other victims of similar age who h ave testified in this court in other cases over a period of time, is that she obviously suffers greatly from the things that have been d one to h er and I thin k that #6 is , in fact, an enhancement factor in the case. The term “personal injury” as used in enhancement factor (6) is broad enough to embrace the emotional injuries and psychological scarrin g sus tained by the v ictim of a sexua l offense. See e.g., State v. Melvin , 913 S.W.2d 195, 203 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 1995); State v. Smith, 891 S.W.2d 922, 930 (Tenn. Crim. A pp.), perm. to appeal denied (Ten n. 199 4). Ho weve r, befor e this factor may be used to enhan ce a sen tence w ithin the ap propriate range, th e State must establish that the emo tional in juries a nd ps ycholo gical sc arring are “pa rticularly great.” Tenn . Code Ann. § 4 0-35-11 4(6); see State v. Lorenzo Puente Salazar, C.C.A. No. 02-C-0 1-9105-CR-00098, Shelby County (Tenn. Crim. App., Jackson, Jan. 15, 1992). In Salazar, this Court held the following: Clearly, rape is injurious per se to the body and mind of the victim. In this regard, the legislature has seen fit to enhance the offe nse to aggra vated rape if a child is involved. In consideration of this auto matic en hance ment, it is questionable that a trial court is entitled to rely so lely upon the ag e of the victim a s a ba sis to find that the -21-  mental traum a is ‘particularly gr eat.’ Furthe r, the re cord is totally devoid o f any evidence from which the trial court could determine that the mental disturbance shown in the record was greater than, less than, or equivalent to that which is o rdinarily involve d with this se rious offen se. Id. at 7-8. The Tennessee Supreme Court in State v. Kissinger, 922 S.W.2d 482, 487-88 (Tenn. 1996), loo ked for m edical or p sycholo gical proo f to determine if the victim ’s injuries were “ particu larly great.” Finding none, the court determined that application of enhancement factor (6) was inappropriate. In the instant case, the State did not prese nt any e videnc e as to the ch ild’s psychological injuries. No psychiatr ists or psychologists testified as to any emotional scarring the victim h ad su ffered, and n o evide nce w as pre sente d that th e victim required couns eling for he r emotio nal injuries. But see contra, State v. John Claude Wells, III, C.C.A. No. 0 1-C-01-95 05-CR-00146 , Davidso n Cou nty (Ten n. Crim. A pp., Nashville, June 6 , 1997), perm. to appeal denied (Tenn. 1998 ); State v. Robert J. Burton, Sr., C.C.A. No. 02C01-9507-CC-00193, Weakley County (Tenn. Crim. A pp., Jackson, June 1 0, 1996 ), perm. to appeal denied (Tenn. 1996). The evidence of physical injury to the victim in this case was a partial tear to her hymen and her testimony that she bled for two days follow ing pen etration. But see contra, State v. James Lloyd Julian, II, C.C.A. No. 03C01-9511-CV-00371, Loudon County (Tenn. Crim. App., K noxville , July 24, 199 7), perm. to appeal denied (Tenn . 1998); State v. Roy L. Sherrod, C.C.A. No. 02-C-01-9510-CR-00331, Shelby County (Tenn. Crim. App., Jackson, July 26, 19 96), perm. to appeal denied (Tenn. 199 7). Accordingly, we find tha t althou gh the victim certain ly suffered injuries, those injuries were not -22- “particu larly great” as contemplated by the statute for enhancement purposes. Therefore, enhancement factor (6) should not have been applied to any of the convictions. Relative to enhancement factor (7), De fenda nt argu es tha t there is nothin g in the record to show that he com mitted the offens es to gratify his desire for plea sure or excitem ent. See Tenn. Code Ann. § 40-35-114(7). In applying this factor to the convictions, the trial court stated the following: The character of rape has many faces. It can be one of oppression, of male dominance, of punishment, or it can be for plea sure a nd exc iteme nt. I think the evid ence in this case clearly sho w that it was to gratify th e defe ndan t’s desire for plea sure o r excitement, and I think that distinguishes this case in an enhancement way, and so I believe that is a valid enhancement consideration. Initially, we note that a necessary element of aggravated sexual battery as charged is sexual contact which is defined as the intentional touching of an intima te part or the clothing over such intimate part "for the purpose o f sexual arousal or gratification." Tenn. C ode Ann . § 39-13-501(6); see Kissinger, 922 S.W.2d at 489-90 (Ten n. 199 6). Be caus e a fac tor can not be applie d if it is also an essential element of the o ffense as cha rged in the ind ictme nt, enh ance men t factor (7 ) is inapplica ble to the fo ur aggra vated se xual batte ry conviction s. Howeve r, factor (7) is not an essential element of aggravated rape or rape of a child and m ay be co nsidere d as an approp riate enh ancem ent factor. See State v. Adams, 864 S.W.2d 31, 34-35 (Tenn. 1993). In Kissinger, our suprem e court recogn ized the d ifficulties in esta blishing fac tor (7): Enhancement factor (7), un like mos t of the other sentencing factors, calls into que stion a defen dant's reasons for comm itting a crime. Hum an motivation is a -23-  tangled web, always complex a nd multifaceted . To prove defen dant's motive s will always be a difficult task. But the legislature, in its wisdom, has placed that obligation on the state wh en the sta te seeks an enh anced senten ce. 922 S.W .2d at 491 . W e are of the opinio n that the S tate me t its burden of proof in this case that the rape wa s sexua lly motivated to gratify De fendan t’s desire for pleasure or excitem ent. There were several instances of sexual conduct by Defendant with the victim occurring on different occasions. Defendant penetrated the victim by inserting his penis in the victim's vagina, the victim performed fellatio on Defendant, and Defendant performed cunnilingus on the victim. The victim testified as follows about one incid ent: [Defen dant] pulled down my shorts and panties and he told me tha t he had to check and se e if I had been with any boys . Then h e stuck h is tongue in my vag ina. ... [A]fter he got done he told me, he said, ‘N o, you h aven’t been with any boys,’ and then he said, ‘[victim ], I’m going to do wha t I usually do ,’ and th en he started rubbing my vagina and masturbating and then he ejaculated on me and the n he wip ed it off with a h andke rchief. In regards to the incident of penile penetration, the victim testified that she asked the victim to stop and he asked her, “Do you want me to hurry up and get done,” and she told him th at she did . Although orgasm is insufficient, in and of itself, to establish that Defendant committed rape to gratify his desire for p leasu re or ex citem ent, wh en tha t fact is viewed along with other circumstances in the case, we find this factor to be appropriate. See Kissinger, 922 S.W .2d at 490 -91. De spite Defendant's denial that he committed the offenses, the evidence supports the application of factor (7) by a -24- preponderance of the evidenc e. See State v. Carter, 908 S.W.2d 410, 413 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 1995) (preponderance of the evidence standard applies to factual de terminations n ecessary for en hancem ent factor). Furthermore, the jury con cluded beyond a reaso nable d oubt that the defend ant's intentional touching was for the purpose of sexual arousal or gratification to convict the defendant of four counts of aggravated sexual battery. Under these circum stances, we hold that the record supp orts the applic ation o f factor (7 ) in senten cing De fendan t for the agg ravated ra pe and rape of a child con victions. The court a lso found as an enhancement factor the Defendant abused a position of private trust. Tenn. Code Ann. § 40-35-114(15). We note that Defendant does not specifically contest the applic ation o f this fac tor on a ppea l. We believe this enhancement factor c learly ap plies, a nd ob viously the trial court ga ve it great w eight. Defendant’s status as stepfather while living with the victim’s mother is a sufficient basis for senten ce enh ancem ent und er factor (1 5). Adams, 864 S.W.2d at 34. A more serious violation of private trust is hard to imagine. Accordingly, we find that this enhancement factor appropriate for all convictions. In conclusion, we find that enhancement factor (6) is ina pplicable to all eight convictions, enha ncem ent fac tor (7) is o nly applicable to the four rape convictions, and enhancement factor (15) is applicable to all eight convictions. With respect to mitigation, Defendant merely mentions that a few mitigating factors shou ld have been applie d whic h inclu de no prior crim inal rec ord, his employment record , his limited education , and his financial ass istance to his fam ily. The pre-sentence report reveals that a search was conducted for prior criminal -25- offenses in Greene C ounty and n one were found. We find the absence of a criminal record to be applicable in mitigation, although little weight should be afforded it. This Court has also held that where Defendant was convicted of sex offenses involving minors, favorable consideration based upon his family c ontribu tions a nd wo rk ethic was not approp riate. See State v. McKnight, 900 S.W.2d 36 (Tenn. Crim. App. 1994), perm. to appeal denied (Tenn. 1995). Further, we find no evidence in the record as to how his limited education affected his actions against his stepdaughter in this case , so this facto r will not be a pplied. In summary, we believe one mitigating factor, Defendant's lack of a prior criminal record, should be considered relative to the length of the sentences imposed. See Tenn. Code Ann. § 40-35-113(13). However, although this factor shou ld be considered, we do not believe it is entitled to significant weight in the context o f this case. Even though the trial court inappropriately applied one enhancement factor as to the aggravated sexual battery convictions and one enhancement factor as to a ll convictions and failed to app ly one mitigating facto r, we find that the proof su pports a twelve (12 ) year sen tence for each aggravated sexual battery conviction and a twenty-five (25) year se ntenc e for ea ch ag grava ted rap e and rape o f a child conviction. Defen dant is not en titled to a reduc tion in s enten ce m erely because we conclude on appeal that the trial court incorrectly applied sentencing and mitigating factors. State v. Hayes, 899 S.W.2d 175 S.W.2d 175, 186-87 (Tenn. Crim . App.), perm. to appeal denied (Tenn . 1995). -26-  In Hayes, a pane l of this Cou rt stated the following: [E]ven if we determine that fewer factors should apply than used by the tr ial cou rt, this does n ot mea n that the le ngth of the sente nce is au tomatica lly reduced . That is, if the same degree of culpability and negative circumstances relate to the remaining applicable factors, the original enhan ceme nt may s till be appro priate. Id. Such is the case here. The defendant was charged with the care and control of the victim, yet he abuse d that pos ition of trust. W e find the length of the sentences imposed by the trial court to be appropriate. B. Consecutive Sentences Next, the defendant contends that the trial court erroneously imposed consecu tive sentences. In imposing consecutive sentences to the aggravated rape and rape of a child convictions, the court stated the following: The defendant qualifies for consecutive sentencing under Tennessee Code Anno tated [s ection ] 40-35 -115 w hich was in effect when all of these offenses are charged, and it says this, that the defend ant can be sen tenced to consecu tive sentences for convic tions if th e defe ndan t is convicted of two or more , and here it’s eight statuto ry offenses involving se xual abu se of a m inor, with consideration of the aggravating circumstances arising from the relation ship b etwee n the d efend ant an d victim or victims since she was five, time span of defe ndan t’s undetected sexual activity, the nature and scope of the sexual acts pervasive and extent of residu al, physical and mental damage to the victim which seems significant. In addition to that the child rape statue now would bolster that. ... The right thing for the right reasons seems to me to be this, that this de fendan t, for the thing s that he’s done to this child over a long period of time, should not be in a position to be re lease d from custo dy. Th at’s ha rsh, tha t’s hard for m e, but I think it’s th e truth . . . . -27-  In this cas e, De fenda nt was convic ted of a total of e ight offe nses involving sexual abuse of his stepdaughter. Defendant's conduct occurred over a long period of time and the nature and scope of the defendant's sexual acts were extensive. Although we did not find there to be “pa rticularly great” injury to th e victim, we certain ly believe that there was enough physical and emotional damage to justify the application of Tenn. Code Ann. § 40-35-115(b)(5). However, a finding of Tenn. Code Ann. § 40-35-115(5) does not end our inquiry into the validity of consecutive sentencing. Instead, T enn. C ode An n. § 40-3 5-115 re quires fu rther review of whether consecutive sentences are necessary to protect the public from the defendant’s possible future criminal conduct and whether the aggregate sentence is reaso nably related to the severity of the defendant’s present offenses. Sentencing Commission Comments, Tenn. Code Ann. § 40-3 5-115; Te nn. R. Crim . P. 32(c)(1); see also State v. Wilkerson, 905 S.W .2d 933 (Te nn. 1995). Fro m our de novo review of the record, we conclude that the trial court did not err in imposing consecu tive sentences . The trial court found that the confineme nt was nece ssary to protect the public and the victim from future criminal conduct of Defendant. Furthermore, because the progressive egregious nature of Defendant’s eight convictions occu rred ov er a sig nifican t span of time with his own stepd aughter, the consecu tive senten ces are reason ably related to the seve rity of the crimes. Defendant has failed to carry his burden to show that the trial court’s sentence was improp er. This iss ue is witho ut merit. Conclusion -28-  The judgm ent of C ount F our is modified to reflect a conviction of aggravated rape rather than rape of a child. In all other aspects, the judgments are affirmed. ____________________________________ THOMAS T. W OODALL, Judge CONCUR: ___________________________________ GARY R. WA DE, Presiding Judge ___________________________________ DAVID H. WELLES , Judge -29- 

13-1607-cv MiniFrame Ltd. v. Microsoft Corp. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel. 1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 23rd day of December, two thousand 4 thirteen. 5 6 PRESENT: AMALYA L. KEARSE, 7 DENNIS JACOBS, 8 CHESTER J. STRAUB, 9 Circuit Judges. 10 _____________________________________ 11 12 MINIFRAME LTD., 13 Plaintiff-Appellant, 14 15 v. 13-1607 16 17 MICROSOFT CORPORATION, 18 Defendant-Appellee. 19 _____________________________________ 20  1 FOR APPELLANT: ROBERT W. MORRIS (Michael S. 2 Oberman, Francesca C. Butnick, on 3 the brief), Kramer Levin Naftalis & 4 Frankel LLP, New York, NY. 5 6 FOR APPELLEE: ROBERT A. ROSENFELD (Howard M. 7 Ullman; Richard S. Goldstein, Orrick, 8 Herrington & Sutcliffe LLP, New 9 York, NY; David F. Smutny, Orrick, 10 Herrington & Sutcliffe LLP, 11 Washington, DC on the brief), Orrick, 12 Herrington & Sutcliffe LLP, San 13 Francisco, CA. 14 15 16 Appeal from the United States District Court for the Southern District of New 17 York (Richard J. Sullivan, Judge). 18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 19 AND DECREED that the judgment of the District Court is AFFIRMED. 20 This appeal concerns three pieces of software: plaintiff MiniFrame Ltd.’s 21 SoftXpand, defendant Microsoft Corporation’s competing product called 22 MultiPoint Server, and Microsoft’s Windows operating system. 23 For a time, Microsoft’s Windows license required customers to install and 24 use Windows on only one computer. SoftXpand allows multiple users to 25 simultaneously access a single copy of Windows on a single computer. Users 2  1 need only a workstation with basic peripheral hardware such as a monitor, 2 mouse, and keyboard. Because only one computer is involved, using SoftXpand 3 did not violate the Windows license. Microsoft responded to the new technology 4 by changing its licensing terms to prohibit Windows from being used by more 5 than one user at a time, rather than restricting use on a per computer basis. 6 MiniFrame argues that Microsoft’s conduct violated Section 2 of the 7 Sherman Act, 15 U.S.C. § 2, and related state laws. The District Court (Richard J. 8 Sullivan, Judge) dismissed MiniFrame’s complaint, and we AFFIRM that decision. 9 We assume the parties’ familiarity with the underlying facts, the procedural 10 history, and the issues presented for review. 11 “We review the grant of a motion to dismiss de novo, accepting as true the 12 complaint’s factual assertions and drawing all reasonable inferences in the 13 plaintiff's favor. To survive a motion to dismiss, a complaint must contain 14 sufficient factual matter, accepted as true, to state a claim to relief that is 15 plausible on its face.” N.Y. Life Ins. Co. v. United States, 724 F.3d 256, 261 (2d Cir. 16 2013) (internal citations and quotation marks omitted). 17 MiniFrame presents two theories of anticompetitive conduct: (I) refusal to 18 deal and (II) predatory pricing. 3  1 I. Refusal to Deal 2 MiniFrame first argues that Microsoft’s single user restriction is a “refusal 3 to deal” pursuant to Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 4 (1985) and Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S 5 398 (2004). “[A]s a general matter, the Sherman Act does not restrict the long 6 recognized right of a trader or manufacturer engaged in an entirely private 7 business, freely to exercise his own independent discretion as to parties with 8 whom he will deal.” Trinko, 540 U.S. at 408 (internal quotation marks and 9 brackets omitted). There is a limited exception to that right, which “applies 10 when a monopolist seeks to terminate a prior (voluntary) course of dealing with 11 a competitor.” In re Elevator Antitrust Litig., 502 F.3d 47, 53 (2d Cir. 2007) (per 12 curiam). 13 MiniFrame does not allege that Microsoft had any prior dealing with a 14 competitor. Rather, MiniFrame alleges that Microsoft changed the terms by 15 which Microsoft licenses its product to its customers. In fact, according to 16 MiniFrame, Microsoft never officially approved the use of SoftXpand. Thus, 17 MiniFrame’s allegations do not fit within the Trinko/Aspen Skiing refusal to deal 18 exception. We do not endorse and need not address the District Court’s 4  1 alternative rationale that Microsoft’s conduct is immune from antitrust liability 2 based on intellectual property law. 3 II. Predatory Pricing 4 MiniFrame also argues that Microsoft predatorily prices MultiPoint. 5 “[F]irms may not charge ‘predatory’ prices—below-cost prices that drive rivals 6 out of the market and allow the monopolist to raise its prices later and recoup its 7 losses.” Pac. Bell Tel. Co. v. Linkline Commc’ns, Inc., 555 U.S. 438, 448 (2009). “[T]o 8 prevail on a predatory pricing claim, a plaintiff must demonstrate that: (1) the 9 prices complained of are below an appropriate measure of its rival’s costs; and 10 (2) there is a dangerous probability that the defendant will be able to recoup its 11 investment in below-cost prices.” Id. at 451 (internal quotation marks omitted). 12 MiniFrame’s complaint does not satisfy the first prong because it does not 13 provide any measure of cost. Rather, MiniFrame compares retail prices: alleging 14 that Microsoft charges less for a bundle that includes MultiPoint and Windows 15 than it does for Windows alone. Since there is no allegation that Microsoft is 16 pricing below cost, MiniFrame fails to state a claim based on predatory pricing. 1 1 We only consider the theories of refusal to deal and predatory pricing. We do not address monopoly leveraging. See Law Offices of Curtis V. Trinko, L.L.P. v. 5  1 III. State Law Claims 2 MiniFrame’s state antitrust law claims under Washington Revised Code 3 § 19.86.040 and New York’s Donnelly Act, N.Y. Gen. Bus. Law § 340, fail for the 4 same reasons its Sherman Act claims fail. And because MiniFrame does not 5 show an antitrust violation, its tortious interference claim fails as well. See Carvel 6 Corp. v. Noonan, 3 N.Y.3d 182, 190 (2004) (“[W]here a suit is based on interference 7 with a nonbinding relationship, . . . as a general rule, the defendant’s conduct 8 must amount to a crime or an independent tort.”). Finally, MiniFrame does not 9 state a claim based on Washington Revised Code § 19.86.020. MiniFrame has not 10 shown that Microsoft’s conduct had “a capacity to deceive a substantial portion 11 of the public” or that it “constitutes a per se unfair trade practice.” See Hangman Bell Atl. Corp., 305 F.3d 89, 108 (2d Cir. 2002), rev’d, Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S 398, 415 n.4 (2004). Counsel stated at oral argument that MiniFrame did not present that theory to us or to the District Court. Oral Arg. Tr. at 9:7 (“We didn’t argue monopoly leveraging.”). Similarly, we do not consider bundled discounting, which was also not presented to us. See Cascade Health Solutions v. PeaceHealth, 515 F.3d 883 (9th Cir. 2008); LePage’s Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003) (en banc). Nor do we consider tying under Section 1 of the Sherman Act or price discrimination under Section 2(a) of the Clayton Act as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a). MiniFrame’s complaint did not set forth claims under those statutes. 6 1 Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash. 2d 778, 785-86 (1986) 2 (en banc).2 3 For the foregoing reasons, and finding no merit in MiniFrame’s other 4 arguments, we hereby AFFIRM the judgment of the District Court. 5 6 FOR THE COURT: 7 CATHERINE O’HAGAN WOLFE, CLERK 8 2“MiniFrame does not appeal from the dismissal of what was Count X,” an unfair competition claim. See Appellant’s Br. at 16 n.5 (incorrectly describing Count X as an unjust enrichment claim). 7 

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/07/2018 08:09 AM CST - 756 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. MYERS Cite as 301 Neb. 756 State of Nebraska, appellee, v. James E. Myers, appellant. ___ N.W.2d ___ Filed November 30, 2018. No. S-18-239.  1. DNA Testing: Appeal and Error. A motion for DNA testing is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court’s determination will not be disturbed.  2. ____: ____. An appellate court will uphold a trial court’s findings of fact related to a motion for DNA testing unless such findings are clearly erroneous.  3. ____: ____. Decisions regarding appointment of counsel under the DNA Testing Act are reviewed for an abuse of discretion. Appeal from the District Court for Douglas County: J. Michael Coffey, Judge. Reversed and remanded for further proceedings. James E. Myers, pro se. Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ. Cassel, J. INTRODUCTION Nearly 20 years after a jury convicted James E. Myers of murder, he filed a motion for testing under the DNA Testing  - 757 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. MYERS Cite as 301 Neb. 756 Act.1 The district court denied that motion as well as Myers’ motion for the appointment of counsel. We would review these denials for an abuse of discretion. But to do so, the court below must have applied only the part of the legal framework governing whether to grant testing. Because the district court may have relied instead upon principles governing relief avail- able after testing, we must reverse the order and remand the cause for reconsideration of the motions under only the correct portion of the governing framework. BACKGROUND Circumstances of Crimes The State charged Myers with first degree murder, use of a deadly weapon in the commission of a felony, and posses- sion of a deadly weapon by a felon in connection with the 1995 shooting death of Lynette Mainelli. A jury convicted Myers of the charges, and we affirmed his convictions on direct appeal.2 The factual background relating to Myers’ convictions is set forth in more detail in our opinion involving Myers’ direct appeal.3 Our opinion stated in part: Edward Wilson testified that he was in the van driven by Myers the night Mainelli was killed. Myers drove to the Blue Lake Manor Apartments, where Mainelli lived. Myers got out of the van, and Edward Wilson saw that he had on gloves. Myers went to the back of the van, and Edward Wilson heard a “clacking” noise, which he recognized as the sound of a bullet moving into a chamber. Myers then left the van and walked toward the apartment complex. He was gone for about 1 hour, and upon his return, he got in the van and took the passen- gers home.  1 See Neb. Rev. Stat. §§ 29-4116 to 29-4125 (Reissue 2016).  2 See State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999).  3 Id.  - 758 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. MYERS Cite as 301 Neb. 756 Sam Edwards testified that as Myers dropped him off, Myers gave him a handgun and told him to “put it up” because the police were out and Myers had in-transit stickers on the van. Earlier, Edwards had seen the pistol on Myers’ lap. Edwards subsequently retrieved the pis- tol and gave it to Edward Wilson, who stated the pistol had once belonged to his sister, Edwina Wilson. Edward Wilson testified that he recognized the gun because it had a unique color and a name written on it and that he thought the black handle was unusual. Edward Wilson sold the pistol because he suspected that it had been used in the murder of Mainelli. The pistol was the same caliber as two .22-caliber casings found beside Mainelli’s body. Daniel Bredow, a firearm toolmarks examiner with the city of Omaha, testified that he compared the bullets found at the crime scene with bullets fired from the gun Myers gave Edwards. Bredow concluded that the bullets taken from the crime scene had been fired by the gun which could be traced to Myers. [Timothy] Sanders testified that in the summer and early fall of 1995, Myers had said that Mainelli was going to testify against Charles Duncan, so she needed to have “her cap pulled back and to be shot.” Sanders saw Myers with a small .22-caliber handgun in the summer of 1995. Edwina Wilson testified that in December 1996, after Mainelli’s death, Myers had told her to tell the police he was with her at the time of the killing.4 Other information relevant to the instant appeal is derived from the trial record. The State presented evidence about Myers’ plan to be intimate with Mainelli. Timothy Sanders, who was in the same gang as Myers, testified that Myers said Mainelli needed to be shot and that Myers said he was going to have sex with Mainelli. Sanders testified that after Mainelli’s death, Myers told him that Mainelli walked into  4 Id. at 312-13, 603 N.W.2d at 388-89.  - 759 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. MYERS Cite as 301 Neb. 756 her bedroom, took off her clothes, laid on the bed, and Myers shot her once the lights were out. In closing arguments, the prosecutor summarized: “She took off her clothes; she laid on the bed. He put the gun towards her temple and he shot her.” Motion for DNA Testing In 2016, Myers filed a motion pursuant to the DNA Testing Act seeking “DNA testing of items of evidence that may con- tain biological material.” He listed 26 items of evidence taken from the crime scene, and he wished to have those items tested in order to exclude himself as a donor of any biological mate- rial. The items included Mainelli’s bedding, bullets and spent .22-caliber casings, beverage containers, clothing, spiral note- books, cigarette butts and contents of ashtrays, gunshot residue test kit from Mainelli’s hands, vials of Mainelli’s blood, a rape kit, and hair samples. Myers sought a variety of different DNA tests. He wanted testing of any hairs, blood, semen, saliva, or skin cells on vari- ous items, asserting that if such DNA evidence excluded Myers and was found to be of another male, “this would prove that the story from the informant was false, and Myers is in fact [i]nnocent.” Myers alleged there was “good cause to believe biological evidence still exists and can be identified and pro- filed with today’s DNA technology.” Myers asserted that if a suspect touched his face or head while wearing gloves, the skin cells could be transferred to other objects. Myers wanted the spent .22-caliber casings tested, because “it has become possible to obtain DNA profiles from few skin cells left by the person who loaded a shell into a gun.” Myers also moved for the appointment of counsel. In connection with a motion to preserve evidence, Myers included a laboratory report showing that a sexual assault examination of Mainelli was performed and that a vaginal swab and vaginal smear slide from a sexual assault kit revealed “[v]ery few spermatozoa.” Myers filed an affidavit in support of his motion for DNA testing. He stated that DNA evidence was not available at the  - 760 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. MYERS Cite as 301 Neb. 756 time of his trial, that law enforcement withheld any findings of biological evidence from him, and that testing all of the items would exonerate him. Myers also stated that he was with his girlfriend on the night of the murder and that testing all of the items would prove that the State’s informant lied. He subse- quently filed a supplemental amendment to his motion, seeking DNA testing of the sexual assault kit. The State filed an inventory of evidence that had been gathered in connection with the case. It showed that the items Myers wished to have tested were in the State’s possession. The district court held a hearing. Myers asked the court to consider his motion along with the supplemental amendment and to take judicial notice of § 29-4120(5). He presented no evidence. The State likewise presented no evidence, but it requested that the court review the bill of exceptions from the trial, along with Myers’ motion to determine whether DNA testing was appropriate. District Court’s Decision The district court denied Myers’ motion. It found that DNA testing was not warranted under § 29-4120(5)(c), because the results would not provide exculpatory evidence. The court quoted extensively from a portion of State v. Buckman 5 (including portions of the Buckman opinion which relied on State v. Bronson 6) where we discussed when a court may vacate and set aside a judgment based on test results that “exonerate or exculpate” an accused and “show a complete lack of evidence to establish an essential element of the crime charged.” The court explained that testing of the evidence would not exonerate or exculpate Myers in light of the evidence at trial, because “the absence of [Myers’] DNA from these items would not establish [Myers’] innocence considering witnesses  5 State v. Buckman, 267 Neb. 505, 517, 675 N.W.2d 372, 382 (2004).  6 State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003).  - 761 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. MYERS Cite as 301 Neb. 756 testified he intentionally wore gloves that would prevent his DNA from being left at the scene.” The court reasoned that “the absence of [Myers’] DNA or the presence of another person’s DNA at the scene on those items would not alone be enough to exonerate [Myers] considering his motive for the crime, inculpatory statements made and witness testimony regarding his actions directly before and after the murder.” Further, the court stated that testing of a sexual assault kit would not exonerate or exculpate Myers, because the State did not argue that Myers had sex with Mainelli on the night of the murder. The court concluded that “regardless of whether [Myers’] DNA was excluded or someone else’s DNA could be found on this evidence, such DNA results would not ‘show a complete lack of evidence to establish an essential element of the crime charged’ when you consider the totality of the evidence.” Myers timely appealed. ASSIGNMENTS OF ERROR Myers assigns that the district court erred in (1) refusing to order DNA testing, (2) making findings of fact and con- clusions of law without actual DNA results, (3) failing to determine whether the State refused to allow him access to DNA evidence, and (4) failing to appoint counsel to repre- sent him. STANDARD OF REVIEW [1,2] A motion for DNA testing is addressed to the discre- tion of the trial court, and unless an abuse of discretion is shown, the trial court’s determination will not be disturbed.7 An appellate court will uphold a trial court’s findings of fact related to a motion for DNA testing unless such findings are clearly erroneous.8  7 State v. Betancourt-Garcia, 299 Neb. 775, 910 N.W.2d 164 (2018).  8 Id.  - 762 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. MYERS Cite as 301 Neb. 756 [3] Decisions regarding appointment of counsel under the DNA Testing Act are reviewed for an abuse of discretion.9 ANALYSIS Motion for DNA Testing In denying Myers’ motion for DNA testing, the district court relied in large part on our decision in Buckman.10 We agree that Buckman is instructive regarding the showing that must be made at various stages. But it is also important to remem- ber that both Buckman and the Bronson11 decision cited in Buckman were appeals where DNA testing had been ordered and focused on the relief sought and denied based upon the test results. In Buckman, we first summarized the legal framework appli- cable in determining whether to order testing. We said: The initial step toward obtaining relief under the DNA Testing Act is for a person in custody to file a motion requesting forensic DNA testing of biological material. . . . Forensic DNA testing is available for any biological material that is related to the investigation or prosecution that resulted in the judgment; is in the actual or construc- tive possession of the state, or others likely to safeguard the integrity of the biological material; and either was not previously subjected to DNA testing or can be retested with more accurate current techniques.12 We pause at this point to observe there is no dispute that Myers met these criteria. If the above criteria are met and if the court further deter- mines that the requirements of § 29-4120(5) have been met, the court must order testing. Although our Buckman opinion  9 State v. Phelps, 273 Neb. 36, 727 N.W.2d 224 (2007). 10 State v. Buckman, supra note 5. 11 State v. Bronson, supra note 6. 12 State v. Buckman, supra note 5, 267 Neb. at 514, 675 N.W.2d at 380 (citation omitted).  - 763 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. MYERS Cite as 301 Neb. 756 used permissive “may order testing”13 language, we have sub- sequently made clear—consistent with the statute’s use of the phrase “shall order DNA testing”14—that the court is required to order testing if the requirements of § 29-4120(5) are met.15 We recognize the Legislature has amended § 29-4120(5) since the time of the Buckman decision, but the amendment is not significant to the issue before us. For convenience, we quote the current version, which was in effect at the time of Myers’ motion: Upon consideration of affidavits or after a hearing, the court shall order DNA testing pursuant to a motion filed under subsection (1) of this section upon a determination that (a)(i) the biological material was not previously sub- jected to DNA testing or (ii) the biological material was tested previously, but current technology could provide a reasonable likelihood of more accurate and probative results, (b) the biological material has been retained under circumstances likely to safeguard the integrity of its original physical composition, and (c) such testing may produce noncumulative, exculpatory evidence rel- evant to the claim that the person was wrongfully con- victed or sentenced.16 In Buckman, we elaborated on the last prong of § 29-4120(5) and clarified that the threshold to satisfy it was rather low. We stated: Exculpatory evidence is defined as evidence favorable to the person in custody and material to the issue of the guilt of the person in custody. . . . [T]his requirement is 13 Id. at 514, 675 N.W.2d at 380. 14 § 29-4120(5). 15 See, e.g., State v. Betancourt-Garcia, supra note 7; State v. Marrs, 295 Neb. 399, 888 N.W.2d 721 (2016); State v. Young, 287 Neb. 749, 844 N.W.2d 304 (2014); State v. McDonald, 269 Neb. 604, 694 N.W.2d 204 (2005). 16 § 29-4120(5).  - 764 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. MYERS Cite as 301 Neb. 756 relatively undemanding for a movant seeking DNA test- ing and will generally preclude testing only where the evidence at issue would have no bearing on the guilt or culpability of the movant.17 But a more rigorous standard applies after testing has been ordered. In Buckman,18 we also set forth the procedure appli- cable after a court orders DNA testing. We stated: Once DNA testing is conducted, and results are obtained, the question is whether the evidence obtained exonerates or exculpates the movant. Based on the test results, the movant may obtain relief in one of two ways, each of which requires a different quantum of proof. As previously noted, when the test results exon- erate or exculpate the movant, the court may “vacate and set aside the judgment and release the person from custody.” . . . However, if the court does not vacate and set aside the judgment, the movant may file a motion for new trial based upon “newly discovered exculpatory DNA or similar forensic testing obtained under the DNA Testing Act.”19 We summarized the proof necessary for each potential remedy: [T]he court may vacate and set aside the judgment in circumstances where the DNA testing results are either completely exonerative or highly exculpatory—when the results, when considered with the evidence of the case which resulted in the underlying judgment, show a com- plete lack of evidence to establish an essential element of the crime charged. . . . This requires a finding that guilt cannot be sustained because the evidence is doubt- ful in character and completely lacking in probative value. . . . [I]n other circumstances where the evidence 17 State v. Buckman, supra note 5, 267 Neb. at 515, 675 N.W.2d at 381 (citation omitted). 18 State v. Buckman, supra note 5. 19 Id. at 515, 675 N.W.2d at 381 (citation omitted).  - 765 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. MYERS Cite as 301 Neb. 756 is merely exculpatory, the court may order a new trial if the newly discovered exculpatory DNA evidence is of such a nature that if it had been offered and admitted at the former trial, it probably would have produced a sub- stantially different result.20 As Buckman demonstrates, the showing that must be made to obtain DNA testing presents a relatively low threshold. After testing, however, a much higher showing is required to either set aside a judgment or require a new trial. Here, the district court was presented with the first step in the framework—whether to require testing. It denied testing on the basis that Myers failed to meet the “may produce noncumu- lative, exculpatory evidence” requirement of § 29-4120(5)(c). But in making its determination, the court discussed a more onerous standard governing relief which might be available after testing has been performed. The court’s order shows that it imported the legal standard for determining whether to vacate or set aside a conviction. It quoted, with emphasis, when a motion to vacate and set aside the judgment under § 29-4123(2) may be granted. It also quoted language from Buckman, highlighting that vacating or setting aside a judgment was intended “to apply to those cases in which DNA test results ‘conclusively establish the guilt or innocence of a criminal defendant’”21 and would be proper “only where the results of DNA testing either com- pletely exonerated the movant or were highly exculpatory.”22 Finally, the court found that “regardless of whether [Myers’] DNA was excluded or someone else’s DNA could be found on this evidence, such DNA results would not ‘show a complete lack of evidence to establish an essential element of the crime charged’ when you consider the totality of the evidence.” 20 Id. at 518, 675 N.W.2d at 383 (citations omitted). 21 Id. at 516, 675 N.W.2d at 382. 22 Id. at 516-17, 675 N.W.2d at 382.  - 766 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. MYERS Cite as 301 Neb. 756 On appeal, we are tasked with determining whether the dis- trict court abused its discretion in denying Myers’ motion for DNA testing. But we cannot do so, because the court mingled standards applicable to § 29-4123(2) and (3) into its analysis under § 29-4120(5). Where it should have addressed only the first part of the statutory framework, its decision can be read to instead delve into the questions that apply in the latter part of the framework. Here, the question before the court was whether to allow testing. Because the court’s order fails to make clear that its denial of DNA testing was based solely on § 29-4120(5), we must remand the cause to the district court for a determina- tion under that section, based upon the existing record. On remand, the court shall determine whether the requirements of § 29-4120(5) have been met, including whether DNA testing of the items requested may produce noncumulative evidence which is favorable to Myers and material to the issue of his guilt. A ppointment of Counsel Myers also assigns error to the district court’s denial of his motion for the appointment of counsel. A court shall appoint counsel for an indigent person upon a showing that DNA test- ing may be relevant to the person’s claim of wrongful con- viction.23 Because we are remanding the cause to the district court to consider whether Myers’ motion for DNA testing should be granted under the proper standard, we also remand the cause for a determination as to whether he made the requi- site showing to require the appointment of counsel. Access to Biological M aterial Myers also contends that the Omaha Police Department did not disclose to the defense that it secured a sexual assault examination kit and collected a vaginal vault sample from the 23 § 29-4122.  - 767 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. MYERS Cite as 301 Neb. 756 victim. He argues that such action violated his right to due proc­ess and equal protection of law. This is not part of the DNA Testing Act framework. The DNA Testing Act is a limited remedy providing inmates an opportunity to obtain DNA testing in order to establish inno- cence after a conviction.24 We have previously stated, although in dicta, that a constitutional challenge to the destruction of evidence is outside the purview of the DNA Testing Act.25 We conclude that whether the prosecution improperly with- held evidence is not properly presented in a motion for DNA testing. Upon remand, the district court need not consider this argument further. CONCLUSION Because the district court applied principles governing relief which might be available after testing when it should have limited its consideration to whether it was required to order testing, we must reverse the order and remand the cause for reconsideration of the motions under the correct portion of the governing framework. We likewise reverse the denial of counsel and remand the cause for a determination as to whether Myers made the requisite showing to be entitled to the appoint- ment of counsel. R eversed and remanded for further proceedings. Freudenberg, J., not participating. 24 State v. Betancourt-Garcia, supra note 7. 25 See id. 

680 S.E.2d 478 (2009) KENNEDY et al. v. The STATE. No. A09A0430. Court of Appeals of Georgia. June 16, 2009. *479 Joseph W. Jones, Jr., Decatur, for appellants. Peter J. Skandalakis, Dist. Atty., Raymond C. Mayer, Asst. Dist. Atty., for appellee. SMITH, Presiding Judge. James Williams and Antonio Kennedy were convicted of the September burglary of a Chevron station in September 2005. Their motions for new trial were denied, and they *480 appeal, enumerating as error the denial of their motions to suppress, the admission of similar transaction evidence, and the general grounds. Finding no error, we affirm. 1. Williams and Kennedy moved to suppress evidence of stolen items found in their vehicle by police at the time of their arrest for an offense introduced by the State as a similar transaction. The trial court denied the motion on the basis that the officers were authorized to search appellants' vehicle for weapons to ensure their personal safety. In reviewing a trial court's order on a motion to suppress, we construe the evidence most favorably to uphold the court's decision. The trial court sits as the trier of fact; its findings are akin to a jury verdict and will not be disturbed if there is any evidence to support them. Stated another way, in the absence of evidence of record demanding a finding contrary to the judge's determination, the appellate court will not reverse the ruling sustaining a motion to suppress. (Citations, punctuation, footnotes and emphasis omitted.) State v. Stephens, 289 Ga.App. 167, 657 S.E.2d 18 (2008).[1] We may also "consider trial testimony in addition to the testimony submitted during the motion to suppress hearing. [Cit.]" Smith v. State, 277 Ga.App. 81, 81, n. 2, 625 S.E.2d 497 (2005). Viewed in this light, the evidence shows that on October 7, 2005, the Newnan police department responded to a burglary call at a store along Interstate 85 at approximately 5:00 in the morning, when it was still dark. A Coweta County sheriff's lieutenant heard the alarm call, and decided to check nearby exits for criminal activity because burglars "tend to run the interstate hitting each exit until they get satisfied with what they receive." He went to the next exit and checked a Chevron gas station that he knew was closed at that hour. The station area was very poorly lit, and he saw an older model Suburban parked in "the darkest corner of the lot" with the hood up and the driver's side door open. He asked the two men with the Suburban, identified as Williams and Kennedy, if he could help them, and they told him their motor was overheating. The officer became suspicious because two other gas stations nearby were open, and because it seemed to him that "if I'm going to work on a truck, I'm going to find me some light." In addition, the appellants were "jittery" and "nervous," more so than they should have been if they had merely broken down. They kept moving in and out of the Suburban, opening and closing the doors, and it appeared to the officer that they were trying to conceal the interior of the truck from his view. He could not see through the windows because they were "pretty darkly tinted" and it was dark outside. He considered it a safety issue because he did not know "if they were going to bring out a weapon." His concern increased when the men separated and one of them "got around behind" his patrol car. Initially the officer testified that he thought the men separated because they were "fixing to go in opposite directions," but later added that "there was some safety issues there." While the officer testified that he felt threatened, he did not do a pat-down search. He explained that his backup was on the way and he was "outnumbered. There's two of them and one of me." While a rear door on the vehicle was open, the officer saw several bags in the back seat of the truck. When the backup officer arrived, the first officer discussed with him the bags he had observed. One man was standing beside the truck, and the backup officer instructed him to go to the front of the truck with the other man. The backup officer looked into the rear seat, "pulled the bags out after seeing the contents *481 of the bags, and he dumped the contents out on the pavement." The bag contained stolen cigarettes. Appellants were placed under arrest, and the officers "looked into the truck even more for weapons." The search of an automobile's passenger compartment, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. Georgia decisions agree that in order to justify a search of a vehicle for weapons, some conduct on the part of the occupants such as furtive movements or other indications of danger to the officer must be shown, and the officer must have an objectively reasonable belief that the occupants of a vehicle are potentially dangerous. (Citations, punctuation and footnotes omitted.) Bell v. State, 295 Ga.App. 607, 611(2), 672 S.E.2d 675 (2009). In Silva v. State, 278 Ga. 506, 508, 604 S.E.2d 171 (2004), the Supreme Court found that the officer's belief that appellants were "potentially dangerous was objectively reasonable. [Cit.]" Id. And under the applicable standard of review here, not applied in Silva, we cannot say that the evidence demands a contrary finding. The trial court was authorized to conclude that, like Silva, the appellants acted suspiciously, both in attempting to conceal the contents of the Suburban and in apparently moving to surround the officer. The officer had no plans to arrest appellants, and thus knew [they] would be returning to [their] car, with the unknown and potentially dangerous item [inside]. In such circumstances, a reasonably prudent officer would have concerns for his safety, and the officer in this case acted appropriately. An officer who has detained an occupant of a motor vehicle may conduct a search founded on the reasonable belief, based on articulable facts and rational inferences, that the occupant may gain immediate control of a weapon. [Cits.] Id. The fact that appellants were outside the vehicle "when the search was conducted does not change the matter; a suspect re-entering his car after an investigative detention will have access to any weapon therein. [Cit.]" Id. Here, in addition, one of the appellants was quite close to the vehicle and had to be instructed to move as the second officer approached. Under these circumstances, the trial court did not err in concluding that "Georgia law gives the officer the right to find out what's in their bag for their own protection" and denying the motion to suppress. 2. Williams and Kennedy next complain of the admission of evidence of the October 2005 burglary as a similar transaction to the September 2005 burglary with which they are charged in the present case. In the similar transaction, at about 4:45 in the morning on October 7, 2005, a large chunk of concrete was thrown through the front glass door of the Chevron station at Exit 47 on Interstate 85, and cigarettes were stolen, mostly single packs and two-pack combinations that were on display. When appellants were arrested in this case at the Chevron at Exit 51, the police found inside their Suburban two large black plastic garbage bags, one containing single packs and two-pack combinations, and the other about a dozen cartons of cigarettes. The front seat of the Suburban had "shards or slivers of glass" in it, and a large chunk of concrete and an empty black plastic bag were on the ground next to the vehicle. Williams and Kennedy were charged in the present case with participating in a "smash and grab burglary" at approximately 4:45 in the morning on September 23, 2005. A large rock was thrown through the front glass door of the Chevron station at Exit 51 on Interstate 85, the scene of appellants' arrest in October 2005. About 50 cartons of cigarettes and a small amount of cash were stolen. Some black plastic garbage bags that the owner did not sell in the store were left behind. These similarities "are more than adequate to satisfy the State's burden of showing a sufficient connection between the similar offense and the offense for which the accused *482 is being tried such that proof of the former tends to prove the latter. [Cit.]" Johnson v. State, 296 Ga.App. 112, 114(4), 673 S.E.2d 596 (2009) (both offenses involved theft of copper pipe at night from unoccupied buildings under construction). The trial court did not abuse its discretion in admitting the similar transaction. 3. Williams and Kennedy assert the general grounds. We find the evidence sufficient to uphold the convictions under the standard established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accord Jackson v. State, 217 Ga.App. 485, 487(1), 458 S.E.2d 153 (1995) (physical precedent only) (evidence of unexplained possession and concealment of goods stolen during crime, which had occurred shortly before appellant's arrest, was sufficient to establish guilt).[2] Judgment affirmed. PHIPPS and BERNES, JJ., concur. NOTES [1] Because the officer's testimony was not entirely consistent and somewhat contradictory, this is not a case "where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, [and] the trial court's application of the law to undisputed facts is subject to de novo appellate review." (Citations and punctuation omitted.) State v. Woods, 280 Ga. 758, 632 S.E.2d 654 (2006). Compare Stephens, supra, 289 Ga.App. at 168-169, 657 S.E.2d 18 (credibility of officer at issue when trial court questioned officer and Stephens regarding circumstances of consent to testing). [2] As we have noted on several previous occasions, this decision, while originally physical precedent only, has been cited repeatedly with approval and without notation of its precedential status. Finley v. State, 252 Ga.App. 66, 67(1), n. 2, 555 S.E.2d 523 (2001); Brown v. State, 250 Ga.App. 147, 149(2), n. 2, 550 S.E.2d 701 (2001).

937 F.Supp. 1531 (1996) Marvin A. ALLEN, Plaintiff, v. CITY OF ATHENS and Doug Gunter, Individually and in his official capacity as Head of the Electrical Department for the City of Athens, Defendants. CV95-H-1083-NE. United States District Court, N.D. Alabama, Northeastern Division. September 3, 1996. *1532 *1533 Candis A. McGowan, Cooper Mitch Crawford Kuykendall & Whatley, Birmingham, AL, for plaintiff. Jerry L. Batts, Sherrill Batts & Mathews, Athens, AL, for defendants. MEMORANDUM OF DECISION HANCOCK, Senior District Judge. The Court has before it the February 29, 1996 motion for summary judgment filed by both defendants in this case. Pursuant to the Court's March 1, 1996 and April 1, 1996 Orders, the motion was deemed submitted, without oral argument, on April 9, 1996. I. Procedural History Plaintiff Marvin Allen ("plaintiff") filed this action on April 28, 1995, alleging that defendant City of Athens ("the City") failed to promote him because of his race (African-American), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a). Plaintiff also asserts a claim under 42 U.S.C. § 1983 against defendant Douglas Gurner ("Gurner"),[1] arising from the same alleged racial discrimination. The Complaint seeks a declaratory judgment, back pay, compensatory and punitive damages, and attorney's fees. The Court has jurisdiction over this matter by virtue of 28 U.S.C. §§ 1331 and 1343, since plaintiff's claims arise under the federal civil rights statutes. Defendants' motion for summary judgment asserts that plaintiff has not only failed to adduce substantial evidence to support his claims, but also that the evidence in the record affirmatively shows that there is no genuine issue of material fact regarding plaintiff's claims. II. Standards for Evaluating a Summary Judgment Motion Under Fed.R.Civ.P. 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. Once the moving party has met his burden, Rule 56(e) requires the nonmoving party to go beyond the pleadings and by his own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. The substantive law will identify which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. If the evidence *1534 is merely colorable, or is not significantly probative, summary judgment may be granted. Id. at 249, 106 S.Ct. at 2510. The method used by the party moving for summary judgment to discharge its initial burden depends on whether that party bears the burden of proof on the issue at trial. See Fitzpatrick, 2 F.3d at 1115-17 (citing United States v. Four Parcels of Real Property, 941 F.2d 1428 (11th Cir.1991) (en banc)). If the moving party bears the burden of proof at trial, then it can only meet its initial burden on summary judgment by coming forward with positive evidence demonstrating the absence of a genuine issue of material fact; i.e. facts that would entitle it to a directed verdict if not controverted at trial. Fitzpatrick, 2 F.3d at 1115. If the moving party makes such a showing, the burden shifts to the non-moving party to produce significant, probative evidence demonstrating a genuine issue for trial. If the moving party does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. First, the moving party may produce affirmative evidence negating a material fact, thus demonstrating that the non-moving party will be unable to prove its case at trial. If the moving party satisfies its burden using this method, the non-moving party must respond with positive evidence sufficient to resist a motion for directed verdict at trial. The second method by which the moving party who does not bear the burden of proof at trial can satisfy its initial burden on summary judgment is to affirmatively show the absence of evidence in the record to support a judgment for the non-moving party on the issue in question. This method requires more than a simple statement that the non-moving party cannot meet its burden at trial but does not require evidence negating the non-movant's claim; it requires the movant to point out to the district court that there is an absence of evidence to support the non-moving party's case. Fitzpatrick, 2 F.3d at 1115-16. The affirmative showing may be accomplished by reference to any combination of the following: pleadings; deposition testimony of a party or its witness; affidavits; responses to interrogatories or failure to respond to interrogatories; requests for admission and responses thereto; and other exchanges between the parties that are in the record. See Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir.1991); see also Celotex, 477 U.S. at 332, 106 S.Ct. at 2557 (Brennan, J., dissenting). If the movant meets its initial burden by using this second method, the non-moving party may either point out to the court record evidence, overlooked or ignored by the movant, sufficient to withstand a directed verdict, or the non-moving party may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. III. Undisputed Relevant Facts The record reveals the following undisputed facts. Plaintiff began working for the City in 1988 as a laborer in the Streets and Sanitation Department. (Allen Depo. at 15). He worked in this position until 1993, at which time he was promoted to the position of Crew Chief in the Streets and Sanitation Department. (Allen Depo. at 16). When City positions become open, the City follows a procedure of giving preference to existing City employees. (Kelly Depo., Vol. I, at 19). The City's written policy is that "[w]henever practical, the City will fill vacant classified positions by promotion of City employees who meet required qualifications and have demonstrated potential before recruiting from outside sources." (Id. at 26-27). Pursuant to this policy, when a job opening becomes available, the City first advertises it internally, giving existing City employees five days to apply. (Id. at 15, 21). These applications are sent directly to the Department Head making the hiring decision. (Id. at 18, 21). If the Department Head desires more applicants than those received in-house, he informs the City's Human Resources Director, Kay Bentley Kelly, who advertises the position publicly. (Id. at 11, 22). After ten days have passed for outside persons to apply, Kelly screens the applications, selecting the most qualified for review by the Department Head. (Id. at 18, 28, 47). *1535 The City's job description for the lineman apprentice position, the position that plaintiff claims he did not receive because of discrimination, includes twenty-two job requirements. (Kelly Depo., Vol. I, at 32). Fourteen of these requirements are taught on the job, (Id. at 33); the eight requirements that are not taught on the job are (1) verbal skills to communicate with co-workers and supervisors, (2) writing skills to complete routine forms, (3) reading skills to read and understand work orders, other instructions, electric lineman learner manuals, rules, policies, procedures, and safety manuals, (4) skills in basic math to frame poles and measure wire, (5) ability to climb and handle oneself on a pole, (6) knowledge to read staking sheets and to perform work, (7) ability to follow oral and written instructions, and (8) ability to supervise lower-grade apprentices and helpers. (Kelly Depo., Exhibit 1, Bates # 1009). The job description recites that the lineman apprentice [p]erforms electrical line work and manual labor duties in learning the lineman trade. Assists linemen in the construction, repair and maintenance of power lines. Performs pole climbing, handling live wires, installing hardware, digging holes and other manual duties related to electrical line work. Operates bucket truck, line truck, chain saw, air compressor, ditch witch and other equipment in construction and maintenance of power lines. (Id., Bates # 1008). When a lineman apprentice position becomes open, the City follows the procedure outlined above for advertising the position internally, collecting internal applications, and giving Doug Gurner, the Head of the City's Electrical Department, the option of advertising for outside applications. (See above record citations). The persons whose applications are forwarded to Gurner are given a written lineman trainee selection test, which measures basic math and reading comprehension skills. (Gurner Depo. at 44). The applicants are then given a physical test, which involves climbing a ladder, walking on a balance beam, standing on a pole and hooks, and performing various operations. (Id. at 42). The foremen, who administer the test, make recommendations to the general foreman, who communicates the recommendations to Gurner. (Id. at 54). Gurner then makes his selection to fill the position, and makes a recommendation to the Head of the City's Utilities Department. (Id.). The Head of the Utilities Department then makes a recommendation to the City's Mayor, who makes the ultimate decision to hire. (Id. at 15, 54). Plaintiff applied for an open lineman apprentice position in August 1993. (Kelly Depo., Vol. II, at 9). Plaintiff was the only in-house applicant for that position. (Id.). Plaintiff had previously applied for the same position in April 1993, and had taken the written and physical tests in conjunction with that application. (Gurner Depo. at 72). When plaintiff's August 1993 application was received by the Electrical Department, his earlier test results were reviewed a second time by the foremen and general foreman, who recommended that the position be publicly advertised. (Id. at 68). Gurner concurred in this recommendation, and asked Kelly to advertise the position. (Id. at 72; Kelly Depo., Vol. II, at 11). The position was advertised from September 10-20, 1993, and the City received fifty-nine outside applications. (Defendant's Answers to Interrogatories, # 3). Nine applicants, including plaintiff, were considered for the position. (Id.).[2] All nine applicants passed the physical test, and plaintiff ranked eighth out of the nine applicants on the written test. (Id., # 8).[3] Two of the nine applicants were hired, Heith Embry and Jason White (both caucasians). (Gurner Depo. at 65). Embry's application showed construction and climbing experience, as well as experience as a cable television company technician. (Defendant's *1536 Answers to Interrogatories, # 2 (attached application of Embry)). He had graduated from high school, and had taken a number of college-level courses in industrial electronics. (Id.). Embry's score on the City's written lineman apprentice test was 21/26. (Id., # 8). Jason White, the other applicant hired, also had prior experience as a cable television technician. (Kelly Depo., Exhibit 4). He specifically listed pole climbing as one of the activities he had experience in. (Id.). He stated that his prior experience included "safety near electricity," "usage of hard hats and other lineman equipment, including voltage, ohm, and field test meters." (Id.). White's score on the written test was 25/26. (Defendant's Answers to Interrogatories, # 8). Plaintiff applied once again for a lineman apprentice position in November 1993. (Defendant's Answers to Interrogatories, # 4). His application was again sent directly to the Electrical Department. (Kelly Depo., Vol. II, at 35).[4] After reviewing the in-house application(s), the Electrical Department again decided to advertise the opening publicly. (Id.). The advertisement drew 61 outside applications. (Id.). Six applicants were considered for the position, including plaintiff. (Defendant's Answers to Interrogatories, # 4). Gurner and the City gave the position to Mark Prestridge, who had previously worked for the City as a lineman apprentice in 1991. (Gurner Depo. at 73). Because Prestridge had finished approximately three-quarters of the City's lineman apprentice program in 1991, he had experience in pole climbing, sagging wire, making up weatherheads, operating line trucks, hooking up transformers on single-phase lines, and splicing wire. (Kelly Depo., Exhibit 5). Prestridge's 1991 written and physical test scores were used in evaluating his application; he had passed the physical test and had scored a 20/26 on the written test. (Gurner Depo. at 73; Defendant's Answers to Interrogatories, # 8). Plaintiff applied again for an open lineman apprentice position in December 1993. (Gurner Depo. at 78). Gurner testified that, at this time, he asked Johnny Pryor, the Electrical Department's new African-American general foreman, to give plaintiff's application "a close look." (Id. at 83). Plaintiff also re-took the written test in December 1993, again scoring a 14/26. (Kelly Depo., Exhibit 1, Bates # 1213-1221). Allen was not recommended for the position by the foremen and general foreman, (Gurner Depo. at 83-84), but the parties have not directed the Court's attention to information in the record concerning the qualifications of the individuals who were selected in December 1993. Plaintiff has had no experience in the electrical field, and has taken no vocational classes since high school. (Allen Depo. at 10-15). He had previously applied for a lineman apprentice position in 1989, and believed at the time that he was not the most qualified person for the job. (Id. at 33). Plaintiff took no action to improve his skills or qualifications between 1989 and 1993. (Id. at 35).[5] Plaintiffs May 1993 and August 1993 applications for the lineman apprentice position indicated that he had "no special skill in this field," but that he was "willing and eager to learn." (Allen Depo., Exhibits 4 and 5). Plaintiff's performance reviews from his positions in the City's Sanitation Department were good — he received scores of 3/5 (indicating "fully meets job requirements"), and his supervisor's comments were positive. (Kelly Depo., Exhibit 1, Bates # 1029-38, 1045-46). The City's Human Resources Department had never received any complaints about plaintiff's abilities or performance. (Kelly Depo., Vol. I, at 108, 121; Vol. II, at 6). His supervisor indicated in two separate *1537 evaluations that plaintiff had "the knowledge, skills, abilities, and other qualifications needed for successful job performance" of his duties in the Sanitation Department. (Kelly Depo., Exhibit 1, Bates # 1029-38, 1045-46). The "knowledge and skills" required for plaintiff's crew chief position overlap substantially with the requirements for the lineman apprentice position that are not taught on the job. (Kelly Depo., Exhibit 1, Bates # 1009, 1040).[6] The lineman apprentice position required skills of basic math and pole climbing ability, which were not skills required for the Sanitation Department crew chief position. (Id.). The parties have also both cited to evidence in the record to indicate the numbers of African-American employees in various City departments, and the City's history of hiring black applicants. Plaintiff asserts that, of 283 City employees, only 45 are black; of 40 Electrical Department employees, only four are black. (Kelly Depo., Vol. I, at 64, 79; Gurner Depo. at 95). Of the 40-45 employees in the Sanitation Department, 14 are African-American. Defendant directs the Court's attention to evidence in the record that several black applicants and in-house employees were hired as foremen, linemen or linemen apprentices. (Kelly Depo., Vol. II, at 41-45; Gurner Depo. at 24-25, 27-28, 31). Plaintiff points out Gurner's testimony that one of the black applicants hired as a lineman apprentice, Wayne Tisdale, was hired by Gurner in part to forestall charges of racial discrimination. (Gurner Depo. at 32-33, 38 (Gurner testifies that he hired a black applicant to avoid a potential lawsuit: "I think they call it affirmative action.")). Plaintiff also heavily relies on Gurner's testimony that he has told racial jokes and used the "N" word within the last ten years. The portion of Gurner's deposition testimony cited by plaintiff reads as follows: Q. Have you ever made any racial jokes in the last ten years? A. Yes. Q. Have you ever used the "N" word in the last ten years? A. Yes. Q. Do you recall the last time? * * * * * * A. I couldn't tell you. * * * * * * Q. Do you recall when was the last time you told a racial joke? A. No. Q. Has it been within the last year? A. Certainly, yes. (Gurner Depo. at 100-01). Plaintiff also points out that Gurner, in his deposition, referred to Carlos Kennemer, one of his foremen, as "the black guy." (Gurner Depo. at 77-78).[7] Plaintiff testified that Gurner refused to shake his hand when he was considered for the lineman apprentice position on several occasions, although Gurner shook the hands of the other (white) applicants: according to plaintiff, Gurner would "shake the other fellows' hand. He looked at me like to say, there you are again, Mr. Allen, you know." (Allen Depo. at 83-84). IV. Applicable Substantive Law and Analysis Plaintiff asserts a claim against the City under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and against Gurner under 42 U.S.C. § 1983. Plaintiff seeks relief under § 1983 from Gurner both individually and in his official capacity as the Head of the City's Electrical Department.[8] *1538 As an initial matter, the Court notes that claims of disparate treatment under both Title VII and § 1983 have the same elements. See Richardson v. Leeds Police Dept., 71 F.3d 801, 805 (11th Cir.1995). Title VII and § 1983 race discrimination claims are analyzed using "[i]dentical methods of proof"; the McDonnell Douglas approach to analyzing circumstantial evidence of discrimination is applied in Title VII and § 1983 cases alike. Id. So, the Court will discuss plaintiffs Title VII claims and § 1983 claims together. A plaintiff alleging disparate treatment may prove a prima facie case either through "direct evidence" of discrimination or with circumstantial evidence. Burns v. Gadsden State Comm. College, 908 F.2d 1512, 1517-18 (11th Cir.1990). Circumstantial evidence is analyzed under the rubric of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). However, the McDonnell Douglas analysis is not used to evaluate claims based on direct evidence. See Burns, 908 F.2d at 1518. Because plaintiff here claims that his case is supported by both direct and circumstantial evidence, the Court will address each method of proof separately. A. Direct Evidence "Direct evidence of discrimination would be evidence, which, if believed, would prove the existence of a fact without inference or presumption." Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989). Direct evidence often takes the form of remarks made by employers that reveal discriminatory attitudes and that are related to the challenged employment decision. See, e.g., Haynes v. W.C. Caye & Co., 52 F.3d 928, 930-31 (11th Cir.1995) (statement by decisionmaker that women were unfit for the job plaintiff was rejected for constituted direct evidence); Miles v. M.N.C. Corp., 750 F.2d 867, 873-74 (11th Cir.1985) (racial slur made by supervisor concerning blacks' work abilities constituted direct evidence). However, not every remark made in the workplace constitutes direct evidence of discrimination. Justice O'Connor defined "direct evidence" as follows: [t]hus, stray remarks in the workplace, while perhaps probative of sexual harassment, cannot justify requiring the employer to prove that its hiring or promotion decisions were based on legitimate criteria. Nor can statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself, suffice to satisfy the plaintiff's burden in this regard. Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775, 1804, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring) (citations omitted). The Eleventh Circuit has adopted Justice O'Connor's definition of direct evidence. See Trotter v. Board of Trustees of the University of Alabama, 91 F.3d 1449, 1453-55 (11th Cir.1996); EEOC v. Alton Packaging Corp., 901 F.2d 920, 924 (11th Cir.1990). Because plaintiff here argues that he has such direct evidence, it is important, as a threshold matter, for the Court to determine what effect direct evidence has in a discrimination case. The distinction between direct and circumstantial evidence permeates the Eleventh Circuit's Title VII cases. The distinction was further reinforced by the Supreme Court in Price Waterhouse, which itself was then overruled (in part) by the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(m). Determining the significance of direct evidence in the wake of these recent changes in the law will require the Court to digress briefly into the history of the distinction between direct and circumstantial evidence, followed by a discussion of the effect of the Civil Rights Act of 1991. Prior to 1991, Price Waterhouse made it clear that a claim of discrimination under Title VII involved proof of two distinct elements: (1) a discriminatory intent or animus that, in some way, related to the employer's decision-making process, and (2) a cause-in-fact element, or proof that the challenged employment decision would have been different absent discrimination. See Price Waterhouse, 490 U.S. at 242, 109 S.Ct. at 1786 (plurality opinion). Under Price Waterhouse and the line of Eleventh Circuit cases that existed before it, a plaintiff making a Title *1539 VII claim based on circumstantial evidence bore the burden of proof on both of these elements, and could recover only if both were satisfied. See Price Waterhouse, 490 U.S. at 270-73, 109 S.Ct. at 1801-03 (O'Connor, J., concurring). However, the Eleventh Circuit had concluded, along with many other Courts of Appeal, that direct evidence changed the burdens of proof. When a Title VII plaintiff presented direct evidence of discriminatory intent that was related to the challenged employment decision and that was believed by the trier of fact, the trier of fact was required to conclude that the second element — cause in fact — was established. This conclusion would stand unless the defendant bore its burden of proof that it would have made the same decision, even absent consideration of the impermissible factor. See, e.g., Miles v. M.N.C. Corp., 750 F.2d 867, 875-76 (11th Cir.1985). The Supreme Court reached the same result in Price Waterhouse. See Price Waterhouse, 490 U.S. at 278-79, 109 S.Ct. at 1805-06 (O'Connor, J., concurring). Pre-1991 law regarded the causation inquiry as an essential element to proving a violation of Title VII. Under Price Waterhouse, if the defendant succeeded in disproving causation, the effect was a finding of no liability at all. Id. See also Burns v. Gadsden State Community College, 908 F.2d 1512, 1518 (11th Cir.1990) (the defendant could "avoid liability" if it carried its burden). However, Congress was dissatisfied with the strict causation requirement represented by Price Waterhouse. In 1991, Congress amended Title VII to add two new subsections that are pertinent here. First, Congress eliminated cause-in-fact as an essential element of a Title VII claim: [e]xcept as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. 42 U.S.C. § 2000e-2(m). Contrary to the result reached in Price Waterhouse, § 2000e-2(m) requires a finding of liability when the discriminatory intent is only one "motivating factor" in the challenged employment decision. However, the Price Waterhouse burden-shifting approach also survived, in modified form: [o]n a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court — (i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and (ii) shall not award damages, or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A). 42 U.S.C. § 2000e-5(g)(2)(B). Sections 2000e-2(m) and 2000e-5(g)(2)(B), read together, make it clear that if the plaintiff convinces the trier of fact that discriminatory animus influenced the employer's decision, the burden then shifts to the defendant to disprove causation, just as in Price Waterhouse. However, the effect of the employer's success in meeting that shifted burden is different from that described in Price Waterhouse. Instead of a judgment of no liability at all, the defendant's proof of "no causation" serves only to limit its liability to the kinds of relief specified in § 2000e-5(g)(2)(B).[9] *1540 The more interesting question raised by the 1991 Civil Rights Act is whether §§ 2000e-2(m) and 2000e-5(g)(2)(B) have erased the distinction between direct and circumstantial evidence. The Eleventh Circuit has not yet addressed this issue, but the courts that have reached it have come to differing conclusions. In Fuller v. Phipps, 67 F.3d 1137 (4th Cir.1995), the Fourth Circuit held that §§ 2000e-2(m) and 2000e-5(g)(2)(B) only applied in direct evidence cases, and so concluded that the traditional distinction between direct and circumstantial evidence survived the 1991 Act. Id. at 1143-44. The Fourth Circuit relied upon a comment in dicta in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), reciting that § 2000e-2(m) was designed to apply in "mixed motive" cases. See Landgraf, at ___ - ___, 114 S.Ct. at 1489-90. In addition, the Fourth Circuit cited the language of § 2000e-2(m), which it held specifically contemplated a "mixed motive" case. Fuller, 67 F.3d at 1143-44. Finally, the court noted the legislative history of the 1991 Act, which, in its opinion, "makes [it] evident that Congress sought to alter the standards of liability in mixed-motive cases." Id. at 1144.[10] Treating the category of "mixed motive" cases as synonymous with "direct evidence" cases, the Fourth Circuit concluded that § 2000e-2(m) only applied when the plaintiff produces direct evidence. See also Smith v. F.W. Morse & Co., 76 F.3d 413, 420-22 (1st Cir.1996) (assuming that the distinction between direct and circumstantial evidence survived the 1991 Act, but praising a district court for ignoring the distinction). However, the Fourth Circuit's conclusion about the scope of §§ 2000e-2(m) and 2000e-5(g)(2)(B) is open to question. The language of § 2000e-2(m) speaks in plain, unambiguous terms, and makes no distinction between direct and circumstantial evidence. All that is required to trigger liability under § 2000e-2(m) is that the plaintiff "demonstrate" that discrimination was a "motivating factor" in the challenged employment decision. Whether the plaintiff proves that critical fact through direct or circumstantial evidence is not a factor the plain language of the statute takes into account. And, given the clarity of § 2000e-2(m), its legislative history should be irrelevant to its interpretation. See Pedigo v. P.A.M. Transport, Inc., 60 F.3d 1300, 1302 (8th Cir.1995) (finding the language of § 2000e-2(m) unambiguous and refusing to consider legislative history). Recent Supreme Court decisions have repeatedly instructed lower courts to refrain from using legislative history to alter or contradict plain statutory pronouncements. See, e.g., Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475, 112 S.Ct. 2589, 2594, 120 L.Ed.2d 379 (1992). The legislative history might support an argument that § 2000e-2(m) applies only in direct evidence cases, but § 2000e-2(m)'s language is not so limited. When the statute and legislative history disagree, the statute controls. See, e.g., West Virginia Univ. Hosps. v. Casey, 499 U.S. 83, 97-101, 111 S.Ct. 1138, 1146-48, 113 L.Ed.2d 68 (1991); In re Sinclair, 870 F.2d 1340, 1341-44 (7th Cir.1989). Faced with the language of § 2000e-2(m), a number of courts have concluded that § 2000e-2(m) applies to both direct and circumstantial evidence cases. See Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1350-51 (7th Cir.1995) (affirming jury instructions that applied § 2000e-2(m) to a case with both direct and circumstantial evidence: "whether ... sex was a motivating factor in [the] decision to fire [plaintiff] was the ultimate issue"); Salter v. Douglas MacArthur State Tech. Coll., 929 F.Supp. 1470, 1475, 1477 n. 34 (M.D.Ala.1996) (applying § 2000e-2(m), even though the plaintiff did not attempt to prove discrimination through direct evidence); Hearn v. General Electric Co., 927 F.Supp. 1486, 1497-99 (M.D.Ala. *1541 1996) (discussing the conflict between the Eleventh Circuit's direct evidence cases and § 2000e-2(m)). The Fourth Circuit's citation to Landgraf is also unpersuasive. In Landgraf, the Supreme Court held that the 1991 Civil Rights Act did not apply retroactively. Landgraf, 511 U.S. at ___, 114 S.Ct. at 1508. In discussing the 1991 Act, the Supreme Court made the following comment about § 2000e-2(m): "§ 107 responds to Price Waterhouse v. Hopkins, by setting forth standards applicable in `mixed motive' cases." See Landgraf, at ___ - ___, 114 S.Ct. at 1489-90 (citation omitted). The Fourth Circuit interpreted this comment in dicta to mean that § 2000e-2(m) only applied in direct evidence cases. However, this Court does not accept the Fourth Circuit's premise that the term "mixed motive" is synonymous with "direct evidence." An employer can have "mixed motives" even when the plaintiff proves his case through circumstantial evidence. The term "mixed motive" was born from the Supreme Court's decision in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Mt. Healthy involved a stateemployed teacher who had been fired for two stated reasons: (1) his public complaints to a local radio station about school policies, and (2) other inappropriate conduct at school, such as the use of obscene gestures toward students. Id. at 283 n. 1, 97 S.Ct. at 574 n. 1. The teacher sued under § 1983, claiming that his discharge was motivated (at least in part) by retaliation for engaging in speech protected by the First Amendment. Id. at 276, 97 S.Ct. at 570. The Court concluded that, once the plaintiff showed that his speech was protected and was a "motivating factor" in the defendant's decision, the burden shifted to the defendant to prove that it would have made the same decision absent the consideration of the plaintiff's complaints to the media. Id. at 287, 97 S.Ct. at 576. Nowhere in Mt. Healthy did the Supreme Court mention any distinction between direct and circumstantial evidence, although there was direct evidence present (in the form of a letter from the defendant to the plaintiff). And, subsequent discussions of Mt. Healthy by the Supreme Court also fail to place any emphasis on the difference between direct and circumstantial evidence. See McKennon v. Nashville Banner Pub. Co., ___ U.S. ___, ___, 115 S.Ct. 879, 885, 130 L.Ed.2d 852 (1995). In fact, in McKennon, the Court described a "mixed motive" case as one "in which two motives were said to be operative in the employer's decision to fire an employee." Id. In addition, instead of emphasizing the direct evidence present in Mt. Healthy, the Court noted that the holding in Mt. Healthy was "controlled by the difficulty, and what we thought was the lack of necessity, of disentangling the proper motive from the improper one where both played a part in the termination and the former motive would suffice to sustain the employer's action." Id. Viewed in light of Mt. Healthy, the term "mixed motive" denotes exactly what it says — a case where the employer's decision is based on mixed proper and improper motives. The conclusion that the term is synonymous with "direct evidence" is not supported by either the language of § 2000e-2(m) or the holding in Mt. Healthy. In fact, the only Supreme Court case that ever emphasized the distinction between direct and circumstantial evidence, Price Waterhouse, was overruled by § 2000e-2(m), which recognizes no such distinction. For these reasons, the Court concludes that the 1991 Civil Rights Act has abolished the distinction between direct and circumstantial evidence at the trial stage of Title VII litigation. However, one small analytical difference remains between direct and circumstantial evidence in resolving a motion for summary judgment. As noted above, the McDonnell Douglas/Burdine approach does not apply to direct evidence cases. Burns v. Gadsden State Comm. College, 908 F.2d 1512, 1518 (11th Cir.1990). The reason for this limited distinction is obvious: "the entire purpose of the McDonnell Douglas prima facie case is to compensate for the fact that direct evidence of intentional discrimination is hard to come by." Price Waterhouse v. Hopkins, 490 U.S. 228, 271, 109 S.Ct. 1775, 1801, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring). So, at the summary judgment stage, a court should *1542 analyze circumstantial evidence under the McDonnell Douglas framework, while evaluating direct evidence under the general standards of Rule 56. If a plaintiff is able to produce true direct evidence in opposition to a motion for summary judgment, summary judgment would seldom be proper. That discussion aside, the Court can turn to an evaluation of plaintiff's purported direct evidence in this case. Plaintiff cites the following evidence in the record as "direct evidence": (1) Gurner's testimony that he has hired black and female applicants to avoid claims of race and sex discrimination; (2) Gurner's reference to Carlos Kennemer as "the black guy"; (3) Gurner's admission of telling racial jokes and using the "N" word; (4) Kelly's admission to the same effect; and (5) plaintiff's testimony that Gurner would not shake his hand when he was being evaluated for the lineman apprentice position. Before addressing each of these items of evidence, the Court reiterates that direct evidence of discrimination is rare indeed. Justice O'Connor's opinion in Price Waterhouse emphasized that "statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself" are not direct evidence. See Price Waterhouse, 490 U.S. at 277, 109 S.Ct. at 1804 (O'Connor, J., concurring). The Eleventh Circuit, along with most of the other circuits, has adopted this narrow view of what constitutes direct evidence. See Trotter v. Board of Trustees of the University of Alabama, 91 F.3d 1449, 1453-55 (11th Cir.1996); Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1223 (11th Cir. 1993) ("Only the most blatant remarks whose intent could be nothing other than to discriminate constitute direct evidence."); EEOC v. Alton Packaging Corp., 901 F.2d 920, 924 (11th Cir.1990); Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1477-78 (10th Cir.1996) (statements of personal opinion by supervisor about married woman's motivation to work were not direct evidence); Kriss v. Sprint Communications Co., 58 F.3d 1276, 1282 (8th Cir.1995) (adopting Justice O'Connor's definition of direct evidence); O'Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 548-49 (4th Cir.1995) ("Unless the remarks on which plaintiff relies were related to the employment decision in question, they cannot be evidence of a discriminatory discharge."); Gagne v. Northwestern Nat'l Ins. Co., 881 F.2d 309, 314 (6th Cir.1989) ("isolated and ambiguous statements," even when made by decision-maker, did not constitute direct evidence). With this strict standard in mind, the Court now turns to the five pieces of evidence relied upon by plaintiff. The first item of purported direct evidence is Gurner's testimony that he had hired one black applicant and one female applicant in order to avoid discrimination lawsuits; he testified that "I think they call it affirmative action." (Gurner Depo. at 33-34, 38-39). This evidence is far too equivocal to be direct evidence. Possibly, Gurner's testimony shows that he was aware that he had been discriminating on the basis of race and sex, and hired a woman and a black applicant to compensate for this. On the other hand, Gurner's testimony might simply indicate that he feared discrimination lawsuits, even those without merit, and sought to demonstrate his fairness toward black and female applicants. The fact that either of these two inferences could be drawn from this evidence shows that Gurner's testimony is too ambiguous to qualify as direct evidence. See also Bashara v. Black Hills Corp., 26 F.3d 820, 824 (8th Cir.1994) (holding that employer's expressed concern about the possibility of litigation was "a natural reaction to the ever-present threat of litigation," and so was not direct evidence). In addition, the incidents of Gurner's "affirmative action" were not related in any way to Gurner's decision not to hire plaintiff.[11] Since "statements by decisionmakers unrelated to the decisional process itself" are not direct evidence, Gurner's testimony cannot satisfy plaintiff's burden of making out a prima facie case. The second piece of evidence plaintiff relies on is Gurner's reference to Carlos Kennemer, a black foreman in the *1543 Electric Department, as "the black guy." (Gurner Depo. at 77-78). Gurner's comment in his deposition can be interpreted in only one way — he was identifying Kennemer because Kennemer was the only black foreman under Gurner's supervision. Gurner's comment was a response to a question from plaintiff's counsel asking Gurner to identify all of his foremen by name and race. Viewed in this light, Gurner's comment has no probative value in showing any discriminatory attitude by Gurner. Remarks by a supervisor must be clearly discriminatory and must be related to the challenged employment decision to constitute direct evidence. Gurner's reference to Kennemer as "the black guy" is neither. The third piece of evidence proffered by plaintiff is Gurner's deposition testimony that he had told racial jokes and used the "N" word within the past ten years, and had told racial jokes within the last year. (Gurner Depo. at 100-01). Again, this testimony fails to qualify as direct evidence because of its lack of relation to Gurner's decision not to hire plaintiff. Significantly, the record does not reveal that Gurner ever made derogatory racial remarks about plaintiff. In addition, the evidence reveals that Gurner's remarks may have been separated from the decision not to hire plaintiff by as much as ten years (the "N" word) or one year (racial jokes). Comments by a supervisor that are temporally remote from the challenged decision can hardly be direct evidence of discrimination, since they require an inference of a general discriminatory attitude, followed by another inference that the attitude entered into the making of the challenged decision. See Armbruster v. Unisys Corp., 32 F.3d 768, 779 (3d Cir.1994). Here, the remarks were both temporally remote and were wholly unrelated to either the decision not to hire plaintiff or the general hiring standards and policies Gurner had developed for choosing lineman apprentices. The evidence does not even indicate that Gurner's comments were made at work or with regard to work. Thus, they cannot constitute direct evidence. The fourth item of alleged direct evidence offered by plaintiff is the testimony of Kay Kelly, the City's Human Resources Director, that Kelly has "probably" told jokes about minorities within the past ten years and "may have" used the "N" word within the same time frame. (Kelly Depo., Vol. II., at 75). In addition to the problems noted above with respect to Gurner's similar admissions, Kelly's testimony fails to qualify as direct evidence because Kelly was not a decisionmaker with respect to plaintiff. The undisputed evidence in the record is that Gurner came to a decision, and then made a recommendation to his superiors, who had the ultimate authority to hire. Because Kelly played no decisionmaking role regarding whether plaintiff would be hired as a lineman apprentice, her remarks cannot constitute direct evidence. See Trotter v. Board of Trustees of the University of Alabama, 91 F.3d 1449, 1454 (11th Cir.1996). Finally, plaintiff offers his own testimony that Gurner refused to shake his hand when he met the lineman apprentice applicants, although Gurner shook the hands of the other (presumably white) applicants. According to plaintiff, Gurner would "shake the other fellows' hand. He looked at me like to say, there you are again, Mr. Allen, you know." (Allen Depo. at 83-84). This incident could be deemed "related" to the decision not to hire plaintiff, since it occurred at the time that Gurner was making the challenged decision. However, the evidence is far too equivocal to qualify as direct evidence. Gurner could have had any of a number of reasons for treating plaintiff in this fashion; his behavior could be an indication of his personal dislike of plaintiff, his disdain for plaintiff's repeated attempts to apply for a job that Gurner felt he was unqualified for, or something else. Even plaintiff's testimony about Gurner's motivation suggests this explanation — plaintiff believed that Gurner's thought was "there you are again, Mr. Allen." Whatever Gurner was thinking, his conduct is much too ambiguous to suggest discrimination without inference. Therefore, it is not direct evidence. So, the Court concludes that none of the evidence offered by plaintiff constitutes direct evidence that would serve to make out a prima facie case of intentional discrimination. *1544 Accordingly, the Court will now proceed to a McDonnell Douglas analysis of the evidence. B. Circumstantial Evidence — McDonnell Douglas When a plaintiff relies on circumstantial evidence to establish a case of discrimination, the court's analysis of the evidence should proceed in three steps. Initially, the plaintiff has the burden of establishing a prima facie case. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If the plaintiff does so, a presumption of discrimination arises, and the burden shifts to the defendant to produce — but not prove — a "legitimate, nondiscriminatory reason" for its decision. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). If the defendant does so, the presumption of discrimination that arose from the prima facie case disappears, and the burden of proof is left with the plaintiff to show that the employer acted with a discriminatory intent and that its proffered explanation was a pretext for discrimination. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093-94; Walker v. NationsBank, 53 F.3d 1548, 1556 (11th Cir.1994). In order to make out a prima facie case under McDonnell Douglas, a plaintiff must show "(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applications from persons of complainant's qualifications." Burdine, 450 U.S. at 253 n. 6, 101 S.Ct. at 1093 n. 6, quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. The plaintiff's burden in establishing a prima facie case is "not onerous." Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. Here, the only argument made by defendants is that plaintiff was not qualified for the lineman apprentice position.[12] Defendants argue that Allen lacked the pole climbing ability and the basic math skills required by the City's job description. (Kelly Depo. Vol. II, Exhibit 1, Bates # 1009). However, plaintiff has presented evidence that he passed the physical pole-climbing test administered by the City, and his scores on the written math test (14/26 both times) were higher than that made by one other individual who was hired for the same position. (Gurner Depo. at 47-49). So, the Court will assume, without deciding, that plaintiff was minimally qualified for the position, and therefore assume that he has made out a McDonnell Douglas prima facie case.[13] A plaintiff's satisfaction of the McDonnell Douglas prima facie case, however, does not necessarily entitle him to present his case to a jury. Burdine, 450 U.S. at 254 n. 7, 101 S.Ct. at 1094 n. 7. The defendant next has the opportunity to rebut the presumption of discrimination created by the prima facie case by producing evidence of a legitimate, nondiscriminatory reason for the challenged action. Id. at 254, 101 S.Ct. at 1094. The defendant need not convince the court that its reasons were legitimate; its burden is one of production only, and has been characterized by the Eleventh Circuit as "exceedingly *1545 light." See Walker v. NationsBank, 53 F.3d 1548, 1556 (11th Cir.1994). Here, it is beyond doubt that defendants have met this burden of production. The undisputed evidence in the record shows that, on both occasions when defendants rejected plaintiff in favor of other applicants, those other applicants were more qualified than plaintiff for the position. Heith Embry and Jason White, the applicants chosen for the August 1993 opening, both scored significantly higher than plaintiff on the written math test. (Defendant's Answers to Interrogatories, # 8). In addition, both had pole-climbing experience from their prior work as cable technicians. (Defendant's Answers to Interrogatories, # 2 (attached application of Embry); Kelly Depo., Exhibit 4 (application of White)). Embry had significant post-high school education in industrial electronics, while White had substantial experience with safety procedures around electricity and with the operation of various equipment used by lineman apprentices. (Id.). Gurner testified that he hired these individuals because they were more qualified, (Gurner Depo. at 66-67), and the evidence in the record certainly permits this explanation. Similarly, the November 1993 opening was filled by an individual with apparently superior qualifications to plaintiff's. Mark Prestridge also scored much higher than plaintiff on the written test, and had previously worked for the City as a lineman apprentice. (Gurner Depo. at 73). So, Prestridge had learned many of the skills required of lineman apprentices. (Kelly Depo., Exhibit 5). Gurner's position, that he hired Prestridge due to superior qualifications, (Gurner Depo. at 72), is supported by the evidence in the record. Since defendants have satisfied their burden to produce a legitimate, nondiscriminatory reason for refusing to hire plaintiff, the burden shifts back to plaintiff to show that the proffered reason was pretextual, and that the action was motivated, at least in part, by discrimination. See 42 U.S.C. § 2000e-2(m). In examining plaintiff's evidence of pretext, the Court reiterates that it must draw all reasonable inferences and resolve all reasonable doubts in favor of plaintiff. Plaintiff advances three arguments supporting his position that defendants' proffered explanation is pretextual. First, he argues that he was qualified for the position. Second, he reiterates the evidence of Gurner's discriminatory attitude, discussed in detail supra. Third, he presents statistical evidence regarding defendants' hiring practices. The Court examines each argument in turn. In resolving the first step of the McDonnell Douglas inquiry, the Court assumed (with some reservations) that plaintiff was minimally qualified for the lineman apprentice position. However, plaintiff's qualifications were not so great that defendants' refusal to hire him can be labeled pretextual on that basis alone. As noted above, the three individuals who were hired for the positions seemed to be more qualified than plaintiff in every way — all three scored higher on the City's written test (76-96% as opposed to plaintiff's 53%), and all three had experience doing work similar to that required of lineman apprentices. Even if plaintiff were minimally qualified for the position, no reasonable jury could infer from the evidence in the record that defendants' hiring of more qualified applicants supported an inference of pretext or discrimination. The second argument plaintiff makes is that the testimony regarding Gurner's telling of racial jokes and using the "N" word, coupled with Gurner's refusal to shake plaintiff's hand, can support an inference of discrimination. (Gurner Depo. at 100-01; Allen Depo. at 83-84). The Court disagrees. As noted in the discussion of whether this evidence qualifies as direct evidence, all of the evidence offered by plaintiff on this point is highly equivocal and unrelated to the decision he challenges. Even under the relaxed standard of causation established by § 2000e-2(m), a plaintiff still has the burden to show that the employer had a discriminatory intent and that the intent was a "motivating factor" in the challenged decision. Conceivably, some of the evidence presented by plaintiff could permit an imaginative jury to infer that Gurner harbored racially discriminatory attitudes, but plaintiff has offered no evidence tending to show that those *1546 attitudes were a "motivating factor" in Gurner's decision not to hire him. To the contrary, the evidence about Gurner's use of the "N" word and recital of racial jokes concerned huge periods of time, and the evidence in the record does not even suggest that Gurner's remarks were made at or concerning work. Because there is no evidence in the record to even hint at a connection between these remarks and the decisions not to hire plaintiff, the Court must conclude that plaintiff cannot rely on this evidence to show that race was a "motivating factor" in the challenged decision.[14] The final piece of evidence plaintiff relies upon to show pretext is the hiring figures for the City and the Electrical Department. Plaintiff asserts that, of 283 City employees, only 45 are black; of 40 Electrical Department employees, only four are black. (Kelly Depo., Vol. I, at 64, 79; Gurner Depo. at 95). Even if these figures are true, they are of no probative value whatsoever without the proper statistical foundation. In order for these statistics to be probative, plaintiff would have to provide comparative statistics that showed the success rates of similarly qualified black and white applicants. See Howard v. BP Oil Co., 32 F.3d 520, 524 (11th Cir.1994). Absent such a comparison, the statistics offered by plaintiff cannot support any inference. In short, none of the evidence offered by plaintiff could allow a reasonable jury to find a discriminatory animus that was a "motivating factor" in defendants' decision not to hire plaintiff. Plaintiff has failed to present substantial evidence of pretext, and so defendants are entitled to judgment as a matter of law. Therefore, defendants' motion for summary judgment is due to be granted, and a separate Order in accordance with this Memorandum of Decision will be entered. NOTES [1] The style of this case lists "Doug Gunter" as the individual defendant, although it appears that his real name is "Gurner." [2] The parties appear to disagree on the point of whether plaintiff was interviewed for this position. Defendants contend that he was, while plaintiff asserts that he was not. This factual dispute, however, is irrelevant to the resolution of the instant motion. [3] Plaintiff's score was 14/26; the other applicants' scores were 21/26 (three applicants), 24/26 (two applicants), 25/26, 26/26, and 6/26. (Defendant's Answers to Interrogatories, # 8). [4] The parties have another minor factual dispute with respect to plaintiff's November 1993 application. Defendant claims that there were two in-house applications at that time, while plaintiff claims that he was the only in-house applicant. The peripheral nature of this disputed fact makes it irrelevant to the motion for summary judgment. [5] Plaintiff's Brief in Opposition to Summary Judgment suggests that he did acquire experience in pole climbing by taking the physical portion of the City's lineman apprentice test several times. The Court understands the term "experience" to mean on-the-job experience. [6] Both jobs require verbal skills to communicate with co-workers and supervisors, writing skills to complete routine forms, reading skills, and ability to follow instructions. [7] Kennemer was originally a City employee in the Sanitation Department who was hired as a lineman apprentice in 1989. (Gurner Depo. at 29). Kennemer was promoted to the position of lineman in 1993, and was later promoted to the position of lineman foreman. (Kelly Depo., Vol. II, at 41-42, 43-44). [8] The City can only be held liable under § 1983 for Gurner's conduct "in his official capacity" if Gurner possessed "final policymaking authority" with respect to the issue in question. See City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). While the Court doubts that Gurner possessed such authority, it will assume that he did for the purpose of evaluating the present motion. [9] The Court believes that the best way to deal with these shifting burdens of proof in a jury trial is to submit a special verdict form or special interrogatories to the jury under Fed.R.Civ.P. 49. First, the jury should answer the question of whether the plaintiff has carried his burden of proving that the employer had a discriminatory intent that was a "motivating factor" in the challenged employment decision. Then, if the answer to that question is affirmative, the jury should answer whether the defendant has carried its burden of showing that the decision would have been the same, even absent discrimination. If the jury answers "yes" to both questions, it would then be proper for the court, not the jury, to determine the relief due the plaintiff under § 2000e-5(g)(2)(B). That section specifically requires "the court" to grant relief, and the types of relief involved (attorney's fees and injunctive and declaratory relief) are traditionally granted by a court, not a jury. [10] The 1991 Act's legislative history recites that the purpose of § 2000e-2(m) was to restore the law as it existed in a majority of the circuits prior to Price Waterhouse, and a House Report discusses the types of direct evidence that might qualify to invoke § 2000e-2(m). See H.R.Rep. No. 102-40(I), 102d Cong., 1st Sess. 45, 48-49, reprinted in 1991 U.S.C.C.A.N. 549, 583, 586-87. [11] The parties have not cited the Court to any information in the record concerning the time frame in which these "affirmative action" decisions were made by Gurner; it is entirely possible that they were separated from the decisions regarding plaintiff by a significant period of time. [12] Defendants admit that plaintiff belongs to a racial minority group (African-American). In addition, the undisputed evidence in the record indicates that plaintiff applied for the lineman apprentice position, was rejected, and the position was filled by white applicants. [13] In making this assumption, the Court wishes to note that it has serious doubts as to whether plaintiff was actually qualified for the position. Plaintiff's lack of pole climbing experience may not have rendered him unqualified, since he passed the City's physical test, but his low score on the written basic math test seems to indicate that he was not qualified. Gurner testified that the "bare minimum" score an applicant could make to be hired was 16 or 17, and most new hires in the position scored above 20. (Gurner Depo. at 47-49). This testimony is corroborated by the fact that the three applicants who were hired over plaintiff scored 20/26, 21/26 and 25/26 on the written test. (Defendant's Answers to Interrogatories, # 8). Gurner testified that the single individual who scored lower than plaintiff was hired in 1989 or 1990, and the quality of applicants for the lineman apprentice positions had improved between then and 1993. (Gurner Depo. at 47-49). Thus, according to Gurner, the minimum acceptable score had been increased by the time plaintiff applied for the position. (Id.). [14] Gurner's reference to Carlos Kennemer as "the black guy" fails to support an inference of discriminatory intent. As the Court noted supra, the context of Gurner's statement showed that the reference was merely for identification, not as a derogatory statement. And, the evidence of the hand-shaking incident similarly fails to show discriminatory intent. Gurner's refusal to shake plaintiff's hand is not sufficiently probative of discrimination. Plaintiff's testimony was that he interpreted Gurner's action as evidence of a sentiment of "there you are again, Mr. Allen." (Allen Depo. at 84). The only reasonable inference to be drawn from this testimony is that Gurner was tired of considering plaintiff, because he thought that plaintiff was unqualified for the position. The evidence is simply too ambiguous to create an issue of fact on the issue of Gurner's intent. Gurner's testimony about hiring one black and one female applicant in order to forestall discrimination lawsuits, (Gurner Depo. at 32-33, 38-39), is neither probative of discriminatory intent nor related to the decision not to hire plaintiff.

279 F.Supp.2d 86 (2003) PERFUMANIA, INC. Plaintiff, v. PERFULANDIA, INC., Zahatiel Zeballos, Jane Doe, and the conjugal partnership constituted between them, Richard Roe and "ABC" Corporation, Defendants No. CIV. 02-2733 (CCC/ADC). United States District Court, D. Puerto Rico. August 14, 2003. *87 Jesús E. Cuza-Abdala, Ina M. Berlingeri-Vincenty, Goldman, Antonneti and Córdova, San Juan, for plaintiff. Luis G. Salas-González, Cabrera & Rico, San Juan, for defendant. OPINION AND ORDER DELGADO-COLON, United States Magistrate Judge. I. Factual and Procedural Background On November 26, 2002, Perfurmania, Inc. (hereafter "Perfumania") filed an action against Perfulandia, Inc. (hereafter "Perfulandia") and Zahatiel Zeballos (hereafter "Zeballos") alleging violations under the Trademark Infringement and Trademark Dilution Act. Jurisdiction is invoked under Title 28 U.S.C. § 1332(a)(1) since the matter in controversy exceeds $75,000, exclusive of costs and interest. The Court's supplemental jurisdiction under Title 28 U.S.C. § 1367(a) is also claimed. Venue is proper in this jurisdiction under Title 28 U.S.C. § 1391(a), (b)(1), inasmuch as the defendants reside in this jurisdiction and a substantial part of the events giving rise to this action have taken place within our District (Docket No. 1). Perfumania is a Florida corporation with its principal place of business in Miami, Florida, that owns and operates chains of retail perfume shops (Docket No. 1, p. 5). Its first retail shop opened in April 1987 in Miami, Florida, and as of February 2002 it *88 operated a nationwide chain of 247 retail stores specializing in the sale of fragrances at prices below the manufacturer's suggested retail prices. In Puerto Rico, Perfumania operates fourteen (14) retail stores having opened its first local store in 1995 (Docket No. 1, pp. 11-12). Perfulandia is a closely-held corporation organized in August 2002 under the laws of Puerto Rico, where it holds its principal place of business (Docket No. 1, p. 6). It opened its first store in June 2002, and as of December 2002 had opened six (6) stores within the jurisdiction. Defendant Perfulandia is also engaged in the retail sale of fragrances at discount prices. Co-defendant Zeballos is a United States citizen, resident of Puerto Rico, who at the inception of this action performed as the General Manager for the Perfulandia stores. Zeballos began working for Perfulandia at some point in mid or late 2002. Prior to that and until February 19, 2002, Zeballos had been employed and held the position of District Manager in Puerto Rico for plaintiff Perfumania. While so employed by plaintiff, Zeballos was responsible for supervising the managerial and operational structure of Perfumania in Puerto Rico. Both parties compete in the discount perfume market with stores located mainly in malls and shopping centers in the island. On December 20, 2002, plaintiff Perfumania filed a Request for Preliminary Injunction and, thereafter, on January 16, 2003, moved for an urgent hearing on its motion and for injunctive relief (Docket Nos. 4 and 5). The matter was referred for disposition. Plaintiff also asks this Court to enjoin defendants' use of the name "Perfulandia" and in support thereof contends that the name "Perfulandia" infringes on its registered service mark and trade name, generates unfair competition and creates a likelihood of confusion with plaintiff's registered mark "Perfumania." Beginning in February 24, 2003, the parties were allowed to present evidence. Plaintiff Perfumania presented the testimonies of Donovan Chin, Chief Financial Officer;[1] María Espinosa, Real Estate and Legal Manager (Docket No. 16); Saul Kravec, Sales Vice President for Elizabeth Arden; José Acevedo-Rodríguez, Advertising Executive and owner of Retail Net; Rafael Meno-Ayala, District Manager for Perfumania;[2] Ana Alicia-Díaz, Supervisor, Vega Alta Perfumania store; Javier Negrón-Ortiz, Assistant Manager, Plaza Las Américas Perfumania Store; Aileen Santiago-Torres, Manager, Centro Gran Caribe, Vega Alta Perfumania store (Docket No. 17). Defendant Perfulandia presented the testimony of Mr. Rafael Almonte, owner and principal of Perfulandia stores (Docket No. 17). Upon concluding presentation of his testimony, the parties agreed to the issuance of a permanent injunctive relief[3] and other remedies.[4] *89 II. Evidence at the Hearing[5] Perfumania is a Florida corporation with its principal place of business located in Miami, Florida. It owns and operates chains of retail perfume shops and since incorporated in 1987, year in which its first retail store opened, it has exhibited a steady and significant growth across the nation (Exhibit 1). Actually, across the United States it operates a total of 239 retail stores and is considered one of the largest, if not the largest, chain of retail stores.[6] In 1988 the national sales were of approximately $3.2 million. This amount increased to $14.9 million in 1990, $185.3 million in the year 2000, and $199.2 million in the year 2002, for a total sales volume (from 1998-2002) of $1,420,041,000.00 (Exhibit 2) which accounts for in excess of five (5) billion transactions (Exhibit 3). Undoubtedly, its sales volume places Perfumania as a leading perfumery chain in the United States (Exhibit 12). Generally, Perfumania coordinates its marketing from its central offices though additional promotional expenses are originated by funding marketing demands at different commercial locations. In 1988 Perfumania's promotional expenses were of approximately $75,000, amount that increased to $1.4 million in 2002. The total marketing expenses for the 1988-2002 period are estimated in over $16.7 million[7] (Exhibit 4). Other expenses incurred relate to lease required marketing expenses.[8] In sum, since 1995 Perfumania's constant growth has demanded a total promotional investment of over $18 million (Exhibit 6). In sum, in marketing, Perfumania is widely known as a service mark,[9] first used in commerce in 1987, which it registered in 1989 and has consistently used its mark, promotional slogan and same distinctive corporate letterhead, scent strip and bags (Exhibits 7-12; Docket No. 3: Request for Preliminary Injunction, Exh. A). It appears that the consistency with which its mark and trade practices have been marketed constitutes an essential component of Perfumania's success and public acceptance. Because of its prestige, different private and governmental commercial and public entities frequently seek Perfumania's presence within its facilities[10] and is so mentioned in national publications (Exhibits 21 and 26). More so, as attested by Saul Kravec, ("Mr.Kravec") Sales Vice President for Elizabeth Arden, a fragrance designer, Perfumania has the most recognizable name among all perfume discount retail stores within the United States. At *90 the same time, Mr. Kravec recognizes Perfumania's name is extremely strong and possesses a mark that is widely known within the industry. It was Mr. Kravec's opinion that there is no other discount perfumery business with as many locations throughout the United States. As it relates to Perfumania's marketing strategies in Puerto Rico, it is undisputed that the Puerto Rico district is one of the most profitable markets per store. (Testimony of Donald Chin.) In Puerto Rico, the first store opened in 1995. Since then the number of stores within the main shopping centers in the northern part of the island has increased from ten (10) in 1998 to fourteen (14) in 2002 (Exhibit 13). Perfumania continues to research for new locations. While the sales volume in the Puerto Rico stores amounted to $18,625,000 in 2002 for the seven-year period (1995-2002), the total sales of Perfumania in Puerto Rico accounted for a profit of $67,998,539[11] (Exhibit 14). In turn, a significant segment of Perfumania's advertising campaign in Puerto Rico was carried by Retail Net, a corporation owned by José Acevedo-Rodríguez (hereafter "Acevedo"). Retail Net was in charge of deploying Perfumania's marketing campaign by resorting to radio (Exhibits 27, 28 and 31), television (Exhibit 25) and other mechanisms, such as, fashion magazines and public relations activities (Exhibit 26). Nationwide and locally Perfumania's slogan was that of "genuine fragrances at incomparable prices." Within Perfumania's organizational structure, the local operations of the District Managers, nationwide, are reported to Mrs. María Espinosa (hereafter "Ms. Espinosa"), who performs as the Real Estate and Legal Manager for Perfumania. She is responsible for the negotiation and execution of contracts dealing with real estate matters, establishment of corporate offices and retail stores. Further, Ms. Espinosa remains the key liaison between landlords and commercial business establishments and Perfumania and coordinates and participates in the decision making process of Perfumania's development and litigation, be it contractual or trademark related issues. Ms. Espinosa personally oversees and participates in the investigation of reports regarding trademark infringement as reported within the twentysix (26) districts she supervises. During her testimony, Ms. Espinosa specifically alluded to Perfumania's establishment and development in Puerto Rico since July 1995 through February 2002. During this period, Zahatiel Zeballos (hereafter "Mr. Zeballos") had been designated and performed as the District Manager for Puerto Rico[12] and as such both remained in constant communication. During his tenure, Mr. Zeballos zealously represented Perfumania's interests against potential infringers. In support of her statements, Ms. Espinosa recounted an event transpired in 1999 in which Mr. Zeballos reported a possible trade infringement by a business operating under the *91 name of "Perfumería." While this event as some others similarly reported had been investigated, most have been solved at an informal level without need of resorting to litigation. In discharging his duties as District Manager for Perfumania, Mr. Zeballos participated along with Acevedo, owner of Retail Net, and other corporate representatives in designing the slogan,[13] marking, promotional and merchandising strategies within our district. Undoubtedly, Mr. Zeballos was privy to Perfumania's business and operational strategies. According to Mr. Acevedo, since 1995 and while Zeballos performed as District Manager Perfumania steadily increased its advertising expenditures from $24,372.00 in 1995, year in which the radio advertising campaign was initiated, through the year 2002 during which the expenditures were rated at $381,332.00. During the seven-year period such expenditures have at least been doubled annually[14] (Exhibit 24). Mr. Acevedo, being responsible for Perfumania's local advertisement campaign, considers that Perfumania has an institutional benefit: that consumers are given the best perfumes at the best prices. This has turned into Perfumania's slogan essence (Exhibit 25) and said message has been consistently conveyed to consumers through different media, more so during the so called "high seasons" which were identified as the periods of time prior to or during Valentine's Day, Mother's Day, Father's Day and Christmas Season (Exhibit 25A). The evidence shows that while in office, Mr. Zeballos was privy to and participated in the design and implementation of the Perfumania's store designs, merchandise layout, advertisement campaign and deployment of advertising and sales strategies, and he was also privy to Perfumania's trade secrets (Docket No. 3: Exhibit B, Section VII, No Competition Contract, para. 3(D)). Mr. Zeballos' employment was terminated by Perfumania in February 2002. At the time a "no competition" agreement was signed which in essence provided that: SECTION SEVEN COVENANT NOT TO COMPETE This Covenant Not to Compete is made and entered into by and between ("Employee") and ("Perfumania") collectively the "parties". This Agreement shall become effective as soon as it is signed by both parties. 1. Employee was employed by Perfumania as a District Manager for the District of Puerto Rico. 2. The Employee recognizes that in each of the highly competitive business in which Perfumania is engaged personal contact is important in securing new customers and in retaining the accounts and good will of present customers. Personal contact is a valuable asset and is an integral part of protecting the businesses of Perfumania. The Employee recognizes that his position required him to have substantial contact with Perfumania customers, suppliers and prospective customers, for that reason he is in a position to take for his benefit the good will Perfumania presently has as well as the good will that Perfumania paid Employee to develop and maintain for Perfumania's benefit. The Employee also had access to Perfumania's confidential information and trade secrets, as described *92 in paragraph 3(D). IF after leaving Perfumania's employment, Employee takes advantage of such confidential information and proprietary information, then the competitive advantage that Perfumania created through its efforts and investment will be irreparably harmed. For these reasons, the Employee agrees that he will not engage in any competitive activity. 3. The Employee acknowledges that consideration for this Agreement, as set forth herein, has been provided by Perfumania, and is adequate and sufficient. The twenty eight thousand dollars ($28,000.00) provided to the Employee as a separation payment under this Agreement and General Release constitutes adequate and sufficient consideration. In exchange for the aforesaid consideration, the Employee agrees to the following restrictions: A. Restricted period. 1. The Restricted Period for non competition shall begin on the effective date of his termination and shall continue until sic (6) consecutive calendar months after said termination, regardless of the reason for termination (including involuntary termination). 2. The restricted period for non solicitation of clients or employees shall begin from the date of signing this agreement and shall continue until twelve (12) months from the date of the signing of this agreement. Notwithstanding, the evidence shows that shortly after February 2002, when Zeballos had terminated his employment relationship with Perfumania, he met Rafael Almonte-Ramírez[15] (hereafter "Almonte"), whom Zeballos had known for over twenty (20) years because of previous business relationships.[16] Coincidentally, Almonte claims that by the time he met Zeballos he already wanted to expand his business operations. Reportedly, Almonte offered Zeballos the opportunity of working for him, an offer that was allegedly declined by Zeballos in view of his no competition agreement with Perfumania. However, contemporaneously, that is by May 2002, Zeballos had agreed to assist Almonte in supervising the personnel and operations of the first store owned and newly opened by Almonte.[17] This store operated under the name of "Perfulandia." This name, Almonte claims, was chosen by him, inasmuch as he wanted to create a retail store chain of "some impact" and for the same to be "perfume related." Initially, Almonte claims he considered the name "Perfuland," later, while searching in the Internet, he realized the name was already being used and thus considered its translation into Spanish, "Perfulandia," was a name that "sounded nice" and "looked pretty" to him. The evidence clearly shows that since opening his first store in June 2002, Perfulandia has opened five (5) other stores along the main commercial malls in the island. Actually, except for a store located *93 at Dr. Vive Street in Bayamón, all other Perfulandia stores have opened and are located at the same and exact locations where Perfumania has its stores. Curiously, the Perfulandia store located at Dr. Vive Street is situated in the same physical facilities where Perfumania used to operate one of its stores. Perfulandia rented the same facilities and coincidentally uses the same furniture and equipment left behind by Perfumania when it concluded its lease for those premises. Interestingly, the record remains void of any studies or market analysis that would have led Almonte to identify the best locations for its stores. During his testimony Almonte, while refusing to acknowledge the similarity of both marks, reluctantly admitted in cross-examination that the "type" and "coloring" of his mark is similar to that of Perfumania (Exhibit 29 and 30). Perfulandia's scent strip and slogan undoubtedly highly resembles that of Perfumania (Exhibit 27). Perfulandia's advertising campaign also resembled that of Perfumania (Exhibits 27, 29-30 and 33). Admittedly, Zeballos began to work on a full-time basis as Perfulandia's District Manager in December 2002. Reportedly it was Zeballos, who in a matter of minutes, came up with the business slogan for Perfulandia ("original perfumes at outlet prices") and the one who has negotiated most of the lease contracts with the landlords for the placement of the Perfulandia stores, this of course being the same landlords which he dealt with while performing as District Manager for Perfumania. Except for the fact that Perfumania sells products such as body lotions and hair care products, Almonte also acknowledged both chains do sell perfumes and fragrances, though some of the fragrances may be sold by either one but not both.[18] As such, the clientele or targeted market for Perfumania and Perfulandia is the same. Perfulandia's mark in extremely similar to Perfumania's mark. The color and stylized letters used by Perfulandia in its mark PERFULANDIA are identical to those used by Perfumania in its registered mark, PERFUMANIA (Exhibits 29 and 30). Also, Perfulandia opened five (5) of its six (6) stores in malls where Perfumania currently operates its stores. Perfulandia's sixth store opened within premises where Perfumania has previously opened and continues to operate a PERFUMANIA store. Notably, the furniture that Perfulandia uses at the Dr. Vive location is that which was left behind by Perfumania when it concluded its lease for those premises. All stores at the different locations are within walking distance from each other. The evidence clearly shows that Perfulandia began to use the same type of marketing strategies that Perfumania had been using in Puerto Rico for years (i.e., radio commercials, newspaper ads, in-store advertising, and print marketing in "shoppers"),[19] with a slogan that is very close to Perfumania's slogan in Puerto Rico (Exhibits 27 and 28). In Puerto Rico Perfumania uses the slogan in Spanish "Perfumes *94 originales a precios incomparable" (original perfumes at incomparable prices), while Perfulandia uses as its slogan "Perfumes genuine a precios de outlet"[20] (genuine perfumes at outlet prices) (Exhibits 26 and 31). Soon after the operation of the PERFULANDIA stores began, Perfumania's Puerto Rico district managers began to inform Mary Espinosa, Perfumania's Manager for Real Estate and Legal Matters, and other people at Perfumania's corporate offices in Miami, Florida, about customer confusion being caused by the PERFULANDIA mark. The confusion was such that customers who had previously purchased merchandise at a Perfulandia store attempted to return it to a Perfumania store, believing that both businesses were either affiliated or the one and the same. Similarly, customers' confusion was evident when attempting to redeem purchase coupons being offered by Perfulandia.[21] Further, customers' confusion was generated by Perfulandia's promotional campaign that resembled that of Perfumania, similar offerings, resemblance of its stores and layouts and type and coloring of its sign. The existing level of confusion was apparent to Perfumania personnel through its clients' versions while narrating incidents that clearly indicated Perfulandia employees were taking advantage of and not dispelling the clientele's erroneous beliefs that both stores were either the same or affiliates.[22] Because of Perfumania's increasing concerns regarding customers' confusion, Mr. Acevedo was asked to and designed a promotional campaign alerting customers not to be distracted or misled by "impostors"[23] (Exhibit 31). In spite of Perfumania's efforts through advertising campaign and encouraging employees to generate customers' awareness as to the existence of different commercial entities, the confusion remained. Thus, clients continued to walk into Perfumania stores carrying Perfulandia "shoppers,"; complaining about being mistreated by employees "at the other store" while actually referring to the nearby Perfulandia store; being misled by Perfulandia employees into believing it was the same store;[24] clients' complaints that the "other Perfumania store on the second level" did not want to honor a promotion coupon.[25] All these incidents revealed that while frequently visiting the Perfumania stores, the high resemblance of Perfulandia's mark, *95 display and store layout did not allow for many clients to be able to make the distinction between the Perfumania and Perfulandia stores (Exhibits 23 and 32). Once all incidents reported were investigated and corroborated, legal action was pursued. III. Injunctive Relief: Legal Standard According to the First Circuit Court of Appeals, a party seeking a preliminary injunction must satisfy a four-prong test. Under this framework, trial courts must consider: 1. The movant's substantial likelihood of success on the merits. 2. Potential for irreparable harm if the injunction is denied. 3. Whether the balance of hardships weighs in movant's favor. 4. The effect the court's ruling will have on the public's interests. See I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 33 (1st Cir.1998), citing TEC Eng. Corp. v. Budget Molders Supply, Inc., 82 F.3d 542, 544 (1st Cir.1996); Ocean Spray Cranberries, Inc. v. PepsiCo., Inc., 160 F.3d 58, 60 (1st Cir.1998); DeNovellis v. Shalala, 135 F.3d 58, 62 (1st Cir. 1998); Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996), citing Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir.1993); Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir.1991). Thus, this Court must grant injunctive relief if it finds there is substantial likelihood that Perfumania will prevail on the merits of its infringement claims and is subjected to potential irreparable harm were relief to be denied. A. Likelihood of Plaintiff's Success on Its Claims of Trademark and Service Mark Infringement and Unfair Competition and Dilution Claims At the stage of preliminary injunction, a trial court need not predict the eventual outcome of a case with absolute certainty, but rather make a statement as to the probable outcome of the case. See Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d at 16; Narragansett Indian Tribe v. Guilbert, 934 F.2d at 6. Under this scenario, plaintiff's claims are to be considered in terms of its likelihood to prevail or succeed on the merits. 1. Basic Trademark Protection Under the Lanham Act and the Federal Trademark Dilution Act Trademark law is generally seen as serving two distinct yet equally important policy interests. See Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 163-164, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995). The first is to prevent confusion, mistake or deception of consumers. 15 U.S.C. § § 1114(1)(a), 1125(a) (2002). Lund, 163 F.3d at 35 ("[a] primary purpose of trade dress or trademark protection is to protect that which identifies a product's source."). See Qualitex Co. v. Jacobson Prods., 514 U.S. at 162, 115 S.Ct. 1300. A second yet equally important purpose of trademark law is to preserve fair competition and the owner's goodwill investment in its mark and business. Indeed, it has been held that the Lanham Act was enacted by Congress precisely to serve the important purpose of protecting the trademark owner's goodwill. Societe Des Produits Nestle, S.A. v. Casa Helvetia, Inc., 982 F.2d 633, 636 (1st Cir.1992). See Keds Corp. v. Renee Int'l Trading Corp., 888 F.2d 215, 218 (1st Cir.1989). See also S.Rep. No. 1333, 1946 U.S.Code Cong. Serv. at 1274 *96 ("where the owner of a trade-mark has spent energy, time, and money in presenting to the public the product, he is protected in his investment from its misappropriation by pirates and cheats"). In achieving those purposes, trademark law generally seeks to prevent one seller from using a "mark" identical or similar to that used by another seller in a way that confuses the public about the actual source of the goods or services in question. Star Fin. Services, Inc. v. AASTAR Mortgage Corp., 89 F.3d 5, 9 (1st Cir.1996). Such confusion may prevent the buyer from obtaining the goods he seeks or may endanger the reputation of the first user of the mark by association with the subsequent user. DeCosta v. Viacom Int'l, Inc., 981 F.2d 602, 605 (1st Cir.1992). On the other hand, the Federal Trademark Dilution Act (hereinafter "FTDA") grants protection to "famous" marks against any use of the mark that "causes dilution of the distinctive quality of the mark." 15 U.S.C. § 1125(c) (2002). The FTDA protects only the trademark owner and is not concerned with possible confusion on the part of consumers. Lund Trading v. Kohler, 163 F.3d at 36. "Antidilution statutes have developed to fill a void left by the failure of trademark infringement law to curb the unauthorized use of marks where there is no likelihood of confusion between the original use and the infringing use." L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 30 (1st Cir.1987)[26]. Section 43(a) of the Lanham Act states in relevant part: (1) Any person who, on or in connection with any goods or services uses in commerce any word, term, name, symbol, or device ... which—(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person ... shall be liable in a civil action by *97 any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. § 1125(a)(200). In addition to the prerequisites stated in the previous section, to prevail on a trademark infringement claim, a plaintiff must also show: "(a) that he uses, and thereby `owns,' a mark, (b) that the defendant is using that same or a similar mark, and (c) that the defendant's use is likely to confuse the public, thereby harming the plaintiff." Star Fin. Services, Inc. v. AASTAR Mortgage, 89 F.3d at 9. See Hasbro, Inc. v. Clue Computing, Inc., 66 F.Supp.2d 117, 121 (D.Mass.1999), aff'd, 232 F.3d 1(1st Cir.2000). We discuss these factors seriatim. a. Use and Ownership of Mark at Issue by Plaintiff In this case, plaintiff is clearly the senior user of the marks at issue. As stated above, plaintiff began to use the trademark Perfumania® in commerce as early as 1987 (Exhibit 7). Plaintiff's several trade and service marks were registered over ten years ago and before defendants began to use the name Perfulandia in commerce in the latter part of 2002. Perfulandia is not a registered mark with the U.S. Patent and Trademark Office. It is only registered before the Commonwealth Department of State as a corporation authorized to do business under the laws of Puerto Rico. The Lanham Act provides that the registration of a mark on the principal register constitutes prima facie evidence of the validity of the registered mark and the owner's exclusive right to use the registered mark in commerce on the goods or services specified in the registration. 15 U.S.C. § 1115(a). These registrations are therefore prima facie evidence of plaintiff's ownership in the mark and its exclusive right to use the Perfumania mark. The evidence is clear in that plaintiff owns the validly registered service mark Perfumania (Exhibit 7; and Docket No. 3: Request for Preliminary Injunction, Exhibit A). The evidence also shows that plaintiff has been using said trade name in commerce uninterruptedly since at least 1988, when it opened its first perfume retail store. To date, plaintiff operates under the Perfumania name in approximately 239 stores in 34 states, including the District of Columbia and Puerto Rico (Exhibit 1). Once plaintiff registered its marks, defendants were put on constructive notice of the claims of ownership in said registered marks. 15 U.S.C. § 1072 (2002). As explained by this Court, "[t]he effect of this constructive notice is that the use of a mark which is the same or confusingly similar to plaintiff's mark, as stated in its federal registration certificate, cannot be justified by a claim of innocence, good faith or lack of knowledge on the part of a junior user." Geoffrey, Inc. v. Toys `R Us, 756 F.Supp. 661, 665 (D.P.R.1991). Further, "[o]nce the registration is effected, national protection is afforded and `no subsequent adoption and use of the same or a similar mark for the same or similar goods can be justified on a claim of good faith." Id. at 665-666 (quoting Davidoff Extension S.A. v. Davidoff Comercio E Industria Ltda., 747 F.Supp. 122, 127 (D.P.R. 1990)). (b) Use by the Defendants of a Similar Mark Defendants began to use the name Perfulandia in commerce on or about June, 2002. As of December, 2002, defendant operated six perfume retail stores in Puerto Rico. Not only does the name Perfulandia have a similar sound, appearance, and meaning to Perfumania®; but its name appears in the same font, letter size and *98 color as that of Perfumania. More so, Perfulandia provides identical services and utilizes an identical marketing concept as that of Perfumania. Both Perfumania and Perfulandia target the same market. The evidence specifically demonstrates that defendants' stores bear the name Perfulandia, in exactly the same stylized form and color used in connection with plaintiff's registered mark Perfumania® (Exhibits 25, 28-30). Furthermore defendants use the same basic store design and window displays as does plaintiff (Exhibits 29 and 30). Defendants also use signs and merchandise displays similar to the ones used in plaintiff's stores, which includes price tags comparing the manufacturers' suggested retail prices with Perfulandia's prices. The layout design of the tags is almost identical to the ones used by plaintiff and are displayed in the same colors (red and white). Reportedly, to advertise its discounts, defendants uses similar posters to the ones used by plaintiff, including the same basic layout and the placement of the store name in the same segment of the poster and in the same stylized format. Finally, it must be noted that Perfulandia's scent strip and advertising slogan are almost identical to those of Perfumania. Also, as is the case with plaintiff's stores, the Perfulandia stores are "full-service" with similar number of employees providing similar types of services to its clientele. (c) Defendants' Use Confuses the Public, Thereby Harming Plaintiff The third requisite for trademark infringement is likelihood of confusion. In making an assessment on whether there exists likelihood of confusion, the Court of Appeals for the First Circuit has typically referred to the following eight factors: (1) the similarity of the marks; (2) the similarity of the goods or services; (3) the relationship between the parties' channels of trade; (4) the relationship between the parties' advertising; (5) the classes of prospective purchasers; (6) evidence of actual confusion; (7) the defendant's intent in adopting the mark; (8) the strength of the plaintiff's mark. Star Fin. Services, Inc. v. AASTAR Mortgage, 89 F.3d at 10; see also Lund Trading v. Kohler, 163 F.3d at 43. However, while all must be considered by a trial court, "[n]o one factor is necessarily determinative." Volkswagenwerk Aktiengesellschaft v. Wheeler, 814 F.2d 812, 817 (1st Cir.1987). We now proceed to discuss the facts of this case in light of these eight factors in order to demonstrate that the element of likelihood of confusion is met. (1) Similarity of the Marks As the court observed in Pignons, "similarity is determined on the basis of the total effect of the designation, rather than a comparison of individual features." Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d 482, 487 (1st Cir.1981). To be sure, "[w]ords may be recognized as similar because of sound, appearance, and meaning, and a finding of similarity may be based on appearance alone." Volkswagenwerk Aktiengesellschaft v. Wheeler 814 F.2d at 817 (citing Exxon Corp. v. Texas Motor Exch. of Houston, Inc., 628 F.2d 500 (5th Cir. 1980)). This Court has also noted that "[i]n order to constitute an infringement it is not necessary that the trademark be literally copied. Neither is it necessary that every word be appropriated. There may be infringement where the substantial and distinctive part of the trademark is copied or imitated." Jordan K. Rand, Ltd. v. Lazoff Bros., Inc., 537 F.Supp. 587, 595 (D.P.R. 1982) (quoting Queen Mfg. Co. v. Isaac *99 Ginsberg & Bros., 25 F.2d 284 (8th Cir. 1928)). Here, there is no question that plaintiff's and defendants' marks are similar in sound and appearance (same font, letter size and color). The impressions made on the ear, the eye and the mind by the words "Perfumania" and "Perfulandia" are extremely similar. Moreover, the two words have similar pronunciation, begin with the same five letters "Perfu-" and end with the same two letters "-ia," creating a probable and real confusion. In the context of this analysis, it has been held that "the initial letters and the last syllables [are] probably the parts of any word which impress themselves most firmly upon the memory." Baker v. Simmons Co., 307 F.2d 458, 465 (1st Cir.1962) (quoting LaTouraine Coffee Co. v. Lorraine Coffee Co., 157 F.2d 115, 117 (2nd Cir.1946)). Thus, based on the "total effect" of the marks, the similarity between the two marks is quite strong and significant. It has been repeatedly held that when a party has adopted a mark similar to one already in use, it has an affirmative duty to avoid any likelihood of confusion. Boston Athletic Ass'n v. Sullivan, 867 F.2d at 29; Volkswagenwerk, 814 F.2d at 817. In the present case, defendants not only are not taking affirmative acts to avoid confusion, they are in fact proactively inviting such confusion by using within the same market area a similar mark attached to identical services and marketing concept, in an identical font, color and size. More so, from the incidents of confusion reported to Perfumania by some clients, it appears that the Perfulandia employees are actually taking advantage of said confusion in order not to lose a sale. In sum, it is evident that the designations Perfumania® and Perfulandia are sufficiently similar such that prospective purchasers might be confused about the source of the services desired. (2) Similarity of Services Both plaintiff and defendants offer exactly the same services to the same target market: retail perfume services at discount prices. Thus, this factor indisputably indicates a likelihood of confusion. Star Fin. Services v. AASTAR Mortgage, 89 F.3d at 10. While defendants argue that Perfumania also sells body lotions and some other products not sold by them (Exhibit 30), the percentage of these products within the global or mail line of products (perfumes and fragrances) is not significant. (3) Channels of Trade; Advertising; and Classes of Prospective Purchasers In accordance with First Circuit precedent, these three factors are to be jointly considered. IAM, 103 F.3d at 204; Star Fin. Services, Inc. v. AASTAR Mortgage, 89 F.3d at 10 n. 3; Equine Technologies, Inc. v. Equitechnology, Inc., 68 F.3d 542, 546 n. 5 (1st Cir.1995). In interpreting these factors, this Court has explained: Confusion over the nature of the parties' business relationship may be as objectionable for purposes of trademark infringement as is confusion between their goods. It is not necessary to conclude that the public be led to believe that defendant's products are produced by the plaintiff. It is not even necessary that the public know who the plaintiff is. What is required is that the ordinary purchaser, generally familiar with plaintiff's mark, is likely to believe that defendant's products are somehow related to, associated with, or sponsored by [plaintiff]. *100 Jordan K. Rand, Ltd. v. Lazoff Bros., Inc., 537 F.Supp. at 595 (internal citations omitted). In the instant case, the channels of trade and classes of prospective purchasers are identical. Defendants have "coincidentally" opened their stores in the same market area and within walking distance of Perfumania® shops. For example, defendants have opened stores in Plaza Las Americas, Plaza Gran Caribe, Plaza del Sol and Plaza Carolina shopping centers. Plaintiff operates stores in all four of these centers. Defendants also opened a store in Bayamón, within premises that had been occupied by plaintiff until earlier this year. These factors not only may lead to consumer's confusion but have actually led to confusion as reported to Perfumania (Exhibits 30 and 32). It is evident that both plaintiff and defendants target the same classes of prospective purchasers in the same geographical areas. They sell the same products, both at discount prices, and in the context of similar services with similar marketing strategies. In addition, both advertise within their market areas. For example, plaintiff places in its stores posters in the similar stylizes letters which follow basically the same layout used by Perfumania®. Perfulandia, as Perfumania has done throughout the years also advertises its products by means of "flyers," discount vouchers, press and different magazines. Consequently, it is evident that an ordinary purchaser, generally familiar with the mark Perfumania®, is likely to believe that Perfulandia is somehow related to, associated with, or sponsored by plaintiff. (4) Actual Confusion In suing under any of the three Lanham Act provisions, a plaintiff need only show that a likelihood of confusion is in prospect; a showing of actual confusion is not required. Societe Des Produits Nestle, S.A. v. Casa Helvetia, Inc., 982 F.2d 633, 640 (1st Cir.1992). See Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 171 (2nd Cir.1991) (construing Lanham Act § 32); Keds Corp. v. Renee Int'l Trading Corp., 888 F.2d 215, 218 (1st Cir.1989) (same); International Armament Corp. v. Matra Manurhin Int'l, Inc., 630 F.Supp. 741, 747 (E.D.Va.1986) (construing Lanham Act § 42); Quabaug Rubber Co. v. Fabiano Shoe Co., Inc., 567 F.2d 154, 160 (1st Cir.1977) (construing Lanham Act § 43). Indeed, the Court of Appeals for the First Circuit has explained that "[a] showing of actual confusion is not essential in order to find a likelihood of confusion." Volkswagenwerk Aktiengesellschaft v. Wheeler, 814 F.2d at 818. See also Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d at 490; Baker v. Simmons Co., 307 F.2d 458, 463 (1st Cir.1962). Accordingly, courts have routinely granted injunctions notwithstanding an absence of evidence of actual consumer confusion. See, e.g., Pepsico, Inc. v. Giraud, 7 U.S.P.Q.2D (BNA) 1371(D.P.R.1988); Ferrero US.A., Inc. v. Ozak Trading, Inc., 753 F.Supp. 1240, 1247 (D.N.J.), affd, 935 F.2d 1281 (3rd Cir.1991). In any event, there is evidence on record establishing that defendants' use of the marl Perfulandia has caused actual confusion among purchasers. For example, a. customers who have entered the Perfumania® stores in the shopping centers where there are also Perfulandia stores, have asked about the "other" Perfumania® store, referring to the Perfulandia store (Exhibit 30); b. customers have left a Perfumania® store commenting that if they chose *101 to purchase a certain item later, they could go to the "other" store, referring to the "Perfulandia" store; c. customers have gone to Perfumania® to return items they have purchased at Perfulandia (Exhibits 30 and 32); d. customers have complained of being treated in a discourteous manner at the "other Perfumania store" while actually referring to the Perfulandia store located within the same shopping mall (Exhibit 32); e. a customer inquiring about a Perfumania employee while visiting a Perfulandia store; and f. customers inquiring as to why both of "these" stores within the same mall had different prices (usually being higher at Perfulandia)(Exhibit 30). While concerned about any adverse effect that the consumer's actual confusion could have had on its image plaintiff instructed its employees on how to respond to questions posed by customers which reflected the existence of confusion. See Baker v. Simmons Co., 307 F.2d at 464 (the fact that the employee manual included information on how to deal with questions related to relationship with the infringing company sheds light as to doubtful state of the public mind on this question and on the frequency with which the question was raised). (5) Defendants' intent in adopting the mark Evidence of bad intent is not required in a trademark infringement case. Star, 89 F.3d at 11. Furthermore, the Court of Appeals for the First Circuit recently commented that courts should not give great weight to a finding of lack of intent in determining likelihood of confusion because the presence or absence of intent does not impact the perception of consumers whose potential confusion is at issue. See Lund Trading v. Kohler, 163 F.3d at 44. Notwithstanding, courts begin with the proposition that a defendant, being a newcomer, has an infinity of marks to chose from. If he is aware of a plaintiff's mark and nevertheless chooses a closely similar mark, the courts tend to draw an inference of intentional infringement and likelihood of confusion. 3 Jerome Gilson, Anne Gilson Lalonde & Karin Green, Trademark Protection and Practice § 5.07[2][c], at 5-121(2001); Volkswagenwerk Aktiengesellschaft v. Wheeler 814 F.2d at 812. Upon assessing the intent of a defendant, courts take into consideration the "previous contractual or business relations between the parties." Sicilia Di R. Biebow & Co. v. Cox, 732 F.2d 417, 432 (5th Cir.1984) (Defendant's prior role as plaintiff's distributor provided additional evidence of defendant's intent to trade on the plaintiff's goodwill). See Falcon Rice Mill, Inc. v. Community Rice Mill, Inc., 725 F.2d 336, 345 n. 9 (5th Cir.1984); SunFun Products, Inc. v. Suntan Research & Dev., Inc., 656 F.2d 186, 189 (5th Cir.1981). Indeed, courts frequently draw an inference of wrongful intent where the parties have had a previous business relationship. Gilson, Gilson & Green. supra, § 5.08[2], at 5-127; 3 R. Callman, The Law of Unfair Competition Trademarks and Monopolies § 82.2(b)(3) (3d ed.1969). Similarly, when an alleged infringer intentionally copies a trademark, it may be presumed that he intended to cause confusion and profit thereby. Boston Athletic Ass'n v. Sullivan, 867 F.2d at 34. This presumption is efficiently applied to cases such as the present one where competitors are involved. IAM, 103 F.3d at 206 n. 10. *102 In the case at bar, Almonte could not provide a coherent explanation on how he decided to choose the name "Perfulandia." He limited himself to state he had considered the name "Perfuland", though he could not recall exactly when and then having considered Perfulandia "looked nice." Almonte also enrolled defendant Zeballos who used to be employed by plaintiff as District Manager for Perfumania in the District of Puerto Rico area. Now, as District Manager for Perfulandia, Zeballos was in charge of supervising all aspects of Perfulandia's daily operations, sales and advertising strategies, operational structures and functioning. Furthermore, defendant Zeballos was privy to plaintiff's marketing and operational strategies, including store layout, use of comparative pricing tags, poster and flyer design, and general operational plans and guidelines. Indeed, during his employment as district manager, Zeballos had access to plaintiff's confidential and proprietary information crucial to the competitive advantage achieved by plaintiff. The evidence shows that Perfumania's promotional slogan was the result of at least one week of team work, with Zeballos being part of the team. In turn, it was Zeballos who in "minutes" came up with Perfulandia's slogan which highly resembles (inasmuch as it uses synonyms) Perfumania's slogan. Stores opened under a similar mark and used the same font and color and implemented a highly similar marketing concept, similar scent strip and business card. More so, it was Zeballos who negotiated the rental contracts with landlords on behalf of Perfulandia. Certainly, the methodology of doing so he had acquired while acting as District Manager for Perfumania. It is apparent that Zeballos began to assist Almonte in establishing his first store at a time in which the "no competition agreement"[27] was still in force. Curiously, there is no explanation provided on market studies, advertising research that could have led Almonte to elect the exact location for his retail stores. However there is evidence showing that Zeballos was the one negotiating the lease contract with the landlords where the main Perfulandia stores are located. In this area Zeballos obviously had expertise inasmuch as said tasks he had performed in the past as Perfumania's District Manager. The record also reflects that between June and December 2002 Almonte and Zeballos managed to have implemented a complete structural (layout), operational, promotional and advertising system while having opened six different stores. While Almonte's expertise in the wholesale business is not at issue, his ability to develop and establish a six-store chain of retail stores goes unexplained except for the fact that defendant Zeballos was acting as a principal and District Manager for Perfulandia. This as well constitutes the most plausible explanation as why the Perfulandia stores opened one after another (six stores in six months) under a similar mark used in exactly the same font and color *103 and under a similar structural and organizational fashion. In view of these facts, the Court can draw an inference of intentional infringement and likelihood of confusion for purposes of the injunctive relief. (6) Strength of the Mark In assessing the strength of a mark, the elements to be considered are the length of time the mark has been used, its renown in the plaintiff's field of business, and the plaintiff's actions to promote the mark. Star Financial Svc., Inc. v. AASTAR Mortg. Corp, 89 F.3d at 11; Equine Technologies, 68 F.3d at 547. The strongest marks are those which are "arbitrary and fanciful," Calamari Fisheries, Inc. v. The Village Catch, Inc., 698 F.Supp. 994, 1006 (D.Mass.1988). Secondary meaning can be established by evidence of long and exclusive use, the prominence of the plaintiff's enterprise, extensive advertising and promotion of the mark, and recognition of secondary meaning among the public. Id.; Volkswagenwerk Aktiengesellschaft v. Wheeler, 814 F.2d at 816. The strength of a trademark is not decisive in an infringement inquiry. However, strong marks enjoy a broader and greater protection against infringement. IAM, 103 F.3d at 206; Volkswagenwerk Aktiengesellschaft v. Wheeler, 814 F.2d at 819; Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d at 492. The evidence demonstrates that plaintiff has been using Perfumania®, a duly registered mark, in an exclusive and uninterrupted fashion since 1987. As previously stated, during the past 15 years, plaintiff has spent over $16 million in advertising, promoting and developing its goodwill since it began to use the mark Perfumania® in commerce. Actually, Perfumania continues to incur in such advertising at an average of more than $100,000.00 a month. Consequently, plaintiff has achieved prominence, selling more than $1,400,000.00 in products. In Puerto Rico it opened its first store in 1995, has opened 13 other stores thereafter and has developed a strong reputation and market. Perfumania® is indeed recognized as a robust mark. Not only is it an arbitrary and fanciful mark, but it has achieved additional strength by means of the length of time the mark has been used and its national sales volume. It is renown as the main and largest perfume retail store in the nation. Its marketing strength is widely recognized by titles such as private developers, landlords, chambers of commerce, fragrance and perfume manufacturers and distributors. Therefore, it deserves trademark protection as a matter of law. B. There is Significant Risk of Irreparable Harm if Injunctive Relief is Not Granted A trademark plaintiff who demonstrates a likelihood of success on the merits creates a presumption of irreparable harm Societe Des Produits Nestle, S.A. v. Casa Helvetia, Inc., 982 F.2d at 640. Indeed, "irreparable harm maybe shown even in the absence of actual injury to plaintiff's business based on plaintiff's demonstration of a likelihood of success on the merits on its claim." Lund Trading, 163 F.3d at 33. See also Calamari Fisheries, Inc. v. The Village Catch, Inc., 698 F.Supp. 994, 1013 (D.Mass.1988). In Societe, the Court of Appeals for the First Circuit explained: By its very nature, trademark infringement results in irreparable harm because the attendant loss of profits, goodwill, and reputation cannot be satisfactorily quantified and, thus, the trademark *104 owner cannot adequately be compensated. Hence, irreparable harm flows from an unlawful trademark infringement as a matter of law. Id. See Keds Corp. v. Renee Intern. Trading Corp., 888 F.2d at 220; Geoffrey, Inc. v. Toys `R Us, 756 F.Supp. 661, 668 (D.P.R.1991). Reducing the standard of proof for irreparable harm in trademark actions reflects the intent of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), "to encourage commercial companies to act as the fabled `vicarious avenger' of consumer fights." Camel Hair and Cashmere, Inst. v. Associated Dry Goods Corp., 799 F.2d 6, 15 (1st Cir.1986). In the case at bar, defendants' intention is to continue using the name Perfulandia is evident from the fact that recently a new Perfulandia store opened at the Plaza del Sol Mall. This store has opened, as the previous ones at a shopping mall where Perfumania has a store and is located at close proximity. Thus, Perfulandia has demonstrated a pattern that if continued at the same persistent path, will threaten and may constitute a real impairment to the strength of plaintiff's mark and to its interest in having exclusive control over the symbol of its own reputation. More so, Perfumania has been able to gather and present evidence on how the confusion generated by the Perfulandia name has led astray customers some of them even disgusted with disparate treatment and services received. While plaintiff has not presented specific evidence regarding loss of profit, it has certainly submitted testimonial and documentary evidence reflecting there is a significant risk its goodwill and reputation may continue to be negatively affected. C. Balance of Hardships Weighs in Favor of Granting Relief Plaintiff has at stake the reputation of a trade name built up at enormous expense for over fifteen years. Indeed, plaintiff has invested millions of dollars in developing its goodwill in the United States and Puerto Rico. By contrast, defendants have been using the name "Perfulandia" for only six months. If defendants are not restrained pending trial, the alleged commercial significance of plaintiff's trademark will be undermined with resulting loss of trade and customer goodwill, both of immeasurable nature. Therefore, it is evident that the balance of hardship, favors plaintiff in this case.[28] D. The Injunction Will Not Harm the Public Interest This Court has explained that "[a] trademark is understood to symbolize.., the domestic goodwill of the domestic markholder so that the consuming public may rely with an expectation of consistency on the domestic reputation earned for the mark by its owner, and the owner of the mark may be confident that his goodwill and reputation (the value of the mark) will not be injured through use of the mark by others in domestic commerce." Pepsico, Inc. v. Giraud, 7 U.S.P.Q.2D (BNA) 1371(D.P.R.1988). In the words of this Court, [Defendants'] interim use of the almost identical trademark would be contrary to public interest if consumers associate a trademark with one particular producer. Then the use of that mark by another producer will mislead the public regarding the source of the merchandise. *105 Customer confusion is by its very nature against the public interest. Jordan K. Rand, Ltd. v. Lazoff Bros., Inc., 537 F.Supp. at 597 (citations omitted). Therefore, the public interest in this case would be harmed only if the injunctive relief is not granted. SO ORDERED. NOTES [1] Exhibit 8: Business card. [2] Exhibit 34: Business card. [3] The parties consented to the jurisdiction of this Magistrate-Judge to dispose of the issue at bar and issue the corresponding restraining order providing for adequate relief for plaintiff (Docket No. 19). This is considered a partial consent while the trial jurisdiction of all other issues raised (i.e. contractual) in the complaint remain province of the District Court. [4] Other remedies the parties stipulated to include that defendants will change its name and trademark, color and stylized letters, color and structure, scent strip, letterhead, envelopes, stamp, marketing slogan, all within a term of thirty (30) days upon conclusion of the evidentiary hearing. (See Docket Entries No. 16, 17, 18.) [5] Having thoroughly examined the evidence presented at the hearing and having made the corresponding credibility assessment, these are the facts deemed proven at the hearing. [6] Exhibit 16: Perfumania Store Directory. [7] Exhibit 4: Total cost of marketing efforts coordinated from and through Perfumania central offices. [8] Perfumania's national annual leased marketing expenses during 2002 amount to $915,048.00. See Exhibit 5. [9] Perfumania is a service mark. A service mark is defined as "a mark used in the sale or advertising of services to identify and distinguish the services of one person, including a unique service, from the services of others and to indicate the source, even if that service is unknown." 15 U.S.C.A.§ 1127(2002). [10] Exhibit 17: Request by Harligen Area Chamber of Commerce, Texas; Exhibit 18: Request by the Terranomics Retail Services regarding a location at Fairmont Hotel in San Francisco, California; Exhibit 19: Market Place Development promoting leasing opportunity at the Seattle Airport; Exhibit 20: Leasing offer made by Newark New Spectrum, New York. See also testimony of María Espinosa. [11] See also, Exhibit 15: Annual Number of transactions Perfumania Puerto Rico. [12] The District Manager is responsible for supervising, guiding and auditing the daily activities of its district's stores. He is responsible for maximizing sales and profitability while controlling expenses, maintaining and enforcing company standards, participating in the design and implementation of hiring, training, selling, merchandising, marketing, loss prevention and operational policies. In regards to planning and budgeting, the District Manager assists the Corporation in developing annual budgets, develops and communicates new merchandising strategies for individual stores, develops timing and action plans and reviews the progress of all implemented strategies (Exhibit 22). [13] Mr. Acevedo testified it had taken him and others collaborating on the project almost a week to come up with the slogan that was finally adopted by Perfumania. [14] The total expenditures from 1995 to 2002 amount to $1,461,549 (Exhibit 24: Distribution Chart). [15] Exhibit 34: Business card. [16] Almonte testified he has eighteen (18) years of experience in the wholesale business. He began by conducting house to house sale of perfumes and clothing, then sold similar products to retail stores until 1994 when he bought a locale from which he began his retail sales. At the time Almonte owned and operated "Perfumería Mona-Lisa" engaged in the retail sale of perfumes. At the same time Almonte owned and managed a wholesale perfumery sales business under the name of "R.A. Fragrance." [17] Almonte testified that Zeballos was indirectly compensated for his assistance and support, inasmuch as Almonte paid for Zeballos' health insurance premium and car loan. [18] Almonte admitted having visited the Perfumania stores on multiple occasions and seen products such as body lotions and gels, nail polish and, hair brushes which are products not available at Perfulandia. He claims occasionally Perfulandia was the first to merchandise in Puerto Rico products such as "Ignition," "Forever" and others products produced by manufactures including Elizabeth Arden (Exhibit 23: list of products available within Perfulandia stores not available at Perfumania). [19] In Puerto Rico, however, Perfumania has an aggressive television commercial campaign. Perfulandia does not use this form of advertising. [20] In Puerto Rico, Perfumania uses both the Spanish slogan mentioned above and the English, nationwide slogan previously mentioned in this opinion. [21] Testimony of Rafael Memo-Ayala, District Manager for Perfumania and Javier Negrón-Ortiz, Assistant Manager for Plaza Carolina Shopping Mall (Exhibits 32, 33 and 34). Their testimonies are further corroborated by that of Arleen Santiago-Torres, Manager for Perfumania Store at Centro Gran Caribe Sur in Vega Alta. [22] Javier Negrón-Ortiz, District Manager for the Plaza Carolina Perfumania store, narrated that a female client of his once mistakenly walked into one of Perfulandia stores, asked for him, inasmuch as she had not seen him for some time, and was told by a Perfulandia employee that "he was no longer with the company." Subsequently, this same person visited the Perfumania store where he worked and upon encountering each other reported what had transpired at the Perfulandia store. (Testimony of Javier Negrón-Ortiz.) [23] While in the advertisement no direct mention of Perfulandia was made, Acevedo assured he had selected the phrase "Cuidado con los impostores" in order to draw consumer's attention and preclude Perfulandia's attempts to take over Perfumania's name and image. [24] Testimony of Ana Victoria Alicea-Díaz, Supervisor for Perfumania at Centro Gran Caribe Sur at Vega Alta. [25] Id. [26] Before we delve into a discussion regarding plaintiff's likelihood of success on these two claims, however, it is pertinent to note that this litigation involves a service mark. A service mark has been previously defined as "a mark used in the sale or advertising of services to identify and distinguish the services of one person, including a unique service, from the services of others and to indicate the source of the services, even if that service is unknown." 15 U.S.C.A. § 1127 (2002). On the other hand, a trademark is defined as "any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify and distinguish his goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods. even if that source is unknown." 15 U.S.C.A. § 1127 (2002). Boston Athletic Ass'n v. Sullivan, 867 F.2d 22, 24 n. 1 (1st Cir.1989). In both cases, "the marks are used to indicate the distinctive source of the goods or services, even if that source is unknown." Id. (emphasis added). See Volkswagenwerk Aktiengesellschaft v. Wheeler, 814 F.2d 812, 815 n. 1 (1st Cir.1987) [hereinafter "VW"]. Despite the noted difference between service marks and trademarks, courts generally do not distinguish between these two in their analysis of infringement claims. See, e.g., Boston Athletic, 867 F.2d at 24 n. 1; VW, 814 F.2d at 815 n. 1. On the contrary, case law involving both service marks and trademarks are routinely applied to service mark infringement cases such as the present one. Id. See also The Int'l Ass'n of Machinists and Aerospace Workers, AFL-CIO, v. Winship Green Nursing Ctr., 103 F.3d 196, 199 n. 2 (1st Cir.1996) [hereinafter "IAM"]. At the evidentiary hearing plaintiff concentrated its efforts towards establishing the trademark infringement. Thus, at this juncture and based on the evidence presented only plaintiff's trademark infringement claims under the Lanham Act will be addressed. [27] On or about February 19, 2002, plaintiff terminated Zeballos' employment. Upon termination, Zeballos signed a release whereby he agreed not to engage in any competitive activity in Puerto Rico within a period of six months after termination. He also agreed not to solicit plaintiff's employees or clients within a period of 12 months (Docket No. 3, Ex. B). Defendants opened the doors to its first perfume retail stores within the six months after Zeballos was terminated. Those stores were opened in shopping centers where plaintiff operates its stores and/or in premises where plaintiff used to operate (near other existing Perfumania® stores). [28] More so, if defendants' intent and motivations behind its business decisions were to be scrutinized.

250 F.Supp.2d 1139 (2003) James SIFFERMAN, Plaintiff, v. BOARD OF REGENTS, SOUTHEAST MISSOURI STATE UNIVERSITY, et al., Defendants. No. 1:01CV162 CDP. United States District Court, E.D. Missouri, Southeastern Division. March 11, 2003. *1140 Michael H. Maguire, Johnson and Maguire, Cape Girardeau, MO, for plaintiff. Diane C. Howard, James B. Baehr, Limbaugh and Russell, Cape Girardeau, MO, for defendants. MEMORANDUM AND ORDER PERRY, District Judge. James Sifferman brought this employment discrimination action against the Board of Regents of Southeast Missouri State University. Sifferman alleges that the University unlawfully denied him a promotion to full professor in retaliation for his testimony against the University in an unrelated sexual discrimination case in 1995-96. The University filed a motion for summary judgment arguing that Sifferman failed to timely file his charge of discrimination *1141 with the EEOC and that there is no evidence showing a causal connection between his testimony against the University and the later denials of his promotion. On March 7, 2003, I held a hearing at which the parties presented oral argument and submitted further evidence in support of their summary judgment positions. After careful consideration of the facts and applicable law, I find that Sifferman's complaint is not barred by the statute of limitations and that there are genuine issues of material fact concerning causality. Therefore, I will deny the University's motion for summary judgment. FACTS In 1987, Dr. James Sifferman was hired as an assistant professor by Southeast Missouri State University in its music department. In 1992, Sifferman was promoted to associate professor, a position that he currently holds. Under the University's faculty promotion policy, Sifferman was entitled to seek promotion to full professor once every academic year. The University's policy provides that judgments concerning a candidate's promotion are made by examining evidence at the department, college, and university levels. The first level of evaluation is the department level. The University's faculty promotion policy states in relevant part: The department has the principal, but not exclusive, responsibility to evaluate the competency of the faculty member for both promotion and tenure. This is appropriate since both tenure and promotion relate to the specific discipline. However, since the department constitutes but one emphasis in the college and the college one component of the University, both the Dean of the College and the Provost have fundamental roles in the effective operation of the promotion process. Ultimately, as in all major decisions, it is action by the Board of Regents which is legally binding. The policy provides that a department promotion committee first evaluates a candidate's application and makes a recommendation to the department chairperson, who in turn makes a separate recommendation. If the chairperson and department committee disagree, they meet to resolve any differences. If a consensus is not reached, then the chairperson's recommendation is forwarded to the Dean of the College along with any dissenting or minority opinions. If a faculty member does not accept an unfavorable recommendation, the candidate has ten days from the receipt of notification to seek further review of his or her application. The candidate can make a request to meet with the chairperson to try to reach a joint understanding about the denial. If no agreement is reached, the policy states that "the faculty member may request that his/her candidacy be reached at the college level. Such requests will be considered without prejudice by the College Promotion Committee. If the unfavorable recommendation is sustained at this level, the review process ends." Sifferman repeatedly and unsuccessfully sought promotion to full professor during the academic years 1996-97, 1997-98, 1998-99, and 1999-2000. Sifferman was notified of the denial of his promotion at the departmental level for the 1999-2000 academic year prior to December 15, 1999. On that day, he sent a letter to Dr. Martin Jones, the Dean of College of Liberal Arts, notifying him of his intent to appeal the promotion denial to the college level. Dean Jones subsequently notified Sifferman that his appeal was unsuccessful on February 1, 2000. On February 9, 2000, Sifferman reflected on why he was constantly being *1142 denied a promotion to full professorship. He concluded that it relates to a sexual harassment complaint filed in 1995 against the University by Dr. Louisa Panou-Takahashi, who was denied tenure. Sifferman supported Panou-Takahashi's application for promotion. Sifferman testified before the Missouri Commission (MCHR) on Human Rights on February 16, 1995 on behalf of Panou-Takahashi and against thendepartment chairperson Dr. Sterling Cossaboom and Dean Jones. He also gave a deposition on September 12,1996. Cossaboom allegedly stated that Sifferman had acted "uncollegial" and that he would never get promoted. He also reportedly told another professor, Dr. Robert M. Gifford, Jr., that as long as he was around, Sifferman would never get promoted. In fact, the only year Cossaboom was not on the department promotion committee Sifferman's application was approved, only to be later denied at the college level by Dean Jones. Sifferman also contends that Cossaboom threatened him with a lawsuit. In their depositions, Cossaboom and Dean Jones testified that they had no knowledge of the content of Sifferman's testimony in Panou-Takahashi's sexual harassment case. In fact, Cossaboom denies knowing that Sifferman testified before the MCHR. On November 21, 2000, Sifferman filed an unsigned and unverified Intake Questionnaire with the Equal Employment Opportunity Commission (EEOC). George W. Marteen, an investigator with the EEOC, sent Sifferman a letter on December 21, 2000, notifying him that he must file a charge of discrimination with the EEOC within 300 days of the alleged act. In February of 2001, Sifferman resent his information to the EEOC, which allegedly lost his paperwork. On April 26, 2001, Marteen mailed Sifferman a Form 5 charge of discrimination that had been prepared for Sifferman's signature. Sifferman signed the prepared charge on May 15 and filed it with the EEOC on May 22, 2001. The EEOC then forwarded the charge to the MCHR, which opened a file relating to Sifferman's charge and closed it on August 21, 2001. SUMMARY JUDGMENT STANDARD To determine whether to grant summary judgment, I must view the facts and inferences from the facts in the light most favorable to the plaintiff. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Defendants have the burden to establish both the absence of a genuine issue of material fact and that they are entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the defendants have met this burden, the plaintiff may not rest on the allegations in his pleadings but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists. At the summary judgment stage, I will not weigh the evidence and decide the truth of the matter, but rather must only determine if there is a genuine issue for trial. Liberty Lobby, All U.S. at 249, 106 S.Ct. 2505. Rule 56(c) of the Federal Rules of Civil Procedure mandates entry of summary judgment against a party, if after adequate time for discovery, that party fails to make a showing sufficient to establish the existence of an essential element of the case that the party will have the burden of proving at trial. Celotex, All U.S. at 322-23,106 S.Ct. 2548. DISCUSSION The University argues that summary judgment is proper because Sifferman's *1143 charge of discrimination was not timely filed. The University contends that the Intake Questionnaire did not constitute a valid charge of discrimination, that December 15, 1999 is the operative date of the last adverse employment action, and that the MCHR did not close its case until after the 300-day limitations period had expired. Alternatively, the University argues that Sifferman has failed to produce any evidence establishing a causal connection between an adverse employment action and his protected activity under law. Timeliness of Charge of Discrimination The University first argues the Intake Questionnaire did not serve as a timely filed charge of discrimination because Sifferman did not sign it and because the EEOC did not view it as one. Eighth Circuit cases have consistently held that intake questionnaires which are neither signed under oath nor verified do not satisfy the statutory requirement for an administrative charge. See Shempert v. Harwich Chem. Corp., 151 F.3d 793, 796 (8th Cir.1998); Lawrence v. Cooper Communities, Inc., 132 F.3d 447, 450 (8th Cir.1998); Schlueter v. Anheuser-Busch, Inc., 132 F.3d 455, 458 (8th Cir.1998). The Supreme Court's decision in Edelman v. Lynchburg College, 535 U.S. 106, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002), appears to overrule these cases. The Supreme Court upheld an EEOC regulation, 29 C.F.R. § 1601.12(b), which allows a technically flawed charge of discrimination to be perfected by later amendment. In Edelman, the fact that the a complainant's original letter was unverified did not serve as a procedural bar. Applying this reasoning to this case, Sifferman's failure to sign and verify the Intake Questionnaire is not fatal because, under EEOC regulations, he later perfected his charge of discrimination by filing a Form 5 charge. The Supreme Court in Edelman, however, did not reach the question of what constitutes a charge of discrimination. A charge is liberally interpreted and must include, inter alia, "the full name, address, and telephone number of the person making the charge" and "[a] clear and concise statement of the facts." 29 C.F.R. § 1601.12(a). Notwithstanding other provisions, a "charge is sufficient when the [EEOC] receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of." Id. § 1601.12(b). On remand in the Edelman case, the Fourth Circuit held that plaintiffs letter was a valid charge of discrimination despite the EEOC's actions to the contrary. 300 F.3d 400, 404-05 (4th Cir.2002). "Once a valid charge has been filed, a simple failure by the EEOC to fulfill its statutory duties regarding the charge does not preclude a plaintiffs Title VII claim." Id. at 404. In this case, the EEOC's failure to consider Sifferman's Intake Questionnaire as a charge of discrimination does not affect its validity. Sifferman should not be penalized for the EEOC's statutory inaction regarding his charge.[1] The University next argues that December 15, 1999, the date the department denied Sifferman's promotion, was the date of the last adverse employment action. The University cites in support Delaware State College v. Ricks, 449 U.S. 250, 261, 101 S.Ct. 498, 66 L.Ed.2d 431 *1144 (1980) (noting that filing a grievance after the University's final decision did not toll the statute of limitations). However, the University's promotion policy allows a faculty member who does not accept an unfavorable recommendation to seek further review of his application without prejudice. Sifferman sought review from the college level, which affirmed the department's decision and definitively ended the University's review process on February 1, 2000. This is the date of the last adverse employment action. Although I find that February 1, 2000 is the operative date of the last adverse employment action, I do agree with the University's contention that a failure to promote is a discrete act of discrimination and is not a continuing violation, as Sifferman suggests. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2072-74, 153 L.Ed.2d 106 (2002). The University's promotion policy permits a faculty member to apply for a promotion only once an academic year. Therefore, Sifferman cannot recover damages for the promotion denials that took place before the 1999-2000 academic year.[2] The University also argues that because the MCHR did not close its case until after the 300-day limitations period, Sifferman's charge was not timely filed with the EEOC. Although the University essentially abandoned this position during the hearing on March 7, 2003, I will nevertheless address its merits. Under 42 U.S.C § 2000e-5(e)(1), a complainant's administrative charge must be filed with the EEOC: within one hundred and eighty days after the alleged unlawful employment practice occurred ..., except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency ..., such charge shall not be filed ... within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earliest. Under 42 U.S.C. § 2000e-5(c), however, a charge is not officially filed with the EEOC until "sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated." Where the state proceedings extend beyond the 60-day period, the EEOC filing is held for that time in "suspended animation" and is not officially filed in the statutory sense until the expiration of 60 days. Schlosser v. Westinghouse Elec. Co. LLC, 2001 WL 1746574 at *1 (E.D.Mo. Dec.18, 2001). In a deferral state like Missouri, a plaintiff must file his charge within 240 days of the allegedly discriminatory practice to preserve his rights, unless the state agency completes or stops its inquiry before the 300 day mark. This provides the state agency with the first opportunity to investigate the charge. Alternatively, some states in their worksharing agreements with the EEOC waive their right to the exclusive 60-day processing period with regard to certain types of charges. See Worthington v. Union Pac. R., 948 F.2d 477, 479 (8th Cir.1991); Shepherd v. Kansas City Call, 905 F.2d 1152, 1153 (8th Cir.1990). Because there exists a worksharing agreement between the EEOC and the MCHR, so-called simultaneous filings with both agencies are possible. Mo.Rev.Stat. § 213.075(2). The worksharing agreement *1145 provided by the University at the hearing, also contains the following waiver: For charges originally received by the EEOC and/or to be initially processed by the EEOC, the [MCHR] waives its right of exclusive jurisdiction to initially process such charges for a period of 60 days for the purpose of allowing the EEOC to proceed immediately with the processing of such charges before the 61st day. Because the MCHR has waived its exclusive jurisdiction to investigate charges for the first 60 days under 42 U.S.C. § 2000e-5(b), the University's argument that the charge of discrimination was untimely filed with the EEOC lacks merit. I find that Sifferman's EEOC charge was properly filed within 300 days of the last promotion denial on February 1, 2000. Causal Connection As an alternate ground for summary judgment, the University argues that Sifferman cannot demonstrate a causal connection between his promotion denials and his testifying against Cossaboom and Dean Jones in the sexual harassment suit. In order to establish a prima facie case of retaliation, Sifferman must show the following: (1) he engaged in a statutorily protected activity; (2) an adverse employment action; and (3) a causal connection between the two events. LaCroix v. Sears, Roebuck, and Co., 240 F.3d 688, 691 (8th Cir.2001). The substance of the University's argument is that too much time elapsed between 1995 and the last promotion denial. The University relies primarily on termination cases to support this contention. However, the "passage of time between events does not by itself foreclose a claim of retaliation; rather, it weakens the inference of retaliation that arises when a retaliatory act occurs shortly after a complaint." Smith v. St. Louis University, 109 F.3d 1261, 1266 (8th Cir.1997). Moreover, there is direct and indirect evidence showing that Cossaboom disliked Sifferman and was intent on making sure he never got promoted to full professor, and a jury might conclude that this was because of Sifferman's testimony against Cossaboom. Because there are genuine issues of material fact remaining in this case, I will deny summary judgment. Accordingly, IT IS HEREBY ORDERED that defendant's motion for summary judgment [# 27] is denied. NOTES [1] I note that the University does not challenge the status of the Intake Questionnaire as a charge of discrimination based on its substantive contents. See Edelman v. Lynchburg College, 300 F.3d at 404. Therefore, it is not necessary for me to consider whether the contents of the Intake Questionnaire (notwithstanding the missing "attached" pages) satisfy the liberal definition of a charge under 29 C.F.R. § 1601.12(b). [2] The University's failure to promote Sifferman to full professor is the only act of retaliation alleged in his Form 5 charge and pleaded in his complaint.

796 So.2d 115 (2001) Johnny E. LAWRENCE, Plaintiff-Appellant, v. TERRAL SEED, INC., Defendant-Appellee. No. 35,019-CA. Court of Appeal of Louisiana, Second Circuit. September 26, 2001. Rehearing Denied October 25, 2001. *116 Donald L. Kneipp, Monroe, Counsel for Appellant. McGlinchey Stafford, By James C. Crigler, Jr., Lake Providence, Counsel for Appellee. Before STEWART, CARAWAY and PEATROSS, JJ. CARAWAY, Judge. This dispute involves the interpretation of the price provisions in an executory agreement for the sale of corporate stock. The seller of the stock appeals the ruling of the trial court which denied his claim for specific performance of the contract. Finding that the trial court's interpretation of the contract was in error, we reverse its ruling and order that the sale of the stock for $128,308 be carried out. Facts Johnny E. Lawrence ("Lawrence") managed Wisner Elevator, Inc., ("Wisner") from the time it was incorporated in 1975 until April, 1998, when he agreed to sell his shares of stock to Terral Seed, Inc. ("Terral"). Wisner is a closely-held corporation engaged in the business of storing grain in the delta farming area in Franklin Parish. In addition to managing Wisner and owning some of its stock, Lawrence was a longtime member of the board of directors and a corporate officer. Prior to the 1998 transaction giving rise to this dispute, the four shareholders of Wisner discussed changes for the business at their annual meeting in May, 1997. The shareholders were not satisfied with Wisner's marginal performance, and they considered the need for substantial improvements *117 to the existing facilities. They also explored whether a third party might buy the company, but no such buyer was found. Eventually, Terral reluctantly agreed to buy out the other shareholders. On April 29, 1998, Lawrence and Terral executed an Agreement to Buy and Sell Stock (hereinafter the "Sale Agreement"). At that time, Wisner's outstanding shares were owned by Lawrence (32.1%), Terral (25.5%), Micro-Chemical, Inc. (25.5%), and John C. Terral (16.9%). Micro-Chemical, Inc. and John C. Terral also executed agreements with Terral which resulted in the sale of their shares in April, 1998. The terms of their sales were not revealed at trial. The last audited accounting statements for Wisner preceding the Sale Agreement occurred at the end of 1997. Although those statements were not introduced into evidence, the testimony and other financial documents reflect that the company earned a $51,146 profit in 1997. The information also indicates that at year-end 1997, the total equity in the corporation amounted to $367,553.32, with $64,254.35 representing retained earnings of the business. When they confected the Sale Agreement, the parties did not rely on any updated financial data for the first four months of 1998 in the form of a balance sheet or an income statement. In fact, the Sale Agreement, as quoted below, called for the preparation of such reports through April 30th prior to the closing. At the time of the execution of the Sale Agreement, Lawrence received a deposit from Terral on the purchase price and relinquished his management duties. On May 28, 1998, Terral became the sole guarantor of Wisner's outstanding loan indebtedness when it executed a new guaranty in favor of the corporation's lender, First Republic Bank. Lawrence in turn was released from his guaranty pursuant to the terms of the Sale Agreement. The dispute which arose from the parties' Sale Agreement concerns the purchase price. The relevant textual provisions of the contract read as follows: 2. Purchase Price. The base purchase price for all of such shares is $128,308 (which is the agreed value of Seller's share of the Company's fixed assets of $400,000, which the Purchaser shall pay to the Sellers (sic) according to their respective interests, as follows): (a) $6,415.40, upon execution of this agreement. (b) The balance of $121,892.60 upon delivery to the Purchasers of all such shares at the closing. 3. Addition to Purchase Price. The Purchaser shall also pay to the Seller at the closing to his order Seller's pro-rata share of the amount of the book value of the Company, plus expenses of operations in excess of revenues from 1/1/98 to 4/30/98, not to include inventory shortages or overages, bad debt expense, depreciation, and any other expense not ordinary or necessary for operations, less fixed assets, as these assets shall appear on the balance sheet of the Company as of April 30, 1998, to be prepared and certified by Little & Company, the Company's accountants. The non-current trade receivable of $49,106.00 (Judgment rendered in favor of the Company against Ronald G. Bixler by the Fourth Judicial District Court, Franklin Parish, Louisiana, Docket No. 28,678) and any other trade receivable that is outstanding over 30 days from date of invoice, shall not be considered an asset for the purpose of such valuation. Purchaser shall pursue with reasonable diligence *118 the collection of the Bixler judgment and in the event of collection shall pay Seller the amount thereof prorata to his present ownership in the Company. Purchaser agrees to revive the judgment before it prescribes in 2002 and, if necessary and prudent to do so, revive it again in 2012. Any expenses involved in the attempted collections of these set aside receivables will be borne prorata by present ownership. The Sale Agreement provided for a closing date of June 30, 1998. In late June, the parties agreed to extend the closing date to July 30, 1998. The closing never took place. On August 13, 1998, Lawrence filed a suit seeking specific performance of the contract. On August 28, 1998, Terral answered the suit and reconvened, alleging damages from Lawrence's failure to deliver the stock and pay Terral, as buyer, the amount of $43,790.75. This amount represented Lawrence's pro rata share of the estimated negative book value of the company as of April 30, 1998 ($37,375.35), calculated by Wisner's accountant allegedly pursuant to paragraph 3 of the Sale Agreement, and the return of the $6,415.40 deposit required by the Sale Agreement. Additionally, Terral claimed (i) securities fraud under La. R.S. 51:712, et seq. for Lawrence's allegedly misleading Terral as to the financial condition of Wisner, (ii) breach of fiduciary duty, and (iii) negligence claims for Lawrence's mismanagement. Three certified public accountants were qualified as experts and testified at trial concerning the accounting data for the company. Bert Loe ("Loe"), the CPA for other Terral family-owned agri-businesses, testified that he participated in the drafting of paragraph 3 of the Sale Agreement along with Terral's attorney. Loe further testified as follows: [W]hen they signed the buy sell agreement basically Terral Seed took over the management of the company. I was hired to go in and pull the books off the computer and also set up the Agri System to work similar to the way the Terral Farm Service Agri System worked from May 1, 1998, forward. Based upon Loe's accounting work, which was not concluded until August 3, 1998, the total stockholders' equity or "book net worth" was determined as of the April 30th balance sheet to be negative $356,302.51. The balance sheet listed the value of the company's fixed assets after depreciation at $259,431.78. The balance sheet included a liability account, entitled "Contract Liability," in the amount of $393,697.73, which pertained to Wisner's "forward contracts" to purchase 1,783,000 bushels of corn from farmers for delivery after the expected harvest of 1998. Those "forward contracts," executed before April 30th under Lawrence's management, promised farmers prices ranging from $2.73 to $3.05 per bushel, yet on April 30th, the nationwide commodity price for corn had dropped to $2.58 per bushel. Loe also prepared an income statement for the business based upon the new Agri System accounting method and the April 30th commodity price for corn of $2.58 per bushel. The income statement reflected a sizeable operating loss for the four month period ending April 30, 1998, as follows: INCOME $1,380,514.10 COST OF SALES Cost of Grain 1,460,052.83 Freight 90,014.74 Handling Charges 35,816.15 Losses on Contracts 285,345.13 _____________ TOTAL COST OF SALES 1,871,228.85 _____________ GROSS PROFIT (490,714.75) OPERATING EXPENSES 134,283.49 _____________ OPERATING INCOME (LOSS) ($624,998.24) ============= In addition to this operating loss, the total loss for the four month period was computed at $723,855.83 due to a bad debt expense write-off of approximately $100,000. *119 Though not explained in the testimony, the "Losses on Contracts" entry on the income statement, together with some of the anticipated freight and handling charges, apparently coincide with the "Contract Liability" of $393,697.73 listed on the April 30th balance sheet. From the April 30th balance sheet, Loe explained the workings of paragraph 3 of the Sale Agreement, as follows: This was a computation of the selling price per the buy sell agreement for the financial statements dated August 3, 1998. We valued the fixed assets lump sum of $400,000, then we take the addition to the purchase price, which was—it started with the book net worth, which was a negative $356,302.51, then we take that operating expenses which were to be added back and excessive revenues which was $134,283.49, less the depreciation which was $5,092.53 less accounting fees for December, 98(sic), which was $10,541.67, less accounting fees for the 4/30/98 statement, which was $9,228.85, which made an addition to equity of $109,422.64, which gave us—then left the fixed assets per balance sheet no depreciation which is $259,431.78 which gave us a total negative value of $506,311.65. And then we had a computation of accounts receivable not collected and over 30 days old, which was $10,206.23 which gave us a total negative number of $516,517.88, when you add that back to the fixed asset lump sum price of $400,000, you get a total selling price of negative $116,517.88. On cross-examination, Loe characterized the April 30th balance sheet as a "compilation," to be distinguished from an "audited financial statement." While Loe agreed that practitioners preparing interim financial statements need not recognize temporary declines in market value below cost when valuing inventory (including forward purchase contracts), he maintained that including the negative value for the "forward contracts" in the April 30th compilation was appropriate. At another point in Loe's testimony, he explained that the contract losses reported on the April 30th financial statements had not been actually incurred, or "locked in," in the following exchange with Terral's counsel: Q. All right, sir. Now, you obviously reported significant losses, were— were those losses in effect locked in as of the date of the 4/30/98 statement? A. Most of them weren't. Q. How so? A. What happened was Mr. Lawrence made contracts with farmers to purchase, let's use a—just a hypothetical figure of three dollars ($3) a bushel, the market dropped down to two dollars ($2) a bushel and he hedged them in a commodity hedging account, at that point the loss is locked in at a dollar ($1) a bushel, whether the market goes up or down the loss is still there. And so whether you wait until July or—or you value it as of—as of April it doesn't matter, the loss is going to stay the same as far as the market value is concerned. Additionally, Loe summarized Wisner's April 30th losses as follows: The primary cause of losses were contracts to farmers to purchase grain were entered into and not hedged at the time the contracts were made, and once the hedges were placed on the contracts— basically the corn—the market value of the corn had dropped and so therefore we had ... book losses on these contracts when we hedged them at a later date. (Emphasis supplied). The actual losses which Wisner incurred at "a later date" on *120 the forward contracts was not revealed by Terral at trial. Terral's second expert, Charles Redditt, testified concerning his review of Loe's interim financial statement. He explained that under his interpretation of the contract, the "addition to the purchase price" computation had produced a large negative number which, after being added to a smaller positive number (Lawrence's pro rata share of the fixed assets value) had resulted in the purchase price being a negative number. Lawrence's expert accountant, Tom Oswalt ("Oswalt") testified that the sizeable contract loss recognized in the company's interim financial statement presented basically an inventory issue upon which accountants' views may differ. He testified that dealing with inventory items which addressed operations during only part of a year, and not the complete year, was problematic and could easily produce illogical results in the interim statement. The record does not clearly establish Wisner's financial performance for 1998. Terral's balance sheet and income statement reporting the month of November, 1998 and year-to-date condition of the business were introduced into evidence by Lawrence with little elaboration. The equity in the company, as reflected on the balance sheet, was still listed as negative $318,901.27. Nevertheless, the monthly net profit reported for November was $63,056.39, and the year-to-date net loss on $6,997,142.61 in gross sales was only $4,103.64. However, casting doubt on the November year-to-date income data, Redditt stated that he believed the report to only reflect information from May 1 through November 30, after Lawrence's management had ended. Redditt reported that Wisner's total loss for the year was $659,500, which represented only slight improvement over the $723,855.83 loss calculated by Loe as of April 30th. Redditt, however, did not introduce audited financial statements for 1998.[1] Accepting Loe's financial report on the company, the trial court rendered judgment on Terral's reconventional demand against Lawrence, ordering Lawrence to pay $43,790.75 plus legal interest from date of judicial demand and to deliver his 208.5 shares of Wisner to Terral. The trial court explained in its reasons for judgment that Terral was entitled to Lawrence's shares of stock pursuant to the terms of the contract. Because the company had a negative net worth, the trial court considered that Terral was acquiring a liability and was entitled to the return of the $6,415.40 deposit and the additional sum of $37,375.35. The trial court found that in return for the bargain, Lawrence had been relieved of his pro rata guarantee of nearly $100,000. It is from this judgment that Lawrence appeals. Discussion The listing of the price for the stock is contained in paragraphs 2 and 3 of the Sale Agreement. Paragraph 2, standing alone, sets a fixed "base" price of $128,308, *121 which was established from the value of the company's fixed assets. It is significant to note that while the value of those fixed assets on the books of the corporation was only $259,431.78, the parties reached a clear agreement that the actual value was more. Moreover, Wisner had indebtedness totaling approximately $300,000, and the parties agreed that Lawrence's guaranty for the indebtedness would become the sole responsibility of Terral as the remaining shareholder. Paragraph 3 of the Sale Agreement suggests by its language that an additional purchase price would be paid by Terral to Lawrence. In contrast to Paragraph 2, however, the amount of the additional price is not clearly identified. Additionally, because of the multiple accounting items listed in the complicated formula employed in paragraph 3, the aim and measure of the accounting for the remaining portion of the company is not readily discernible. This complicated formula resulted in drastically different views of the price by the parties and the accountants. A cardinal rule for the interpretation of a contract is determining the common intent of the parties. La. C.C. art. 2045; Amend v. McCabe, 95-0316 (La.12/1/95), 664 So.2d 1183; Barrera v. Ciolino, 92-2844 (La.5/5/94), 636 So.2d 218; Crow v. Monsell, 200 So.2d 700 (La.App. 2d Cir. 1967). To determine the parties' intent, courts must first look to the words and provisions of the contract. When they are clear and explicit, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046; Amend, 664 So.2d at 1187; Barrera, 636 So.2d at 223, 224. Even when the language of the contract is clear and explicit, courts should refrain from construing the contract in such a manner as to lead to absurd consequences. La. C.C. art. 2046; Amend, 664 So.2d at 1187; Lyons v. Coleman, 31,866 (La.App. 2d Cir.5/5/99), 743 So.2d 213; Crow, supra. The words of a contract must be given their generally prevailing meaning. La. C.C. art. 2047. Amend, 664 So.2d at 1187; Spohrer v. Spohrer, 610 So.2d 849 (La. App. 1st Cir.1992). Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. La. C.C. art. 2048, Amend, supra; Spohrer, supra. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050; Amend, supra. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. La. C.C. art. 2053; Amend, 664 So.2d at 1188.[2] In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. La. C.C. art. 2056; Tabor v. Wolinski, 99-1732 (La.App. 1st Cir.9/22/00), 767 So.2d 972; Cooper v. Sealy Realty Co., Inc., 99-1884 (La.App. 3d Cir.6/28/00), 762 So.2d 1290; Kite v. Gus Kaplan, Inc., 98-0715, 98-0751 (La. 11/17/99), 747 So.2d 503; Weeks v. Bossier Parish School Bd., 26,927 (La. *122 App.2d Cir,5/10/95), 655 So.2d 590; Speights Investment Corp. v. Durante, 586 So.2d 677 (La.App. 2d Cir.1991); Allen v. Burnett, 530 So.2d 1294 (La.App. 2d Cir. 1988); Ouachita National Bank in Monroe v. Williamson, 338 So.2d 172 (La.App. 2d Cir.1976). The comments make it clear that Article 2056 is the codification of the long standing jurisprudential rule that any ambiguity or doubt about the meaning of contractual language is resolved by interpreting the contract against the party who prepared it. Allen, 530 So.2d at 1301. Sale is a contract whereby a person transfers ownership of a thing to another for a price in money. The thing, the price, and the consent of the parties are requirements for the perfection of a sale. La. C.C. art. 2439; Alco Collections, Inc. v. Poirier, 95-2582 (La.App. 1st Cir.9/27/96), 680 So.2d 735. In Benglis Sash & Door Co. v. Leonards, 387 So.2d 1171, 1172 (La. 1980), the Supreme Court explained as follows: La. Civ.Code art. 2439 defines the contract of sale and states the circumstances which must concur for the perfection of the contract. Thus, the contract of sale is perfected when one party consents to give a certain thing for a price in money and the other consents to give the price in order to have the thing. Although there must be consent to give and to accept a price, it is not essential that the specific sum of the sales price be stated at the time of contracting. The parties can agree that the price may be ascertained by computation or that the price may be fixed by arbitration. Or the parties can consent to buy and to sell a certain thing for a reasonable price, and when they do, the contract of sale has been perfected. The essential thing is that there be a meeting of the minds (as opposed to a disagreement) as to price. In Directional Wireline Services, Inc. v. Tillett, 552 So.2d 1201 (La.App. 1st Cir. 1989), two related corporations operating a single business sued one of their shareholders to compel specific performance of a sales contract after the shareholder offered all of his shares for sale back to the two corporate entities. The price was listed "at present book value," pursuant to a right of first refusal contained in the articles of incorporation. The corporations were operated under two separate accounting methods, accrual accounting for one and cash accounting for the other. Although both companies' articles of incorporation contained rights of first refusal, the specific provisions thereof differed. The court noted that while one corporation's articles described a method for computing book value, the other corporation's articles did not. The defendant's offer to sell all of his shares in both corporations at "present book value," to be determined in conformity with the articles of incorporation of both corporations, was accepted by letter which stated that "our CPA firm [will] compute the value of [defendant's] stock and will make this available to you in the immediate future." Ultimately, the accountant for the corporations determined that the book value of defendant's stock was a negative number. The corporations then offered $50,000 for all of the seller's stock "in a spirit of compromise," which offer was rejected. Defendant contended that the companies' accountants had arrived at a negative book value based on unaudited financial statements, information furnished by management, and a "Compilation Report," and not in accordance with generally accepted accounting principles. The court held that a valid sale had not been perfected between the parties since there was "no meeting of the minds ... on the essential element of price." Furthermore, although the articles *123 provided a "method" whereby a price could be computed, they had not agreed on how to implement such a method. The contract was therefore void for uncertainty. Whether a contract is ambiguous or not is a question of law. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App. 2d Cir.8/21/96), 679 So.2d 477. In the case of ambiguity in a contract, where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. However, when appellate review is not premised upon any factual findings made at the trial level, but is, instead based upon an independent review and examination of the contract on its face, the manifest error rule does not apply. In such cases, appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect. Spohrer, 610 So.2d at 853; Alco Collections, Inc., 680 So.2d at 740. From our view of the Sale Agreement, we initially hold that the interpretation placed upon the Sale Agreement by the trial court presents legal error. The language of the contract as a whole unmistakably establishes that a sale was contemplated by the parties. A sale is a bilateral contract effecting an exchange of values, "a thing" for "a price in money." La. C.C. arts. 2439 and 1908. There is no language in the contract nor evidence in the record indicating that Lawrence did not intend to receive a "price in money" or that Terral expected to receive anything other than the shares of stock. Nevertheless, the trial court used the contract to cause Lawrence's shares of stock to be conveyed without the receipt of any price, which standing alone would be the equivalent of a donation. Additionally, however, the court ordered Lawrence to pay Terral $37,375.35 on the basis of a contract in which Terral was the reciprocal obligee only for the receipt of a "thing," the stock, and nothing more. While contractual interpretation must be applied to resolve, if possible, the conflict between paragraphs 2 and 3, that interpretation may result either in the finding of a price and the enforcement of the sale or the finding of an indeterminate price. Directional Wireline Services, Inc., supra. The finding of an indeterminate price means that there was no meeting of the minds as to an essential element, and the contract fails. In the words of La. C.C. art. 2464, "there is no sale unless the parties intended that a price be paid." If Lawrence did not enter a contact of sale with Terral because the price cannot be determined, he is not obligated to do anything with his shares regardless of the alleged negative value or insolvency of the corporation. The conflict between paragraphs 2 and 3 concerning the essential element of price is similar to a conflict in the contract addressed by our supreme court in Kite v. Gus Kaplan Inc., 98-0715 (La.11/17/99), 747 So.2d 503. In that case, the court interpreted two provisions in a lease concerning the location of the lease space premises for the lessee's jewelry store which he initially operated in a 400 square foot area within the lessor's large department store. The floor plan of the "jewelry department" was clearly shown on a plat attached to the lease. Nevertheless, a separate clause in the lease provided that "[a]ll of the mentioned store space ... may be changed from time to time by lessor at its option and expense." After tension arose between the lessor, Gus Kaplan, Inc. (GKI), and the lessee (Kite), Kite arrived at the department store one morning to find that GKI had moved his jewelry department from the 400 square foot area of the store to a smaller area of the store *124 with inferior showcases. Addressing Kite's claim for wrongful eviction and breach of lease under the Civil Code articles cited above, the court assessed the two provisions of the contract, as follows: In the present case, if GKI could by a derisive performance (in Planiol's words) "change" Kite's leased space from the "jewelry department—400 sq.ft.", designated in the contract, into a small closet with a cigar box stand to display jewelry, then GKI's alternative obligation would truly be a sham. It is not a sham, however, because rules for interpretation of contracts do not permit a court's construing this obligation to be discharged by so trifling a performance. * * * * * The words "space ... may be changed" in the contract here at issue may be clear and explicit, within Article 2046, in respect to the lessor's right to make some kind of change in the space of the jewelry department. However, those words are not clear and explicit as to the nature and extent of the change that may be imposed. Those words are, moreover, not clear and explicit as to whether the lessor may itself physically remove the lessee, and may do so without prior notice. The trial judge based his decision in favor of the lessor on the fact that the contract, which was the law between the parties, was silent as to any provisions for the lessee's protection. However, the lessor provided this standard-form contract, and silence in the contract should not be interpreted in favor of the lessor, rather than against the lessor, to mean unlimited right in the lessor and no right at all in the lessee. Such an interpretation would violate Article 2056's contrary direction to construe the doubt against the party who furnished the text, and would also permit the absurd result of a derisive performance, which is unacceptable under Article 2046. The language of the standard-form contract must therefore be interpreted to conform to the object of the contract (the operation of a fine jewelry department), within Article 2048, and to have a meaning that renders the words effective rather than ineffective, within Article 2049. Kite, 747 So.2d at 510. In the present case, Terral urges an interpretation of paragraph 3 of the Sale Agreement which would reduce the base sale price of $128,308 to zero, despite the express language of the provision indicating that an addition to the base purchase price would result. Even though the complicated accounting formula contained in paragraph 3, as interpreted by Loe, allegedly yielded a negative book value, the paragraph neither suggests the possibility nor expressly explains that the price would be reduced by such a result. Moreover, under Terral's view, a large negative result could reduce the price to zero or a negative sum defeating the clear object of the contract to sell as discussed above. Yet Terral urges that the parties contemplated this eventuality within the scope and purpose of paragraph 3. Contrary to Terral's view of the operation of paragraph 3, Lawrence relies on the language of the paragraph providing for an "addition" to the base price. While disputing Loe's application of the paragraph's accounting formula, Lawrence insists that any negative book value was not intended to lower the base sales price and that the result of the complicated accounting formula in such instance would simply be discarded as an element affecting the price. When we look to the extrinsic evidence regarding the parties' intent for *125 paragraph 3, much was left unexplained in the testimony. We do not know which side first proposed the provision. Thomas Terral, who is the president of Terral, did not testify that he expected that Wisner had suffered losses in the first four months of 1998 so that paragraph 3 was intended by him on April 29th to provide a downward adjustment in the base purchase price. He did not testify that he discussed any such concerns with Lawrence or that Lawrence understood that a downward adjustment was a possibility. Instead, he testified that after all of the shareholders tried to sell the corporation to a third party for $400,000 and had found no buyer, the same $400,000 served as the focal point for the prorata price Terral offered to Lawrence. On the other hand, Lawrence, who has an accounting degree and who managed the company through the April 30th evaluation date, did not testify that he had even bothered, prior to signing the contract, to work through the complicated accounting formula of paragraph 3 to estimate what addition to the base purchase price he could expect. This lack of explanation by both sides leaves us with the conclusion that the parties had few negotiations regarding paragraph 3 and did not consider at the time of the execution of the contract that the operation of the provision could defeat the clearly stated purpose of the sale of Lawrence's stock. Most significantly, this doubt regarding the purpose and operation of the provision now disputed between the parties may be resolved against the party who prepared it, which was Terral. Four actions by the parties contemporaneously with the execution of the Sale Agreement raise strong inferences that a completed sale was intended to be virtually accomplished upon the execution of the agreement. First, Terral paid Lawrence a portion of the purchase price. Second, Lawrence surrendered management of Wisner to Terral. Third, Terral bought the outstanding shares of the remaining shareholders and apparently had no concern in paying those parties some value for their equity in Wisner. Fourth, in May 1998, Terral took action with its bank regarding Wisner's loan indebtedness thus relieving Lawrence from his pro-rata guarantee of the corporate debt. These facts indicate that although executory features of the contract remained to be fulfilled, such as the compiling of the April 30th accounting for the company and the delivery of Lawrence's shares, the additional payment expected to be made on the base price was not in question. Instead of revealing the parties' negotiations for paragraph 3, the trial centered on the competing testimony of the CPA's. Again, regarding this accounting dispute, the record is severely lacking to inform a layman's understanding of how Wisner's grain elevator activity operated as an ongoing business. Wisner's profit endeavor surrounding the purchase of "forward contracts" with local farmers and the execution of hedge contracts by Wisner in the national market for grain was never detailed.[3] No actual "forward contract" or hedge agreement executed by Wisner in early 1998 was introduced into evidence. No testimony was given explaining the effect of "forward contracts" in the event, for example, that the 1,783,000 bushels of *126 corn at issue in this dispute became undeliverable by local farmers due to a weather disaster. Significantly, no testimony regarding Louisiana's Agricultural Commodity Dealer and Warehouse Law, La. R.S. 3:3401, et seq., was provided, and no claim was presented and explained by Terral which would establish that Lawrence's transacting the "forward contracts" violated the regulatory law.[4] After a thorough review of the financial records which were introduced with little explanation, and based upon the fleeting insights to the business which we have gleaned from the testimony, we understand the competing accounting views as follows. Terral's accountant, Loe, applied the new Agri System accounting system to the business when Terral took over operations on May 1, 1998. That system, which according to Loe conformed to generally accepted accounting standards, resulted in accounting entries which reflected losses on Wisner's "forward contracts" to purchase 1,783,000 bushels of corn. Those "forward contracts" had not been "locked in" for a profit earlier because Lawrence failed to simultaneously enter a hedge contract. The drop in corn prices to the April 30th price of $2.58/bushel created a $393,967.73 liability for Wisner. On the other hand, Lawrence testified that the execution of those "forward contracts" in early 1998, without immediate hedging, was in conformity with his management practice of prior years, and that no past accounting for the company on an interim basis had ever attempted to value those contracts in the same manner employed by Loe. Oswalt's testimony indicated that the accounting for those "forward contracts" required a decision on the evaluation of inventory which, given fluctuations in the price of corn, could produce a distorted picture of Wisner's financial status. What is clear in this accounting dispute is that the paper loss of $393,967.73, which Loe determined from the April 30th accounting, would be different on May 1st due to the fluctuation in the price of corn and the fact that the losses on the disputed "forward contracts" were not locked in on April 30th. Loe's testimony was that only later, after April 30th, did Wisner, under Terral's control, hedge the "forward contracts" and lock in losses. However, Terral presented no testimony concerning whether the actual losses were of the same magnitude as the April 30th measure, whether the 1,783,000 bushels were actually delivered, or whether the price of corn fluctuated much higher than $2.58/bushel after April 30th. Redditt's general statement that the $723,855.83 loss of April 30th was only slightly reduced to a $659,500 loss at year end was unsupported by any income and balance sheet reports for year end 1998. The alleged loss was further disputed by the year-to-date and monthly financial statements prepared by Wisner through November and filed by Lawrence to show that the business had in fact broken even through November for the year. From the above, we find that the two ill-explained views for the proper accounting and the application of paragraph 3 presents further ambiguity regarding the parties' intended meaning for the provision. The only interpretation which completely *127 conforms with the object of the contract is the interpretation urged by Lawrence, who was not the author of the provision. Under Lawrence's view for the exclusion of the paper loss of $393,967.73 as of April 30th, the effect of the provision would be to add no additional amount to the base price. Excluding the $393,967.73 loss, there would still be a negative value under paragraph 3 based upon our estimation of the April financial data. Nevertheless, the negative value, which was never precisely calculated by either party at trial, would not reduce the base purchase price to an inconsequential amount even if paragraph 3 was intended to be applied in the manner urged by Terral. Accordingly, given the ambiguity presented by paragraph 3 and its literal command to provide an addition to the base price, we interpret the provision to have a meaning that renders the sale effective for at least the base price clearly expressed in the contract and intended by the parties. Underlying our ruling interpreting the contract is our rejection of the April 30th paper loss of $393,967.73 as a proper measure of the financial status of the corporation and the lack of any audited accounting reports for the year 1998 showing that Lawrence's management of the business in the first four months of 1998 and his entry into the disputed forward contracts resulted in damage to the business. This lack of proof of actual damages by Terral means that the other claims presented by its reconventional demand were not established to serve as an offset to Lawrence's entitlement to the price under the Sale Agreement. Terral's reconventional demands are therefore denied. Conclusion The ruling of the trial court is reversed and judgment in favor of Lawrence for specific performance of the Sale Agreement is hereby granted. It is hereby ordered, adjudged and decreed that Terral Seed, Inc. pay to Johnny E. Lawrence the remaining portion of the price in the amount of $121,892.60 upon the delivery to Terral by Lawrence of all of his shares in Wisner Elevator, Inc. Legal interest on the award shall run from July 30, 1998 until paid. Costs of this appeal are assessed to appellee. REVERSED. APPLICATION FOR REHEARING Before STEWART, GASKINS, CARAWAY, PEATROSS, and DREW, JJ. Rehearing denied. DREW, J., would grant rehearing. NOTES [1] The sizeable negative equity position listed in the April 30th and November 30th balance sheets would appear to have placed Wisner in jeopardy of losing its licenses under the Louisiana Agricultural Commodities Dealer and Warehouse Law, La. R.S. 3:3401, et seq. La. R.S. 3:3412 provides that "[t]he commission may refuse to issue a license to any applicant if the commission finds that the warehouse cannot demonstrate a net worth of $100,000." See also, La. Admin. Code Title 7, Ch. 27, § 109(A)(3). In view of the statute, Terral's failure to have introduced year-end audited financial statements for 1998 and the financial statements submitted to the commission for license renewal following April 30, 1998 casts serious doubt over its claim that significant losses occurred as the result of Lawrence's management of the company in early 1998. [2] La. C.C. art. 2055 provides in pertinent part as follows: (1) Equity is based on the principles that no one is allowed to take unfair advantage of another and that no one is allowed to enrich himself unjustly at the expense of another. (2) Usage is a practice regularly observed in affairs of a nature identical or similar to the object of a contract subject to interpretation. [3] For example, as Terral's brief to this court states: "At the end of a calendar year of a grain trading company, virtually all of the current year's grain has been received and paid for and has been sold. Forward contracts have been fulfilled and hedges on the Chicago Board of Trade lifted." This condensed view of the business is put forth in brief unsupported by any discussion in the testimony of the Chicago Board of Trade contracts or the concept and consequence of lifting a hedge contract. [4] While Terral's brief makes passing reference to the Agricultural and Commodity Dealer and Warehouse Law and cites in a footnote one regulation under La. Admin. Code Title 7, Ch. 27, § 107(B)(5)(A), Terral makes no claim that Lawrence violated the law in a manner which would clearly present such issue for review. U.R.C.A. 2-12:4. Moreover, the trial testimony never broached the subject of a violation of this Louisiana regulatory law, and the act did not serve as a basis for any claim presented in Terral's reconventional demand.

202 F.3d 97 (2nd Cir. 2000) RAJIV MALIK, Plaintiff-Appellee-Cross-Appellant,v.CARRIER CORP., Defendant-Appellant-Cross-Appellee,REGINA KRAMER, Defendant-Cross-Appellee. Docket Nos. 98-7109, 98-7121August Term, 1998 UNITED STATES COURT OF APPEALSSECOND CIRCUIT Argued: Dec. 7, 1998Decided: Jan. 26, 2000 Carrier Corporation and its former employee, Rajiv Malik, appeal and cross-appeal from a judgment of the United States District Court for the District of Connecticut (Gerard L. Goettel, Judge) entered after a jury trial. Malik brought several state law tort claims relating to his employment and subsequent termination. The district court dismissed certain claims and granted Carrier's motion for judgment as a matter of law on two others. Malik's negligent misrepresentation and negligent infliction of emotional distress claims were permitted to go to the jury, which found for Carrier on the former claim and for Malik on the latter. Carrier appeals from the denial of its motion for judgment as a matter of law on Malik's emotional distress claim, and Malik cross-appeals from the dismissal of his defamation and tortious interference with contract claims. We reverse the judgment for Malik on his emotional distress claim on the ground that Connecticut does not permit recovery for an employer's negligent conduct of an investigation into charges of sexual harassment that is required by federal law. We affirm the judgment for Carrier on Malik's defamation and tortious interference claims.[Copyrighted Material Omitted] DANIEL L. SCHWARTZ, Day, Berry & Howard (Albert Zakarian, Keith S. Marks, of counsel), Stamford, Connecticut, for Defendants-Appellants-Cross- Appellees. GREGG D. ADLER, Livingston, Adler, Pulda & Meiklejohn, P.C., Hartford, Connecticut (Christopher J. Bakes, Bakes & Slenkovich, LLP, Palo Alto, California, of counsel), for Plaintiff-Appellee-Cross-Appellant. Before: WINTER, Chief Judge, OAKES, and JACOBS, Circuit Judges. WINTER, Chief Judge: 1 Carrier Corporation and its former employee, Rajiv Malik, appeal from judgments entered by Judge Goettel before and after a jury trial. Malik's amended complaint alleged six common law claims against Carrier and one of its officers, Regina Kramer, based on events during and prior to Malik's termination. The district court granted judgment as a matter of law on three claims, and Malik withdrew one claim prior to its submission to the jury. The two claims submitted to the jury were for negligent misrepresentation and for negligent infliction of emotional distress ("emotional distress claim"). The jury returned a verdict for Carrier on the former claim and for Malik on the latter claim, for which it awarded $400,000 in damages. Prior to entering judgment, the district court granted Carrier's motion for a new trial unless Malik accepted a judgment of $120,000. Malik accepted the remittitur, and judgment was entered accordingly. 2 Carrier appeals from the district court's denial of its motion for judgment on the emotional distress claim, and Malik cross-appeals from the court's adverse grant of judgment on his defamation claim against Carrier and his tortious interference with contract claim against Kramer. We reverse the judgment for Malik on the emotional distress claim on the ground that Connecticut law does not permit recovery for an employer's negligent conduct of an investigation into charges of sexual harassment that is required by federal law. We affirm the dismissal of his defamation and tortious interference claims. BACKGROUND 3 a) Factual Background 4 Rajiv Malik joined Carrier as an Associate in its Leadership Associate Program ("Program") in August 1992. The Program offers executive training to recent business school graduates. It provides Associates with three or four assignments in different divisions of the company. These assignments expose the Associates to a range of Carrier's operations and personnel and provide Carrier with an opportunity to evaluate each Associate's managerial skills. Associates are expected to earn an offer of an executive position within Carrier from one or more of the divisions in which they have worked. Carrier assists Associates in this quest, but the ultimate responsibility to secure a final placement rests with the Associate. Regina Kramer, Carrier's Manager of Professional Recruitment, was at all pertinent times responsible for administering the Program. 5 Malik's performance in the Program was generally considered mixed by Carrier executives. His first rotation was with Carrier's Commercial Unitary division. Gerard Geiss, Malik's supervisor on this rotation, rated Malik a "3" on a scale of "1-6," with "1" being the highest score. Most associates in the Program were rated "1" or "2." For his second rotation, Malik chose to work with Southern California Air Conditioning Distributors ("SCACD") even though SCACD, an independent distributor of Carrier products, could not offer him a position within Carrier. Malik received a strong performance evaluation for his work at SCACD. Malik's third rotation was with Carrier's Building Systems and Services division ("BSS"). Robert Rasp, Malik's supervisor on this rotation, rated him at "target" in five categories and "above target" in one. Malik's final rotation was at Carrier's world headquarters in Farmington, Connecticut. His performance there was considered poor -- an assessment with which Malik agreed at trial. 6 Malik's work at Carrier led to complaints about his conduct toward female workers. During an initial orientation program, a female Associate complained about Malik's highly arrogant and disrespectful behavior towards her. This complaint was forwarded to Kramer. 7 During Malik's rotation at BSS in Chicago, Alice Fabian, a female administrative employee whose cubicle was located just outside Malik's office, complained to Tom Sheehy, her supervisor, that Malik had made inappropriate sexual comments towards her on several occasions. Sheehy brought Fabian's complaint to the attention of Rasp, who discussed it with Malik. Rasp also reported it to Phyllis Snyder, Carrier's Human Resources Manager for BSS, who in turn told Kramer that a complaint had been made about Malik's conduct. As the person responsible for administering the Program, Kramer decided to look into the complaint. 8 Sometime in late March 1994, Kramer contacted Rasp, who initially declined to provide any information about Fabian's complaint because he believed that he had resolved the issue to the satisfaction of both Malik and Fabian. To overcome Rasp's reluctance to provide information, Kramer testified that she told him that "the issue of [Malik's] working with women had come up once before" (referring to the orientation incident) and that she needed to determine whether this incident was similar. Rasp's recollection of this exchange was that Kramer asked, "What if I told you this is not the first time we've had similar incidents with Raj[?]" Rasp testified that he had not interpreted Kramer's statement as necessarily involving sexual harassment. According to Malik, however, Kramer's comments to Rasp could have been construed to mean that there had been a second allegation of sexual harassment made against Malik. After this discussion, rumors regarding Malik's past conduct circulated in the BSS office. 9 Upon hearing that a second incident of some nature involving Malik had occurred, Rasp described Fabian's complaint to Kramer. Kramer then asked Snyder to investigate Fabian's complaint. Although Fabian desired to have the matter closed, she told Snyder of several sexually-oriented remarks by Malik specifically directed toward Fabian. These included inquiries as to whether Fabian was a virgin when she was married, whether she would go out with him if he was terminally ill, and whether Fabian's husband would "share" her with Malik if he visited their home, supposedly a custom in India. Snyder also discovered that another female employee at BSS in Chicago, Gina Cornick, had complained to her supervisor about inappropriate sexually-oriented remarks by Malik. Although these remarks were not directed at Cornick, she complained that Malik was highly prone to turning the subject matter of every conversation to sex. The supervisor had reported Cornick's remarks about Malik to Rasp. Snyder prepared a memorandum to Kramer relating these facts. 10 Kramer's call to Rasp was near the end of Malik's tour at BSS, and in his exit interview, Rasp told him of Kramer's reference to a second incident and the imminent investigation into the Fabian matter. Malik testified that he was emotionally devastated upon learning both that Kramer had alleged a second incident and that an investigation into what had seemed a closed matter had begun. 11 On April 4, 1994, Malik began his tour at Carrier's world headquarters, where Kramer and Regina Hitchery, Carrier's Vice-President of Human Resources and Kramer's boss, also worked. On April 21, after receiving Snyder's memorandum, Kramer met with Malik to discuss the issue. Malik admitted to making one inappropriate sexually-oriented comment to Fabian - about whether she was a virgin when married -- but denied making any other comments either to her or to Cornick. Kramer informed him that she took this matter seriously and would discuss it with Hitchery. She also told Malik that Rasp and other managers had expressed professional concerns over his work and that Rasp had decided not to offer him a full-time position. She stated further that she was concerned that Malik had yet to secure a final placement. Malik testified that this was the first occasion on which he had heard about professional concerns and that Rasp denied sharing any such concerns with Kramer and further denied having decided not to offer Malik a permanent position at BSS in Chicago. Malik then called Hitchery and sought a one-on-one meeting. Hitchery refused to meet Malik without Kramer and expressed complete confidence in Kramer. 12 On April 25, Kramer and Hitchery met with Malik to inform him that they would not discipline him as a result of the complaints about his behavior. They testified that they told Malik at that time that a Letter of Record regarding the complaints would be placed in his file. However, Malik testified that he was not told about the Letter, and, when it was placed in his file two weeks later, he was surprised and further devastated. The Letter stated in pertinent part: 13 After thorough investigation it is my conclusion that while it is clear that discussions of a sexually [sic] nature occurred between the two of you the content and intent of the discussions is disputed. As a result the issue will be closed for lack of substantiation. 14 While there is nothing to substantiate the claim of sexual harassment your behavior was unacceptable. 15 The letter was not shown to anyone other than Malik. At the April 25 meeting, Kramer also warned Malik in strong terms of the inadvisability of going over his manager's head, as he had in seeking a one-on-one meeting with Hitchery. By now, Malik testified, he was having difficulty sleeping, was taking various medications, and was unable to perform well in his then-assignment. 16 Approximately two months later, on July 6, 1994, Malik and Kramer met to discuss Malik's final placement. At Malik's request, Kramer agreed to detail the concerns that had been raised regarding Malik's performance. To this end, on July 11 she provided him with a memorandum outlining the aforementioned concerns, including, primarily, his lack of leadership skills and initiative. The memorandum stated that these concerns would be shared with "prospective hiring managers" at Carrier. On July 21, 1994, Malik responded with his own memorandum to Hitchery, in which he expressed disagreement with Kramer's investigation of his behavior toward Fabian and Cornick and Kramer's comments on his performance in the Program. Malik's memo also made a thinly veiled threat to sue Carrier unless it resolved Malik's concerns and helped him set his career "back on track." Hitchery met with Malik on August 2, 1994, and encouraged him to put the Fabian/Cornick incident behind him and to focus on securing a final placement position. She reminded Malik that it was his, and not Carrier's, responsibility to secure such a position. 17 Malik, by his own admission, did little to attempt to secure a final placement. After Malik expressed interest in meeting with Nicholas Pinchuk, President of Carrier's Asian Pacific Organization ("APO"), Kramer arranged an interview during which Malik informed Pinchuk that his interest in working for APO was subject to its ability to help him secure permanent resident status in the United States. Other than contacting Ray Carter, manager of Carrier's Costing Group, it is unclear whether Malik made any other efforts at this time to secure final placement. 18 On August 16, 1994, Hitchery informed Malik that because he had not secured a final placement at the conclusion of the Program, his employment with Carrier was being terminated. She informed Malik that Carrier would continue to pay him through August 31, 1994 and offered him assistance in finding new employment. 19 b) Procedural Background 20 After his termination by Carrier, Malik filed a complaint in the District of Connecticut alleging numerous violations of federal and state law. The district court granted summary judgment against Malik on his federal claims and dismissed the remaining claims for lack of subject matter jurisdiction. After Malik moved for reconsideration of the dismissal on the ground that the district court had diversity jurisdiction over his state law claims, the court vacated its dismissal of his remaining claims and granted him leave to amend the complaint. 21 Malik's amended complaint alleged four claims against Carrier: (i) breach of contract, (ii) negligent misrepresentation, (iii) defamation, and (iv) negligent infliction of emotional distress; and two claims against Kramer: (i) defamation and (ii) tortious interference with contract. The district court granted summary judgment for Carrier on the breach of contract and negligent misrepresentation claims but reinstated the negligent misrepresentation claim upon reconsideration. After the case proceeded to trial, Malik withdrew the defamation count against Kramer. At the close of the evidence, the district court granted judgment as a matter of law for Carrier on the remaining defamation count and for Kramer on the tortious interference count. Thus, only the negligent misrepresentation and emotional distress claims against Carrier went to the jury. 22 As to the emotional distress claim, the court instructed the jury that, for the plaintiff to prevail, it must find: 23 1, that the defendants' conduct created an unreasonable risk of causing emotional distress; 2, that the defendant knew or should have known that its conduct created this unreasonable risk, and from the facts known to it at the time it acted, that the emotional distress, if caused, might result in illness or bodily harm to the plaintiff; 3, that the defendant's conduct was the proximate or legal cause of plaintiff's emotional distress; and 4, that the emotional distress that the plaintiff suffered was severe. 24 Malik v. Carrier Corp., 986 F. Supp. 86, 93 (D. Conn. 1997). 25 The jury returned a verdict for Carrier on the negligent misrepresentation claim but for Malik on the emotional distress claim. It awarded him $400,000 in damages. Carrier moved again for judgment as a matter of law on the emotional distress claim, and for a new trial. The court denied Carrier's motion for judgment, see id. at 96, but conditionally granted its motion for a new trial subject to Malik's decision to accept a final judgment of $120,000. Malik accepted the remittitur. Carrier appeals from both the denial of its motion for judgment and the decision not to reduce the damages award below $120,000. Malik cross-appeals from the court's adverse grant of judgment on his defamation and tortious interference claims. DISCUSSION 26 a) Carrier's Appeal 27 Because Carrier's motion for judgment on Malik's emotional distress claim should have been granted, we need not address the size of the damage award. We review de novothe grant or denial of a motion for judgment as a matter of law. SeeMuller v. Costello, 187 F.3d 298, 312 (2d Cir. 1999). Judgment as a matter of law is appropriate if no reasonable factfinder could have viewed the evidence as supporting the plaintiff's claim. SeeKrausev. Bennett, 887 F.2d 362, 368 (2d Cir. 1989). 28 The parties have briefed at length their conflicting views as to the elements of a negligent infliction of emotional distress claim under Connecticut law. American law in this area has not been stable, but there is a discernible movement in the direction of expanding the right to recover for such distress. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts 54, at 359-67 (5th ed. 1984). Various courts have imposed limits on such claims, however, such as requirements that the emotional injury be accompanied by some physical harm or that recovery for emotional injury be "parasitic" on a claim involving a breach of some duty independent of any obligation not to cause emotional distress. See id. at 361 (stating that a majority of courts do not allow recovery for emotional distress in the absence of a physical injury or an independent basis of tort liability). Connecticut law is less than clear on these issues. Compare Montinieri v. Southern New England Tel. Co., 175 Conn. 337 (1978) (holding that recovery for negligent infliction of emotional distress claim does not require proof of physical injury, or the risk thereof, but apparently requiring breach of an independent duty in tort to state such a claim), with Morris v. Hartford Courant Co., 200 Conn. 676 (1986) (affirming dismissal of negligent infliction of emotional distress claim that failed to allege foreseeable injury, but noting that such a claim need not be premised upon breach of an independent duty).1 29 Carrier also contends that the district court erred in not directing a verdict because Malik failed to introduce sufficient evidence as to the scope of the duty it owed to him. In particular, Carrier argues that expert testimony was required. SeeSantopietro v. City of New Haven, 239 Conn. 207, 226 (1996) ("If the determination of the standard of care requires knowledge that is beyond the experience of an ordinary fact finder, expert testimony will be required."). Carrier also notes in this regard that allegations of sexual harassment trigger federal law and an attendant duty imposed upon employers to take reasonable steps to correct harassing behavior, including, where appropriate, conducting an investigation. See Torres v. Pisano, 116 F.2d 625, 636 (2d Cir. 1997) ("[A]n employer may not stand by and allow an employee to be subjected to . . . harassment by co-workers . . . . [O]nce an employer has knowledge of the harassment, . . . the employer [has] a duty to take . . . steps to eliminate it.") (internal quotation marks omitted); Snell v. Suffolk County, 782 F.2d 1094, 1104 (2d Cir. 1986). That being the case, Carrier argues, specialized knowledge is necessary for a jury to understand that only a circumscribed duty to avoid emotional injury, if any, was owed to Malik. Malik's brief responds that Connecticut does not generally require expert testimony and that this case is not similar to ones involving specialized professionals. The brief does not mention federal law. 30 Finally, Carrier argues that as a matter of law it did not act negligently. It contends, inter alia, that Kramer's investigation of the allegations of sexual harassment could not have constituted negligence because it was required by federal law. See id. Malik again does not respond to Carrier's invocation of federal law. 31 Both the question of whether a claim for the negligent infliction of emotional distress exists under Connecticut law for acts in the employment context and whether such a claim may succeed here absent expert testimony are issues of Connecticut law as to which considerable doubt exists. Certification of the issues to the Connecticut Supreme Court might seem appropriate. See Fraser v. United States, 30 F.3d 18 (2d Cir. 1994) (certifying state-law questions to Connecticut Supreme Court pursuant to 2d Cir. Local R. 0.27 and Conn. Gen. Stat. 51-199a where extant Connecticut case law did not squarely address certified issues). However, we may assume that Connecticut law does, as it must, conform to overriding federal law, and we view these state law issues as being dispositively resolved in these circumstances by federal law. 32 Malik relies upon the same basic set of facts to support his emotional distress claim, which is based on negligence, and his defamation and tortious interference with contractual relations claims, which are based on intentional conduct. These facts -- which the jury could have found on the evidence -- are: (i) Kramer's initiation of an investigation into Fabian's reporting of several incidents of inappropriate sexual remarks directed to her by Malik; (ii) Kramer's persistence in continuing the investigation in the face of Rasp's desire to close the incident; (iii) Kramer's statement to Rasp that Fabian was not the first one to complain about Malik's conduct, an ambiguous remark that might have been, or was, taken to mean that another sexual harassment claim had been made; (iv) Malik's innocence of all but one inappropriate remark to Fabian for which he apologized; (v) Malik's innocence of inappropriate conduct in Cornick's presence; (vi) Hitchery's failure to meet with Malik at times and circumstances of his choosing; (vii) Kramer's placing of the Letter of Record in Malik's personnel file after telling him that he would not be disciplined for sexual harassment; (viii) Kramer's false assertion to Malik that some of his supervisors had expressed concerns over his past performance; (ix) Kramer's admonition to Malik not to go over a manager's head; and (x) Kramer's memo to Malik about those concerns that was also placed in his personnel file. 33 The outlines of Malik's intentional tort claims are more easily discerned from the facts identified above than are the outlines of his negligence claim. In Malik's view, Kramer's report to Rasp of a second incident involving Malik was defamatory. Also in Malik's view, Kramer engaged in a personal vendetta against him, aggravated by her anger at Malik's attempt to go over her head to Hitchery, which cost him his job at Carrier. These claims, which have insufficient evidentiary support, are discussed infra. 34 The negligence claim is not so easily capsulized. The expression of professional concerns and Hitchery's failure to meet with Malik at times and circumstances of his choosing hardly amount to actionable negligence. A disagreement over an employee's quality of performance accompanied by an employer's adherence to the chain of command, absent intentional and malicious falsehoods or conduct of an egregious and clearly overreaching nature, cannot render an employer liable for the emotional distress of an employee under any accepted legal theory. Indeed, Malik's papers complain of the harm from lack of feedback and the harmfulness of the feedback he got in almost equal measure. The crux of his negligence claim, therefore, is the quite credible emotional harm caused by Kramer's pressing of the sexual harassment investigation and the placing of the Letter of Record in his personnel file. 35 However, an employer's investigation of a sexual harassment complaint is not a gratuitous or optional undertaking; under federal law, an employer's failure to investigate may allow a jury to impose liability on the employer. SeeFaragher v. City of Boca Raton, 118 S. Ct. 2275, 2292-93 (1998); Torres, 116 F.3d at 636; Snell, 782 F.2d at 1104; 29 C.F.R. 1604.11(d) ("With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action."). Moreover, the knowledge of corporate officers of such conduct can in many circumstances be imputed to a company under agency principles. See Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257, 2265-71 (1998). As a result, an employer must consider not only the behavior of the alleged offender, but also the response, if any, of its managers. Nor is the company's duty to investigate subordinated to the victim's desire to let the matter drop. Prudent employers will compel harassing employees to cease all such conduct and will not, even at a victim's request, tolerate inappropriate conduct that may, if not halted immediately, create a hostile environment. SeeFaragher, 118 S. Ct. at 2283. Finally, it goes without saying that an employer's obligations in this regard do not cease because the alleged harasser denies inappropriate conduct. 36 The issue here is not the proper balance between employee rights and employer authority under state law. The issue is how to ensure that federal policies are not undermined by imposing on employers legal duties enforceable by damages that reduce their incentives to take reasonable corrective action as required by federal law. 37 Viewed in that perspective, corrective actions that a risk-averse employer might take to comply with federal law may not give rise to a negligence action, whether the rationale is couched in terms of breach, legal duty, or privilege.2 Connecticut recognizes that emotional distress claims may be precluded by legal imperatives attendant to the workplace. See Morris, 200 Conn. at 682 n.4 (noting potential limits on emotional distress claim in workplace context). Indeed, legal duty and privilege are generally considered defenses only to intentional torts because implicit in the very concept of negligence is that legally protected conduct cannot also be a breach of a legal duty. See Peytan v. Ellis, 200 Conn. 243, 254 (1986) ("Regardless of how the defendant's conduct is categorized . . . since her comment . . . was absolutely privileged, she would not be liable for the intentional infliction of emotional distress in any event."). 38 Given the jury instructions regarding Malik's emotional distress claim which, if such a claim exists under Connecticut law, are unremarkable - virtually any employer investigation into allegations of sexual harassment would expose the employer to liability. Such investigations forseeably produce emotional distress -- often in copious amounts -- in alleged harassers, whether guilty or innocent. As with any investigation into potentially embarrassing personal interactions, confidentiality is difficult or impossible to maintain if all pertinent information is to be acquired from all possible sources. Denials by an accused cannot of themselves bring the matter to an end. Even if the charge proves demonstrably baseless, the very existence of the investigation may give the charge temporary or even permanent credibility among some persons. Moreover, investigators may have to overcome resistance because of a tendency in the immediate worksite -- among victims as well as their on-site supervisors -- to close the matter informally in the hope of preserving some measure of harmony. Upper-level management has a good reason to press the investigation, however, even at the risk of misunderstandings that cause great emotional distress. This is so because, once higher management has notice of the problem, it may later face civil liability if it fails to look into the problem and act to prevent recurrence or expansion. See Gallagher v. Delaney, 139 F.3d 338, 348 (2d Cir. 1998) ("If an alleged victim of sexual harassment asks a person of authority to whom she has reported the harassment to keep it confidential, and the employer . . . honor[s] her request, it risks liability for not quickly and effectively remedying the situation."); Torres, 116 F.3d at 639 (noting that, where an employer knows that an employee has allegedly harassed multiple co-workers, an employer is not justified in closing an investigation at the request of a single harassed employee). 39 An employer's conduct of an investigation and determination of its scope must be viewed ex ante and take into account that, from the employer's viewpoint, worst-case scenarios must govern its conduct. For example, if another employee later brought an action against Carrier alleging inappropriate sexually- related conduct by Malik, scrutiny of Carrier's conduct would begin upon its first notice of harassment by an employee - when Fabian complained of several acts of sexual harassment by Malik. Kramer, as Carrier's responsible official in this regard, could not, therefore, assume either that Fabian's report was false or, if true, reflected behavior that was unlikely to continue. See Distasio v. Perkin Elmer Corp., 157 F.3d 55, 65 (2d Cir. 1998) (employer whose only response to sexual harassment complaint was to discuss allegation with harasser did not take reasonable steps to remedy hostile work environment). Rather, Kramer had to act on a worst-case scenario in which another then-unknown complainant might look to Carrier for damages. Under federal law, she could not desist from such an investigation because of the potential for bruising Malik's feelings. Cf. Baskerville v. Culligan Int'l Co., 50 F.3d 428, 432 (7th Cir. 1995) (holding that employer took reasonable steps to remedy alleged sexual harassment by, among other things, placing alleged harasser on probation and suspending a scheduled salary increase). 40 Had Kramer desisted when Rasp refused to cooperate and the worst-case scenario became reality -- i.e., another female employee sued Carrier for harassment by Malik -- even a modestly skilled trial lawyer could present a powerful case for the plaintiff to a jury. This case would depict Malik as a male employee known to Kramer to have a record of arrogance toward a female peer and to have repeatedly harassed a female administrative employee. It would depict Rasp as a supervisor who refused to provide information to Kramer about Fabian's report of harassment even though he knew that a second female employee in that office -- Cornick -- had complained of Malik's persistent turning of conversations to sexual matters. Had Kramer desisted at Rasp's request, both would be depicted to a jury as hear-no-evil, see-no-evil, speak-no-evil supervisors, and a jury might find that Carrier had not complied with federal law in failing to make a thorough investigation and take appropriate precautionary action. Carrier could hardly expect to prevail in such a case on the ground that an investigation would cause foreseeable emotional distress to Malik. 41 Nor can federal policies be effectuated if such an investigation must cease because the accused denies the acts charged or because there is a danger of misunderstandings between the investigators and the accused. To be sure, the jury here could have found, based upon Malik's testimony, that Malik engaged in only a single inappropriate act. However, if employers must fear sexual harassment liability based on such ex post findings, they will be deterred from taking reasonable corrective action -- including, where appropriate, conducting an investigation -- as required by federal law. So too, the placing of the Letter of Record in Malik's file cannot be the basis for liability without undermining federal policy. Although Carrier could not resolve the conflicts between Fabian's and Cornick's view of events and Malik's version, he had admitted to one inappropriate remark, and Carrier had to inform him of the seriousness of the issues. Again, in a worst-case scenario, Carrier's failure to express its concerns in concrete form might well be a deficient response under federal law. 42 Finally, the jury could have found, again based on Malik's testimony, that Carrier carelessly led him to believe on at least two occasions that the matter was closed -- first, when Rasp seemingly settled the issue with Fabian and later when Hitchery and Kramer told him he would not be disciplined but did not, according to Malik, mention the Letter of Record. Both when Kramer pressed the investigation and later placed the Letter of Record in his personnel file, Malik was surprised and emotionally damaged. Again, however, it would be an uncommon investigation into allegations of sexual harassment that did not result in similar misunderstandings given the emotional and confrontational circumstances that generally attend them. 43 The only remaining basis for Malik's emotional distress claim is Kramer's description to Rasp of the orientation incident, which the jury could have found to have been carelessly ambiguous. There are different versions of this conversation and of Rasp's understanding of it. We agree with Malik, however, that a jury could have found that Rasp reasonably understood that Kramer was referring to a second incident of sexual harassment rather than to acts of arrogance toward a female peer. Nevertheless, we again note that investigations of this nature inevitably entail risks of misunderstandings or statements that a trier might ex post find to be careless. An employer simply cannot be diligent in carrying out an investigation if it must weigh every sentence or question with an eye to whether a jury might later conclude that it unreasonably injured an alleged harasser's psyche. Indeed, while a jury might well conclude that Kramer was negligent in her lack of specificity, it is also the case that one investigating a charge of sexual harassment might reasonably believe that the prior incident was not without relevance. Finally, we conclude infra that any and all versions of Kramer's statement are privileged with regard to Malik's defamation and tortious interference claims. It would be entirely anomalous to assess liability for it in negligence. 44 Malik's emotional distress claim therefore fails as a matter of law. Because the events upon which his claim rests are common to investigations into sexual harassment allegations under federal law, we need not describe with precision the kind of egregious or outrageous acts that might legitimately support a state law claim in such circumstances. 45 b) Malik's Cross-Appeal 46 Malik contends on his cross-appeal that the district court erred in granting judgment as a matter of law for Carrier on his defamation claim and for Kramer on his tortious interference with contract claim. We disagree. 47 Under Connecticut law, liability for defamation requires proof "that the defendants published false statements that harmed the [plaintiff], and that the defendants were not privileged to do so." Kelley v. Bonney, 221 Conn. 549, 563 (1992). Connecticut affords a qualified privilege to intracorporate communications. See Torosyan v. Boehringer Ingelheim Pharms., Inc., 234 Conn. 1, 29 (1995) ("Such communications . . . are necessary to effectuate the interests of the employer in efficiently managing its business."). "There are two facets to the defense of privilege. The occasion must be one of privilege, and the privilege must not be abused. . . . Whether the privilege was abused . . . depends upon whether there was malice in fact . . . in uttering and broadcasting the alleged defamatory matter." Id. at 28 (internal quotation marks omitted). 48 Malik's defamation claim is based on Kramer's statement to Rasp regarding the orientation incident involving Malik. This conversation was an intracorporate communication and can support a defamation claim only if the attendant privilege was abused. A finding of abuse would require a showing of malice in fact. See id. The district court granted judgment as a matter of law on this claim because it found that "[t]here has been no proof at all that Ms. Kramer had any question in her mind about the truth of what she was saying, even though she may not have expressed it fully, nor is there any indication that she harbored malice about the plaintiff." We agree. 49 As an initial matter, we note that Kramer's statement to Rasp may well have been sufficiently accurate to preclude a defamation action based upon it. SeeKelley, 221 Conn. at 563 (statements must be false); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316 (1984) ("Truth is an absolute defense to an allegation of libel."); id. at 322 (minor errors in a statement that is substantially true not enough to give rise to liability). Malik admits to both an inappropriate sexual comment to Fabian and arrogant conduct toward a female coworker. These incidents are in certain respects similar -- i.e., both involved inappropriate behavior towards female employees -- and nothing in Rasp's or Kramer's testimony suggests that Kramer specifically stated that the prior incident involved sexual harassment. Moreover, Kramer called Rasp to learn about the nature of Fabian's allegation. She thus could not have known the precise differences between these incidents until Rasp discussed the matter further -- a fact that Rasp must have known as well. 50 In any event, we agree with the district court that there is no evidence from which a reasonable jury could have concluded that Kramer acted with actual malice in making the statement in question. First, as noted above, Carrier had an affirmative duty to investigate the report of an allegation of sexual harassment. Kramer's request that Rasp share his knowledge of this incident was thus more than reasonable. Second, even if Kramer's statement conveyed a mistaken impression to Rasp, it was arguably accurate, and, at worst, only marginally inaccurate, further undermining any claim that she acted with malice in fact. Nor can one argue that Kramer acted with malice because she resented Malik's going over her head by complaining to Hitchery of Kramer's investigation. Kramer's discussion with Rasp was in March and before Malik's April request to Hitchery for a one-on-one meeting, thus eliminating any claimed evidentiary support for the theory that Kramer had a malicious motive when she spoke to Rasp. 51 We also affirm the grant of judgment as a matter of law on Malik's tortious interference with contract claim. Under Connecticut law, 52 [a]n agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party, because to hold him liable would be, in effect, to hold the corporation liable in tort for breaching its own contract. An agent, however, can be held liable for such interference or inducement if he did not act legitimately within his scope of duty but used the corporate power improperly for personal gain. 53 Boulevard Assocs. v. Sovereign Hotels, Inc., 72 F.3d 1029, 1036 (2d Cir. 1995) (quoting Murray v. Bridgeport Hosp., 40 Conn. Supp. 56, 6061 (Conn. Super. Ct. 1984)); see alsoEspinosa v. Connecticut College, No. 52 28 72, 1994 WL 320222, at *5 (Conn. Super. Ct. June 27, 1994) ("In order to deprive a corporate employee of his immunity, the plaintiff must establish that he acted solely for his own benefit and benefit to the corporation played no role therein."). 54 It is undisputed that Kramer is presumptively entitled to immunity for actions taken in the scope of her employment. Malik's theory is that her continuing to investigate him, placing a Letter of Record in his personnel file, and outlining concerns with his workplace performance, were undertaken out of animosity towards him and to conceal her own errors of judgment. In essence, he contends that the "personal gain" prong of the tortious interference test may be satisfied by the emotional satisfaction derived from injuring one who is disliked by the defendant. The district court apparently accepted this view of the law but nevertheless granted Kramer's motion for judgment on this claim because there was legally insufficient evidence that her actions towards Malik were taken "out of personal advantage and for her own benefit." We again agree. 55 Even assuming arguendo that motivations of the sort alleged here are sufficient to support a claim for tortious interference with contract, it is manifest that Kramer's actions towards Malik were in furtherance of her professional duties. It cannot, therefore, be said that Kramer took such actions "solely for [her] own benefit" or that "benefit to the corporation played no role therein." Espinosa, 1994 WL 320222, at *5. 56 Kramer's actions with respect to Malik constitute ordinary, garden-variety personnel actions. For reasons discussed above, her decision to investigate Fabian's allegation against Malik was a sound one made in accordance with Carrier's federally imposed obligation to take reasonable corrective action. The other actions of which Malik complains are Kramer's decision to place a Letter of Record in his personnel file and her outlining of performance concerns to him. However, the Letter of Record was under the circumstances rather favorable, and Malik concedes that he specifically asked Kramer to advise him of the performance concerns. Moreover, the trial record indicated that the decision to issue the Letter was made by Hitchery as well as Kramer. CONCLUSION 57 For the reasons stated above, we reverse the orders denying judgment as a matter of law to Carrier on the emotional distress claim and affirm the order granting judgment to Carrier on the defamation and tortious interference claims. Notes: 1 Carrier also contends that under Connecticut law the tort of negligent infliction of emotional distress is limited in the employment context to actions taken in the course of an employee's termination. Because the alleged actions supporting Malik's emotional distress claim -- primarily the sexual harassment investigation and Letter of Record -- occurred prior to his termination, Carrier contends that Malik's claims fail as a matter of law. See Parsons v. United Techs. Corp., 243 Conn. 66, 88 (1997) ("[N]egligent infliction of emotional distress in the employment context arises only where it is 'based upon unreasonable conduct of the defendant in the termination process.'" (quoting Morris v. Hartford Courant Co., 200 Conn. 676, 682 (1986))). However, prior to 1993, Connecticut's Worker's Compensation Act covered both physical and emotional injuries that occurred in the workplace, and a negligence claim for such injuries was therefore precluded. See Karanda v. Pratt & Whitney Aircraft, No. CV-98-5820255, 1999 WL 329703, at *4 (Conn. Super. Ct. May 10, 1999). Morris may well have reflected an effort to permit certain claims -- those regarding termination alone -- to be brought despite the Worker's Compensation Act. Since Morris, Connecticut has amended its Worker's Compensation Act to exclude coverage for mental and emotional impairment. See 1993 Conn. Acts 93-228, 1 (codified as Conn. Gen. Stat. 31-275(16)). At least one lower Connecticut court has taken the view that because emotional distress injuries are no longer covered by the Act, emotional distress claims are also not precluded by it. See Karanda, 1999 WL 329703, at *5 ("Based upon the effects of [Conn. Gen. Stat. 31-275(16)], and the intent of the legislature in passing that act, the court can reasonably conclude that the Supreme Court [of Connecticut] would permit a negligent infliction of emotional distress claim against an employer when no termination is alleged."). Finally, we note that the Connecticut Supreme Court has arguably acknowledged the possibility that such a claim might arise in the employment context. See Parsons, 243 Conn. at 89 (noting that "few courts have addressed the requirements of a claim for [emotional distress] within the context of an employment relationship as a whole, much less in the context of the termination of such a relationship"). Whether a viable emotional distress claim for negligent acts in the employment context exists under Connecticut law is thus unclear. 2 Because we see no conflict between federal and Connecticut law, we need not reach the question of at what point federal law might preempt a state common law tort claim.

22 So.3d 80 (2009) HOUSTON v. STATE. No. 2D09-4610. District Court of Appeal of Florida, Second District. November 3, 2009. Decision without published opinion Petition denied.

620 F.2d 301 Burleyv.U. S. Drug Enforcement Administration 78-1219 UNITED STATES COURT OF APPEALS Sixth Circuit 5/15/80 1 M.D.Tenn. AFFIRMED

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA N.S., as a minor, by and through her parents and next friends, S.S. and C.S., Plaintiffs, v. Civil Action No. 16-306 (JDB-GMH) DISTRICT OF COLUMBIA, Defendant. MEMORANDUM OPINION Plaintiff N.S. and her parents brought this suit against the District of Columbia Public Schools (DCPS) under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. Specifically, plaintiffs sought reversal of an administrative hearing officer’s February 4, 2016 determination that DCPS did not deny her the “free and appropriate education” (FAPE) required by the IDEA. Id. § 1400(d)(1)(A). This case was referred to Magistrate Judge G. Michael Harvey, who issued a thorough Report and Recommendation (R&R) recommending that the Court affirm the hearing officer’s decision, deny plaintiff’s motion for summary judgement, and grant defendant’s motion for summary judgment. See R&R, Jan. 31, 2017 [ECF No. 26]. Judge Harvey also determined that his R&R was consistent with the Supreme Court’s recent decision in Endrew F. ex rel. Joseph F. v. Douglas County School District, 137 S. Ct. 988 (2017). See Order, May 3, 2017 [ECF No. 33]. Plaintiffs have since moved to voluntarily dismiss this case with prejudice under Federal Rule of Civil Procedure 41(a)(2). See Mot. for Dismissal [ECF No. 37]. Defendant opposes the motion. See Def.’s Opp’n to Pls.’ Mot. for Voluntary Dismissal (“Def.’s Dismissal Opp’n”) [ECF No. 38]. After considering both parties’ filings on the matter, the Court will grant plaintiffs’ motion, and will dismiss the case with prejudice. 1  I. BACKGROUND A. Statutory and Regulatory Background As a recipient of federal funding under the IDEA, the District of Columbia must provide a FAPE to all students who reside in the District and who have disabilities. See 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1). This is typically accomplished through implementing an individualized education program (IEP) at an appropriate school. See Sch. Comm. of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 368 (1985). An IEP must be developed by a team that includes the student’s parents, teachers, and other specialists, and must assess the student’s needs, implement strategies to meet those needs, and include goals to measure the IEP’s effectiveness. 20 U.S.C. § 1414(d)(1)(A)–(B). The IEP must be revised at least annually to determine whether the student is making progress. Id. § 1414(d)(4)(A). If the public school system cannot meet the student’s needs, the student must be placed in a private school at public expense. Id. § 1412(a)(10)(B)–(C). A parent who believes that her child’s IEP is inappropriate may request an administrative hearing, referred to as a “due process hearing,” before an independent hearing officer. Id. § 1415(f)(1). After the hearing officer issues a determination (“hearing officer determination” or “HOD”), the parent may seek review of the HOD in the appropriate federal district court. Id. § 1415(i)(2). The party challenging the HOD bears “the burden of persuading the court that the hearing officer was wrong,” Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005), by a preponderance of the evidence, 20 U.S.C. § 1415(i)(2)(C). While these review processes are underway, “the child shall remain in [her] then-current educational placement”— thus maintaining the status quo—“unless the State or local educational agency and the parents otherwise agree.” Id. § 1415(j). This guarantee is known as the IDEA’s “stay-put provision.” 2  B. Factual Background Because no party has objected to the R&R’s factual findings, the Court adopts those factual findings in full and incorporates by reference the detailed statement of the case’s background contained in the R&R. The summary that follows is drawn from the R&R. N.S. is a student diagnosed with Attention Deficit Hyperactivity Disorder, executive functioning disorder, an anxiety disorder, and a mixed expressive and receptive language disorder. AR 7; R&R at 2. During the 2015–16 school year—the year at issue in this case—she was in the ninth grade. During the 2008–09 school year, N.S. attended a private school where she did not perform well. AR 61, 945–46. Her parents applied to DCPS to enroll her in the Lab School of Washington, a private school for students with learning disabilities, but DCPS did not respond to their application. N.S.’s parents eventually enrolled her in the Lab School and filed an administrative complaint against DCPS for failing to process her complaint in a timely manner, alleging that this resulted in denying N.S. a FAPE. AR 61; R&R at 2. On January 29, 2010, a hearing officer agreed with N.S.’s parents, and ordered DCPS to partially reimburse them for tuition at the Lab School, and to develop an appropriate IEP for N.S. R&R at 2. N.S. remained at the Lab School thereafter. In March 2015, N.S.’s parents attended a meeting at DCPS to develop an IEP for N.S. for the 2015–16 school year. Three months later, N.S.’s parents received notice that N.S.’s IEP would be implemented at Woodrow Wilson Senior High School (“Wilson”)—which meant that she would have to leave the Lab School. N.S.’s parents objected to this placement, and therefore again unilaterally placed N.S. in the Lab School for the 2015–16 school year and filed a due process complaint against DCPS, asserting a number of procedural and substantive claims. AR 3, 455– 69; R&R at 3, 25–26. 3  The hearing officer held a two-day hearing before issuing his determination on February 4, 2016. He considered extensive evidence, including the parties’ representations, the documentation from this and prior IEP meetings, and expert testimony regarding N.S.’s educational needs, all of which is summarized in the R&R. See id. at 3–21. Ultimately, he concluded that DCPS provided N.S. with an appropriate IEP, selected Wilson as an appropriate placement, and did not deny N.S.’s parents an opportunity to participate meaningfully in the development of N.S.’s IEP and in the school placement decision. Therefore, the hearing officer determined, N.S. was not denied a FAPE. Plaintiffs challenged the HOD in this Court. See Compl. [ECF No. 1]. This Court referred the matter to Magistrate Judge Harvey for full case management. See Order, Mar. 15, 2016 [ECF No. 5]. Judge Harvey considered the parties’ cross-motions for summary judgment and on January 31, 2017 issued a Report and Recommendation recommending that plaintiffs’ motion be denied and defendant’s be granted. See R&R at 59. He first considered DCPS’s mootness argument: DCPS asserted that because plaintiffs challenged the IEP for the 2015–16 school year—which was already finished, and for which DCPS had already paid for N.S.’s education at the Lab School— the issue was moot. Id. at 26–27. Judge Harvey concluded that the case was not moot under the capable of repetition yet evading review doctrine. Id. (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). This doctrine is particularly applicable here, Judge Harvey concluded, where the parties continue to articulate “irreconcilable views” on certain aspects of N.S.’s IEP, making it extremely likely that the same dispute will arise in the future. Id. at 28–29. Judge Harvey then explained that the IDEA requires a two-step inquiry when reviewing a FAPE: a court must ask, first, whether “the state [has] complied with the procedures set forth” in the IDEA in designing the IEP, and second, whether the IEP is “reasonably calculated to enable 4 the child to receive educational benefits.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206–07 (1982). Applying this standard, Judge Harvey determined that the IEP and N.S.’s placement at Wilson met the requirements of the IDEA and provided N.S. with a FAPE. Judge Harvey also determined that N.S.’s parents “were not denied access to the procedural safeguards that guarantee parents both an opportunity for meaningful input in all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.’” R&R at 55 (quoting Honig v. Doe, 484 U.S. 305, 311–12 (1988)). After Judge Harvey issued the R&R, he placed the case in abeyance pending the Supreme Court’s not-yet-issued decision in Endrew F. See Order, Feb. 8, 2017 [ECF No. 29]. When Endrew F. was issued in March 2017, Judge Harvey reviewed it and determined that supplemental briefing was not necessary because Endrew F. did not require reconsideration of his conclusions in the R&R. Plaintiffs then timely filed their objections to the R&R, asserting that Judge Harvey had applied to two issues legal standards that are incorrect after Endrew F. See Pls.’ Objections [ECF No. 34]. Defendant opposed plaintiffs’ objections but did not assert any objections of its own to the R&R. See Def.’s Opp’n [ECF No. 35]. Once the objections to the R&R were fully briefed, plaintiffs filed a motion for voluntary dismissal with prejudice under Federal Rule of Civil Procedure 41(a)(2), which allows dismissal at the plaintiff’s request if the court determines that doing so would be proper. See Fed. R. Civ. P. 41(a)(2). In that motion, plaintiffs argue that the case is now moot—despite taking the opposite position in their earlier motion for summary judgment—because the 2015–16 school year has already passed and N.S. is enrolled “in another program” for the present school year. See Pls.’ Mot. for Voluntary Dismissal [ECF No. 37] at 1. Notwithstanding its earlier view that the case was moot, defendant opposes the motion, arguing that plaintiffs’ position is inconsistent with 5 Judge Harvey’s determination that the case was not moot, such that plaintiffs are now estopped from asserting mootness. Def.’s Dismissal Opp’n at 3, 5–7. Defendant also argues that it would suffer legal prejudice if the case were dismissed. Id. at 9–10. For the reasons given below, the Court will grant plaintiffs’ motion for voluntary dismissal and will dismiss this case with prejudice. LEGAL STANDARD Federal Rule of Civil Procedure 41(a)(2) states that, except in circumstances not present here, “an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper.” Dismissal under the rule “is not a matter of right, but is discretionary . . . both as to whether a dismissal shall be allowed as well as to the terms and conditions to be imposed if allowed.” Wojtas v. Capital Guardian Trust Co., 477 F.3d 924, 927 (7th Cir. 2007) (citation and internal quotation marks omitted); see Indep. Fed. Sav. Bank v. Bender, 230 F.R.D. 11, 13 (D.D.C. 2005). To determine whether dismissal is appropriate, a court looks to (1) whether the motion “was sought in good faith” and (2) whether the defendant “would suffer legal prejudice from a dismissal at this stage in the litigation.” Indep. Fed. Sav. Bank, 230 F.R.D. at 13. “Because dismissal of claims against a defendant rarely prejudices that party, the grant of a voluntary dismissal is virtually automatic.” Blue v. D.C. Pub. Sch., 764 F.3d 11, 19 (D.C. Cir. 2014). ANALYSIS Plaintiffs argue that voluntary dismissal is warranted “in order to preserve judicial resources and because there is really no case or controversey [sic] remaining because of changing facts.” Pls.’ Reply to Def.’s Opp’n to Mot. for Dismissal (“Pls.’ Dismissal Reply”) [ECF No. 39] at 1. The former argument is not particularly strong: given the late stage at which plaintiffs filed their motion, judicial resources have already been expended and little would be saved by dismissing. (Indeed, the need for this decision is testimony to that fact.) The latter rationale, 6 meanwhile, boils down to an argument that the case is moot. This is exactly the opposite of plaintiffs’ earlier position that the case was not moot.1 However, plaintiffs are not alone in their flip-flopping. Despite arguing before Judge Harvey that the case was moot, DCPS now argues that the Court should reject plaintiffs’ mootness claim under judicial estoppel or the law of the case doctrine, and that the Court should use its discretion under Rule 41(a) to deny plaintiffs’ motion. Def.’s Dismissal Opp’n at 5–9. This procedural do-si-do stems from a deeper disagreement over defendant’s substantive rights in case of a dismissal. Defendant argues that, if the Court were to dismiss the case, plaintiffs would simply “file a new due process complaint under the IDEA and seek public funding for their new private placement” under the IDEA’s stay-put provision. Id. at 9. DCPS could then be forced to pay for N.S.’s private-school education for another year while any administrative or judicial appeals take place—a liability that, defendant argues, it would not incur if the Court were to adopt Judge Harvey’s R&R and declare the 2015–16 IEP (and Wilson in particular) to be N.S.’s “then- current educational placement.” See id. at 7, 9–10. Plaintiffs, for their part, argue that this is a red herring. By dismissing the case, they say, the HOD becomes the final decision on the 2015–16 IEP, and the Hearing Officer’s “finding that Wilson is appropriate becomes the new placement on record.” Pls.’ Dismissal Reply at 3. Therefore, N.S. would no longer have stay-put protection if her parents sought to challenge a later IEP; DCPS would not be responsible for paying for her education at a private school. See id. 1 Plaintiffs point to only two “changing facts” to support their dismissal motion: (1) the fact that they have been seeking reimbursement for the 2015–16 school year, which has already passed and for which defendant already paid through the IDEA’s stay-put provision; and (2) the parents’ placement of N.S. “in another program” for the 2017– 18 school year. Pls.’ Mot. for Voluntary Dismissal at 1. The former fact was already true when plaintiffs argued that the case was not moot, and when Judge Harvey agreed with them. As for the latter, because Judge Harvey’s mootness determination was premised on the likelihood that these parties would engage in similar litigation over future IEPs, N.S.’s new placement might not alter the capable of repetition but evading review analysis. See R&R at 27–29. However, it is relevant to the Rule 41(a)(2) dismissal analysis, as discussed below. 7  In attempting to resolve this dispute, the Court faces both a legal and a factual uncertainty. On the legal side, the D.C. Circuit has never defined what, exactly, constitutes legal prejudice for purposes of Rule 41(a)(2). It has stated that “the parameters of ‘legal prejudice’ are not absolutely clear,” but that it “means ‘something other than the necessity that [a] defendant might face of defending another action.’” Conafay v. Wyeth Labs. (“Conafay II”), 841 F.2d 417, 420 (D.C. Cir. 1988). This rule appears to be the law across the country. See 9 Charles Allen Wright & Arthur R. Miller, et al., Federal Practice & Procedure § 2364 n.20 (3d ed. Apr. 2017) (collecting cases). Beyond this general principle, however, appellate courts have divided on what factors to consider when measuring prejudice. A majority of the circuits have adopted multi-factor tests similar to the one developed by the Seventh Circuit, which weighs: (1) the defendant’s “effort and expense”; (2) “excessive delay and lack of diligence” by the plaintiff in “prosecuting the action”; (3) the plaintiff’s explanation of “the need to take a dismissal”; and (4) “the fact that a motion for summary judgment has been filed by the defendant.” Kovalic v. DEC Int’l, Inc., 855 F.2d 471, 474 (7th Cir. 1988) (quoting Pace v. S. Express Co., 409 F.2d 331, 334 (7th Cir. 1969)).2 The Fifth, Ninth, and Eleventh Circuits, however, have rejected certain prongs of this test as insufficient to warrant denying a voluntary dismissal motion, instead focusing on whether the defendant would lose a legal claim or defense in future litigation. See Robles v. Atl. Sounding Co., 77 Fed. App’x 274, 275–76 (5th Cir. 2003) (unpublished); Westlands Water Dist. v. United 2 See Doe v. Urohealth Sys., Inc., 216 F.3d 157, 160 (1st Cir. 2000); D’Alto v. Dahon Cal., Inc., 100 F.3d 281, 283 (2d Cir. 1996); Howard v. Inova Health Care Servs., 302 Fed. App’x 166, 178–79 (4th Cir. 2008) (unpublished); Bridgeport Music, Inc. v. Universal-MCA Music Pub., Inc., 583 F.3d 948, 953 (6th Cir. 2009); Donner v. Alcoa, Inc., 709 F.3d 694, 697 (8th Cir. 2013); Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996); see also Ferguson v. Eakle, 492 F.2d 26, 29 (3d Cir. 1974) (holding that [1] “financial prejudice requiring . . . the preparation and conduct of new discovery and proceedings,” [2] “the emotional and psychological trauma associated with the experience of having been ready for trial in a federal court and then told that the proceedings would be started once again,” and [3] “the non-financial prejudice reflected by the uncertainty over” defendants’ legal rights together constituted prejudice). 8 States, 100 F.3d 94, 96–97 (9th Cir. 1996); Pontenberg v. Bos. Sci. Corp., 252 F.3d 1253, 1255– 56, 1258–59 (11th Cir. 2001). The D.C. Circuit appears to lean toward the more restrictive side of this divide. It has ruled that neither “los[ing] an opportunity for a favorable final disposition of the case,” nor a plaintiff’s weak explanation for the voluntary dismissal request, is grounds for denying a Rule 41(a)(2) motion if there is no prejudice to defendant’s legal claims. Kellmer v. Raines, 674 F.3d 848, 852– 53 (D.C. Cir. 2012) (alteration in original) (citation and internal quotation marks omitted). The D.C. Circuit has also stated that the granting of voluntary dismissal motions should be “virtually automatic.” Blue, 764 F.3d at 19. However, in the absence of more specific guidance, several of the courts in this district have themselves adopted the Seventh Circuit’s four-part test.3 Moreover, several of the circuits that have not explicitly adopted that test—including the D.C. Circuit—have either suggested or held that a district court acts within its discretion in rejecting a Rule 41(a)(2) motion when the defendant had already filed a summary judgment motion before the plaintiff moved to dismiss.4 3 See, e.g., Queen v. Schmidt, No. CV 10-2017 (PLF), 2016 WL 2757359, at *2 (D.D.C. May 12, 2016); Mittakarin v. InfoTran Sys., Inc., 279 F.R.D. 38, 41 (D.D.C. 2012); In re Fed. Nat. Mortg. Ass’n Sec., Derivative, ERISA Litig., 725 F. Supp. 2d 169, 176 (D.D.C. 2010), rev’d and remanded sub nom. Kellmer v. Raines, 674 F.3d 848 (D.C. Cir. 2012); In re Vitamins Antitrust Litig., 198 F.R.D. 296, 304 (D.D.C. 2000); Piedmont Resolution, LLC v. Johnston, Rivlin & Foley, 178 F.R.D. 328, 331 (D.D.C. 1998). 4 See Estate of Ware v. Hosp. of the Univ. of Penn., —F.3d—, 2017 WL 4105935, at *10 (3d Cir. Sept. 18, 2017) (stating that “we have no doubt the District Court acted within its discretion” in denying a Rule 41(a)(2) motion when the defendant “would have faced the prospect of potentially relitigating, at some later date, claims it had put significant time and resources into defending and already litigated to the summary-judgment stage”); Hartford Acc. & Indem. Co. v. Costa Lines Cargo Servs., Inc. 903 F.2d 352, 360 (5th Cir. 1990) (“Where the plaintiff does not seek dismissal until a late stage and the defendants have exerted significant time and effort, the district court may, in its discretion, refuse to grant a voluntary dismissal.”); McBride v. JLG Indus., Inc., 189 Fed. App’x 876, 878 (11th Cir. 2006) (unpublished) (similar); Conafay II, 841 F.2d at 420 (suggesting that courts may deny voluntary dismissal motions if a “summary judgment motion had been pending when the voluntary dismissal request was made”); Conafay v. Wyeth Labs. (Conafay I), 793 F.2d 350, 352 (D.C. Cir. 1986) (same); see also Terrovona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988) (“[S]ince the magistrate had already issued his report and recommendation when the motion was filed, the district court’s refusal to use its discretion to dismiss the petition under Fed. R. Civ. P. 41(a)(2) is reasonable.”); see also Hayden v. Westfield Ins. Co., 586 Fed. App’x 835, 842 (3d Cir. 2014) (unpublished) (“Chief among the factors to consider in determining whether a defendant will suffer prejudice are the extent to which litigation has progressed and the extent to which the defendant will be exposed to new litigation in another forum.” (emphasis added)); cf. In re Smith, 114 F.3d 1247, 1250 n.4 (D.C. Cir. 1997) (noting that “it would prejudice the government to 9  It may matter which legal prejudice test the Court applies. Under the four-part majority test, the Court would consider defendants’ effort and expense in litigating this case for nineteen months; plaintiffs’ promptness in prosecuting the case; the strength (or lack thereof) of plaintiffs’ reasons for dismissing at this late juncture; and the fact that summary judgment motions have been pending for over a year and that Judge Harvey has already released an R&R. These factors— particularly the last—might well lean toward defendants’ side. Under the more restrictive minority test, however, the calculus would look quite different. The fact that summary judgment motions were already pending when plaintiffs filed their voluntary dismissal motion might give the Court discretion to deny plaintiffs’ motion. See Conafay II, 841 F.2d at 420. But the other factors just mentioned would become irrelevant. The D.C. Circuit’s admonition that dismissal grants be “virtually automatic,” Blue, 764 F.3d at 19—and the general rule that “[p]laintiffs are masters of their complaints,” Webster v. Reprod. Health Servs., 492 U.S. 490, 512 (1989)—would lean strongly against a denial. The Court would thus have to resolve the parties’ substantive dispute: if this case were to be dismissed, would DCPS be forced to pay N.S.’s private-school tuition under the stay-put provision during any future litigation? Because DCPS could lose a legal defense to any claim for stay-put funding, the answer to this question may well prove decisive in a legal prejudice inquiry. This inquiry, however, leads to the second, factual uncertainty the Court faces. The parties litigate under the assumption that the school at which N.S.’s 2015–16 IEP should have been implemented would be N.S.’s “then-current educational placement,” and would therefore determine any stay-put protection for this or future years. The IDEA does not define “educational permit withdrawal of [a] claim after the government’s brief was filed” on that claim, and citing Conafay II). But cf. Arias v. Cameron, 776 F.3d 1262, 1273 (11th Cir. 2015) (“[T]his circuit has declined to adopt a bright-line rule precluding a district court from granting a Rule 41(a)(2) voluntary dismissal without prejudice when a motion for summary judgment is pending.”). 10 placement” for purposes of the stay-put provision, but courts in this Circuit have generally held that “the dispositive factor in deciding a child’s ‘current educational placement’ should be the IEP . . . actually functioning when the ‘stay put’ is invoked.” Wimbish v. District of Columbia, 153 F. Supp. 3d 4, 11 (D.D.C. 2015) (citation omitted). For instance, N.S. received stay-put funding at the Lab School for 2015–16 because that had been N.S.’s prior placement, and N.S.’s parents disagreed with DCPS’s decision to move her to Wilson. Pls.’ Dismissal Reply at 3; see Susquenita Sch. Dist. v. Raelee S. By & Through Heidi S., 96 F.3d 78, 83 (3d Cir. 1996). In arguing over whether the resolution of the 2015–16 IEP matters for future litigation, however, the parties have not discussed the IEP developed for N.S.’s 2016–17 school year. It is undisputed that DCPS did develop an IEP for that year, and that plaintiffs had not filed a due process complaint to challenge that IEP as of January 2017. See D.C.’s Response to Pls.’ Supp. Br. [ECF No. 25] at 8; Supp. Mem. in Support of Pls.’ Mot. for Summ. J. [ECF No. 24] at 10. It is not clear, however, whether plaintiffs have challenged the 2016–17 IEP in the intervening months. Plaintiffs hint that they have, stating that “no other placement [besides the Lab School] has been agreed upon by the parties and no judicial process has been completed” since 2013. Pls.’ Dismissal Reply at 3. But neither party has definitively clarified whether the 2016–17 IEP was implemented or challenged. The answer to this factual question, like the answer to the standard-of-review question, could make a great difference to the outcome of the parties’ dispute. “[W]hen a plaintiff has challenged the student’s educational placement in place at the time the ‘stay-put provision’ is invoked, courts traditionally treat the IEP in place prior to the challenged IEP as the controlling IEP for purposes of the ‘stay-put provision.’” G.B. v. District of Columbia, 78 F. Supp. 3d 109, 113 (D.D.C. 2015) (citation omitted). If plaintiffs accepted the 2016–17 IEP, then the question of N.S.’s educational placement for 2015–16 may be irrelevant in challenges to any future IEPs. If 11 plaintiffs were later to challenge, say, N.S.’s 2017–18 IEP, the 2016–17 IEP and its location of service might be controlling for stay-put purposes. On the other hand, if plaintiffs have challenged the 2016–17 IEP as well, and plaintiffs were to invoke stay-put protection before that dispute was resolved, then the parties could not rely on the 2016–17 IEP (because it would itself still be under challenge). They might have to look back to the 2015–16 IEP to determine whether DCPS needed to pay for N.S.’s future private schooling. If this were the case, DCPS could have a strong argument that dismissing instead of deciding this case could prejudice DCPS in future litigation. Normally, Rule 41(a)(2) requests ask to dismiss cases without prejudice, thus allowing plaintiffs to refile the same case and re-raise the same issues. Under such circumstances, the quandaries just discussed would pose great difficulties. Happily, however, the Court need not resolve either the legal or the factual dispute today. This is because plaintiffs have requested that the Court dismiss this case with prejudice. See Mot. for Voluntary Dismissal. “Dismissal with prejudice ‘operates as a rejection of the plaintiff’s claims on the merits and [ultimately] precludes further litigation’ of them.” Belizan v. Hershon, 434 F.3d 579, 583 (D.C. Cir. 2006) (quoting Jaramillo v. Burkhart, 59 F.3d 78, 79 (8th Cir. 1995)). Dismissal would therefore give defendant what it desires: plaintiffs could no longer claim that the 2015–16 IEP violated the IDEA, or deny that that IEP (and Wilson) constitutes N.S.’s “then-current educational placement” for purposes of the stay-put provision. Indeed, plaintiffs concede that dismissal would mean that “the Hearing Officer finding that Wilson is appropriate becomes the new placement on record,” and that, “[b]y withdrawing N.S. from Lab and dismissing this appeal with prejudice, N.S. no longer has any stay-put protection.” Pls.’ Dismissal Reply at 3. This is in keeping with the decisions of several courts of appeals, including the D.C. Circuit, that the stay-put provision does not mandate public funding when 12 parents unilaterally remove their child from the then-controlling public placement and place the child in a private school while they challenge a proposed IEP. See N.W. ex rel. J.W. v. Boone Cnty. Bd. of Educ., 763 F.3d 611, 617 (6th Cir. 2014); Susquenita Sch. Dist., 96 F.3d at 83; Leonard by Leonard v. McKenzie, 869 F.2d 1558, 1564 & n.5 (D.C. Cir. 1989).5 Given plaintiffs’ concessions and the relevant case law, dismissing this case would work no legal prejudice against defendant under any of the standards outlined above. Hence, the Court will follow the default principle that Rule 41(a)(2) motions should be granted.6 CONCLUSION For the reasons explained above, the Court will grant plaintiffs’ motion for voluntary dismissal and dismiss this case with prejudice. A separate order will be issued on this date. /s/ JOHN D. BATES United States District Judge Dated: September 28, 2017 5 The Sixth Circuit has said that, when a school district has sought to place a child in a school that she has never attended—as is the case with Wilson here—the student’s “placement—for purposes of the stay-put provision— is the last agreed-upon school that [she] attended,” rather than the school in the controlling IEP. N.W. ex rel. J.W., 763 F.3d at 618 (emphasis added). However, the courts in this circuit have not so held. See, e.g., Leonard by Leonard, 869 F.2d at 1564 (holding that plaintiffs could not be compensated under stay-put for keeping child in private school when educational placement had changed to public school the student never attended). And, in any case, here that placement would be the Lab School, not the school to which N.S.’s parents have now moved her. In future litigation, DCPS may rely on the preclusive effect of a dismissal with prejudice and on plaintiffs’ concession that “withdrawing N.S. from Lab” means that “N.S. no longer has any stay-put protection.” Pls.’ Dismissal Reply at 3. 6 Given this disposition of the 41(a)(2) question, defendant’s judicial estoppel and law of the case arguments fall by the wayside. When examining judicial estoppel, at least three factors are relevant: (1) whether “a party’s later position [is] ‘clearly inconsistent’ with its earlier position”; (2) “whether the party has succeeded in persuading a court to accept that party’s earlier position”; and (3) “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” New Hampshire v. Maine, 532 U.S. 742, 750–51 (2001) (citations omitted). Plaintiffs’ current position, while certainly an about-face from their position in front of Judge Harvey, is not “clearly inconsistent” in the sense required for judicial estoppel. It is possible for this case not to be moot at one time and for changing facts to make an appeal of the HOD no longer worth pursuing at a later time. Moreover, as discussed above, dismissing with prejudice based on this switch in position would neither advantage plaintiffs nor disadvantage defendant. As for law of the case, the D.C. Circuit has stated that “the doctrine ‘is a prudential rule rather than a jurisdictional one,’ motivated by a ‘practical concern for judicial economy.’” United States ex rel. Dep’t of Labor v. Ins. Co. of N. Am., 131 F.3d 1037, 1043 n.12 (D.C. Cir. 1997) (quoting Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739–40 (D.C. Cir. 1995)). Here, no judicial economy interest would be served by denying the voluntary dismissal motion in order to instead decide the case on the merits, when a dismissal with prejudice under the current factual circumstances would have the same effect. 13 

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 00-1614 ___________ United States of America, * * Appellee, * Appeal from the United States * District Court for the v. * Western District of Missouri. * Martin Dennis Arrasmith, * [UNPUBLISHED] * Appellant. * ___________ Submitted: April 5, 2001 Filed: April 9, 2001 ___________ Before BOWMAN, BEAM, and LOKEN, Circuit Judges. ___________ PER CURIAM. Martin Dennis Arrasmith challenges the district court’s1 revocation of his supervised release. Upon careful review of the record, we conclude the revocation and resulting sentence were correct, and we reject each of Arrasmith’s arguments. Specifically, we reject Arrasmith’s unsupported arguments that the district court did not have jurisdiction over each of his alleged violations, see 18 U.S.C. §§ 3231, 3237(a); and that the probation officer was required to immediately report his violations to the 1 The HONORABLE GARY A. FENNER, United States District Judge for the Western District of Missouri. district court. Further, we conclude the district court’s finding that Arrasmith had violated his supervised release conditions was adequate and supported by the record, particularly by evidence that Arrasmith had used drugs and failed to comply with drug testing. See 18 U.S.C. § 3583(e)(3) and (g)(3); United States v. Stephens, 65 F.3d 738, 741 (8th Cir. 1995) (defendant knowingly and willfully failed to comply with drug- treatment condition of supervised release when he failed to attend counseling sessions and submit urine specimens). We reject as meritless Arrasmith’s argument regarding disclosure of a mental health report. We construe Arrasmith’s remaining arguments as ineffective-assistance claims which would be better addressed in a collateral proceeding. See United States v. Martin, 59 F.3d 767, 771 (8th Cir. 1995). Accordingly, we affirm. We deny Arrasmith’s pending motion. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -2- 

Order Michigan Supreme Court Lansing, Michigan June 28, 2011 Robert P. Young, Jr., Chief Justice 142634 Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway _________________________________________ Mary Beth Kelly Brian K. Zahra, IN RE PETITION OF CALHOUN COUNTY Justices TREASURER _________________________________________/ CALHOUN COUNTY TREASURER, Petitioner-Appellee, v SC: 142634 COA: 293272 Calhoun CC: 08-001834-CZ WAYNE and JOAN SWAFFORD, Respondents-Appellants. _________________________________________/ On order of the Court, the application for leave to appeal the November 16, 2010 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. June 28, 2011 _________________________________________ h0620 Clerk 

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 15-2124 JENNY N. PARSEEYA-PICCHIONE, APPELLANT, V. ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Decided July 11, 2016) Robert W. Legg, of Arlington, Virginia, was on the brief for the appellant. Leigh A. Bradley, General Counsel; Mary Ann Flynn, Assistant General Counsel; Richard A. Daley, Deputy Chief Counsel; and Mark D. Vichich, Senior Appellate Attorney, all of Washington, D.C., were on the brief for the appellee. Before SCHOELEN, PIETSCH, and GREENBERG, Judges. GREENBERG, Judge: Appellant Jenny N. Parseeya-Picchione, widow of veteran Francis J. Picchione, appeals through counsel a May 29, 2015, Board of Veterans' Appeals (Board) decision that denied the appellant entitlement to benefits based on service connection for (1) the cause of the veteran's death; (2) the veteran's diabetes mellitus, to include as due to herbicide exposure; and (3) the veteran's renal disease, to include as secondary to diabetes mellitus. Record (R.) at 3-31. The Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. § 7252(a). For the following reasons, the Court will vacate the Board's May 2015 decision on appeal and remand the matters for readjudication. I. The veteran served on active duty in the U.S. Army from November 1966 to January 1970 as a personnel specialist (71H20), and from August 1970 to May 1977 as a programmer analyst (74F30). R. at 53, 58-59. This service included a deployment to Thailand from January 1968 to January 1970. R. at 2188-89. In Thailand, the veteran was assigned to Camp Friendship at the Korat Royal Thai Air Base. R. at 996. In September 1992, the veteran was diagnosed with diabetes mellitus, type II. R. at 1510, 1642. In April 2001, the veteran developed renal insufficiency. R. at 1523. In February 2003, the veteran married the appellant. R. at 2152. In April 2005, the veteran filed a claim for benefits based on service connection for diabetes mellitus. R. at 2150, 2165-74. In his application, the veteran mistakenly reported that he had served in Vietnam from May 1968 to March 1974, and he alleged that during this period he had developed diabetes as a result of herbicide exposure. R. at 2151, 2165, 2170. In January 2006, the regional office (RO) denied the veteran's claim as a result of the inability to confirm that the veteran actually served in Vietnam. R. at 1302-08. The veteran appealed this decision to the Board. In November 2007, the veteran's U.S. Senator, the Honorable John Ensign, submitted correspondence from the veteran to the RO alleging that the veteran was exposed to herbicides in Thailand. R. at 1183-85. In November 2009, the veteran was afforded a videoconference hearing before a member of the Board. R. at 994-1012. At the hearing, the veteran testified that he was in Vietnam "on or about" January 15, 1968, during a layover between Hawaii and Thailand. R. at 998. The veteran also testified that he had been exposed to herbicides in Thailand. R. at 999-1000. Specifically, the veteran stated that "everything on the camp was dead," but "around the bases it's all green and jungle." R. at 999. In December 2009, the Board denied the veteran's claims for diabetes mellitus and renal disease. R. at 792-805. In March 2011, the Court vacated the Board's December 2009 decision pursuant to a joint motion for remand (JMR). R. at 385-89, 792-805. In May 2011, the veteran died from end stage renal disease. R. at 395, 691, 2760. In June 2011, the appellant filed an application for dependency and indemnity compensation and accrued benefits. R. at 2819-29. In August 2011, the RO denied service connection for the cause of the veteran's death, and the appellant subsequently appealed that decision to the Board. R. at 2475-80, 2496-2523, 2777-79. In November 2011, the RO granted the appellant's motion for substitution for the claims for service connection for diabetes mellitus and renal disease that were pending at the time of the veteran's death. R. at 2578-81. The appellant provided a copy of a declassified Air 2 Force report, Project CHECO,1 that described Camp Friendship as bordering the perimeter of the Korat Air Force base.2 R. at 3128. The veteran also provided third-party evidence of flight paths from the United States to Thailand that showed that these flights had to make several stops on the way, including stops in Vietnam. R. at 677-80. In August 2013, the Board denied entitlement to benefits based on service connection for the cause of the veteran's death, diabetes mellitus, and renal disease. R. at 287-309. The appellant appealed this decision to the Court. R. at 3173-3251. The Court vacated the Board's decision and remanded the matter, determining that "the Board failed to provide any statement of reasons or bas[e]s for 'find[ing] the evidence does not establish the Veteran was exposed to herbicides.'" Parseeya-Picchione v. McDonald, No. 13-2450, 2015 WL 403346, *2 (U.S. Vet. App. Jan. 29, 2015) (alteration in original) (emphasis in original) (citations omitted). The Court noted that the Board had identified evidence favorable to the appellant, including the veteran's testimony and evidence from the Department of Defense confirming the U.S. military's use of herbicides during the Vietnam War, but that without explanation, the Board had concluded that the veteran had not been exposed to herbicides. Id. The Court ordered the Board on remand to "provide an adequate statement of reasons or bases for concluding that [the veteran] had not been exposed to herbicides." Id. In May 2015, the Board again denied service connection for the cause of the appellant's death, diabetes mellitus, and renal disease. R. at 3-31. The Board found that the preponderance of the evidence did not support the appellant's claim that the veteran had set foot in Vietnam during his deployment, finding that the veteran had not been exposed to a tactical herbicide while he was in Thailand. R. at 7. With regard to the veteran's layover in Vietnam, the Board determined that "the best evidence in this case supports the factual conclusion that the [v]eteran's recollection of events is in error and that it is less likely than not (a less than 50% chance) that the [v]eteran was ever in Vietnam." R. at 16-17. The Board found that, in addition to inconsistent statements made by the 1 CHECO is an acronym for "Contemporary Historical Examination of Current Operations." R. at 3086. 2 The veteran also provided a copy of the report, but the record does not reflect when he did so. 3 veteran, the general evidence the veteran submitted detailing the flight paths from Hawaii to Thailand "fail[ed] to corroborate that [the veteran] spent any time in Vietnam." R. at 15. With regard to the appellant's exposure to herbicides in Thailand, the Board conceded that "a form of herbicide may have been used within the perimeters of military bases in Thailand," but that "these were only commercial herbicides, and not the herbicide agent which gives rise to the presumption of service connection for exposure to herbicides, including Agent Orange." R. at 20. The Board then noted that while Camp Friendship is a "location [] near the outer edge of [Korat Air Force Base], Camp Friendship is not located on the perimeter as contemplated by the M21-1MR [VA Adjudication Procedures Manual]." R. at 20. Further, the Board found that the veteran's military occupational specialty (MOS) as a clerk would not have placed him near the perimeter of the base. R. at 20. The Board ultimately determined that the veteran was not entitled to the presumption of exposure, and that he was not directly exposed to herbicides. R. at 19-20. This appeal followed. II. The appellant argues that the Board committed prejudicial error by (1) failing to provide an adequate statement of reasons or bases for its findings, and (2) improperly discounting the veteran's lay testimony. Appellant's Brief (Br.) at 7. Specifically, the appellant argues that the Board failed to provide an adequate statement of reasons or bases for its conclusion that the veteran had not served on the perimeter of the Korat Air Force Base in Thailand after it acknowledged that the veteran was assigned to Camp Friendship, which lay on the outer edge of Korat Air Force Base. Id. at 10-11. Additionally, the appellant argues that the Board failed to provide an adequate statement of reasons or bases for its finding that the veteran's testimony regarding a layover in Vietnam was not credible. Id. at 16. The appellant points to third-party evidence in the record that supported the veteran's statements, and ultimately the appellant argues that any inconsistencies in the veteran's testimony were inconsequential. Id. at 17-18. In his brief, the Secretary concedes that the Board inaccurately stated that tactical-type herbicides were not used in Thailand, but he argues that this error was harmless. Secretary's Br. at 6. The Secretary asserts that there is no evidence in the record indicating that the veteran served on the perimeter of Korat Air Force Base, nor is there evidence of direct exposure to herbicides. Id. 4 Although the Secretary admits that the Board's discussion of the location of Camp Friendship with relation to the perimeter of Korat Air Force Base is confusing, the Secretary maintains that the Board's conclusion that the veteran did not serve on the perimeter of the base is sound. Id. at 17-18. With regard to the veteran's testimony about his layover in Vietnam, the Secretary argues that the Board's finding of a lack of credibility was "plausible and supported with an adequate statement of reasons or bases." Id. at 6. Additionally, the Secretary posits that the appellant impermissibly attempted to shift the burden of proof onto the Board to disprove that the veteran had a layover in Vietnam. Id. at 23. III. A. As an initial matter, the Court discerns no error in the Board's determination that the veteran's testimony was not credible as it pertains to his alleged layover in Vietnam. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991) ("The [Board] has the duty to assess the credibility and weight to be given to the evidence."). The Board found that the appellant's inconsistent recollections of his service, including his initial application for benefits in which he indicated that he had served in Vietnam from May 1968 to March 1974, demonstrated that the appellant is "not an accurate historian." R. at 15, 2165. The Board's credibility determination is therefore supported with an adequate statement of reasons and bases. See 38 U.S.C. § 7104(d)(1) ("Each decision of the Board shall include . . . a written statement of the Board's findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented in the record."); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board is required to provide a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's decision as well as to facilitate review in this Court). However, the inquiry cannot end there. Although the Board discounted the veteran's lay evidence, the Board must review the other evidence submitted and provide an adequate statement of reasons or bases for its conclusion that the appellant did not step foot in Vietnam. See Gilbert, supra. The appellant has submitted evidence stating that "it would be the exception [rather] than the rule where a flight [from a base not in Southeast Asia to a base in Thailand] would bypass [Ton 5 Son Nhut Air Base in Vietnam, where the veteran's alleged layover took place]." R. at 655. An email from James S. Howard, an archivist from the Air Force Historical Research Agency, reports that "[a]s a general rule, military cargo aircraft, especially those engaged in 'airlines' would stop over at Ton Son Nhut Air Base, Republic of Vietnam en[]route to bases in Thailand. Very few of this sort of flight were made 'direct' to bases in Thailand from bases outside Southeast Asia." R. at 651. The record also reflects that retired Major Robert E. Copner, U.S. Air Force, submitted a letter on the veteran's behalf, asserting that "[b]ased on my experience, it was common for military aircraft flying to and from airbases in Thailand to land at Ton Son Nhut [Air Base] and other Vietnam airbases." R. at 957. The Board failed to specifically discuss any of this evidence, instead simply stating that the evidence provided only "general information" and no support for the claim "that the veteran himself stopped in Vietnam over-night during his trip to Thailand." R. at 11. This cursory discussion does not enable the appellant to understand the Board's precise basis for concluding that the veteran had not set foot in Vietnam and frustrates judicial review of that issue. Remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate "where the Board has . . . failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"). B. The Court also concludes that the Board failed to provide an adequate statement of reasons or bases for denying herbicide exposure on a direct basis in light of the Board's acknowledgment that the veteran "served in Camp Friendship at the Korat [A]ir [Force] [B]ase, which was located near the perimeter of Korat [A]ir [F]orce [B]ase." R. at 20; see Gilbert, supra. The Board discussed the veteran's testimony that "herbicides were used throughout the Korat Royal Thai Air Force Base and not just the perimeter," and that "he knew this because the area surrounding the military base was lush and green and full of vegetation, but everything within the borders of the base was dead and brown." R. at 18-19 (emphasis added). As the Secretary points out in his brief, the Board's discussion about where Camp Friendship and Korat Air Force Base are located in relation to one another is confusing at best. Secretary's Br. at 17. Rather than citing specific evidence that addressed the proximity of Camp Friendship to the perimeter of Korat, the Board merely stated that "the evidence reflects Camp Friendship is a location within the borders of the Korat air base." R. at 20 (emphasis added). However, in the next sentence, the Board states that "while this location 6 is near the outer edge of the base, Camp Friendship is not located on the perimeter as contemplated by the M21-1MR."3 Id. This discussion of the two locations conflicts with how both the Project CHECO report and the veteran described the locations. The report stated that Fort Suranari was located on one side of the perimeter and Camp Friendship "bordered Korat on another section of perimeter." R. at 3128. Additionally, the veteran testified that Camp Friendship, Korat, Royal Thai Air Force Base, and Camp Dusit Thai were "like a complex for the U.S. military in Korat" and that Dusit was a "small camp outside of Korat." R. at 996. Remand is required for the Board to clarify its position and provide an adequate statement of reasons or bases for its findings. See Gilbert, supra. Further, the Board incorrectly stated that "the only tactical herbicides used in Thailand were used four years before the veteran arrived and in a wholly separate location than where the veteran served." R. at 21. As the Secretary admits, this statement was inaccurate, but he maintains that the error is not prejudicial. Secretary's Br. at 14-15. The VA Compensation Service has acknowledged that there was "some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides." Comp. & Pension Serv. Bull. (U.S. Dep't of Veterans Affairs, Washington, D.C.), May 2010, at 3. When it is established on appeal to the Court that the Board has committed an error, the Court must take due account of the rule of prejudicial error. 38 U.S.C. § 7261(b)(2); Newhouse v. Nicholson, 497 F.3d 1298, 1302-03 (Fed. Cir. 2007); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). An error is prejudicial when it "affects a substantive right that a statutory or regulatory provision was designed to protect" and "affects the essential fairness of the adjudication." Overton v. Nicholson, 20 Vet.App. 427, 434-35 (2006) (citing McDonough Power Equip. v. Greenwood, 464 U.S. 548, 553 (1984)). The Court finds the Board's error of fact prejudicial. A VA finding that the veteran did serve near the perimeter of the base may be significant because the perimeter was the only area where herbicides of a type similar to Agent Orange may have been used. Id. Therefore, if VA found that the veteran served near the perimeter, the Board's misstatement is 3 VA ADJUDICATION PROCEDURES MANUAL (M21-1MR), pt. IV, subpt. ii, ch. 2, sec. C, Service Connection for Disabilities Resulting from Exposure to Herbicides or Based on Service in the Republic of Vietnam (RVN) (2015). 7 crucial to the appellant's claim. The Court will remand this issue because the Board's error is prejudicial. C. Because the appellant's cause-of-death and renal failure claims are predicated on the appellant obtaining service connection for diabetes, a determination on the diabetes claim may have a "significant impact" on the remaining claims on appeal; consequently, the Court will remand both claims as inextricably intertwined. See Harris v. Derwinski, 1 Vet.App. 180, 183 (1991) (holding that where a decision on one issue could have a "significant impact" upon another, the two claims are inextricably intertwined), overruled on other grounds by Tyrues v. Shinseki, 23 Vet.App. 166 (2009) (en banc), aff'd, 631 F.3d 1380, 1383 (Fed. Cir. 2011), vacated and remanded for reconsideration, 132 S. Ct. 75 (2011), modified, 26 Vet.App. 31 (2012). IV. After consideration of the appellant's and Secretary's briefs, and a review of the records, the Board's May 29, 2015, decision is VACATED and the matter is REMANDED for readjudication. Because the Court is remanding the matter, it will not address the appellant's remaining arguments. See Dunn v. West, 11 Vet.App. 462, 467 (1998). On remand, the appellant may present, and the Board must consider, any additional evidence and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment on remand. VA must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring the Secretary to provide for "expeditious treatment" of claims remanded by the Court). 8 

806 F.2d 259 *Brownv.Warden, LA Correctional Sch. 86-4255 United States Court of Appeals,Fifth Circuit. 11/12/86 1 W.D.La. AFFIRMED IN PART 2 --------------- * Fed.R.App.P. 34(a); 5th Cir.R. 34.2.

[Cite as State v. Wright, 2014-Ohio-5424.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 100803 STATE OF OHIO PLAINTIFF-APPELLEE vs. STEVEN WRIGHT DEFENDANT-APPELLANT JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-562470-A BEFORE: Blackmon, J., Rocco, P.J., and E.A. Gallagher, J. RELEASED AND JOURNALIZED: December 11, 2014  -i- ATTORNEY FOR APPELLANT Jeffrey S. Richardson Richardson & Kucharski Co., L.P.A. 1200 West 3rd Street, Suite 190 Cleveland, Ohio 44113 ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor John Patrick Colan Gregory Paul Assistant Prosecuting Attorneys The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.:  {¶1} Appellant Steven Wright (“Wright”) appeals his convictions and assigns the following errors for our review: I. The defendant-appellant’s due process rights and rights to a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution were violated by ineffective assistance of counsel. II. The trial court erred and denied defendant-appellant due process of law and his right to a fair trial by allowing evidence of prior bad acts of the defendant-appellant. III. The trial court erred and denied defendant-appellant due process of law and his right to a fair trial by allowing hearsay statements into evidence. IV. The trial court erred to the prejudice of the defendant-appellant when it overruled his motion to suppress challenging the lawfulness of the police search and seizure, in violation of his constitutional rights against unreasonable search and seizure as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Section 14, Article I of the Ohio Constitution. V. The trial court erred to the prejudice of the defendant-appellant in denying his motion for acquittal made pursuant to Crim.R. 29(A). VI. The trial court erred to the prejudice of the defendant-appellant when it returned a verdict of guilty against the manifest weight of the evidence. {¶2} Having reviewed the record and pertinent law, we affirm Wright’s convictions. The apposite facts follow. {¶3} On May 15, 2012, the Cuyahoga County Grand Jury indicted Wright on one count of attempted murder, three counts of arson, and one count of aggravated arson. On May 21, 2012, Wright pleaded not guilty to the charges at his arraignment. Thereafter, numerous pretrials were conducted, and on October 24, 2013, a jury trial began. Jury Trial {¶4} At trial, the testimony of 21 state witnesses and one defense witness established that in the early morning of July 16, 2011, motorists traveling along Interstate 480 in North Olmsted, Ohio reported seeing a blaze off the highway. Patrolmen Gorden Goodman and Patrick Skullin of the North Olmsted Police Department, who were on separate routine patrols, immediately responded to the scene of the fire. The two patrolmen worked feverishly to rescue the occupants, Betty Wright, 1 the then 77-year-old owner of the house, Heather Hammill, a caretaker, as well as Hammill’s 10-year-old son, Joe Voelzow. {¶5} As Patrolman Goodman was assisting Betty Wright across the street to a neighbor’s house, she indicated that she could not believe that her son did what he said he was going to do. Betty Wright’s statement was an apparent reference to threats her son had made approximately six days earlier, when she asked him to leave the house following a heated argument. Betty Wright also indicated to the neighbor, Rita Gross, that she had evicted her son and he told her that if she kicked him out, he would burn the house down. {¶6} At the scene, the patrolmen observed white paint smeared all over the car belonging to Betty Wright and to the truck belonging to Hammill. Both vehicles were removed to preserve evidence of possible vandalism. The first responder also found a cigarette lighter on the lawn of the home. Eventually, through the mutual aid of surrounding jurisdictions, the North Olmsted Fire Department extinguished the fire. {¶7} Shortly before noon that day, as the first responders and fire investigators were leaving the scene, police officers observed Wright walking towards his mother’s home, shirtless and carrying a bag. As Wright’s approach got closer, the officers observed a white substance smeared all over his hands. On closer inspection, noting the distinct similarity with the white substance smeared on Betty Wright’s and Hammill’s vehicles, the officers arrested Wright. 1 Betty Wright passed away from lung cancer prior to the commencement of the trial.  {¶8} Subsequently, the white substance from Wright’s hand, as well as his clothing, boots, and cell phone were collected and sent to State Fire Marshal Forensic Lab and the Ohio Bureau of Criminal Identification for testing. After testing, the white substance on Wright’s hand was found to have the same chemical composition as the white substance smeared all over the two vehicles. {¶9} The fire investigator opined that the fire was intentionally set and that it started on the side of the house with the aid of an accelerant containing heavy petroleum distillate product. The petroleum distillate product was also found on the boots Wright was wearing on the morning he was arrested. The investigation determined that the fire did not start inside the house. {¶10} On October 29, 2013, the jury returned guilty verdicts on all counts. On November 25, 2013, the trial court sentenced Wright to 13 years in prison. Ineffective Assistance of Counsel {¶11} In the first assigned error, Wright argues he was denied the effective assistance of counsel. {¶12} To succeed on a claim of ineffective assistance, a defendant must establish that counsel’s performance was deficient and that the defendant was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Counsel will only be considered deficient if his or her conduct fell below an objective standard of reasonableness. Strickland at 688. {¶13} In Strickland, the United States Supreme Court also stated that a court’s scrutiny of an attorney’s work must be deferential. The court further stated that it is too tempting for an appellant to second-guess his attorney after conviction and appeal and that it would be all too easy for a court to conclude that a specific act or omission was deficient, especially when examining the matter in hindsight. Accordingly, this court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and the defendant must overcome the presumption that the challenged action might be considered sound trial strategy. Id. at 689. Further, to establish resulting prejudice, a defendant must show that the outcome of the proceedings would have been different but for counsel’s deficient performance. Id. at 694. {¶14} In the instant case, Wright argues trial counsel was ineffective because he failed to secure the appearance of Janet Reyes, Patrick Wyatt, and Daniel Chaney. Wright claims all three witnesses would have been critical to his defense. {¶15} First, Wright contends that Reyes, an employee of Extended Stay America in North Olmsted, where he and his mother stayed for over a month after the fire, would have testified that he had a good relationship with his mother. However, we are uncertain what light Reyes could have shed on the relationship between Wright and his mother, because there is no indication how much interaction Reyes had with them, and no indication whether she was aware that there was a fire. Importantly, there is no indication that Reyes was ever privy to the mother and son relationship prior to the fire. {¶16} Second, Wright contends that Patrick Wyatt, the insurance investigator hired by Nationwide, would have testified that his mother indicated in a telephone interview that she did not believe Wright started the fire. Wyatt’s alleged anticipated testimony might have been eyed by the jury with caution, because it too would have been a post-fire interaction between a remorseful son and a mother who, despite what her child had done, might not want that child to be prosecuted.  {¶17} Third, Wright contends that Chaney should have been secured, but admits that he is unclear what the substance of his testimony would have been. As such, we conclude trial counsel would have had a difficult time assessing Chaney’s relevance to the proceedings at hand. {¶18} Here, as discussed above, because the testimony of Reyes, Wyatt, and Chaney would not have been relevant, because two of the potential witnesses observed Wright’s interaction with his mother was after the fire occurred, and because Wright concedes that he was uncertain what the testimony of the third potential would have been, we decline to find that trial counsel’s tactical decision not to secure their presence at trial constituted deficient performance. {¶19} Finally, based on the foregoing, Wright has failed to show that the absence of the aforementioned three possible witnesses resulted in prejudice. Consequently, we decline to conclude that Wright was denied the effective assistance of counsel. Accordingly, we overrule the first assigned error. Other Acts Evidence {¶20} In the second assigned error, Wright argues the trial court erred when it allowed the state to introduce evidence about disturbance at his mother’s home the week prior to the fire. {¶21} We review the admission of evidence under an abuse of discretion standard. State v. Driggins, 8th Dist. Cuyahoga No. 98073, 2012-Ohio-5287, citing State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984). “Abuse of discretion” connotes more than error of law or judgment; it implies that the court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).  {¶22} Pursuant to Evid.R. 404(B), [E]vidence of other crimes, wrongs, or acts is not admissible to prove a defendant’s character as to criminal propensity. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. {¶23} Rule 404(B) is codified in R.C. 2945.59, which provides that: [I]n any criminal case in which the defendant’s motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant. {¶24} Recently, in State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, the Ohio Supreme Court revisited and addressed this very issue. The Ohio Supreme Court concluded that Evid.R. 404(B) is in accord with R.C. 2945.59 in that it precludes the admission of evidence of other crimes, wrongs, or acts offered to prove the character of an accused in order to show that the accused acted in conformity therewith, but does not preclude admission of that evidence for other purposes, e.g., to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. {¶25} In the instant case, at trial, three witnesses, including Wright’s brother, Fred, testified about the disturbance the week prior to the fire. Fred testified that Wright was upset because Hammill had entered their mother’s life, literally began living there, and appeared to be taking advantage of their mother. Fred testified that his brother was very upset at being asked to leave the house. Fred testified that although, he did not care for Hammill, he went to the house when summoned, to make sure Wright left without incident. Fred testified that he found the living room in disarray and their mother upset. {¶26} Hammill testified that she too was summoned by Wright’s mother on the day of the disturbance. Hammill testified that Wright, as well as his girlfriend, threatened her with physical harm. Hammill testified that Wright’s mother called the police and they arrived a short while later. {¶27} Officer Eric Morgan of the North Olmsted Police Department confirmed that he responded to Mrs. Wright’s home on the day of the disturbance. Officer Morgan testified that by the time he arrived, it had been decided that Wright would leave the house to avoid any future problems. {¶28} Here, in accord with the Ohio Supreme Court’s recent pronouncement in Williams supra, the state’s introduction of testimony regarding the disturbance was pertinent to establish Wright’s motive for setting the fire in retaliation for being asked to leave his mother’s home. {¶29} As such, the trial court did not abuse its discretion in admitting the testimony regarding the disturbance almost a week prior to the fire. Accordingly, we overrule the second assigned error. Hearsay Evidence {¶30} In the third assigned error, Wright argues the trial court erred when it admitted hearsay testimony. Specifically, Wright argues that the trial court should not have allowed Patrolman Goodman to testify that Wright’s mother stated immediately after the fire that “I can’t believe my son did this. I can’t believe he did what he said he was going to do.”  {¶31} Wright also argues the trial court should have excluded neighbor Rita Gross’s testimony that Wright’s mother told her, as the house was burning, that Wright had stated that he would burn the house down if she kicked him out of the house. {¶32} Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Evid.R. 801(C). Pursuant to Evid.R. 802, hearsay is inadmissible unless it falls within an exception provided by the rules of evidence. {¶33} The Confrontation Clause guarantees a criminal defendant the right “to be confronted with the witnesses against him.” U.S. Constitution Amendment VI. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause bars “testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had a prior opportunity for cross-examination.” {¶34} The Court distinguished between testimonial and nontestimonial hearsay and held that only testimonial statements implicate the Confrontation Clause. Id. According to Crawford, the initial analysis to be made in determining whether a defendant’s right to confrontation has been violated by the admission of out-of-court statements that are not subject to cross-examination “is not whether [the statements] are reliable but whether they are testimonial in nature.” Toledo v. Sailes, 180 Ohio App.3d 56, 2008-Ohio-6400, 904 N.E.2d 543 (6th Dist.), ¶ 13, citing Crawford, supra, at 61, 124 S.Ct. 1354, 158 L.Ed.2d 177. “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to  establish or prove past events potentially relevant to later prosecution.” Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). {¶35} Thus, to determine whether a statement is testimonial or nontestimonial, we inquire “whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting the case.” United States v. Cromer, 389 F.3d 662, 675 (C.A.6, 2004); see also State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, paragraph two of the syllabus. {¶36} In the instant case, Wright’s mother’s statement to Patrolman Goodman is subject to the Confrontation Clause, because a reasonable person in the mother’s position would anticipate her statement being used against her son in investigating and prosecuting the case. {¶37} However, Wright’s mother made the same statement to her neighbor, Gross. The statement to Gross was not testimonial, because a reasonable person in the mother’s position would not anticipate this statement being used against her son in investigating and prosecuting the case. As such, this statement to Gross falls under one of the firmly established exceptions to the hearsay rule, namely, an excited utterance. State v. Richardson, 6th Dist. Lucas No. L-07-1214, 2010-Ohio-471. {¶38} Evid.R. 803(2) defines an “excited utterance” as a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” {¶39} Excited utterances are admissible as an exception to the hearsay rule because they are “the product of reactive rather than reflective thinking and thus, are believed inherently reliable.” State v. Ducey, 10th Dist. Franklin No. 03AP-944, 2004-Ohio-3833, ¶ 17, citing State v. Taylor, 66 Ohio St.3d 295, 300, 612 N.E.2d 316 (1993).  {¶40} “Reactive excited statements are considered more trustworthy than hearsay generally on the dual grounds that, first, the stimulus renders the declarant incapable of fabrication and, second, the impression on the declarant’s memory at the time of the statement is still fresh and intense.” State v. Collins, 8th Dist. Cuyahoga No. 99659, 2013-Ohio-5579, citing Taylor at 300, quoting Weissenberger, Evidence, Section 803.16, at 1 (1992). {¶41} For an alleged excited utterance to be admissible, four prerequisites must be satisfied: (1) a startling event produced a nervous excitement in the declarant, (2) the statement was made while still under the stress of excitement caused by the event, (3) the statement related to the startling event, and (4) the declarant personally observed the startling event. See State v. Ray, 189 Ohio App.3d 292, 2010-Ohio-2348, 938 N.E.2d 378 (8th Dist.). {¶42} Here, the two aforementioned identical statements, one testimonal and the other nontestimonial, were made to separate individuals within minutes of each other, while Wright’s mother was experiencing the stress and trauma of watching her home engulfed in flames. Thus, Wright’s mother had no time for reflective thought. Consequently, as noted above, events such as that experienced by Wright’s mother generally renders the declarant incapable of fabrication. {¶43} As such, the trial court did not abuse its discretion in admitting into evidence the hearsay testimony of Patrolman Goodman and Rita Gross under the excited utterance exception to the hearsay rule. Further, because Wright’s mother made the identical statement to both Patrolman Goodman and to the neighbor, allowing Patrolman Goodman to testify about the mother’s statement was harmless. Accordingly, we overrule the third assigned error. Motion to Suppress  {¶44} In the fourth assigned error, Wright argues the trial court erred when it overruled his motion to suppress because the police officers had no probable cause to seize or arrest him on the morning following the fire. {¶45} An appellate court’s review of a trial court’s ruling on a motion to suppress presents a mixed question of law and fact. Euclid v. Jones, 8th Dist. Cuyahoga No. 97868, 2012-Ohio-3960. The reviewing court is bound to accept the trial court’s findings of fact if they are supported by competent, credible evidence. State v. Shabazz, 8th Dist. Cuyahoga No. 97563, 2012-Ohio-3367, citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). The application of the law to those facts is subject to de novo review. State v. Polk, 8th Dist. Cuyahoga No. 84361, 2005-Ohio-774, ¶ 2. {¶46} The Fourth Amendment to the United States Constitution prohibits warrantless searches and seizures, with some exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A warrantless arrest is unconstitutional unless the arresting officer has probable cause to make the arrest at that time. State v. Timson, 38 Ohio St.2d 122, 127, 311 N.E.2d 16 (1974). {¶47} Probable cause exists when officers have “‘facts and circumstances within their knowledge and of which they [have] reasonably trustworthy information’ that would sufficiently ‘warrant a prudent man in believing that the [suspect] had committed or was committing an offense.’” State v. Fannin, 8th Dist. Cuyahoga No. 79991, 2002-Ohio-6312, quoting Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). {¶48} Furthermore, the Fourth Amendment allows a police officer to stop and detain an individual if the officer possesses a reasonable suspicion, based upon specific and articulable facts, that criminal activity “may be afoot.” Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In deciding whether reasonable suspicion exists, courts must examine the “‘totality of the circumstances’ of each case to determine whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.’” United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); see also State v. Bobo, 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), paragraph one of the syllabus, citing State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980). {¶49} In the instant case, under the totality of the circumstances, the police officers had a particularized and objective basis for suspecting Wright of illegal wrongdoing. As previously noted, when Wright approached his mother’s home the morning after the fire, his hands were covered in the same white paint-like substance that was smeared all over the vehicle in the driveway. At that point, the police officers had probable cause to suspect Wright of at least vandalizing the vehicle. As such, the trial court properly overruled the motion to suppress. Accordingly, we overrule the fourth assigned error. Sufficiency of the Evidence {¶50} In the fifth assigned error, Wright argues that his motion for acquittal should have been granted because the state failed to present sufficient evidence that he was responsible for starting the fire. {¶51} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where the state’s evidence is insufficient to sustain a conviction for the offense. Crim.R. 29(A) and a sufficiency of the evidence review require the same analysis. State v. Houston, 8th Dist. Cuyahoga No. 100655, 2014-Ohio-3911, citing State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386.  {¶52} In analyzing whether a conviction is supported by sufficient evidence, the reviewing court must view the evidence “in the light most favorable to the prosecution” and ask whether “any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; State v. Carter, 72 Ohio St.3d 545, 1995-Ohio-104, 651 N.E.2d 965. {¶53} In the instant case, Ralph Dolence, the fire investigator hired to determine the cause of the fire opined that the fire was deliberately set and was an act of arson. Of note, the investigation ruled out any notion that the fire started inside the house. In addition, the fire investigator specifically testified that the fire was set using an accelerant, containing a petroleum distillate product, at the side of the house. Further, the same accelerant that was determined to have been used to start the fire, was also found on the boots Wright was wearing on the morning he was arrested. {¶54} Further, the white substance found on Wright’s hands when he was arrested, contained the same chemical composition as the substance found smeared on the two vehicles in the driveway at the time of the fire. At trial, one of the slides shown during the arson investigator’s power point presentation clearly depicts finger marks in the white substance splattered on the vehicles. {¶55} Consequently, construing the evidence in the light most favorable to the state, under the facts of this case, there was sufficient evidence presented that Wright started the fire. There was no evidence that the fire was started by anything inside the house, instead reliable conclusive evidence that it was set outside the house, and ample evidence that Wright had motive and intent to set the fire in retaliation and in anger for being evicted by his mother from his childhood home. Accordingly, we overrule the fifth assigned error. Manifest Weight of the Evidence {¶56} In the sixth assigned error, Wright argues his convictions were against the manifest weight of the evidence. {¶57} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, the Ohio Supreme Court addressed the standard of review for a criminal manifest weight challenge, as follows: The criminal manifest-weight-of-the-evidence standard was explained in State v. Thompkins (1997), 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. In Thompkins, the court distinguished between sufficiency of the evidence and manifest weight of the evidence, finding that these concepts differ both qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court held that sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, but weight of the evidence addresses the evidence’s effect of inducing belief. Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court asks whose evidence is more persuasive — the state’s or the defendant’s? We went on to hold that although there may be sufficient evidence to support a judgment, it could nevertheless be against the manifest weight of the evidence. Id. at 387, 678 N.E.2d 541. “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” Id. at 387, 678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652. Id. at ¶ 25. {¶58} An appellate court may not merely substitute its view for that of the jury, but must find that “in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Thompkins at 387. Accordingly, reversal on manifest weight grounds is reserved for “the exceptional case that the evidence weighs heavily against the conviction.” Id.  {¶59} In the instant case Wright contends that his defense expert, Timothy Wilhelm, hired to opine on the cause of the fire, disagreed with Dolence’s opinion that the fire was intentionally set. {¶60} Preliminarily, we note, Wilhelm testified that he never actually went to the scene of the fire. Wilhelm also admitted that had he been able to go to the scene shortly after the fire, he would have been able to produce a more thorough report. At trial, Wilhelm testified in pertinent part as follows: Q. You agree with the origin of this fire, correct? A. I do. Q. Now, you claim that you’re not able to determine the cause of this fire because you didn’t have enough data; is that correct? A. That’s correct. Q. Would have physically being on the scene, smelling it and seeing it, talking to people on the scene, observing the scene, given you more data? A. Absolutely. Q. Now, you mentioned that Mr. Dolence presumed this was arson from the start, right? A. I believe he indicated that in his report when he said that a suspect was in custody for the fire. Q. Where does he presume — doesn’t he not go through methodically all potential causes of this fire: electrical, furnace, boiler, exterior electrical, lightning even? Doesn’t he eliminate all these potential ignition causes of the fire? A. Yes, sir, he does. Q. He rules them out, correct? A. He does. Q. Based on what you reviewed, wouldn’t you agree that all of those things should be ruled out as the cause of this fire?  A. The problem with that is just because it isn’t A, B, C, doesn’t really mean it’s D. Q. But if it’s none of those things, is it in your opinion — A. It wasn’t A, B, or C, correct. Q. So all those things he went over, methodically went through at the house, you would agree that none of those things caused the fire? A. Absolutely. Tr. 678-680. {¶61} Here, despite Wright’s contention that Wilhelm disputes Dolence’s determination that the fire was an act of arson, the above excerpt, as well as elsewhere in the record, reveals that Wilhelm does not dispute that all other possible causes of the fire were ruled out. As such, after weighing the evidence, all inferences, and any discrepancies, we cannot find that a manifest miscarriage of justice occurred in this case. Consequently, Wright’s convictions are not against the manifest weight of the evidence. Accordingly, we overrule the sixth assigned error. {¶62} Judgment affirmed. It is ordered that appellee recover of appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said court to carry this judgment into execution. The defendant’s convictions having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA ANN BLACKMON, JUDGE KENNETH A. ROCCO, P.J., and EILEEN A. GALLAGHER, J., CONCUR 

68 F.3d 477 NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Monte Carlo SMITH, Petitioner-Appellant,v.Salvador GODINEZ, Respondent-Appellee. No. 93-3914. United States Court of Appeals, Seventh Circuit. Submitted Sept. 26, 1995.*Decided Oct. 12, 1995. Before BAUER, COFFEY and EASTERBROOK, Circuit Judges. ORDER 1 Petitioner Monte Carlo Smith appeals the district court's denial of his petition for a writ of habeas corpus, 28 U.S.C. Sec. 2254. We affirm. FACTS 2 In 1987, petitioner was convicted of aggravated arson and sentenced to twenty-five years in prison by an Illinois state court. Represented by the same attorney, petitioner appealed, arguing that he was not proven guilty beyond a reasonable doubt, that the aggravated arson statute was unconstitutional, that the trial court erroneously qualified an expert, and that his sentence was excessive. The Illinois appellate court affirmed the conviction and sentence, and the Illinois Supreme Court declined review. 3 Petitioner then filed a pro se petition for post-conviction relief in Illinois state court alleging ineffective assistance of counsel. The trial court summarily dismissed the petition. The Illinois appellate court affirmed and held the ineffective assistance of counsel claims were waived, as there was no reason why they could not have been raised on direct appeal. Petitioner unsuccessfully sought review in the Illinois Supreme Court on the grounds the appellate court applied the wrong standard of review. 4 In his habeas petition, petitioner claims ineffective assistance of counsel and a violation of his due process/equal protection rights based upon the testimony of an improperly qualified expert witness.1 The district court ruled that the expert witness claim was barred, as it was not fairly presented to the state court as a constitutional claim. The district court also held that the ineffective assistance claims were procedurally defaulted, as the Illinois appellate court clearly relied on a state procedural bar in affirming the dismissal of the post-conviction petition. The district court concluded that petitioner could not show cause for either default. ANALYSIS 5 A federal court cannot address the claims raised in a prisoner's petition for a writ of habeas corpus unless the state courts have had a full and fair opportunity to review them. Farrell v. Lane, 939 F.2d 409, 410 (7th Cir.1991), cert. denied, 502 U.S. 944 (1991). Further, the constitutional claims must be "fairly presented" to the state court as constitutional claims, including both the operative facts and controlling legal principles. Williams v. Washington, 59 F.3d 673, 677 (7th Cir.1995). A finding of procedural default in state court that is based on adequate and independent state law grounds precludes federal review of the merits of the petitioner's claims, unless the petitioner can establish cause for the procedural default and actual prejudice resulting from it. Coleman v. Thompson, 111 S.Ct. 2546, 2565 (1991). Ineffective assistance can establish cause for such a default. Id. at 2567. 6 Both claims were procedurally defaulted. As to the ineffective assistance claims, the Illinois appellate court clearly relied on a state procedural bar in concluding that the claims were waived. (Illinois Appellate Opinion, Record No. 15, Attachment D at 3). See generally Farrell, 939 F.2d at 411. As to the expert witness claim, petitioner's argument to the Illinois appellate court was based entirely on state law evidentiary rules. (Petitioner's brief on direct appeal, Record No. 15, Attachment A at 19-21.) Thus, the claim is barred, as it was not fairly presented as a federal claim to the state courts.2 To overcome the procedural defaults, petitioner must establish cause and prejudice.3 7 Petitioner claims that ineffective assistance of counsel provides the necessary cause for his default. However, petitioner cannot utilize a procedurally defaulted ineffective assistance claim to establish cause for the failure to present other claims, unless petitioner establishes cause for his failure to raise the ineffective assistance claim. See Farrell, 939 F.2d at 411-12. Petitioner has failed to do so. 8 As noted by the district court, there is one colorable argument that could be made in support of petitioner's position. This court has held that where trial counsel is also appellate counsel, a petitioner is not barred from raising ineffective assistance of counsel for the first time in a collateral attack. See Barnhill v. Flannigan, 42 F.3d 1074, 1077-8 (7th Cir.1994); Velarde v. United States, 972 F.2d 826, 827 (7th Cir.1992). However, even construing petitioner's pro se pleadings liberally, this argument was not presented in any form to the district court. The district court correctly concluded the argument was waived. 9 AFFIRMED. * After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Cir.R. 34(f). No such statement having been filed, the appeal is submitted on the briefs and the record 1 The petitioner abandoned a third claim regarding his right to cross-examine witnesses. Petitioner has also raised new claims in his appellate brief that were not raised in the district court. These claims are waived 2 While the state did not argue the matter, this court notes that the petitioner failed to raise this issue in any form in the post-conviction proceeding 3 The "miscarriage of justice" exception was not raised below, and the record reveals no basis for such a claim. The miscarriage of justice exception does not apply if the alleged constitutional violation only resulted in the admission of truthful inculpatory evidence which did not affect the reliability of the verdict. Sawyer v. Whitley, 112 S.Ct. 2514, 2519 (1992). While petitioner has argued that evidence was improperly admitted, there is no basis for concluding that it was unreliable

999 S.W.2d 796 (1998) Peggy DOOLEY, Appellant, v. The STATE of Texas, Appellee. No. 12-97-00452-CR Court of Appeals of Texas, Tyler. November 24, 1998. Discretionary Review Refused May 26, 1999. Rehearing Overruled December 28, 1999. *797 Thomas W. Blow, Tyler, for appellant. Edward J. Marty, Tyler, for appellee. Before RAMEY, Jr., C.J., HOLCOMB, J., and HADDEN, J. CHARLES HOLCOMB, Justice. A jury found Peggy Dooley ("Appellant") guilty of the felony offense of retaliation and assessed her punishment at four years' imprisonment and a $10,000.00 fine, both of which were probated. Appellant was placed on community supervision for five years. She presents eight issues on appeal for our review. We will affirm. The evidence reflects that Appellant and Cynthia Delio ("Delio") had been acquaintances of Scottie Welch ("Scottie"). When Scottie died, leaving an estate valued at approximately $400,000.00, Appellant moved in with Scottie's husband, Howard Welch ("Howard"). Howard and Scottie's daughter, Teresa Wheatley ("Teresa"), were interested parties in a contested temporary administration hearing involving Scottie's estate in Anderson County. Delio appeared at the hearing, without subpoena, intending to testify on behalf of Teresa about how Appellant and Howard allegedly disposed of the estate's assets. At the hearing, Delio was sworn in by the court but was not ultimately called to testify. Appellant was not at the hearing. Later, Appellant telephoned Delio and threatened, among other things, to choke her because of what Appellant believed had been or would be Delio's testimony. Portions of these threats were recorded on Delio's telephone answering machine and introduced at trial. Delio also testified concerning other threats which were not recorded. In her first four issues, Appellant claims the trial court erred when it failed to grant a motion for continuance, refused to have the answering machine tape independently examined, failed to grant a motion to dismiss, and failed to have Delio examined for competency. In her discussion of these issues, Appellant argues that part of the original tape was not included on the copy she was furnished, and that she should have been allowed more time to authenticate the tape and to prepare for trial concerning her claim that Delio was incompetent to testify. Appellant, however, has failed to support her statements and arguments by appropriate record references *798 showing where in the record these complaints were presented to the trial court and the court's rulings on these issues. See TEX.R.APP. P. 33.1(a), 38.1(d), (f), (h). The court must be directed to that portion of the record supporting the claimed error. Lape v. State, 893 S.W.2d 949, 953 (Tex.App.—Houston [14th Dist.] 1994, pet. ref'd). In addition, Appellant has failed to cite any legal authority or present any analysis on these purported errors. The Texas Rules of Appellate Procedure require that argument and authority be offered in support of each point of error in order for the issues to be properly before the court. TEX.R.APP. P. 38.1. Since Appellant has offered no authority, analysis or record references, she has effectively waived these issues. Maldonado v. State, 902 S.W.2d 708, 711 (Tex.App.— El Paso 1995, no pet.). We overrule Appellant's first four issues. In her fifth issue, Appellant contends that the trial court erred in refusing her requested definition of "witness" in the jury charge. The requested charge would have defined a witness as "one who has testified in an official proceeding and does not include a mere prospective witness." Appellant reasons that since Article 36.06 of the Texas Penal Code distinguishes between the terms "witness" and "prospective witness," the requested definition was required. She also argues that administering the oath to Delio did not transform her from a "prospective witness" to a "witness." At the time of the alleged offense, Article 36.06 of the Texas Penal Code, in relevant part, provided as follows: (a) A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act: (1) in retaliation for or on account of the service or status of another as a: (A) ... public servant, witness, prospective witness, or informant, or .... (emphasis added) TEX. PEN.CODE ANN. art. 36.06(a) (Vernon Supp.1998). The indictment against Appellant alleged: ... that on or about the 1st day of November, 1996, and anterior to the presentment of this Indictment, in the County of Smith and State of Texas, PEGGY DOOLEY did then and there intentionally and knowingly threaten to harm another, to-wit: CYNTHIA DELIO, by an unlawful act, to-wit: by threatening to choke the said CYNTHIA DELIO to death, in retaliation for and on account of the service of the said CYNTHIA DELIO `as a witness' .... (emphasis added) We find no authority addressing the issue of whether a person is classified as a "witness" under the statute when he has been sworn as a witness in an official proceeding, but has not testified. At first blush, it would appear that the issue has been determined by Jones v. State, 628 S.W.2d 51 (Tex.Cr.App.1980), a case cited by Appellant. In Jones, the court construed the term "witness" to mean one who has testified in an official proceeding. Id. at 55. We note, however, that the result in Jones was driven by its distinctive facts. In that case, the defendant and the complaining witness got into an argument at a bus station cafeteria and caused a disturbance. The defendant fled the scene, but was apprehended by a nearby policeman. Upon being returned to the bus station in the custody of the police, the defendant pointed at the complaining witness, accused her of calling the police and threatened to kill her. The defendant was indicted and tried for retaliation against the complaining witness who testified under subpoena at trial. The Jones court reasoned that, upon these facts, the evidence was insufficient to support a conviction since when the threat was made, the complainant was not a witness in any official proceeding. The version of Article 36.06 which was applicable in Jones, however, did not prohibit retaliation against a "prospective witness" nor did it criminalize *799 retaliation on account of the "status" of a witness. Furthermore, Jones is not dispositive of the issue because Delio had been sworn as a witness in an official proceeding. See TEX. PEN.CODE ANN. § 36.05 (Vernon 1994). In 1983, the legislation added the words "prospective witness" to the statute. In response to Jones, in Morrow v. State, 862 S.W.2d 612 (Tex.Cr.App.1993), the Court of Criminal Appeals had occasion to examine the purpose and interpret that portion of amended Article 36.06, which applies to the instant case. The court observed that the statutory categories of protected persons overlapped and that to narrow those categories would defeat the legislative purpose. It also held that "prospective witness" should be given its ordinary meaning, taking into consideration the defendant's intent. Id. at 614. In the present case, "witness" is also a common term and should be ascribed its ordinary meaning. We hold that the ordinary meaning of "witness" includes one who has testified as well as one who has been called to testify. No error occurs when a trial court does not define a common word in its charge to the jury. Penry v. State, 903 S.W.2d 715, 730 (Tex.Cr.App.1995). We overrule Appellant's fifth issue. In her sixth issue, Appellant complains that the trial court erred when it instructed the jury as follows: Our law provides that a person commits an offense if she intentionally or knowingly threatens to harm another by an unlawful act in retaliation for or on account of the service of a person who has reported the occurrence of a crime. (emphasis ours) No other abstract definition of the applicable law was given or requested. Appellant did not object to this paragraph at trial. On appeal, she argues that the inclusion of the above language deprived her of a fair and impartial trial by misleading and confusing the jury as to the proper standard upon which to base its deliberations. Appellant asserts that her position is supported by the fact that during deliberations, the jury asked what crime had been reported.[1] It is apparent that the instruction was erroneous since this was not an element of the charged offense. Article 36.19 of the Code of Criminal Procedure provides the following standard of review for both fundamental error and ordinary reversible charge error: Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial. TEX.CRIM. PROC.CODE ANN. art. 36.19 (Vernon 1981). When the court's charge, taken as a whole, sufficiently presents applicable law and protects the defendant's rights, however, the judgment (as a result therefrom) will not be reversed on appeal. Parker v. State, 594 S.W.2d 419, 424 (Tex.Cr. App.1980). The burden is placed upon the appellant who seeks reversal to demonstrate that error exists in the charge and that the error was calculated to injure his rights or cause a denial of a fair and impartial trial. Renfro v. State, 827 S.W.2d 532, 534 (Tex.App.—Houston [1st Dist.] 1992, pet. ref'd). When we consider whether charge error harmed Appellant, we examine the entire charge, the state of the evidence, including contested issues, argument of counsel, and any other relevant information. Ash v. State, 930 S.W.2d 192, 195 (Tex.App.—Dallas 1996, no pet.). When charge error is not preserved at trial, defendant must show that *800 error was so harmful that he was denied a fair and impartial trial. In other words, he must show that he suffered actual egregious harm. Patrick v. State, 906 S.W.2d 481, 492 (Tex.Cr.App.1995), reh'g denied, cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.E.2d 475 (1996). The application paragraph tracked the indictment and correctly applied the law to the facts. And the foremost issue in the instant case was Appellant's intent.[2] Our review of the record reveals that the jury should not have been misled to the extent that Appellant suffered actual egregious harm by this innocuous mistake in the jury charge. Appellant's sixth issue is overruled. In her seventh issue, Appellant claims the trial court erred when it failed to grant her request to admit the audio tape and allow it to be played in its entirety to the jury. At trial, the State had marked and offered Delio's answering machine tape into evidence, to which Appellant made no objection. When the State presented its evidence, however, it played only that portion of the tape in which the alleged threats were made by Appellant. The balance of the tape contained conversations with or messages from other individuals. Appellant sought to introduce these portions of the audio tape in order to impeach Delio's testimony that she was not an emotional person and to show Delio's incompetency to testify.[3] The trial judge ruled that these other conversations were irrelevant under the state of the evidence at that time. He then offered Appellant the opportunity to examine Delio outside the presence of the jury to establish a time frame and relevance of the other portions of the tape, at which time he would reconsider his decision. Appellant failed to take advantage of the offer, however, and thereby waived this complaint on appeal. TEX. R.APP. P. 33.1(a). Appellant's seventh issue is overruled. In issue number eight, Appellant maintains that the verdict is contrary to the law and to the evidence in the case. Appellant again argues that Delio was not a "witness" under Article 36.06 of the Penal Code, but was rather a "prospective witness," which caused a fatal defect between the indictment and the evidence introduced at trial. We construe Appellant's claim to be a legal sufficiency of the evidence claim. The standard for review of a sufficiency of the evidence issue is whether, after reviewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Shears v. State, 895 S.W.2d 456, 458 (Tex.App.—Tyler 1995, no pet.). In reviewing the sufficiency of the evidence, we must consider all the evidence which the jury was permitted to consider, whether rightly or wrongly. Thomas v. State, 753 S.W.2d 688, 695 (Tex.Cr.App.1988). In the instant case, the evidence showed that Delio had been called as a witness, appeared in court and was sworn in. Ultimately, however, she was not called to the witness stand to testify. Later Appellant telephoned Delio and threatened her because Appellant believed Delio intended to testify against her interest. The jury could have reasonably determined that Delio was a "witness," ascribing its normal definition to that common term. Therefore, there exists sufficient evidence for a rational jury to find, beyond a reasonable doubt, that Delio was threatened because of her "service or status as a witness." Appellant's eighth issue is overruled. *801 Having found no reversible error, the judgment of the trial court is affirmed. NOTES [1] In response to the jury's request, the court declined to give further instructions. [2] When Appellant testified on her own behalf, she admitted that she had made the calls, but insisted she was not serious and Delio knew it. [3] During one of these taped conversations, Delio cried extensively while she was speaking with her daughter.

FILED NOT FOR PUBLICATION NOV 07 2012 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT KATHYA DOROTEA ROMERO No. 08-72821 VELAZQUEZ, Agency No. A095-175-545 Petitioner, v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 16, 2012 San Francisco, California Before: WALLACE and BEA, Circuit Judges, and RESTANI, Judge.** Because Velazquez’s counsel did not show he obtained his client’s consent to the motion to dismiss he filed on her behalf, the motion is denied. We will consider this case on the merits. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jane A. Restani, Judge for the U.S. Court of International Trade, sitting by designation.  Because Velazquez has not shown that any prejudice resulted from the Immigration Judge’s alleged failure to inform her of the potential for pre- conclusion voluntary departure, any right to due process was not violated. See United States v. Calles-Pineda, 627 F.2d 976, 978 (9th Cir. 1980); In Re R-S-H, 23 I. & N. Dec. 629, 644 (BIA 2003). PETITION DENIED. 

124 F.Supp.2d 449 (2000) Rudy A. HINGST, Plaintiff, v. PROVIDIAN NATIONAL BANK, Defendant. No. Civ.A. G-00-636. United States District Court, S.D. Texas, Galveston Division. December 15, 2000. *450 Kenneth Charles Kaye, League City, TX, for Rudy A. Hingst, plaintiff. C. Ed Harrell, Hughes Watters & Askanase, Houston, TX, for Providian National Bank, defendant. ORDER DENYING PLAINTIFF'S MOTION TO REMAND KENT, District Judge. Plaintiff Rudy A. Hingst ("Hingst") brings this action under state law and the Federal Fair Debt Collection Practices Act, 15 U.S.C. § 1501 et seq., against Defendant Providian National Bank ("Providian"). Now before the Court is Plaintiff's Motion to Remand. For the reasons stated below, Plaintiff's Motion to Remand is DENIED. I. BACKGROUND Hingst filed suit against Providian in the County Court No. 2 of Galveston County, Texas on September 15, 2000, and served Providian with notice of suit on September 21, 2000. Providian answered in state court and then filed its Notice of Removal with this Court on October 20, 2000, alleging federal question jurisdiction. Thereafter, on November 20, 2000, Hingst filed his Motion to Remand urging that Providian had waived its right to remove based upon *451 Providian's prior participation in the litigation of a related state court lawsuit. The parties do not dispute the basic facts of this previous lawsuit. On February 23, 1999, Providian had sued Hingst in County Court No. 2 of Galveston County for collection of a debt allegedly owed to it by Hingst. Providian, however, later nonsuited its claim against Hingst on May 27, 1999. Five days later, on June 1, 1999, Hingst answered Providian's suit and included in this answer a counterclaim reflecting the very same allegations that form the basis of Hingst's claim in the present lawsuit, namely that Providian actually owed Hingst money and that Providian had also violated state and federal debt collection laws. The Texas state court signed an order dismissing Providian's claims without prejudice on June 15, 1999. Providian continued, however, to participate in the state court suit in its new role as solely a defendant. It answered Hingst's counterclaim on November 4, 1999, began participating in discovery, and the case was set for trial. Later, on August 11, 2000 Providian filed a motion to dismiss Hingst's claim, asserting that the state court lacked jurisdiction over the action. Under Texas law, a nonsuit is effective upon the date of its filing. See Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex.1982). Thus, because Hingst had not filed his counterclaim requesting affirmative relief with the state court prior to Providian's filing of its nonsuit, the state court's jurisdiction to hear Hingst's claim had terminated. See In re Bennett, 960 S.W.2d 35, 38 (Tex.1997); BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 840-41 (Tex.1990). Accordingly, on September 8, 2000, despite both parties having acted for some time as though the matter should go forward, the state court dismissed Hingst's counterclaim based upon its lack of jurisdiction. This naturally led Hingst to refile his claim, which he did one week later, on September 15, 2000, in the same state court. This refiled claim is the present action that Providian has removed to this Court. II. ANALYSIS At the outset, the Court notes that Defendant, as the removing party, must carry the burden of establishing the existence of federal jurisdiction. See Hummel v. Townsend, 883 F.2d 367, 369 (5th Cir.1989); B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. Unit A Dec. 1981). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). Any doubts surrounding removal must accordingly be resolved in favor of remanding the action back to state court. See Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir.2000), cert. denied, ___ U.S. ___, 120 S.Ct. 2658, 147 L.Ed. 273 (2000). United States District Courts have jurisdiction over federal question cases. See 28 U.S.C. § 1331. Federal question cases encompass matters that "arise under the Constitution, laws or treaties of the United States." See id. Ordinarily, federal jurisdiction is determined by looking to the plaintiff's "well-pleaded complaint" and ascertaining whether or not it raises issues of federal law. See Heimann v. National Elevator Indus. Pension Fund, 187 F.3d 493, 499 (5th Cir.1999). Indisputably, Plaintiff's well-pleaded complaint, by asserting a claim for relief under the Federal Fair Debt Collection Practices Act raises an issue of federal law. Accordingly, Plaintiff does not contest this Court's jurisdiction of the case. Nor does Plaintiff claim that Defendant failed to remove within thirty days, as required by 28 U.S.C. § 1446(b). Instead, Plaintiff argues that Defendant waived its right to remove based upon its conduct in a previous piece of litigation. The Court observes that in most cases, the statutory requirement that a defendant remove the case within 30 days of its having become removable prevents *452 waiver situations from occurring at all. See id. Nevertheless, there is no question that a defendant may waive its right of removal by taking substantial action in state court prior to removal. See 14B Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure § 3721 (3d ed. 1998). Waiver will not occur, however, unless it is "clear and unequivocal." See Beighley v. F.D.I.C., 868 F.2d 776, 782 (5th Cir.1989); Custom Blending Int'l, Inc. v. E.I. Dupont De Nemours & Co., 958 F.Supp. 288, 289 (S.D.Tex.1997). Generally, there is no waiver "short of proceeding to adjudication on the merits." See Beighley, 868 F.2d at 782. In essence, waiver is meant to prevent a defendant from using removal as an insurance policy against unfavorable treatment in state court. See Rosenthal v. Coates, 148 U.S. 142, 147-48, 13 S.Ct. 576, 577, 37 L.Ed. 399 (1893) ("[A] defendant cannot ... experiment on his case in the state court, and upon an adverse decision then transfer it to the federal court."); Aynesworth v. Beech Aircraft Corp., 604 F.Supp. 630, 637 (W.D.Tex.1985) (quoting Rosenthal). Thus, simply filing an answer, making preliminary motions, and the like does not waive the right of removal. See Custom Blending Int'l, Inc., 958 F.Supp. at 289 (finding that a defendant did not waive its right to remove by filing motions to transfer venue and for summary judgment in state court); Labry v. I.R.S., 940 F.Supp. 148, 149 (E.D.La.1996) (holding that answering a complaint does not waive removal). Turning to the case at hand, the Court observes that Defendant has taken no action in this lawsuit that constitutes waiver of its right of removal. Defendant filed an original answer in state court and later amended this answer, but nevertheless timely filed its notice of removal. Plaintiff argues, however, that Defendant has waived its right to removal by participating in a related lawsuit that previously existed in state court. This argument lacks merit. Plaintiff's lawsuit against Defendant is a wholly new lawsuit. It makes no difference that Plaintiff's claims are the same, and that Defendant failed to remove the previously dismissed state court suit. A defendant's conduct in a prior lawsuit has no bearing on the removability of a later suit. See Baker v. Firestone Tire & Rubber Co., 537 F.Supp. 244, 247 (S.D.Fla.1982) (holding that when a plaintiff voluntarily dismissed an action and subsequently brought the same action against the same defendant, the defendant had the right to remove, despite having participated in the earlier trial for over one year in state court). Therefore, Plaintiff's Motion to Remand is DENIED. III. CONCLUSION Plaintiff has filed a distinct new lawsuit versus Defendant. A basis existed in this new suit for Defendant to remove the dispute to this Court and Defendant did so remove in a timely manner. Contrary to Plaintiff's argument, Defendant has not waived its right to removal based upon its actions in the prior state court suit. Accordingly, for the reasons set forth in more detail above, Plaintiff's Motion to Remand is DENIED. IT IS SO ORDERED.

537 U.S. 1075 LOCKHARTv.ROPER, SUPERINTENDENT, POTOSI CORRECTIONAL CENTER. No. 02-6866. Supreme Court of United States. December 9, 2002. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. 2 C. A. 8th Cir. Certiorari denied.

12 F.3d 1098 Colemanv.Gordon** NO. 93-07086 United States Court of Appeals,Fifth Circuit. Dec 15, 1993 1 Appeal From: N.D.Miss. 2 DISMISSED. ** Conference Calendar

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON RONALD DEAN WARF & BONNIE LOU WARF v. WAYNE T. VINCENT An Appeal from the Chancery Court for Shelby County No. 109573-1 R.D.; The Honorable Walter L. Evans, Chancellor No. W1999-01542-COA-R3-CV - Decided May 30, 2000 This appeal arises from a trespass action filed by plaintiffs-Warfs in the Shelby County Chancery Court. Defendant-Vincent admitted liability for the trespass. The only issues at trial were whether the injury to the land was permanent in nature and the amount of damages to be awarded to the Warfs. The trial court found that the injury was permanent and awarded the Warfs ten thousand dollars in compensatory damages. Vincent appeals both the determination that the damage was permanent and the amount of the damage award. Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part and Remanded. HIGHERS , J., delivered the opinion of the court, in which FARMER , J., and LILLARD , J., joined. Nicholas E. Bragorgos, Lucinda S. Murray, McNABB, HOLLEY, WALDROP & BRAGORGOS, PLLC, Memphis, for Appellant, Vincent Glen G. Reid, Jr., Nanette L. Wesley, WYATT, TERRANT & COMBS, Memphis, for Appellees, Warf MEMORANDUM OPINION1 Vincent asserts that the trial court erred in allowing the Warfs’ witness to testify as an expert. Vincent also appeals the trial court’s finding that the damage to the Warfs’ land was permanent in nature. In addition, Vincent appeals the amount of damages awarded. Facts and Procedural History 1 Rule 10 (Court of Ap peals). Memorandum Opinion. – (b) The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.  The Warfs are the owners of residential property located in Shelby County, Tennessee. On or around August 1, 1996, while the Warfs were on vacation, Vincent erroneously entered onto Warfs land with a bulldozer. Vincent bulldozed three areas of Warfs’ property, destroying mature trees, stripping and excavating top soil and subadjacent soil, and redirecting surface waters and drainage on Warfs’ property. Subsequently, the Warfs filed an action against Vincent in the Shelby County Chancery Court. Vincent admitted liability for the trespass, leaving only the issue of damages for trial. In preparation for trial, Vincent sent interrogatories to the Warfs requesting a list of any expert witness and expected testimony, the amount of damages claimed, and a list of fact witnesses. The Warfs supplied all the requested information except for the list of expert witnesses and a before and after value of the land. The information included several fact witnesses, and the replacement costs of the trees, dirt, and other miscellaneous repair costs. At trial, the Warfs called Jeff Pickard, a co-owner and employee of J&J Landscaping Company, to testify about the repair cost to the property. Mr. Pickard’s company had been listed as a fact witness in Warfs’ response to Defendant’s interrogatories. Mr. Pickard testified that he and another J&J employee visited the Warfs’ property to examine the damage and make an estimate for repair work. A copy of the repair estimate was entered into evidence, showing the proposed landscaping repair cost to be eight hundred and seventy-five dollars. Vincent objected to this witness and claimed that Mr. Pickard was being offered as an expert witness, not a fact witness. Defendant’s objection was overruled and the court permitted Mr. Pickard to continue with his testimony. Following Mr. Pickard’s testimony, the Warfs attempted to call two more witnesses to testify about the repair costs. Darlene Boswell of Inman Trucking Company was called to testify about the cost of hauling replacement topsoil to the Warfs’ land. Inman Trucking Company had also been named as a fact witness in the Warfs’ response to Interrogatories. Vincent again objected, claiming that Plaintiff should have named the witness as an expert witness rather than a fact witness. The court sustained Defendant’s objection and did not allow the witness to testify. Warfs then called Mr. Giaroli, owner of Giaroli Nursery, to testify about the cost of replacement trees. Giaroli had also been designated as a fact witness by Warfs. Vincent objected, claiming that Giaroli was actually an expert witness. The court sustained Defendant’s objection, preventing Mr. Giaroli from testifying about replacement trees. Ronald Warf testified about the condition of his land before the trespass and immediately following the trespass. A video showing the state of the property was also entered into evidence and viewed by the court. In addition, Warf testified regarding the value of his property before and after the damage by Vincent. Vincent objected to this testimony on the basis that a “before and after value” was never submitted in response to the interrogatories. The trial court offered Vincent a continuance in order to “secure additional expert proof” to refute Mr. Warf’s testimony. Vincent did not take the offer of continuance, and trial proceeded. Mr. Warf was allowed to testify regarding 2 an alleged ten thousand dollar diminution in the value of the damaged property. The court found that the cost of restoring the property to its original condition was not relevant because the damage to the land was permanent in nature. As a result the trial court awarded the Warfs ten thousand dollars for the diminution in value of the property. In addition, the court ordered Vincent to pay half of the cost of a survey of the property. An order on these findings was entered on January 19, 1999. Vincent filed a Motion to Alter or Amend the Judgment which was denied by the trial court. Thereafter, Vincent filed a timely notice of appeal. On appeal, Vincent argues that the trial court erred in allowing a fact witness to testify as an expert; in finding that the property damages were permanent; and in awarding the Warfs damages in the amount of ten thousand dollars despite the lack of proof on the proper measure of damages.2 The Warfs argue that the fact witness testified only as to his lay opinion and not as an expert witness and that the trial court did not err in its findings. Analysis The standard of review for a non-jury case is de novo upon the record. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of correctness as to the trial court’s factual findings, unless the “preponderance of the evidence is otherwise.” TENN . R. APP . P. Rule 13(d). For issues of law, the standard of review is de novo, with no presumption of correctness. Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996). A. Nature of Injury We find it necessary first to address Vincent’s contention that the damage to the Warfs’ land was temporary rather than permanent in nature. The court below stated that it relied wholly on Mr. Warf’s testimony about the before and after value of the land in determining whether the injury was permanent. Based on this testimony, the court found that the damage was permanent and that therefore the proper award of damages was diminution in value. Vincent argues that the damage was repairable, and thus not permanent in nature. Based on the following, we agree that the damage was not permanent. In determining whether an injury to land is temporary or permanent, the court must consider whether or not the land can be returned to its previous state. An injury is temporary if the injury can be remedied by an “expenditure of money and labor.” Killian v. Campbell, 760 S.W.2d 218, at 222 (Tenn. Ct. App. 1988) citing Citizens Real Estate v. Mountain States Dev., 633 S.W.2d 763 (Tenn. Ct. App.1981) In the court below, Warfs offered testimony about the landscaping costs and attempted to offer testimony about the costs of replacement dirt and trees. From the Warfs attempt to offer testimony regarding the repair costs to the land, it appears that the land could be restored to 2 Vincent does not appeal Warfs’ award of half of the survey cost or the tria l court’s denial of Defendant’s motion to alter or am end the ju dgme nt. 3 its previous condition. Therefore, under the standard presented above, we find that the injury to the Warfs land was not permanent in nature. The finding of the trial court is reversed on this issue. Accordingly, we find it unnecessary to address the issue of the amount of damages awarded by the court below. This matter must be determined based on our finding that the injury to the Warfs’ land is temporary in nature. B. Witness Testimony On appeal, Vincent asserts that the trial court erred in allowing one of the Warfs’ fact witnesses, Mr. Pickard, to present “expert” testimony. Vincent claims that Mr. Pickard should have been designated as an expert by the Warfs and that the Warfs’ failure to do so meant that Mr. Pickard should be barred from testifying. Based on the following, we find that the trial court did not err in allowing Mr. Pickard to testify. We first turn to Vincent’s claim that Pickard’s testimony is expert testimony pursuant to Rule 702 of the Tennessee Rules of Evidence. Rule 702 describes expert testimony as “scientific, technical, or other specialized knowledge.”3 We are unpersuaded that Mr. Pickard’s testimony falls within the ambit of this rule. Instead, it seems obvious both from the Warfs’ designation of Mr. Pickard and the testimony itself that Pickard was a lay witness. As a general rule, opinion testimony by lay witnesses is inadmissible. However, there are exceptions to the general rule and it appears that such an exception is applicable in this case. Pursuant to Rule 701(b) of the Tennessee Rules of Evidence, a witness may testify about the value of the witness’s own property or services.4 The testimony offered by Mr. Pickard was testimony regarding the cost or value of his services as a landscaper. Mr. Pickard based this testimony on his visit to the land in question and his participation in preparing an estimate for the repair. Therefore, Mr. Pickard’s testimony was admissible and the trial court did not err in allowing him to testify. We note that the trial court did not allow two of the Warfs’ witnesses to testify. From our review of the record, it appears that the testimony of both Ms. Boswell and Mr. Garioli was admissible under Rule 701(b) so long as they were testifying merely as to the value of their services. If the Warfs plan to call these witnesses for the purpose of giving expert testimony, they can so advise the defendant on remand. 3 T ENN. R. E VID. 702 provides: If scientific, technical, or other specialized knowledg e will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise. 4 T ENN. R. E VID. 701(b) provides : A witness may testify to the value of the witness's own property or services. 4  Conclusion Based on the foregoing, the judgment of the trial court is hereby affirmed in part, reversed in part, and remanded. Costs on appeal are taxed one half to the appellant, Vincent, and one half to the appellees, the Warfs, for which execution may issue if necessary. 5 

17 A.3d 1003 (2011) POLITES v. SOUTHWEST DELAWARE COUNTY MUNICIPAL AUTHORITY. No. 478CD10. Commonwealth Court of Pennsylvania. April 12, 2011. DECISION WITHOUT PUBLISHED OPINION Affirmed.

963 So.2d 757 (2007) Alfred ALVAREZ, Appellant, v. The STATE of Florida, Appellee. No. 3D03-2495. District Court of Appeal of Florida, Third District. July 5, 2007. Opinion Granting Clarification September 5, 2007. *758 Bennett H. Brummer, Public Defender and Anthony C. Musto, Assistant Public Defender, for appellant. Bill McCollum, Attorney General, and Meredith L. Balo, and Douglas Glaid, Assistant Attorneys General, for appellee. Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge. GREEN, J. Alfred Alvarez appeals his convictions and sentences for first degree murder, burglary of an occupied dwelling with an assault (without a deadly weapon), kidnapping without a deadly weapon, robbery/carjacking without a deadly weapon, robbery without a weapon, and burglary of an unoccupied conveyance (car). For the reasons which follow, we reverse the conviction and sentence for robbery/carjacking without a deadly weapon, and affirm the remaining convictions and sentences. The evidence at trial, in the light most favorable to the State, revealed the following: Mr. Eduardo Hernandez, the victim's partner, left for work on the day of the murder at around 7:10 a.m. He testified that when he left his apartment it was clean and organized. The victim, Fernando Gonzalez, beeped Mr. Hernandez around 11:00 a.m., but when Hernandez attempted to contact the victim, he received no answer. He attempted to contact the victim numerous times throughout the day. When Hernandez returned home that evening, he found a broken bottle on the apartment floor. The victim's body was on the master bedroom floor with his hands and feet bound with duct tape and a handkerchief in his mouth. Mr. Hernandez noticed that victim's car was not in the garage, and that the victim's car keys and cell phone were missing. He also later realized that the victim's wallet and some jewelry were missing. Fire-Rescue responded to the scene and declared the victim dead. Officer Ramos testified that he was dispatched to the scene, and arrived shortly after 9:00 p.m. Detective Alfonso, Sergeant Martinez and Detective Allen were assigned to investigate the murder. When Officer Ramos entered the apartment, he noticed that the apartment generally appeared to be very neat, but he started observing vases and other items lying on the floor. Both Officer Ramos and Detective Alfonso testified that it appeared that there had been a struggle. Officer Ramos then proceeded to the master bedroom which he found to be in shambles. The closet and dresser drawers were open, and it looked like someone had gone through them. Officer Ramos then saw the victim on the floor. He was tied up with phone cords and duct tape with something stuffed into his mouth. Officer Ramos noticed the cords around the victim's neck were very tight. The victim already had signs of rigormortis; he was purple and not breathing. Officer Ramos then secured *759 the scene, and both Officer Ramos and Detective Alfonso canvassed for witnesses. Through their investigations, they determined that the victim's wallet, including his credit cards, cell phone, and car were missing. Detective Alfonso put out a BOLO for the victim's car, and started tracking the cell phone usage. The State, pursuant to stipulation, then introduced the phone records for the victim's cell phone. The cell phone activity revealed that the phone was traveling north from Dade County up to Fayetteville, North Carolina. After the third day, the police ascertained that most of the cell phone activity occurred in North Carolina. Detective Alfonso also testified that while they were at the apartment processing the scene, the victim's home phone continued to ring, but no messages were left. The next morning, Sergeant Martinez picked up the phone, and from that point forward, the calls ceased. Police later learned that the calls came from the victim's cell phone. Detectives Alfonso and Allen went to Fayetteville, North Carolina, where they located the victim's cell phone, radio, pager, and later the victim's organizer and car. The car was located in a lot in Fayetteville. The detectives obtained a video surveillance of the suspects using the victim's credit card at a gas station in Orlando. With that picture, the detectives went to a Greyhound bus station where three people recognized the men in the picture. Detective Alfonso spoke with a Dina Agers who described one of the suspects as Hispanic, about 5'7" tall, weighing 190 pounds. He wore a white shirt with stripes and dark pants or jeans. He had black hair and emerald green eyes. Detective Alfonso then showed Ms. Agers the photograph made from the gas station's video camera. Ms. Agers identified the suspect, saying "this is the gentleman with the green eyes. This is the person who purchased two one way tickets to New York on April 24th at 12:17 p.m., 1996." Ms. Agers said the name of the man who purchased the tickets was "A. Alvarez." Another witness, Tanisha Coleman, corroborated Ms. Agers description and the suspects' destination. After returning to Miami, Detective Alfonso obtained Alvarez's driver license photograph and prepared a photographic lineup. The detectives went to the Dadeland Mall with the photographic lineup. Eddie Fusa and Odra Aguilar, two store clerks at the mall, identified appellant Alvarez as someone to whom they sold merchandise. Detective Alfonso then prepared a warrant for Alfred Alvarez's arrest. Alvarez was finally located in New York in February 1998. The State presented the testimony of Audrey Stevens, the manager of 11 Orlando area Amoco stores, including one referred to as the "airport store." Ms. Stevens testified that the airport store was equipped with a surveillance camera that records what the cashier was registering along with the taping. The system would record the person's name, credit card number, and the total sale amount. Ms. Stevens testified that the video camera ran continuously, and the images went to a VHS cassette. These videos were kept locked up in her office cabinet as a matter of business, and only she had access to the keys of the machine. The defense objected on the grounds of a lack of predicate for the introduction of the video tape. After some further clarification as to where the tape was kept and who had access to it, the judge overruled the objection, and the still photographs were admitted into evidence. Detective F. Castillo testified that as a result of the investigation, he went to the *760 Amoco station in Orlando and spoke with Ms. Stevens. Ms. Stevens described the subjects as two dark-complexioned Latin males. Detective Castillo obtained the video tape of the transaction. The tape showed the suspects and their clothing. They took still photos of the video depicting the appellant and co-defendant. The detective was also able to recover the receipt of the credit card transaction. These receipts were then introduced into evidence pursuant to stipulation. Detective Mike Narganes testified that he was assigned to go to Dadeland Mall to "check out some sales receipts." Detective Narganes visited several stores including: Stewart Cantor, Kids, Champs, and Jean West. The State introduced receipts from: Stewart Cantor, totaling $127.27; Kids store, for $74.80; Champs, for $218.30; and Jeans West, totaling $169.87. The clerks at the stores were able to give similar descriptions of the appellant, and identified him from the photographic lineup. Dina Agers testified that she sold tickets for Greyhound on the date in question. Ms. Agers sold two, one-way tickets to the appellant. She testified that the person who purchased the tickets provided the name "Alvarez." Technician Theresa Collins testified that she processed the victim's body at the scene. Technician Collins observed that the victim's front pockets were turned out, and he had the curly part of a telephone cord wrapped around his neck along with a pen cap and a little metal clip. There was a dish rag nearby with blood on it. The victim's wrists were bound by the telephone cord and duct tape, and he had a brown belt around his arms that was secured in the back of his body. Technician Collins collected the evidence and placed it into the property unit. After transporting the evidence, Technician Collins processed the items for fingerprints. She was unable to collect any fingerprints from the duct tape or phone cord binding the victim's body. She was able to retrieve a fingerprint from a roll of duct tape that was found on the kitchen table. At the scene, Technician Collins noticed that the mini-blinds from the spare bedroom were on the floor. She also processed what appeared to be a shoe print on the floor. After receiving the receipts of the appellant's purchases, Technician Collins processed them for fingerprints. She retrieved fingerprints from a cardboard paper and receipts sent to her by the detectives in North Carolina. She was unable to lift any prints from the victim's credit card. Additionally, Officers Hector Infonte and Andre Bettincourt lifted prints from the bedrooms, kitchen, and living room. Prints were lifted from the telephone base, vertical blinds found on the north bedroom's floor, and the handle of a water pitcher found on the kitchen counter. Guillermo Martin, the latent print examiner, testified that he found the appellant's prints on various receipts, a roll of duct tape from the dining room table, a piece of cardboard, the telephone base from the floor in the south bedroom, a vertical blind found on the floor of the north bedroom, and the handle of the water pitcher found on the kitchen counter. Mr. Martin also found ten prints from the victim and thirty prints from Herber Frias the co-defendant in this case. Mr. Frias's prints were located on the telephone base, a mirrored closet door in the south bedroom, a business card from a chest of drawers in the master bedroom, and a telephone handset found in the south bedroom. Mr. Martin acknowledged that there is no way to determine when the prints were left. Mr. Martin explained that he examined prints for two suspects, but that the prints found on the *761 duct tape belonged to Alfred Alvarez, not Herber Frias. Additionally, the prints found on the telephone base came from both the appellant and Mr. Frias. Dr. Emma Lew testified that when she arrived at the scene, she noticed that the victim's face and neck were dark purple with multiple tiny hemorrhages on the skin and eyes, including multiple hemorrhages on the muscle of the neck. There were small abrasions on his left cheek, the left side of his chin, as well as bruises on his lips, tongue, and neck. Dr. Lew testified that the bruising on the tongue was consistent with something being force deeply into his mouth. The victim also suffered four broken ribs. Dr. Lew determined that the death was caused by asphyxiation. Dr. Lew also took swabs from the victim's penis, mouth, and anus to check for DNA, sperm, and semen fluid. The State then rested, and the defense moved for a judgment of acquittal. The judge denied the motion as to first degree murder, burglary, and kidnapping with a weapon, and reserved ruling on the charges of carjacking, armed robbery, and burglary of a conveyance. The defense then sought to present the testimony of Mrs. Corrosco, who would have testified that Mr. Frias admitted to her that he murdered a man in Miami, then stole the man's credit cards and car. The defense argued that her testimony was admissible as a statement offered against a party to exonerate the appellant. The State argued that the witness's testimony was going to be used to impeach the co-defendant, who had not testified, and that the statement would be hearsay. The Court ruled that her testimony was not admissible because the defense could not anticipatorily impeach a witness before that witness testified. The defense argued that the statement was an admission against interest, and the co-defendant was a party to the litigation. The Court prohibited the defense from calling the witness, reasoning that the co-defendant was no longer a party to the case since his case was severed and tried separately. The court also ruled that the statement was not admissible as an admission against interest where the co-defendant was not unavailable. The Court then read to the jury a stipulation by the parties that the oral, rectal and esophagus swabs tested negative for semen; that the penile swabs tested positive for semen; that the oral and rectal smears tested negative for sperm; that the penile smear tested positive for sperm; and that hair strands and blood sample were not tested. The defense's first witness, Teresa Collins, testified that she was the lead crime scene technician in this case. Ms. Collins testified that she lifted a footwear impression from the mini-blinds that were on the floor of the apartment. Ms. Collins sent the impression, along with shoes she received from the medical examiner's office that were worn by the victim, to the Metro Dade lab for analysis. She also sent a pair of size 10 Reebok tennis shoes that she received from North Carolina to the lab for analysis. Robert Hart, a criminalist at the Miami Dade Police Department, testified that he compared the footwear impressions to the two pairs of shoes. Mr. Hart testified that all of the print impressions he received could have been made by the two pairs of shoes. The appellant testified that he came to Miami in 1996 and ended up in a homeless shelter after someone stole his money at the airport. He met the victim at the shelter, and the victim offered to help the appellant get a job. The victim helped the appellant get a social security number, *762 bought him shoes, and took the appellant to his apartment to eat and listen to music about five or six times. The appellant testified that he entered both bedrooms to try on clothing. In return for his generosity, the victim wanted to have sex with the appellant, but the appellant turned down his request. Despite this, their friendship did not end. The appellant testified that he met his co-defendant, Frias, at the shelter. The appellant told Frias about the victim, and eventually introduced Frias to the victim so they could engage in sexual activity. On the date of the murder, the victim went to the shelter to pick up both appellant and Frias. They all arrived at the victim's apartment and ate. The appellant further testified that he remained in the living room while the victim and Frias went to the bedroom. The appellant further testified that he asked for the car keys and waited downstairs in the car. After 30 or 45 minutes, the appellant testified that he went back upstairs because he was hot and irritated, and he wanted to see if they were finished. The appellant knocked on the door, and Frias answered. Frias was only wearing pants. The appellant went in and asked if they were finished. Frias said that they were not finished yet. The appellant asked for something to drink, and went to the refrigerator and took out a malt drink. He sat at the table to drink the malt. The appellant testified that he could not see inside any of the bedrooms, and he heard no noises or screaming. He saw a broken bottle, but he was not overly concerned about it. He also played with a roll of tape while he drank his malt. The appellant did not take the roll of tape to the apartment that day, and he had not seen it before then. Frias was with the appellant the entire time he drank his malt. The appellant never saw the victim come out of the bedroom. The appellant then went back downstairs, and about fifteen or twenty minutes later Frias emerged from the apartment with a backpack. Frias handed the appellant a credit card from the victim's wallet, and said that they had the victim's permission to buy some clothing. The two then went to Dadeland Mall. Since the appellant was dressed better, Frias told him to use the credit cards. The appellant bought clothes and shoes for himself and Frias. The appellant also bought some baby clothes for his daughter. The appellant returned to the car, showed Frias what he purchased, and said "let's go back to where Gonzalez is." Frias became irritable and said they were not going back to the apartment. Frias then told the appellant what had happened to the victim and why they could not go back to the apartment. The appellant testified that he felt very uncomfortable. The appellant did not leave Frias because Frias threatened him and the appellant was fearful of him. Frias told the appellant to drive north because he wanted to go to New York. The appellant decided to go along, and then inform someone in New York what happened. While en route to New York, Frias made phone calls to the victim's apartment to see if anyone had discovered the victim. Eventually someone answered the phone at the victim's apartment. Frias then told the appellant that they had to exit the car. Frias removed the radio and sold it to purchase two bus tickets to New York. When they arrived in New York, Frias had no place to stay, so he stayed with the appellant. When Frias finally left, the appellant did not contact his DEA friends about what happened in Florida because he feared that he was involved and thought he would end up going to jail. According *763 to his testimony, he "didn't give it a lot of importance." The appellant testified that although he wears a size 8½ shoe, and did not recognize and never wore, the shoes introduced into evidence. The appellant further denied kidnapping, robbing, carjacking, or tying up the victim. On cross examination, the appellant acknowledged that the victim's apartment was ordinarily very neat, and that everything was always kept in its place. The State had the appellant demonstrate how he played with the duct tape on the date of the murder as opposed to how he would have pulled a piece of tape from the roll. The State attempted to demonstrate that if the appellant had just played with the tape, his fingers would smudge, but if he took a piece of tape from the roll, his fingers would not smudge. The Appellant testified that his prints were on the water pitcher because he touched it while making sandwiches. He also stated that he touched the mini-blinds on prior visits, and used the phone about three or four days earlier. The appellant further testified that when he was robbed and in trouble upon his first arrival in Miami, it was his gut instinct to call his DEA friend, but not when he was in trouble this second time. He also figured that someone simply dropped the bottle that was broken in the victim's apartment. The appellant denied telling New York detectives that he took the victim's keys from the floor of the first bedroom, but told the detectives the same story he just told the jury. Although Frias was arrested prior to the appellant and the appellant was aware of Frias' arrest, the appellant never came forward as a witness against Frias. The appellant admitted to a previous conviction of a crime involving dishonesty. The defense rested. The defense renewed all previous objections and made its second motion for judgment of acquittal, which the court denied. The jury found the appellant guilty of First Degree Murder, as charged, in Count One; Burglary with an assault, without a deadly weapon, of an occupied dwelling in Count Two; Kidnapping Without a Weapon in Count Three; Robbery/Carjacking Without a Deadly Weapon in Count Four; Robbery, without a deadly weapon and without a weapon in Count Five; and Burglary of an Unoccupied Conveyance in Count Six. The court adjudicated the appellant guilty of the charges, and sentenced him to life in prison on Counts One, Two and Three, to thirty years in prison in Count Four, to fifteen years in prison in Count Five, and five years in prison as to Count Six, with credit for time served. The court further ordered the sentences in Counts One through Three to run concurrent with each other; Count Four to run consecutive to Count Three; Count Five to run consecutive to Count Four; and Count Six to run consecutive to Count Five. On September 2, 2003, the appellant filed a Motion for New Trial arguing that the trial court erred in sustaining the State's objection to the proposed testimony as to what and when the co-defendant told him about the victim. The appellant filed a Notice of Appeal on September 17, 2003, however, this Court relinquished jurisdiction to the trial court for thirty days to allow the trial court to hear and rule on the motion for new trial. In its response to appellant's motion for new trial, the State argued that the statements sought to be admitted by appellant were hearsay because they were elicited only for the truth of the matter asserted therein. The court denied the motion. On November 30, 2004, the appellant filed a Motion to Correct Sentencing Error, and argued that the trial court erred *764 in departing upwards from the guidelines based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The trial court never ruled on the motion. The appellant raises several issues on appeal. Only two warrant discussion because the remainder have not been properly preserved for our appellate review. The appellant first asserts as error the trial court's denial of his motion for judgment of acquittal. He argues that the State did not refute the reasonable hypothesis of innocence which was that he was outside the apartment when Frias committed the crimes inside the victim's apartment. We disagree as we conclude that the State adduced evidence that was inconsistent with the appellant's theory of events. See Beasley v. State, 774 So.2d 649 (Fla.2000). The state presented evidence that the appellant was on the scene, and that his fingerprints were on the tape used to bind the victim, as well as on the base of the telephone whose cord was used to bind the victim. This court has held that when fingerprints are the sole evidence on which the State relies to convict a defendant the State must demonstrate that "the print could have been made only at the time the crime was committed." Sorey v. State, 419 So.2d 810, 812 (Fla. 3d DCA 1982)(quoting Tirko v. State, 138 So.2d 388, 389 (Fla. 3d DCA 1962)). However, the State met this burden in this case. The State introduced evidence that the prints found in the apartment were of such a nature that they were recent and could reasonably have been placed there on the day of the crimes. The appellant testified that he was in the apartment and demonstrated to the jury how he played with the roll of tape on that day. Based on his demonstration, the jury was entitled to infer that had he only played with the roll in the manner he demonstrated, his prints should have been blurred; they were not. Additionally, the co-perpetrator's prints were not found on the tape. The prints of both the appellant and the co-defendant were found on the phone base. This permitted an inference by the jury that the prints were placed there by the persons who used the cord to tie the victim. Thus, because the State introduced enough evidence to contradict the appellant's hypothesis of innocence, we find no error in the court's denial of the motion for judgment of acquittal. Lynch v. State, 293 So.2d 44, 45 (Fla.1974); State v. Law, 559 So.2d 187, 189 (Fla.1989)(when state introduces evidence to exclude reasonable hypothesis of innocence beyond reasonable doubt jury is entitled to determine if innocence is refuted). We are, however, persuaded by appellant's argument that his conviction for robbery/carjacking without a deadly weapon cannot stand.[1] We agree that the evidence introduced at trial, viewed in the light most favorable to the State, demonstrates that the victim could not have been subjected to "the use of force, violence, assault, or putting in fear during the course of the taking of the motor vehicle." Flores v. State, 853 So.2d 566, 569 (Fla. 3d DCA 2003)(citing § 812.133(1), Fla. Stat. (1999)). Here, as in Flores, the victim was unaware of the theft. We conclude, as we did in that case, that under these circumstances the legislature did not intend for a carjacking conviction to lie. Hence, we reverse the carjacking conviction and remand *765 with instructions to reduce the conviction to grand theft of an automobile. Affirmed in part; reversed in part and remanded. SCHWARTZ, Senior Judge, concurs. COPE, C.J. (specially concurring). I agree with the result and agree with almost all of the majority opinion. My reasoning differs regarding Point II of the appeal of defendant-appellant Alvarez. The defendant asserts that the trial court erred by sustaining a state hearsay objection. The majority opinion finds the point inadequately preserved for appellate review. I believe that defense counsel's reference to a sidebar which had occurred a few minutes previously was sufficient for preservation purposes, and the trial court erred by sustaining the hearsay objection. However, I am convinced that the error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986). The erroneous ruling occurred during the defendant's testimony. The defendant's other testimony in the case made abundantly clear his claim that he had nothing to do with the murder and learned of it only after the fact. Since the point was covered by the defendant's other testimony, the error was harmless. On Motion for Clarification We grant the appellant's motion for clarification and add the following to our opinion in the cause, filed July 5, 2007. We affirm defendant's sentences as we are not persuaded by the argument that the court erred in departing upwards from the guidelines. Luton v. State, 934 So.2d 7 (Fla. 3d DCA 2007), review granted, 944 So.2d 345 (Fla.2007)(oral argument held 6/7/07). NOTES [1] We find that this case falls under the rule that "an argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved." Such complete failure of the evidence meets the requirements of fundamental error[.] F.B. v. State, 852 So.2d 226, 230-31 (Fla.2003).

17 Md. App. 246 (1973) 300 A.2d 692 HENRY GIBSON v. STATE OF MARYLAND. JOHN E. TATE v. STATE OF MARYLAND. ROBERT T. AUSTIN v. STATE OF MARYLAND. Nos. 413, 464, 629, September Term, 1972. Court of Special Appeals of Maryland. Decided February 28, 1973. In appeal No. 413, Stephen Sachs and Charles Morgan for appellant. Clarence W. Sharp, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Daniel W. Moylan, State's Attorney for Washington County, *248 and Arthur Rozes, Assistant State's Attorney for Washington County, on the brief, for appellee. In appeal No. 464, Joseph F. Padula for appellant. Clarence W. Sharp, Assistant Attorney General, with no brief filed on behalf of appellee. In appeal No. 629, Joseph F. Padula for appellant. Clarence W. Sharp, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Gilbert Rosenthal, Assistant Attorney General, Daniel W. Moylan, State's Attorney for Washington County, and Arthur Rozes, Assistant State's Attorney for Washington County, on the brief, for appellee. GILBERT, J., delivered the opinion of the Court. The disorders occurring at the Maryland Correctional Institution, Hagerstown, Maryland, on May 17, 1971, led to the indictment of a number of inmates on varying charges, including assault, riot, and malicious destruction of property. Many of those charged filed a suggestion of removal, Md. Rules 542 and 738, under affidavit,[1] in which they alleged that they could not receive a fair and impartial trial in Washington County, Maryland. They requested removal of the trial of their cases to the Criminal Court of Baltimore.[2] The motion was argued before Judge Paul W. Ottinger on February 10, 1972. The memorandum in support of the motion that was submitted to Judge Ottinger contended that Art. IV, § 8 of the Maryland Constitution is violative of the Constitution *249 of the United States, in that the failure to grant removal as a matter of right in non-capital criminal cases, while granting it in capital cases, amounts to a denial of equal protection under the Fourteenth Amendment. The movants also averred that the "prejudicial atmosphere" that existed in the community, hardened by the pretrial publicity, had such a deleterious effect as to deprive them of their right to a fair and impartial trial. The movants additionally claimed that the "prejudicial atmosphere is heightened and exaggerated" because of their status as "alien figures in Washington County." The "alien figure" argument is grounded upon the homogeneous nature of the county where the racial composition of the population, according to appellants, is 98% white persons and 2% black persons, and upon their status as prisoners involuntarily placed in the County. To buttress their contention regarding pretrial publicity, the movants presented to the court a series of newspaper articles.[3] Judge Ottinger denied the suggestion *250 of removal and, in a memorandum filed February 22, 1972, stated: "The Court finds that the Defendants in these cases can have a fair and impartial trial in the Circuit Court for Washington County and that the Defendants .. . have failed to make it satisfactorily appear to the Court that such suggestion is true and that there is (sic) reasonable grounds for the same. The alleged riotous conduct in this case apparently lasted less than an hour and the publicity attendant thereto does not appear to have been substantial.... Moreover, the publicity last (sic) for a day or two only and such publicity happened about nine months ago and it seems doubtful to the Court that any prospective juror would remember in detail the short term publicity which resulted from this incident. The Court is also not satisfied that it would be impossible for any harm done by such publicity to be exposed by a voir dire examination of prospective jurors; and the Court does find that such a voir dire examination would be a sufficient protection in these cases." The record before us in appeal #413, Henry Gibson, leaves much to be desired as there is no voir dire examination reported therein. Consequently, we are unable to evaluate the voir dire for the presence or the possibility of actual prejudice on the part of the talesmen. The *251 record in appeal #629, Robert T. Austin, does, however, contain "Voir Dire Requests" made by Austin's then counsel. Handwritten on the bottom of the "Requests" is the notation "all questions asked." There is no contention here that the questions were not asked, and we assume that they were actually propounded to the jury panel. The questions are obviously designed to disclose prejudices, including those founded on pretrial publicity and race. The record is silent as to the answers to the voir dire interrogation as apparently no transcript was made. While in Austin's case we possess the questions and the belief that they were asked, we are no better off insofar as evaluating prejudice, or the possibility of prejudice resulting from pretrial publicity, than we are in the Gibson appeal. Gibson[4] and Austin[5] were convicted in separate jury trials, and Tate[6] was convicted in a non-jury trial. I In their appeals to this Court, appellants jointly attack Art. IV, § 8 of the Maryland Constitution on the ground that it creates constitutionally impermissive classifications for removal in criminal cases, i.e., capital crimes and non-capital crimes, and thereby denies the appellants equal protection of the law. They further assail the trial judge's ruling on their "Suggestion for Removal" as an abuse of discretion. They assert that they could *252 not receive a fair and impartial trial in Washington County as a result of pretrial publicity, racial prejudice and the "prejudicial atmosphere." The fact that Tate later chose a non-jury trial does not preclude his arguing against the trial judge's denial of the suggestion for removal that was filed and denied well before his trial. Since 1806 Maryland has vacillated between the absolute right of removal in all cases and the discretionary right of removal in non-capital cases. There appears to be no mention of a change of venue in the Constitution of 1776, but that Constitution was amended in 1806 so as to grant to the trial courts the discretionary right to remove all criminal cases upon suggestion that an accused could not receive a fair and impartial trial. In 1851 the State Constitution was again changed, and the absolute right of removal was given in every criminal case. Because it was felt that the privilege of removal was being abused, the Constitutional Convention of 1864 returned the removal of cases to the discretion of the trial judge. Three years later the absolute right to remove was restored in the Constitution. In 1874 it was again felt that the right of removal was being abused so that the Legislature proposed an amendment to the Constitution of 1867, limiting the absolute right of removal to those cases in which the death penalty could be imposed. The proposed amendment was adopted by the voters in 1875 and has continued unchanged since that time in spite of an abortive attempt in 1952 to change it by statute. See Ch. 69 [1952] Md. Laws. The statute was declared unconstitutional in Heslop v. State, 202 Md. 123, 95 A.2d 880 (1953). During oral argument before this Court, the appellants sought to inject a new ingredient not raised below in order to support their position. They maintained that the allowance of removal as an absolute right in most civil cases, and only as a discretionary right in non-capital criminal cases, denies them equal protection. We do not consider that argument because it was not raised below. *253 Rule 1085. Even constitutional questions must be raised and decided in the trial court. Richardson v. State, 14 Md. App. 487, 287 A.2d 339 (1972); Brooks v. State, 13 Md. App. 151, 282 A.2d 516 (1971); Woodell v. State, 2 Md. App. 433, 234 A.2d 890 (1967). We limit our discussion to the argument that Art. IV, § 8 of the Maryland Constitution creates an invidious distinction between capital and non-capital criminal cases. Art. IV, § 8 provides in pertinent part: "... [I]n all cases of Presentments or indictments for offences, which are or may be punishable by death, pending in any of the courts of law in this State having jurisdiction thereof upon suggestion in writing under oath of either of the parties to said proceedings that such party cannot have a fair and impartial trial in the court in which the same may be pending, the said court shall order and direct the record of proceedings in such suit or action, issue presentment, or indictment, to be transmitted to some other court having jurisdiction in such case for trial, but in all other cases of presentment or indictment, pending in any of the Courts of law in this State having jurisdiction thereof, in addition to the suggestion in writing of either of the parties to such presentment or indictment that such party cannot have a fair and impartial trial in the court in which the same may be pending, it shall be necessary for the party making such suggestion to make it satisfactorily appear to the court that such suggestion is true, or that there is reasonable ground for the same, And thereupon the said court shall order and direct the record of proceedings in such presentment or indictment to be transmitted to some other court having jurisdiction in such cases for trial...." *254 The procedures for placing into effect the rights granted under Art. IV, § 8 are contained in Maryland Rules 542 and 738. The portion of Art. IV, § 8 concerned with capital crimes has been negated, at least at this time, by Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Bartholomey v. State, 267 Md. 175, 297 A.2d 696 (1972). This Court has interpreted the rulings in those cases to abolish effectually the death penalty in Maryland. McLaughlin v. Warden, 16 Md. App. 451, 298 A.2d 201 (1973). In the instant case, however, we shall look to the law as it existed when Judge Ottinger decided the removal issue prior to the Furman, Bartholomey and McLaughlin decisions. Our perusal of the case law convinces us that there is nothing about Art. IV, § 8 of the Maryland Constitution that is violative of the United States Constitution. We think that a legislative body or, in this State, the voters, can create a reasonable distinction between capital and non-capital criminal offenses for the purpose of granting an absolute right to a change of venue. The history of our constitutional removal provision is indicative of our ancestors' attempt to provide an absolute right of removal in all criminal cases but that the effort led to such abuse that the unqualified right of removal in all cases was rejected by the people in 1875. A number of jurisdictions adopt a similar view. See 34 A.L.R.3d 804-808. The Supreme Court, in Groppi v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971), considered a situation wherein Father Groppi, a Roman Catholic priest, was apprehended in Milwaukee, Wisconsin, on a charge of resisting arrest. Under the Wisconsin law that offense is a misdemeanor punishable by a fine of not more than $500.00 or imprisonment for not more than one year, or both. The arrest of Father Groppi occurred on August 31, 1967, and after a series of continuances, he was brought to trial before a jury on February 8, *255 1968. He quickly exhausted his peremptory challenges in an endeavor to qualify the jury. Prior to trial he had filed a motion for a change of venue on the ground that he could not receive a fair and impartial trial in Milwaukee County. The motion was denied because "Wisconsin law did not permit a change of venue in misdemeanor cases." Groppi was convicted and the Supreme Court of Wisconsin, with two of its members dissenting, affirmed the judgment. The dissenters argued that the Wisconsin statute "did not absolutely forbid a change of venue in a misdemeanor prosecution, and that if the statute did contain such a prohibition it was constitutionally invalid." The Supreme Court, speaking through Mr. Justice Stewart, said at 511: "It is doubtless true, as the Supreme Court of Wisconsin said, that community prejudice is not often aroused against a man accused only of a misdemeanor. But under the Constitution a defendant must be given an opportunity to show that a change of venue is required in his case. The Wisconsin statute wholly denied that opportunity to the appellant." (Emphasis supplied). Six justices constituted the majority, two concurred, and one dissented.[7] The Wisconsin statute, then in effect,[8]*256 allowed, in the discretion of the court, removal of felony cases only, to any county where an impartial jury trial could be had. We think it patent in the Supreme Court's ruling in Groppi that where a statute or constitution provides the "opportunity to show that a change of venue is required," the rights of an accused are adequately safeguarded, and he is afforded the full protection required by the Fourteenth Amendment. In Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), the Supreme Court upheld the constitutionality of the provisions of a Louisiana law requiring less than unanimous jury verdicts in criminal cases. Johnson had been tried and convicted of the offense of robbery. The jury vote was 9 to 3. Louisiana law provides[9] that in those offenses for which sentence to imprisonment at hard labor must be imposed, an accused shall be tried before a jury of 12, nine of whom must concur to render a verdict. Those cases in which capital punishment may be imposed shall be tried before a 12 person jury, all of whom must concur in the verdict, and those offenses for which imprisonment at hard labor may be imposed shall be tried before a jury of 5 persons, all of whom must agree in order to render a verdict. The Louisiana Supreme Court affirmed Johnson's conviction, and in doing so rejected his contention that the jury trial provisions of Louisiana law were violative of due process and equal protection. The Supreme Court of the United States, by a vote of 5 to 4, affirmed the judgment of the Louisiana courts. Mr. Justice White, speaking for the majority, said that a law allowing a less than unanimous jury verdict raised "no question of constitutional substance about either the integrity or the accuracy of the jury's verdict," and that the Louisiana jury trial procedure did not deny Johnson due process of law. Justice White further stated: *257 "We conclude, however, that the Louisiana statutory scheme serves a rational purpose and is not subject to constitutional challenge. In order to `facilitate, expedite, and reduce expense in the administration of criminal justice, `State v. Lewis, 129 La. 800, 804, 56 So. 893, 894 (1911), Louisiana has permitted less serious crimes to be tried by five jurors with unanimous verdicts, more serious crimes have required the assent of nine of 12 jurors, and for the most serious crimes a unanimous verdict of 12 jurors is stipulated.... We discern nothing invidious in this classification.... Appellant nevertheless insists that dispensing with unanimity in his case disadvantaged him as compared with those who commit less serious or capital crimes. With respect to the latter, he is correct; the State does make conviction more difficult by requiring the assent of all 12 jurors. Appellant might well have been ultimately acquitted had he committed a capital offense. But as we have indicated, this does not constitute a denial of equal protection of the law; the State may treat capital offenders differently without violating the constitutional rights of those charged with lesser crimes.... We remain unconvinced by anything appellant has presented that this legislative judgment was defective in any constitutional sense." We believe that the rationale of Johnson is applicable to the case at bar. There is nothing invidious in the Maryland constitutional distinction between removal in capital and non-capital criminal offenses. The distinction serves as a means of preventing an abuse of removal and thereby facilitates, expedites, and reduces expense in the administration of criminal justice. That Maryland chooses to "treat capital offenders differently" does not violate "the constitutional rights" of those charged with non-capital offenses. *258 We turn now to the appellants' other removal contentions — pretrial publicity, racial prejudice and general prejudicial atmosphere. Appellants argue that the pretrial publicity was of such a nature that they could not obtain a fair and impartial trial in Washington County. We observe that the last newspaper article published in Washington County that is found in the records before us was an item that appeared in the Morning Herald of October 6, 1971, in which it was stated that six suspended guards from the Maryland Correctional Institution were returning to their positions while awaiting hearings. The exhibit of most recent date,[10] in the records, is an article found in The Baltimore Morning Sun of October 7, 1971. It deals with a proposed detention center near Hagerstown and does not, directly or indirectly, reflect on the incident giving rise to the instant cases. There was a lapse of approximately 6 1/2 months from the date of the last newspaper article until the date of trial, and a period of approximately one year passed from the date of the disturbance at the institution to the trial date. In these cases the records disclose the following dates: offense: May 17, 1971; indictments: June 14, 1971; service of process: June 21, 1971; arraignments: June 24, 1971; suggestion for removal: January 21, 1972; order denying removal: February 22, 1972; and date of trials: May 18, 1972 (Gibson), May 19, 1972 (Austin) and April 13, 1972 (Tate). This Court, in Raimondi v. State, 12 Md. App. 322, 278 A.2d 664 (1971), aff'd 265 Md. 229, 288 A.2d 882 (1972), cert. denied 409 U.S. 948, 93 S.Ct. 293, 34 L.Ed.2d 219 (1972) [12 C.R.L. 4044], said at 339-440: "Unlike Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, or Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543, we do not here see inherent prejudice from publicity which saturated the community. Although appellant claims that it will be impossible *259 for him to have a fair trial `in a foreseeable future', we will not so readily assume that an unbiased trier of fact cannot be found, Grammer v. State, 203 Md. 200, 100 A.2d 257, cert. den. 347 U.S. 938, 74 S.Ct. 634, 98 L.Ed. 1088, especially since as a practical matter trials cannot be held in a vacuum hermetically sealed against rumor or report.... The trial in this case was only after a lengthy hiatus between the indictment and the trial. The hiatus was 16 months as opposed to significantly shorter periods in James v. State, 193 Md. 31, 65 A.2d 888 (arraigned July 13, 1948, tried September 20, 1948, Baltimore Radio Show v. State, 193 Md. 300, 67 A.2d 497) or Grammer v. State, supra, (arraigned September 16, 1952, tried October 14, 1952)." See also Cleveland v. State, 12 Md. App. 712, 280 A.2d 520 (1971). We do not think that the appellants have demonstrated successfully that the pretrial publicity was of such intensity that it permeated the community to the extent that the appellants were denied their right to a fair and impartial jury trial as mandated by both the Sixth Amendment to the Constitution of the United States and Art. 21, Maryland Declaration of Rights. Appellants' next attack on the denial of the suggestion for removal is directed to the question of alleged racial prejudice and prejudicial atmosphere supposedly existing in Washington County. Appellants aver that the trial judge did not answer these allegations. Appellants characterize the atmosphere in the county as "prejudicial," as well as "heightened and exaggerated by their inescapable status as alien figures." Their attack is based primarily on the racial composition of Washington County, the penal institution, and the correctional personnel of the institution. Neither a bare showing that the county population is 2% black, that the prison inmates *260 are 75% black, and that all but one of 147 correctional officers are white, nor a naked allegation that the appellants were "aliens," per se substantiates the appellants' averment that they were denied the right to a fair and impartial trial. Maryland v. Brown, 295 F. Supp. 63 (D. Md. 1969). While Judge Ottinger did not explicitly delineate each area of contention raised by appellants, we note that he said that the appellants had "failed to make it satisfactorily appear to the Court that such suggestion [of removal] is true and that there is reasonable grounds for the same." We construe such a finding to include within its ambit a disposition of each of the appellants' allegations. The Court of Appeals and this Court have consistently held that the question of whether or not a removal shall be granted in a non-capital criminal case rests within the sound discretion of the trial judge, subject, however, to a review of the exercise of that discretion by an appellate court. Seidman v. State, 230 Md. 305, 187 A.2d 109 (1962); McGowan v. State, 220 Md. 117, 161 A.2d 156 (1959); Piracci v. State, 207 Md. 499, 115 A.2d 262 (1955); Allers v. State, 144 Md. 75, 124 A.2d 399 (1923); Smith v. State, 16 Md. App. 317, 295 A.2d 802 (1972); Cleveland v. State, supra; Stevenson v. State, 9 Md. App. 152, 262 A.2d 36 (1970); McLaughlin v. State, 3 Md. App. 515, 240 A.2d 298 (1968). We observe no abuse of discretion in denying the appellants' request for removal. II The appellant Tate presented no other issues to this Court. Gibson raised the additional contention that his rights were denied under Md. Ann. Code Art. 27, § 616 S — The Intrastate Detainer Act. We reject appellant Gibson's argument summarily. The detainer act is not applicable. There is no evidence that a detainer was ever filed against Gibson or that the *261 Warden of the Maryland State Penitentiary, where Gibson was confined at the time of the indictment, had knowledge of the indictment. Likewise, there is nothing in the record to indicate that Gibson had not been informed of his rights by the warden or some other prison official. Moreover, in King v. State, 5 Md. App. 652, 662, 249 A.2d 468 (1969), we held that: "... the [Detainer] Act is not invoked if the warden fails to inform the prisoner as required either because he has not received knowledge of a detainer ... or having received such knowledge fails to inform the prisoner." See also Carter v. State, 15 Md. App. 242, 289 A.2d 837 (1972). Appellant Gibson's contention is devoid of merit. Appellant Austin raises the further issue that the evidence presented by the State was legally insufficient to sustain a conviction of riot. In Cohen v. State, 173 Md. 216, 195 A. 532 (1937), cert. denied 303 U.S. 660, 58 S.Ct. 764, 82 L.Ed. 1119, the Court of Appeals quoted with approval from Commonwealth v. Berry, 5 Gray (71 Mass.) 93, wherein it is stated: "It is undoubtedly true that a riot cannot ordinarily be committed by one person. It is the acting in concert, the unlawful combination, which constitutes the offense.... Whether the other rioters were named in the indictment, or not, proof of a riot in which any two other persons joined with the defendant was sufficient." See also Briscoe v. State, 3 Md. App. 462, 240 A.2d 109 (1968). The common law offense of riot was defined in Briscoe, quoting from 77 C.J.S. Riot, § 6, p. 426 as: "... the intent to join in or encourage the acts which constitute the riot, namely, the assembly, violence, turbulence, and the act violently and turbulently performed." *262 The transcript in the Austin case reveals that Correctional Officer Robert Schaub and Correctional Officer Robert Lewis were led by two inmates, one carrying a club and one having a ring of keys, into the "Rec Room" where the officers were placed with their backs against the wall. At that time there were approximately forty or fifty inmates in the "Rec Room" upsetting tables and benches and setting up barricades. The two officers were placed with two other officers, one of whom was shortly thereafter taken away by an inmate for first aid treatment. The appellant, with a club in hand, approached the remaining three officers and drew the club back three times as if to strike the officers. An identified inmate who had led the second two officers into the "Rec Room" intervened and made some comments to the appellant. Appellant then commenced running back and forth through the "Rec Room." The officers lost sight of him. The officers testified that they were placed in fear because of appellant's actions with the club at the time he approached them. The test for the sufficiency of the evidence, in a jury trial, is whether the evidence, if believed, either shows directly or supports a rational inference of the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the defendant's guilt. Conway v. State, 15 Md. App. 198, 289 A.2d 862 (1972); Young v. State, 14 Md. App. 538, 288 A.2d 198 (1972); Williams v. State, 5 Md. App. 450, 247 A.2d 731 (1968). We think that from the evidence adduced in this case the jury could have been fairly convinced, beyond a reasonable doubt, that the appellant acted in concert with at least two other inmates to assemble and act violently, turbulently, and in such a manner as to constitute riot. The jury was under no obligation to believe the appellant's testimony that he was carrying the club for his own protection from fellow inmates. James v. State, 14 Md. App. 689, 288 A.2d 644 (1972); Sabatini v. State, 14 Md. App. 431, 287 A.2d 511 (1972); Derricks and *263 Hilgeman v. State, 9 Md. App. 261, 263 A.2d 597 (1970). Judgments affirmed. NOTES [1] Actually, only the appellant Austin has his petition under affidavit, but by agreement of counsel and with the apparent acquiescence of the trial court, the petition relative to each movant was deemed to have been notarized. We treat them as such. [2] A defendant does not have the right to designate the jurisdiction to which a case shall be removed. Marzullo v. Kovens Furniture Co., 253 Md. 274, 252 A.2d 822 (1969); Lee v. State, 161 Md. 430, 157 A. 723 (1931); De Murgiondo v. Frazier, 63 Md. 94 (1885); Weiskittle v. State, ex rel. Samuel, 58 Md. 155 (1882); Brown v. Pepersack, 217 F. Supp. 547 (D. Md. 1963). [3] We summarize the articles as follows: Morning Herald, May 18, 1971, page 1; headline, "Short-lived disorder sweeps MCI" Morning Herald, May 19, 1971, no page number, "8 inmates face discipline board" Morning Herald, May 21, 1971, no page number, "Inmates allegedly beaten MCI probe ordered" Morning Herald, May 22, 1971, page 1; headline, "Prison union threatens walkout" Morning Herald, June 11, 1971, page 1; headline, "Five men found guilty of rioting at MCI last October" Morning Herald, July 21, 1971, no page given; "Decision To Come Later On MCI Guard Discipline" Morning Herald, October 6, 1971, no page given; "Suspended guards returning to MCI" Daily Herald, May 18, 1971, page 1; "Ringleaders In MCI Disorder Held In Isolation" Daily Herald, May 22, 1971, no page number; "Guards Threaten Walkout" Daily Herald, June 24, 1971, no page number; "30 Arraigned In Court In Drug Violation Cases" The Daily Mail, May 19, 1971, no page number; "MCI Conducts Hearings On Prison Disorder" The Daily Mail, May 20, 1971, no page number; "18 MCI Inmates Transferred to Other Prisons" The Daily Mail, May 21, 1971, no page number; "Investigation Ordered By Mandel Of Charges Of Brutality At MCI" The Daily Mail, September 2, 1971, no page number; "Six MCI Guards Face Threat Of Dismissal" The New York Times, September 10, 1971, no page number; "Attica Has No Fear, but Anger Aplenty" Baltimore Morning Sun, September 15, 1971, no page number; "A Prison Does Things To The Town At Its Gates" Baltimore Morning Sun, September 22, 1971, no page number; "Ex-Con Calls Hagerstown Potential Attica" Baltimore Morning Sun, October 7, 1971, no page number; "Detention site set in Hagerstown area" [4] Henry Gibson was indicted for two charges of assault, one charge of riot and one charge of malicious destruction of property. A judgment of acquittal was granted as to the malicious destruction of property charge. Appellant was convicted on the other charges and sentenced to terms of 1 year, 4 years, and 1 year, respectively. Each sentence is to be served consecutive to each other and consecutive to the sentence the appellant was serving at the time of the trial. [5] Robert T. Austin was indicted and convicted of riot. He was sentenced to an "Indeterminate period not to exceed ONE (1) year." The sentence is to be served consecutively to the sentence appellant was serving at the time of the trial. [6] John E. Tate was indicted and convicted of assault. He was sentenced to an "Indeterminate, period not to exceed TWO (2) years." The sentence is to be served consecutively to the sentence the appellant was serving at the time of the trial. [7] Justice Blackmun wrote a concurring opinion in which the Chief Justice joined. Justice Blackmun's opinion was directed toward "whether the appellant ... received a fair trial, not whether, as a matter of abstract constitutional law, [Groppi] was entitled to a change of venue...." Mr. Justice Black dissented and said in part: "But it simply cannot be said that the right to trial by an impartial jury must necessarily include a right to change of venue. It may or may not be wiser to implement the Sixth Amendment by a change of venue provision, but in my view, the Constitution does not require it...." * * * "... So long as a defendant can protect his Sixth Amendment right by a motion for a new trial, I see no constitutional infirmity in the Wisconsin statute." [8] Wisconsin statute, § 971.22, effective July 1, 1970, now permits a change of venue in all criminal cases in the discretion of the court. [9] La. Const. Art. VII, § 41, and La. Code Crim. Proc. Art. 782. [10] See note 3, supra.

494 F.3d 788 (2007) PERFECT 10, INC., Plaintiff-Appellant, v. VISA INTERNATIONAL SERVICE, ASSOCIATION; First Data Corporation; Cardservice International, Inc.; Humboldt Bank; Mastercard International, Inc., Defendants-Appellees. No. 05-15170. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 4, 2006. Filed July 3, 2007. *789 *790 *791 *792 Howard E. King (argued) and Stephen D. Rothschild, King, Holmes, Paterno & Berliner, LLP, Los Angeles, California, for the plaintiff-appellant. Jeffrey N. Mausner, Berman, Mausner & Resser, Los Angeles, California, for the plaintiff-appellant. Daniel J. Cooper, Los Angeles, California, for the plaintiff-appellant. Andrew P. Bridges (argued), John C. Nishi, Winston & Strawn LLP, San Francisco, California, for defendant-appellee Mastercard International Incorporated. Mark T. Jansen, Nancy L. Tompkins, Anthony J. Malutta, Townsend and Townsend and Crew LLP, San Francisco, California, for defendant-appellee Visa International Service Association. Robert A. Van Nest, Michael H. Page, R. James Slaughter, Keker & Van Nest, LLP, San Francisco, California, for defendants-appellees First Data Corp., Cardservice International, Inc., and Humboldt Bank. Before: STEPHEN REINHARDT, ALEX KOZINSKI, and MILAN D. SMITH, JR., Circuit Judges. Opinion by Judge MILAN D. SMITH, JR.; Dissent by Judge KOZINSKI. MILAN D. SMITH, JR., Circuit Judge: Perfect 10, Inc. (Perfect 10) sued Visa International Service Association, Master-Card International Inc., and several affiliated banks and data processing services (collectively, the Defendants), alleging secondary liability under federal copyright and trademark law and liability under California statutory and common law. It sued because Defendants continue to process credit card payments to websites that infringe Perfect 10's intellectual property rights after being notified by Perfect 10 of infringement by those websites. The district court dismissed all causes of action under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon *793 which relief can be granted. We affirm the decision of the district court. FACTS AND PRIOR PROCEEDINGS Perfect 10 publishes the magazine "PERFECT10" and operates the subscription website www.perfect10.com., both of which "feature tasteful copyrighted images of the world's most beautiful natural models." Appellant's Opening Brief at 1. Perfect 10 claims copyrights in the photographs published in its magazine and on its website, federal registration of the "PERFECT 10" trademark and blanket publicity rights for many of the models appearing in the photographs. Perfect 10 alleges that numerous websites based in several countries have stolen its proprietary images, altered them, and illegally offered them for sale online. Instead of suing the direct infringers in this case, Perfect 10 sued Defendants, financial institutions that process certain credit card payments to the allegedly infringing websites. The Visa and Master-Card entities are associations of member banks that issue credit cards to consumers, automatically process payments to merchants authorized to accept their cards, and provide information to the interested parties necessary to settle the resulting debits and credits. Defendants collect fees for their services in these transactions. Perfect 10 alleges that it sent Defendants repeated notices specifically identifying infringing websites and informing Defendants that some of their consumers use their payment cards to purchase infringing images. Defendants admit receiving some of these notices, but they took no action in response to the notices after receiving them. Perfect 10 separately alleges that it formerly had a merchant account with defendant First Data Corporation (FDC) but that in the Spring of 2001 FDC terminated the account. FDC's stated reason for the termination is that the percentage of Perfect 10's customers who later disputed the charges attributed to them (the chargeback rate) exceeded contractual limits. Perfect 10 claims these chargeback rates were temporarily and substantially inflated because Perfect 10 was the "victim of hackers who were subsequently investigated by the Secret Service." Appellant's Opening Brief at 13. Perfect 10 claims that FDC was aware of this and was also aware that Perfect 10's chargeback rate dropped to within association limits once the hacking ceased, but that FDC nevertheless placed Perfect 10 on an industry-wide "black list" of terminated accounts. Perfect 10 filed suit against Defendants on January 28, 2004 alleging contributory and vicarious copyright and trademark infringement as well as violations of California laws proscribing unfair competition and false advertising, violation of the statutory and common law right of publicity, libel, and intentional interference with prospective economic advantage. Defendants moved to dismiss the initial complaint under FRCP 12(b)(6). The district court granted the motion, dismissing the libel and intentional interference claims with prejudice but granting leave to amend the remaining claims. In its first amended complaint, Perfect 10 essentially repeated the allegations in its original complaint concerning the surviving causes of action and Defendants again moved to dismiss under FRCP 12(b)(6). The district court granted the Defendants' second motion in full, dismissing all remaining causes of action with prejudice. Perfect 10 appealed to this court. JURISDICTION The district court had original jurisdiction over the copyright and trademark claims pursuant to 28 U.S.C. §§ 1331 and *794 1338 and supplemental jurisdiction over the related state law claims pursuant to 28 U.S.C. § 1367. This court has appellate jurisdiction pursuant to 28 U.S.C. § 1291. STANDARDS OF REVIEW We review de novo the district court's dismissal for failure to state a claim upon which relief can be granted pursuant to FRCP 12(b)(6). Rodriguez v. Panayiotou, 314 F.3d 979, 983 (9th Cir.2002). On appeal, "we take all of the allegations of material fact stated in the complaint as true and construe them in the light most favorable to the nonmoving party. A complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (internal citations omitted). Although a plaintiff's allegations are generally taken as true, the court need not accept conclusory allegations of law or unwarranted inferences, and dismissal is required if the facts are insufficient to support a cognizable claim. City of Arcadia v. U.S. Envtl. Prot. Agency, 411 F.3d 1103, 1106 n. 3 (9th Cir.2005); see also Pena v. Gardner, 976 F.2d 469, 471-72 (9th Cir.1992). The court may also affirm on any ground supported by the record even if the district court did not consider the issue. Fields v. Legacy Health Sys., 413 F.3d 943, 958 n. 13 (9th Cir.2005); ARC Ecology v. United States Dep't of the Air Force, 411 F.3d 1092, 1096 (9th Cir. 2005). We review de novo the district court's interpretation of state law. Rodriguez, 314 F.3d at 983. DISCUSSION SECONDARY LIABILITY UNDER FEDERAL COPYRIGHT AND TRADEMARK LAW A. Secondary Liability for Copyright Infringement Perfect 10 alleges that numerous websites based in several countries—and their paying customers—have directly infringed its rights under the Copyright Act, 17 U.S.C. § 101, et seq.[1] In the present suit, however, Perfect 10 has sued Defendants, not the direct infringers, claiming contributory and vicarious copyright infringement because Defendants process credit card charges incurred by customers to acquire the infringing images. We evaluate Perfect 10's claims with an awareness that credit cards serve as the primary engine of electronic commerce and that Congress has determined it to be the "policy of the United States—(1) to promote the continued development of the Internet and other interactive computer services and other interactive media [and] (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation." 47 U.S.C. §§ 230(b)(1), (2).[2] 1. Contributory Copyright Infringement Contributory copyright infringement is a form of secondary liability with *795 roots in the tort-law concepts of enterprise liability and imputed intent. See Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir.1996); Perfect 10, Inc. v. Amazon.com, Inc. et al., 487 F.3d 701 (9th Cir.2007). This court and the United States Supreme Court (Supreme Court) have announced various formulations of the same basic test for such liability. We have found that a defendant is a contributory infringer if it (1) has knowledge of a third party's infringing activity, and (2) "induces, causes, or materially contributes to the infringing conduct." Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir.2004) (citing Gershwin Publ'g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971)). In an Internet context, we have found contributory liability when the defendant "engages in personal conduct that encourages or assists the infringement." A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1019 (9th Cir.2001) (internal citations omitted). In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., the Supreme Court adopted from patent law the concept of "inducement" and found that "[o]ne infringes contributorily by intentionally inducing or encouraging direct infringement." 545 U.S. 913, 930, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005).[3] Most recently, in a case also brought by Perfect 10, we found that "an actor may be contributorily liable [under Grokster] for intentionally encouraging direct infringement if the actor knowingly takes steps that are substantially certain to result in such direct infringement." Amazon.com, 487 F.3d at 727. We understand these several criteria to be non-contradictory variations on the same basic test, i.e., that one contributorily infringes when he (1) has knowledge of another's infringement and (2) either (a) materially contributes to or (b) induces that infringement. Viewed in isolation, the language of the tests described is quite broad, but when one reviews the details of the actual "cases and controversies" before the relevant court in each of the testdefining cases and the actual holdings in those cases, it is clear that the factual circumstances in this case are not analogous. To find that Defendants' activities fall within the scope of such tests would require a radical and inappropriate expansion of existing principles of secondary liability and would violate the public policy of the United States. a. Knowledge of the Infringing Activity Because we find that Perfect 10 has not pled facts sufficient to establish that Defendants induce or materially contribute to the infringing activity, Perfect 10's contributory copyright infringement claim fails and we need not address the Defendants' knowledge of the infringing activity.[4] *796 b. Material Contribution, Inducement, or Causation To state a claim of contributory infringement, Perfect 10 must allege facts showing that Defendants induce, cause, or materially contribute to the infringing conduct. See, e.g., Ellison, 357 F.3d at 1076. Three key cases found defendants contributorily liable under this standard: Fonovisa, 76 F.3d 259; Napster, 239 F.3d 1004; and Grokster, 545 U.S. 913, 125 S.Ct. 2764, 162 L.Ed.2d 781. In Fonovisa, we held a swap meet operator contributorily liable for the sale of pirated works at the swap meet. In Napster, we held the operator of an electronic file sharing system liable when users of that system employed it to exchange massive quantities of copyrighted music. In Grokster, the Supreme Court found liability for the substantially similar act of distributing software that enabled exchange of copyrighted music on a peer-to-peer, rather than a centralized basis.[5] Perfect 10 argues that by continuing to process credit card payments to the infringing websites despite having knowledge of ongoing infringement, Defendants induce, enable and contribute to the infringing activity in the same way the defendants did in Fonovisa, Napster and Grokster. We disagree. 1. Material Contribution The credit card companies cannot be said to materially contribute to the infringement in this case because they have no direct connection to that infringement. Here, the infringement rests on the reproduction, alteration, display and distribution of Perfect 10's images over the Internet. Perfect 10 has not alleged that any infringing material passes over Defendants' payment networks or through their payment processing systems, or that Defendants' systems are used to alter or display the infringing images. In Fonovisa, the infringing material was physically located in and traded at the defendant's market. Here, it is not. Nor are Defendants' systems used to locate the infringing images. The search engines in Amazon.com provided links to specific infringing images, and the services in Napster and Grokster allowed users to locate and obtain infringing material. Here, in contrast, the services provided by the credit card companies do not help locate and are not used to distribute the infringing images. While Perfect 10 has alleged that Defendants make it easier for websites to profit from this infringing activity, the issue here is reproduction, alteration, display and distribution, which can occur without payment. Even if infringing images were not paid for, there would still be infringement. See Napster, 239 F.3d at 1014 (Napster users infringed the distribution right by uploading file names to the search index for others to copy, despite the fact that *797 no money changed hands in the transaction). Our analysis is fully consistent with this court's recent decision in Perfect 10 v. Amazon.com, where we found that "Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10's copyrighted works, and failed to take such steps." 487 F.3d at 729. The dissent claims this statement applies squarely to Defendants if we just substitute "payment systems" for "search engine." Dissent at 811. But this is only true if search engines and payment systems are equivalents for these purposes, and they are not. The salient distinction is that Google's search engine itself assists in the distribution of infringing content to Internet users, while Defendants' payment systems do not. The Amazon.com court noted that "Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials." Id. Defendants do not provide such a service. They in no way assist or enable Internet users to locate infringing material, and they do not distribute it. They do, as alleged, make infringement more profitable, and people are generally more inclined to engage in an activity when it is financially profitable. However, there is an additional step in the causal chain: Google may materially contribute to infringement by making it fast and easy for third parties to locate and distribute infringing material, whereas Defendants make it easier for infringement to be profitable, which tends to increase financial incentives to infringe, which in turn tends to increase infringement.[6] The dissent disagrees with our reading of Amazon.com and charges us with wishful thinking, dissent at 811, and with "draw[ing] a series of ephemeral distinctions," dissent at 825. We respectfully disagree and assert that our construction of the relevant statutes and case law is completely consistent with existing federal law, is firmly grounded in both commercial and technical reality and conforms to the public policy of the United States. Helping users to locate an image might substantially assist users to download infringing images, but processing payments does not. If users couldn't pay for images with credit cards, infringement could continue on a large scale because other viable funding mechanisms are available. For example, a website might decide to allow users to download some images for free and to make its profits from advertising, or it might develop other payment mechanisms that do not depend on the credit card companies.[7] In either case, the unlicensed use of Perfect 10's copyrighted images would still be infringement.[8] We acknowledge that Defendants' *798 payment systems make it easier for such an infringement to be profitable, and that they therefore have the effect of increasing such infringement, but because infringement of Perfect 10's copyrights can occur without using Defendants' payment system, we hold that payment processing by the Defendants as alleged in Perfect 10's First Amended Complaint does not constitute a "material contribution" under the test for contributory infringement of copyrights.[9] Our holding is also fully consistent with and supported by this court's previous holdings in Fonovisa and Napster. While there are some limited similarities between the factual scenarios in Fonovisa and Napster and the facts in this case, the differences in those scenarios are substantial, and, in our view, dispositive. In Fonovisa, we held a flea market proprietor liable as a contributory infringer when it provided the facilities for and benefitted from the sale of pirated works. 76 F.3d 259. The court found that the primary infringers and the swap meet were engaged in a mutual enterprise of infringement and observed that "it would be difficult for the infringing activity to take place in the massive quantities alleged without the support services provided by the swap meet. These services include, among other things, the provision of space, utilities, parking, advertising, plumbing, and customers." 76 F.3d at 264. But the swap meet owner did more to encourage the enterprise. In 1991, the Fresno County Sheriff raided the swap meet and seized 38,000 counterfeit recordings. Id. at 261. The Sheriff sent a letter to the swap meet operator the following year notifying it that counterfeit sales continued and reminding it that it had agreed to provide the Sheriff with identifying information from each vendor, but had failed to do so. Id. The Fonovisa court found liability because the swap meet operator knowingly provided the "site and facilities" for the infringing activity. Id. at 264. In Napster, this court found the designer and distributor of a software program liable for contributory infringement. 239 F.3d 1004. Napster was a file-sharing *799 program which, while capable of non-infringing use, was expressly engineered to enable the easy exchange of pirated music and was widely so used. See Napster, 239 F.3d at 1020 n. 5 (quoting document authored by Napster co-founder which mentioned "the need to remain ignorant of users' real names and IP addresses `since they are exchanging pirated music'"). Citing the Fonovisa standard, the Napster court found that Napster materially contributes to the users' direct infringement by knowingly providing the "site and facilities" for that infringement. 239 F.3d at 1022. Seeking to draw an analogy to Fonovisa and, by extension, Napster, Perfect 10 pleads that Defendants materially contribute to the infringement by offering services that allow it to happen on a larger scale than would otherwise be possible. Specifically, because the swap meet in Fonovisa created a commercial environment which allowed the frequency of that infringement to increase, and the Napster program increased the frequency of infringement by making it easy, Perfect 10 argues that the Defendants have made available a payment system that allows third-party infringement to be profitable, and, consequently, more widespread than it otherwise might be. This analogy fails. The swap meet operator in Fonovisa and the administrators of the Napster and Grokster programs increased the level of infringement by providing a centralized place, whether physical or virtual, where infringing works could be collected, sorted, found, and bought, sold, or exchanged.[10] The provision of parking lots, plumbing and other accoutrements in Fonovisa was significant only because this was part of providing the environment and market for counterfeit recording sales to thrive. Defendants, in contrast, do no such thing. While Perfect 10 has alleged that it is easy to locate images that infringe its copyrights, the Defendants' payment systems do not cause this. Perfect 10's images are easy to locate because of the very nature of the Internet—the website format, software allowing for the easy alteration of images, high-speed connections allowing for the rapid transfer of high-resolution image files, and perhaps most importantly, powerful search engines that can aggregate and display those images in a useful and efficient manner, without charge, and with astounding speed. Defendants play no role in any of these functions. Perfect 10 asserts otherwise by arguing for an extremely broad conception of the term "site and facilities" that bears no relationship to the holdings in the actual "cases and controversies" decided in Fonovisa and Napster. Taken literally, Perfect 10's theory appears to include any tangible or intangible component related to any transaction in which infringing material is bought and sold. But Fonovisa and Napster do not require or lend themselves to such a construction. The actual display, location, and distribution of infringing images in this case occurs on websites that organize, display, and transmit information over the wires and wireless instruments that make up the Internet. The websites are the "site" of the infringement, not Defendants' payment networks. Defendants do not create, operate, *800 advertise, or otherwise promote these websites. They do not operate the servers on which they reside. Unlike the Napster (and Grokster) defendants, they do not provide users the tools to locate infringing material, nor does any infringing material ever reside on or pass through any network or computer Defendants operate.[11] Defendants merely provide a method of payment, not a "site" or "facility" of infringement. Any conception of "site and facilities" that encompasses Defendants would also include a number of peripherally-involved third parties, such as computer display companies, storage device companies, and software companies that make the software necessary to alter and view the pictures and even utility companies that provide electricity to the Internet. Perfect 10 seeks to side-step this reality by alleging that Defendants are still contributory infringers because they could refuse to process payments to the infringing websites and thereby undermine their commercial viability.[12] Even though we must take this factual allegation as true, that Defendants have the power to undermine the commercial viability of infringement does not demonstrate that the Defendants materially contribute to that infringement. As previously noted, the direct infringement here is the reproduction, alteration, display and distribution of Perfect 10's images over the Internet. Perfect 10 has not alleged that any infringing material passes over Defendants' payment networks or through their payment processing systems, or that Defendants designed or promoted their payment systems as a means to infringe. While Perfect 10 has alleged that Defendants make it easier for websites to profit from this infringing activity, the infringement stems from the failure to obtain a license to distribute, not the processing of payments. 2. Inducement In Grokster, the Supreme Court applied the patent law concept of "inducement" to a claim of contributory infringement against a file-sharing program. 545 U.S. 913, 125 S.Ct. 2764, 162 L.Ed.2d 781. The court found that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." Id. at 936-37, 125 S.Ct. 2764. Perfect 10 claims that Grokster is analogous because Defendants induce customers to use their cards to purchase goods and services, and are therefore guilty of specifically inducing infringement if the cards are used to purchase images from sites that have content stolen from Perfect 10. This is mistaken. Because Perfect 10 alleges no "affirmative steps taken to foster infringement" and no facts suggesting that Defendants promoted their payment system as a means to infringe, its claim is premised on a fundamental misreading of *801 Grokster that would render the concept of "inducement" virtually meaningless. The Grokster court announced that the standard for inducement liability is providing a service "with the object of promoting its use to infringe copyright." Id. "[M]ere knowledge of infringing potential or actual infringing uses would not be enough here to subject [a defendant] to liability." Id. at 937, 125 S.Ct. 2764. Instead, inducement "premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise." Id. Moreover, to establish inducement liability, it is crucial to establish that the distributors "communicated an inducing message to their . . . users," the classic example of which is an "advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations." Id. The Grokster court summarized the "inducement" rule as follows: In sum, where an article is good for nothing else but infringement, there is no legitimate public interest in its unlicensed availability, and there is no injustice in presuming or imputing an intent to infringe. Conversely, the doctrine absolves the equivocal conduct of selling an item with substantial lawful as well as unlawful uses, and limits liability to instances of more acute fault than the mere understanding that some of one's products will be misused. It leaves breathing room for innovation and a vigorous commerce. 545 U.S. at 932-33, 125 S.Ct. 2764 (internal citations and quotation marks omitted). Perfect 10 has not alleged that any of these standards are met or that any of these considerations are present here. Defendants do, of course, market their credit cards as a means to pay for goods and services, online and elsewhere. But it does not follow that Defendants affirmatively promote each product that their cards are used to purchase. The software systems in Napster and Grokster were engineered, disseminated, and promoted explicitly for the purpose of facilitating piracy of copyrighted music and reducing legitimate sales of such music to that extent. Most Napster and Grokster users understood this and primarily used those systems to purloin copyrighted music. Further, the Grokster operators explicitly targeted then-current users of the Napster program by sending them ads for its OpenNap program. Id. at 925-26, 125 S.Ct. 2764. In contrast, Perfect 10 does not allege that Defendants created or promote their payment systems as a means to break laws. Perfect 10 simply alleges that Defendants generally promote their cards and payment systems but points to no "clear expression" or "affirmative acts" with any specific intent to foster infringement. The Amazon.com court recognized this distinction and applied it in a matter fully consistent with our analysis in this case. While the Amazon.com court did not bifurcate its analysis of contributory liability into "material contribution" liability and "inducement" liability, it did recognize that contributory liability "may be predicated on actively encouraging (or inducing) infringement through specific acts." Amazon.com, 487 F.3d at 726 (quoting Grokster, 545 U.S. at 942, 125 S.Ct. 2764 (Ginsburg, J., concurring)). It also found that Google could be held contributorily liable if it has "actual knowledge that specific infringing material is available using its system, and can take simple measures to prevent further damage," but does not. Id. at 728 (internal citations and quotation marks omitted). While this test is read more naturally as a test for "material contribution" than as a test for "inducement," *802 under an "inducement" analysis Defendants are not within its scope. As discussed above, Perfect 10 has not alleged any "specific acts" intended to encourage or induce infringement. And moreover, Defendants are distinguishable under the Amazon.com test because, unlike Google, infringing material is not "available using [their] system" of payment processing. Id. That system does not "facilitate access to websites," id.; infringers do not use it to copy, alter, distribute or display infringing material; and consumers do not use it to locate, view or download the infringing images. Rather, all parties involved simply use Defendants' system to process payments for that infringing material. Finally, we must take as true the allegations that Defendants lend their names and logos to the offending websites and continue to allow their cards to be used to purchase infringing images despite actual knowledge of the infringement—and perhaps even bending their association rules to do so. But we do not and need not, on this factual basis, take as true that Defendants "induce" consumers to buy pirated content with their cards. "Inducement" is a legal determination, and dismissal may not be avoided by characterizing a legal determination as a factual one. We must determine whether the facts as pled constitute a "clear expression" of a specific intent to foster infringement, and, for the reasons above noted, we hold that they do not. 2. Vicarious Copyright Infringement Vicarious infringement is a concept related to, but distinct from, contributory infringement. Whereas contributory infringement is based on tort-law principles of enterprise liability and imputed intent, vicarious infringement's roots lie in the agency principles of respondeat superior. See Fonovisa, 76 F.3d at 261-62. To state a claim for vicarious copyright infringement, a plaintiff must allege that the defendant has (1) the right and ability to supervise[13] the infringing conduct and (2) a direct financial interest in the infringing activity. Ellison, 357 F.3d at 1078; Napster, 239 F.3d at 1022 (citations omitted). The Supreme Court has recently offered (in dictum) an alternate formulation of the test: "One . . . infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it." Grokster, 545 U.S. at 930, 125 S.Ct. 2764 (internal citations omitted). Perfect 10 alleges that Defendants have the right and ability to control the content of the infringing websites by refusing to process credit card payments to the websites, enforcing their own rules and regulations, or both. We hold that Defendants' conduct alleged in Perfect 10's first amended complaint fails to state a claim for vicarious copyright infringement. a. Right and Ability to Supervise the Infringing Activity In order to join a Defendant's payment network, merchants and member banks must agree to follow that Defendant's rules and regulations. These rules, among other things, prohibit member banks from providing services to merchants engaging in certain illegal activities and require the members and member banks to investigate merchants suspected of engaging in such illegal activity and to terminate their participation in the payment network if certain illegal activity is *803 found. Perfect 10 has alleged that certain websites are infringing Perfect 10's copyrights and that Perfect 10 sent notices of this alleged infringement to Defendants. Accordingly, Perfect 10 has adequately pled that (1) infringement of Perfect 10's copyrights was occurring, (2) Defendants were aware of the infringement, and (3) on this basis, Defendants could have stopped processing credit card payments to the infringing websites. These allegations are not, however, sufficient to establish vicarious liability because even with all reasonable inferences drawn in Perfect 10's favor, Perfect 10's allegations of fact cannot support a finding that Defendants have the right and ability to control the infringing activity. In reasoning closely analogous to the present case, the Amazon.com court held that Google was not vicariously liable for third-party infringement that its search engine facilitates. In so holding, the court found that Google's ability to control its own index, search results, and webpages does not give Google the right to control the infringing acts of third parties even though that ability would allow Google to affect those infringing acts to some degree. Amazon.com, 487 F.3d at 730-32. Moreover, and even more importantly, the Amazon.com court rejected a vicarious liability claim based on Google's policies with sponsored advertisers, which state that it reserves "the right to monitor and terminate partnerships with entities that violate others' copyright[s]." Id. at 730 (alteration in original). The court found that Google's right to terminate an AdSense partnership does not give Google the right to stop direct infringement by third-party websites. An infringing third-party website can continue to reproduce, display, and distribute its infringing copies of Perfect 10 images after its participation in the AdSense program has ended. Id. This reasoning is equally applicable to the Defendants in this case. Just like Google, Defendants could likely take certain steps that may have the indirect effect of reducing infringing activity on the Internet at large. However, neither Google nor Defendants has any ability to directly control that activity, and the mere ability to withdraw a financial "carrot" does not create the "stick" of "right and ability to control" that vicarious infringement requires. A finding of vicarious liability here, under the theories advocated by the dissent, would also require a finding that Google is vicariously liable for infringement—a conflict we need not create, and radical step we do not take. Perfect 10 argues that this court's decision in Napster compels a contrary result. The Napster court found a likelihood of vicarious liability because Napster "had the right and ability to police its system and failed to exercise that right to prevent the exchange of copyrighted material." 239 F.3d at 1023. The Napster program created a forum for the exchange of digital music files and the program administrators had the ability to block certain users from accessing that forum to upload or download such files. As pled by Perfect 10, Defendants also provide a system that allows the business of infringement for profit to operate on a larger scale than it otherwise might, and Defendants have the ability to deny users access to that payment system. This argument fails. The Napster program's involvement with—and hence its "policing" power over—the infringement was much more intimate and directly intertwined with it than Defendants' payment systems are. Napster provided users with the tools to enable the easy reproduction and distribution of the actual infringing content and to readily search *804 out and identify infringing material. Defendants' payment systems do not. Napster also had the right and ability to block user access to its program and thereby deprive particular users of access to their forum and use of their location and distribution tools. Defendants can block access to their payment system, but they cannot themselves block access to the Internet, to any particular websites, or to search engines enabling the location of such websites. Defendants are involved with the payment resulting from violations of the distribution right, but have no direct role in the actual reproduction, alteration, or distribution of the infringing images.[14] They cannot take away the tools the offending websites use to reproduce, alter, and distribute the infringing images over the Internet. They can only take away the means the websites currently use to sell them.[15] Perfect 10 offers two counter-arguments. Perfect 10 first claims that Defendants' rules and regulations permit them to require member merchants to cease illegal activity—presumably including copyright infringement—as a condition to their continuing right to receive credit card payments from the relevant Defendant entities. Perfect 10 argues that these contractual terms effectively give Defendants contractual control over the content of their merchants' websites, and that contractual control over content is sufficient to establish the "right and ability" to control that content for purposes of vicarious liability. In the sense that economic considerations can influence behavior, these contractual rules and regulations do give Defendants some measure of control over the offending websites since it is reasonable to believe that fear of losing access to credit card payment processing services would be a sufficient incentive for at least some website operators to comply with a content-based suggestion from Defendants. But the ability to exert financial pressure does not give Defendants the right or ability to control the actual infringing activity at issue in this case. Defendants have no absolute right[16] to stop that activity—they cannot stop websites *805 from reproducing, altering, or distributing infringing images. Rather, the credit card companies are analogous to Google, which we held was not liable for vicarious copyright infringement even though search engines could effectively cause a website to disappear by removing it from their search results, and reserve the right to do so. Like Google, the credit card companies "cannot stop any of the third-party websites from reproducing, displaying, and distributing unauthorized copies of Perfect 10's images because that infringing conduct takes place on the third-party websites." Amazon.com, 487 F.3d at 731. Defendants can only refuse to process credit card payments to the offending merchant within their payment network, or they can threaten to do so if the merchant does not comply with a request to alter content. While either option would likely have some indirect effect on the infringing activity, as we discuss at greater length in our analysis of the Grokster "stop or limit" standard below, so might any number of actions by any number of actors. For vicarious liability to attach, however, the defendant must have the right and ability to supervise and control the infringement, not just affect it, and Defendants do not have this right or ability. Perfect 10 relies heavily on the reasoning of Fonovisa and Napster to support this argument, but that reliance is misplaced. The swap meet operator in Fonovisa and the software operator in Napster both had the right to remove individual infringers from the very place the infringement was happening. Defendants, like the defendants in Amazon.com, have no such right. As already discussed, Defendants cannot take away the software the offending websites use to copy, alter, and distribute the infringing images, cannot remove those websites from the Internet, and cannot themselves block the distribution of those images over the Internet. Defendants can refuse to process credit card payments for those images, but while this refusal would reduce the number of those sales, that reduction is the result of indirect economic pressure rather than an affirmative exercise of contractual rights.[17] Perfect 10 also argues that were infringing websites barred from accepting the Defendants' credit cards, it would be impossible for an online website selling adult images to compete and operate at a profit.[18] While we must take this allegation as *806 true, it still fails to state a claim because it conflates the power to stop profiteering with the right and ability to control infringement. Perfect 10's allegations do not establish that Defendants have the authority to prevent theft or alteration of the copyrighted images, remove infringing material from these websites or prevent its distribution over the Internet. Rather, they merely state that this infringing activity could not be profitable without access to Defendants' credit card payment systems. The alleged infringement does not turn on the payment; it turns on the reproduction, alteration and distribution of the images, which Defendants do not do, and which occurs over networks Defendants do not control. The Supreme Court's recent decision in Grokster does not undermine the validity of this distinction. As we held in Amazon.com, 487 F.3d at 728-31, Grokster does not stand for the proposition that just because the services provided by a company help an infringing enterprise generate revenue, that company is necessarily vicariously liable for that infringement. Numerous services are required for the third party infringers referred to by Perfect 10 to operate. In addition to the necessity of creating and maintaining a website, numerous hardware manufacturers must produce the computer on which the website physically sits; a software engineer must create the program that copies and alters the stolen images; technical support companies must fix any hardware and software problems; utility companies must provide the electricity that makes all these different related operations run, etc. All these services are essential to make the businesses described viable, they all profit to some degree from those businesses, and by withholding their services, they could impair—perhaps even destroy—the commercial viability of those business. But that does not mean, and Grokster by no means holds, that they are all potentially liable as vicarious infringers. Even though they have the "right" to refuse their services, and hence the literal power to "stop or limit" the infringement, they, like Defendants, do not exercise sufficient control over the actual infringing activity for vicarious liability to attach. b. Obvious and Direct Financial Interest in the Infringing Activity Because Perfect 10 has failed to show that Defendants have the right and ability to control the alleged infringing conduct, it has not pled a viable claim of vicarious liability. Accordingly, we need not reach the issue of direct financial interest. B. Secondary Liability for Trademark Infringement The tests for secondary trademark infringement are even more difficult to satisfy than those required to find secondary copyright infringement. See Sony Corp. v. Universal City Studios, 464 U.S. 417, 439 n. 19, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984); Fonovisa, 76 F.3d at 265 (noting that "trademark infringement liability is more narrowly circumscribed than copyright infringement"). While the tests for such infringement are somewhat different in the trademark context, Perfect 10's factual allegations in support of these claims are essentially identical to those alleged in Perfect 10's copyright claims, and they fail to state a claim for similar reasons. *807 1. Contributory Trademark Infringement To be liable for contributory trademark infringement, a defendant must have (1) "intentionally induced" the primary infringer to infringe, or (2) continued to supply an infringing product to an infringer with knowledge that the infringer is mislabeling the particular product supplied. Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982). When the alleged direct infringer supplies a service rather than a product, under the second prong of this test, the court must "consider the extent of control exercised by the defendant over the third party's means of infringement." Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 984 (9th Cir.1999). For liability to attach, there must be "[d]irect control and monitoring of the instrumentality used by a third party to infringe the plaintiff's mark." Id. Perfect 10 has failed to plead a viable claim under either prong of Inwood Labs — and, by extension, Lockheed Martin. First, it has not pled facts showing that Defendants "intentionally induced" infringement of Perfect 10's mark. Perfect 10 has alleged that Defendants are providing critical support to websites that are using the PERFECT 10 mark in a manner that is likely to cause the public to believe that they are authorized by Perfect 10. Its factual allegations in support of this claim are identical to those it made in support of its copyright claims. These allegations, however, cite no affirmative acts by Defendants suggesting that third parties infringe Perfect 10's mark, much less induce them to do so. Second, Perfect 10 has failed to allege facts sufficient to show "[d]irect control and monitoring of the instrumentality used by a third party to infringe the plaintiff's mark." Lockheed Martin, 194 F.3d at 984. Perfect 10 claims that the "product" or "instrumentality" at issue here is the credit card payment network through which Defendants process payments for infringing material. Appellant's Opening Brief at 39. As discussed at length above, this network is not the instrument used to infringe Perfect 10's trademarks; that infringement occurs without any involvement of Defendants and their payment systems. Perfect 10 has not alleged that Defendants have the power to remove infringing material from these websites or directly stop their distribution over the Internet. At most, Perfect 10 alleges that Defendants can choose to stop processing payments to these websites, and that this refusal might have the practical effect of stopping or reducing the infringing activity. This, without more, does not constitute "direct control." See Lockheed Martin, 194 F.3d at 985 ("While the landlord of a flea market might reasonably be expected to monitor the merchandise sold on his premises, [defendant] NSI cannot reasonably be expected to monitor the Internet.") (citation omitted). 2. Vicarious Trademark Infringement Vicarious liability for trademark infringement requires "a finding that the defendant and the infringer have an apparent or actual partnership, have authority to bind one another in transactions with third parties or exercise joint ownership or control over the infringing product." Hard Rock Café Licensing Corp. v. Concession Servs., Inc., 955 F.2d 1143, 1150 (7th Cir.1992) (internal quotations omitted), followed by Symantec Corp. v. CD Micro, Inc., 286 F.Supp.2d 1265, 1275 (D.Or.2003). Perfect 10 argues that Defendants are liable as follows: "Defendants and the *808 Stolen Content Websites are in a symbiotic financial partnership pursuant to which the websites operate their businesses according to defendants' rules and regulations and defendants share the profits, transaction by transaction." Appellant's Opening Brief at 40. For the same reasons that this relationship does not establish "right and ability to control" for copyright purposes, neither does it establish such a "symbiotic" relationship or "joint ownership or control" for trademark purposes. Defendants process payments to these websites and collect their usual processing fees, nothing more. Perfect 10 further argues that "Defendants' acceptance of a charge binds the Stolen Content Website to provide the infringing images to third parties." Appellant's Opening Brief at 40. Even if legally relevant, Perfect 10's allegation is legally incorrect. It is the websites' contracts with the consumers that bind the websites to provide the infringing images, not the websites' relationship with Defendants.[19] The websites' contracts with Defendants are merely a means of settling the resulting debits and credits among the websites and the relevant consumers. We hold that Perfect 10 fails to state a claim for vicarious trademark infringement. CALIFORNIA STATUTORY AND COMMON LAW CLAIMS In addition to its federal copyright and trademark claims, Perfect 10 pled causes of action for unfair competition, false advertising, violation of the right of publicity, libel, and intentional interference with economic relations. We hold that the district court properly dismissed all these claims with prejudice. A. California State Law Claims of Unfair Competition hand False Advertising Defendants do not dispute Perfect 10's claims that the websites themselves are potentially violating California state and common law prohibiting unfair competition and false advertising. See Cal. Bus. & Prof.Code §§ 17200, et seq., and 17500, et seq. Defendants do, however, argue that Emery v. Visa International Service Association, 95 Cal.App.4th 952, 116 Cal. Rptr.2d 25 (2002), precludes liability for Defendants in this case, both under secondary liability and aiding and abetting theories. Defendants are correct on both counts. In Emery, a California appellate court affirmed a grant of summary judgment in favor of Visa, finding that Visa did not exercise the requisite control over merchants marketing foreign lottery tickets to impose secondary liability under the state's unfair competition or false advertising laws. Id. at 959-964, 116 Cal.Rptr.2d 25. Emery found that an "unfair practices claim under section 17200 cannot be predicated on vicarious liability. . . . A defendant's liability must be based on his personal participation in the unlawful practices and unbridled control over the practices that are found to violate section 17200 or 17500." Id. at 960, 116 Cal. Rptr.2d 25 (internal citations omitted). Because "Visa itself played no part in preparing or sending any `statement' that might be construed as untrue or misleading under the unfair business practices *809 statutes," it could not be liable for unfair competition. Id. at 964, 116 Cal.Rptr.2d 25. The false advertising claim also necessarily failed because "even if Visa allowed the merchants to use its logo, trade name, or trademark, it would not be liable for false advertising. There is no duty to investigate the truth of statements made by others." Id. (citations omitted). Emery is dispositive of Perfect 10's claims that the Defendants are secondarily liable under California unfair competition and false advertising laws and the district court properly dismissed them.[20] In an attempt to avoid the impact of Emery, Perfect 10 argues on appeal that it alleged aiding and abetting theories of liability in its complaints, and further, that the district court improperly dismissed these civil claims under a criminal standard of aiding and abetting. Perfect 10 fails to establish a viable claim on these theories as well. The only authority offered by Perfect 10 in support of such liability is an opinion which is now uncitable in California: Schulz v. Neovi Data Corporation, 28 Cal.Rptr.3d 46 (Cal. App.4th Dist.2005), superceded by 32 Cal. Rptr.3d 758, 117 P.3d 475 (Cal.2005), cause transferred by 56 Cal.Rptr.3d 471, 154 P.3d 998 (Cal.2007), transferred to, 152 Cal.App.4th 86, 60 Cal.Rptr.3d 810 (4th Dist. Jun 15, 2007). Furthermore, even under the standards announced in the superceding Schulz opinion, Defendants would not be liable. The Schulz court found a credit card company potentially liable for its role in facilitating an illegal online lottery because that company "went far beyond merely processing credit cards." 152 Cal.App.4th at 95, 60 Cal.Rptr.3d 810. In support, the court cited specific statements from a company representative in which he "personally assured" an agent of the website that the defendant company "did not have any problem with the operation of the [illegal] lottery site" and had a "stronger stomach" than other payment processors. Id. Perfect 10 alleges no similar conduct here— Defendants merely process credit card payments. B. Aiding and Abetting the Websites' Violations of Perfect 10's Right of Publicity Perfect 10 alleges that Defendants aided and abetted the websites' violations of Perfect 10's rights of publicity, acquired by assignment from its models, in violation of Cal. Civil Code § 3344 and the common law right of publicity. This aiding and abetting claim fails for the same reasons as the aiding and abetting claims under unfair competition and false advertising. Even if such liability is possible under California law—a proposition for which Perfect 10 has provided no clear authority—Defendants lack sufficient control or personal involvement in the infringing activities to be so liable. See Schulz, 152 Cal.App.4th at 93-94, 60 Cal.Rptr.3d 810; Emery, 95 Cal.App.4th at 962-63, 116 Cal. Rptr.2d 25. C. Libel and Intentional Interference with Prospective Economic Advantage The district court dismissed Perfect 10's claims of libel and intentional *810 interference with prospective economic advantage with prejudice on multiple grounds. We affirm on the ground that both are time-barred. Under California law, a libel claim must be filed within one year of publication of the allegedly libelous statement, Cal. Civ. Proc. § 340(c), and an intentional interference claim must be filed within two years of the underlying harmful act, Cal. Civ. Proc. § 339. Perfect 10 claims the same underlying wrongful act as the basis for both claims: its placement on the industry "black list" in the Spring of 2001. However, Perfect 10 failed to file suit until January 2004—well beyond the statute of limitations applicable to each claim—and has failed to show any possible exception under either statute. Those claims are time-barred. CONCLUSION We decline to create any of the radical new theories of liability advocated by Perfect 10 and the dissent and we affirm the district court's dismissal with prejudice of all causes of action in Perfect 10's complaint for failure to state a claim upon which relief can be granted. AFFIRMED. KOZINSKI, Circuit Judge, dissenting for the most part:[1] Federal law gives copyright owners the exclusive right to "distribute copies [of their works] . . . to the public by sale." 17 U.S.C. § 106(3). Plaintiff alleges that certain third parties it refers to as the "Stolen Content Websites" unlawfully copy its protected images and sell them to the public, using defendants' payment systems as financial intermediaries. According to plaintiff, the Stolen Content Websites "maintain no physical presence in the United States in order to evade criminal and civil liability for their illegal conduct." First Am. Compl. at 8 ¶ 26. Plaintiff also claims that "Defendants do not enforce their own rules against [the] Stolen Content Websites because Defendants do not want to lose the substantial revenues and profits they receive from the websites." Id. at 10 ¶ 35. Plaintiff has repeatedly notified defendants that they are abetting the sale of stolen merchandise by "knowingly providing crucial transactional support services for the sale of millions of stolen photos and film clips worth billions of dollars," id. at 1 ¶ 5, but to no avail. Frustrated in its effort to protect the rights Congress has given it, plaintiff turns to the federal courts for redress. We should not slam the courthouse door in its face. Accepting the truth of plaintiff's allegations, as we must on a motion to dismiss, the credit cards[2] are easily liable for indirect copyright infringement: They knowingly provide a financial bridge between buyers and sellers of pirated works, enabling them to consummate infringing *811 transactions, while making a profit on every sale. If such active participation in infringing conduct does not amount to indirect infringement, it's hard to imagine what would.[3] By straining to absolve defendants of liability, the majority leaves our law in disarray. Contributory Infringement We have long held that a defendant is liable for contributory infringement if it "materially contributes to the infringing conduct." A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1019 (9th Cir. 2001) (internal quotations omitted) (citing Gershwin Publ'g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971)). Our recent opinion in Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir.2007), canvasses the caselaw in this area and concludes that Google "could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10's copyrighted works, and failed to take such steps." Amazon, 487 F.3d at 729. Substitute "payment systems" for "search engine" in this sentence, and it describes defendants here: If a consumer wishes to buy an infringing image from one of the Stolen Content Websites, he can do so by using Visa or MasterCard, just as he can use Google to find the infringing images in the first place. My colleagues engage in wishful thinking when they claim that "Google's search engine itself assists in the distribution of infringing content to Internet users, while Defendants' payment systems do not" and that "[h]elping users to locate an image might substantially assist users to download infringing images, but processing payments does not." Maj. op. at 797, 797.[4] The majority struggles to distinguish Amazon by positing an "additional step in the causal chain" between defendants' activities and the infringing conduct. Id. at 797. According to the majority, "Google may materially contribute to infringement by making it fast and easy for third parties to locate and distribute infringing material, whereas Defendants make it easier for infringement to be profitable, which tends to increase financial incentives to infringe, which in turn tends to increase infringement." Id. The majority is mistaken; there is no "additional step." Defendants participate in every credit card sale of pirated images; the images are delivered to the buyer only after defendants approve the transaction and process the payment. *812 This is not just an economic incentive for infringement; it's an essential step in the infringement process. In any event, I don't see why it matters whether there is an "additional step." Materiality turns on how significantly the activity helps infringement, not on whether it's characterized as one step or two steps removed from it. The majority recognizes that "Defendants make it easier for websites to profit from this infringing activity," maj. op. at 796; that defendants' conduct "tends to increase infringement," id. at 797; that defendants "have the effect of increasing . . . infringement," id. at 798; that "Defendants have the power to undermine the commercial viability of" the Stolen Content Websites and that they "make it easier for websites to profit from this infringing activity," id. at 800; that "Defendants could likely take certain steps that may have the indirect effect of reducing infringing activity on the Internet," id. at 803-04; and that defendants could "reduce the number of those [infringing] sales," id. at 805. Taking the majority at its word, it sounds like defendants are providing very significant help to the direct infringers. My colleagues recognize, as they must, that helping consumers locate infringing content can constitute contributory infringement,[5] but they consign the means of payment to secondary status. Maj. op. at 799 ("Defendants merely provide a method of payment. . . ."); id. at 802 ("[A]ll parties involved simply use Defendants' system to process payments for that infringing material."); id. at 804 ("They can only take away the means the websites currently use to sell [the infringing images]."); id. at 805 ("Defendants can only refuse to process credit card payments to the offending merchant within their payment network. . . ."). But why is locating infringing images more central to infringement than paying for them? If infringing images can't be found, there can be no infringement; but if infringing images can't be paid for, there can be no infringement either. Location services and payment services are equally central to infringement; the majority's contrary assertion is supported largely by disparaging use of "merely," "simply" and "only." See also id. at 803 ("[M]ere ability to withdraw a financial'carrot' does not create the `stick' of `right and ability to control'. . . . ").[6] The majority dismisses the significance of credit cards by arguing that "infringement could continue on a large scale [without them] because other viable funding mechanisms are available." Maj. op. at 797.[7] Of course, the same could be said *813 about Google. As the majority admits, if Google were unwilling or unable to serve up infringing images, consumers could use Yahoo!, Ask.com, Microsoft Live Search, A9.com or AltaVista instead. Id. at 797-98 n. 8. Even if none of these were available, consumers could still locate websites with infringing images through e-mails from friends, messages on discussion forums, tips via online chat, "typo-squatting," peer-to-peer networking using BitTorrent or eDonkey, offline and online advertisements (see p. 820 infra), disreputable search engines hosted on servers in far-off jurisdictions or even old-fashioned word of mouth. The majority's claim that search engines "could effectively cause a website to disappear by removing it from their search results," maj. op. at 805, is quite a stretch. If the test for contributory infringement really were whether "infringement could continue on a large scale[without the aid of the defendant] because other viable . . . mechanisms are available," Amazon should have absolved Google of liability because of the availability of such obvious alternatives. But Amazon held that Google could be liable for contributory infringement because it "substantially assists" users in finding infringing materials; the existence of other means of infringement was not even considered because no case has suggested this to be a relevant consideration. The majority's "other viable . . . mechanisms" test conflicts with Amazon, Napster, Grokster and every other material assistance case that I know of. The majority does even worse when it tries to describe the "other viable funding mechanisms" that could serve as alternatives to credit cards: According to the majority, the Stolen Content Websites "might . . . make [their] profits from advertising" or "might develop other payment mechanisms that do not depend on the credit card companies." Maj. op. at 797 (emphasis added). This shows that my colleagues have a healthy imagination but contravenes our responsibilities, the most fundamental of which is that we must work with the facts the parties presented below, not invent new facts on appeal. Defendants have presented no evidence that the pirates could survive without credit cards, nor could they, as the case is still at the motion to dismiss stage. Even if speculation as to what the Stolen Content Websites "might" do were admissible evidence, which I seriously doubt, we must still wait for one of the parties to present it, not conjure it up ourselves.[8] At the pleadings stage, we must accept plaintiff's allegations that credit cards are indispensable to the operation of the Stolen Content Websites, and that these websites would be forced out of business without them. See First Am. Compl. at 2 ¶ 7 ("Stolen Content Websites cannot exist without the knowledge and direct participation of [defendants]."); id. at 10 ¶ 35 ("[T]he Stolen Content Websites would be eradicated."). If my colleagues can't justify their result without contradicting plaintiff's allegations, this is a pretty good hint that they're *814 wrong. See also p. 812-13 n. 7 supra; pp. 818 n. 15, 800-02 infra. The majority's attempt to distinguish location services from payment services by trying to show that there are viable alternatives for the latter but not the former cuts entirely against them. As plaintiff alleges, and experience tells us, there are numerous ways of locating infringing images on the Internet, but there are no adequate substitutes for credit cards when it comes to paying for them. A few consumers might use checks or money orders to pay for infringing images, but this would be far more cumbersome, time-consuming and risky than using credit cards. See pp. 799-800 & n. 14 infra. If it mattered whether search engines or credit cards are more important to peddling infringing content on the Internet, the cards would win hands down. But it doesn't matter. Material assistance turns on whether the activity in question "substantially assists" infringement. Amazon, 487 F.3d at 729. It makes no difference whether the primary infringers might do without it by finding a workaround, which is why the majority can cite no case supporting its analysis. We presume that primary infringers have good reasons for selecting a particular means to infringe, and that other ways to do so will be more costly, more cumbersome and less efficient. Moreover, infringement can always be carried out by other means; if the existence of alternatives were a defense to contributory infringement then there could never be a case of contributory infringement based on material assistance. The majority makes some very new—and very bad—law here. The majority also makes a slightly different argument: "While Perfect 10 has alleged that Defendants make it easier for websites to profit from this infringing activity, the issue here is reproduction, alteration, display and distribution, which can occur without payment. Even if infringing images were not paid for, there would still be infringement." Maj. op. at 796-97. What the majority seems to be arguing here is that helping an infringer get paid cannot materially assist infringement because the actual process of infringement— "reproduction, alteration, display and distribution"—does not include payment. There are two problems with this argument. The first is that the Stolen Content Websites are alleged to infringe plaintiff's right of distribution "by sale." 17 U.S.C. § 106(3). It's not possible to distribute by sale without receiving compensation, so payment is in fact part of the infringement process. Second, this argument runs head-on into Amazon, where we held that helping to find infringing images materially assists infringement, even though locating infringing images also isn't "reproduction, alteration, display [or] distribution." To be sure, locating images, like paying for them, makes it a lot easier to infringe, but neither is intrinsic to the infringement process, as the majority conceives it. Nor can today's opinion be squared with Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir.1996). In Fonovisa, defendant allowed known infringers to sell pirated works from stalls at its swap meet. We found material assistance based on the fact that "it would [have been] difficult for the infringing activity to take place in the massive quantities alleged without the support services provided by the swap meet." 76 F.3d at 264. The pivotal role played by the swap meet in Fonovisa is played by the credit cards in cyberspace, in that they make "massive quantities" of infringement possible that would otherwise be impossible. Indeed, the assistance provided here is far more material than in Fonovisa. A pirate kicked out of a swap meet could still peddle his illicit wares through newspaper *815 ads or by word of mouth, but you can't do business at all on the Internet without credit cards. Plaintiff thus plausibly alleges that the "Stolen Content Websites would be eradicated" if defendants withdrew their support. First Am. Compl. at 10 ¶ 35. The majority rejects Fonovisa by pointing out that the swap meet there provided a "centralized place" for the infringement to take place, maj. op. at 799, whereas defendants here "have no direct connection to [the] infringement," id. at 796.[9] But material assistance does not depend on physical contact with the infringing activity. If you lend money to a drug dealer knowing he will use it to finance a drug deal, you materially assist the transaction, even if you never see the drugs. Or, if you knowingly drive a principal to the scene of the crime, you provide material assistance, even if nothing happens during the ride. See United States v. Lopez, 482 F.3d 1067, 1076-79 (9th Cir.2007). Material assistance turns on whether the conduct assists infringement in a significant way, not on pedantic factual distinctions unrelated to how much the activity facilitates infringement. Sure, a marketplace for pirated works (as in Fonovisa) or an index for such works (as in Napster and Grokster) is important to infringement, but so is a means of getting paid. Defendants are directly involved in every infringing transaction where payment is made by credit card, which (according to plaintiff) amounts to virtually every sale of pirated works. First Am. Compl. at 9 ¶ 35. Credit cards don't provide some tangential service that marginally affects sales; they are the financial lifeblood of the Stolen Content Websites. The majority's concern that imposing liability on defendants here would implicate vast numbers of other actors who provide incidental services to infringers, maj. op. at 800, is unfounded. Line-drawing is always a bit tricky, but courts have shown themselves adept at dealing with it from time out of mind, in resolving such issues as proximate causation and reasonable suspicion. Contributory infringement requires material assistance to the infringing activity, and those the majority worries about would doubtless be absolved of liability because their contribution to the infringing activity is insufficiently material. Courts have, in fact, had no difficulty in distinguishing those who are materially involved in copyright infringement from those who are not. As Fonovisa explains, two lines of cases developed in the first part of the last century: the absentee landlord cases and the dance hall cases. The first line involved landlords who "lacked knowledge of the infringing acts of [their] tenant[s] and who exercised no control over the leased premises." Fonovisa, 76 F.3d at 262. These were held not liable for the infringement committed by tenants on the premises. See, e.g., Deutsch v. Arnold, 98 F.2d 686, 688 (2d Cir.1938). In the second line of cases, "the operator of an entertainment venue was held liable for infringing performances when the operator (1) could control the premises and (2) obtained a direct financial benefit from the audience, who paid to enjoy the infringing performance." 76 F.3d at 262 (citing Buck *816 v. Jewell-LaSalle Realty Co., 283 U.S. 191, 51 S.Ct. 410, 75 L.Ed. 971 (1931), and Dreamland Ball Room, Inc. v. Shapiro, Bernstein & Co., 36 F.2d 354 (7th Cir. 1929)).[10] These cases show that courts are able to forestall the majority's parade of horribles. But our case does not present a close or difficult question: Defendants here are alleged to provide an essential service to infringers, a service that enables infringement on a massive scale. Defendants know about the infringements; they profit from them; they are intimately and causally involved in a vast number of infringing transactions that could not be consummated if they refused to process the payments; they have ready means to stop the infringements. Were we to rule for plaintiff, as we should, I have every confidence that future courts would be able to distinguish this case when and if they are confronted with lawsuits against utility companies, software vendors and others who provide incidental services to infringers. Vicarious Infringement A party "infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it." Amazon, 487 F.3d at 729 (quoting Grokster, 545 U.S. at 930, 125 S.Ct. 2764) (internal quotation marks omitted).[11] There is no doubt that defendants profit from the infringing activity of the Stolen Content Websites; after all, they take a cut of virtually every sale of pirated material. First Am. Compl. at 4 ¶ 13, 7 ¶ 25. The majority does not dispute this point so I need not belabor it. Maj. op. at 806-07. Defendants here also have a right to stop or limit the infringing activity, a right they have refused to exercise. As the majority recognizes, "Perfect 10 . . . claims that Defendants' rules and regulations permit them to require member merchants to cease illegal activity—presumably including copyright infringement—as a condition to their continuing right to receive credit card payments from the relevant Defendant entities." Maj. op. at 804.[12] Assuming *817 the truth of this allegation,[13] the cards have the authority, given to them by contract, to force the Stolen Content Websites to remove infringing images from their inventory as a condition for using defendants' payment systems. If the merchants comply, their websites stop peddling stolen content and so infringement is stopped or limited. If they don't comply, defendants have the right—and under copyright law the duty—to kick the pirates off their payment networks, forcing them to find other means of getting paid or go out of business. In that case, too, infringement is stopped or limited. The swap meet in Fonovisa was held vicariously liable precisely because it did not force the pirates to stop infringing or leave; there is no reason to treat defendants here differently. That the pirates might find some other way of doing business is of no consequence; our cases make this perfectly clear. It didn't matter in Fonovisa that the infringers there could have continued their illegal sales by mail order or by hawking their unlawful merchandise on street corners. Nor did it matter in Napster or Grokster that the direct infringers might find some other means of illegally sharing their protected content with others. Indeed, there is no case involving secondary infringement, going back to the dance hall cases of the last century, where the secondary infringer's refusal to do business with the direct infringer could have stopped infringement altogether and forever. Yet, courts have presumed that removing the particular means of infringement challenged in each case would make direct infringement more difficult and thereby diminish the scale of infringing activity. Here, the Stolen Content Websites have chosen credit cards as a form of payment, and for good reason. Credit cards are ubiquitous and permit the transfer of funds electronically in a matter of seconds. Consumers need not wait days or weeks for a check to reach its destination and clear before gaining access to the salacious pictures they crave. Consumers also know that, if goods bought by credit card are not delivered, the cards will likely reverse the transaction.[14] Credit cards thus act as informal escrow agents, effectively guaranteeing that their merchants will deliver the goods. Blocking the ability to accept credit cards would be a heavy blow to the Stolen Content Websites because cards are "overwhelmingly the primary way by which customers pay to view Stolen Content Websites." First Am. Compl. at 9 ¶ 35. Even if the pirates could find an alternative way of plying their illegal trade, being denied their preferred means of doing business *818 would sharply curtail their unlawful activities. The majority toils to resist this obvious conclusion but its arguments are not persuasive. For example, it makes no difference that defendants control only the means of payment, not the mechanics of transferring the material. Maj. op. at 802, 805, 806. In a commercial environment, distribution and payment are (to use a quaint anachronism) like love and marriage—you can't have one without the other. If cards don't process payment, pirates don't deliver booty. The credit cards, in fact, control distribution of the infringing material. The majority also disparages defendants' ability to control the Stolen Content Websites as just "financial pressure" which doesn't give them an "absolute right to stop [the infringing] activity—they cannot stop websites from reproducing, altering, or distributing infringing images." Id. at 805 (footnote omitted).[15] But we have never required an "absolute right to stop [the infringing] activity" as a predicate for vicarious liability; it's enough if defendants have the "practical ability" to do so. Amazon, 487 F.3d at 729, 731. While proclaiming its fidelity to Amazon, maj. op. at 796, 803, the majority jettisons Amazon's "practical ability" standard and substitutes its own "absolute right to stop" standard. Id. at 804.[16] It's perfectly clear that the cards do have the "practical ability" to force websites that display their logos and use their payment systems to remove unlawful merchandise. As the majority admits, "Defendants can . . . refuse to process credit card payments to the offending merchant within their payment network, or they can threaten to do so if the merchant does not comply with a request to alter content." Maj. op. at 805 (disparaging "only" omitted). Commercial websites are dependent on credit cards as a form of payment, and the Stolen Content Websites are uniquely so, as virtually all of their illicit sales are paid for by card. First Am. Compl. at 9 ¶ 35. A threat by credit card companies to withdraw use of their payment systems couldn't be ignored. After all, how many consumers would be willing to send a check or money order to a far-off jurisdiction in the hope that days or weeks later they will be allowed to download some saucy pictures? If the Stolen Content Websites cannot get paid for their unlawful *819 products, or if payment is made more difficult or cumbersome, this will dramatically affect their operations. Some may lose customers who are unwilling to use alternative forms of payment;[17] others may go out of business; still others may remove the infringing content from their websites. Even the majority admits that "fear of losing access to credit card payment processing services would be a sufficient incentive for at least some website operators to comply with a content-based suggestion from Defendants." Maj. op. at 804-05.[18] As a consequence, infringing activity would be "stop[ped] or limit[ed]." See Amazon, 487 F.3d at 729. The majority also reads the complaint for less than it's worth by "understand[ing]" plaintiff to allege "that the `Stolen Content Websites' could not continue to exist as websites offering images for sale online should defendants withdraw their services, not [to allege] that the websites would completely vanish or that infringement by these sites in all its forms would necessarily cease." Maj. op. at 805-06 n. 18. But plaintiff expressly alleges what the majority "understand[s]" it not to allege, namely that the sites "cannot exist" without defendants, First Am. Compl. at 2 ¶ 7, and that "the Stolen Content Websites would be eradicated" if they could not use credit cards, id. at 9-10 ¶ 35. It is horn-book law that we must construe complaints liberally on a motion to dismiss. See Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231, 235, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959); Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A liberal construction means reading ambiguous provisions in a way that would save the complaint from dismissal, and sometimes even reading between the lines to give plaintiff the benefit of every reasonable inference. I have never heard of reading a complaint liberally by ignoring allegations that are clearly present. But let's say the majority "understand[s]" plaintiff's allegations correctly: So what? To sustain a vicarious infringement claim, plaintiff need not allege that the Stolen Content Websites "would completely vanish or that infringement by these sites in all its forms would necessarily cease." Maj. op. at 805-06 n. 18. The standard is "stop or limit" the infringing conduct. Amazon, 487 F.3d at 725 (emphasis added) (quoting Grokster, 545 U.S. at 930, 125 S.Ct. 2764). And my colleagues admit that plaintiff has alleged that "at least some website operators [would] comply with a content-based suggestion from Defendants." Maj. op. at 804-05. Q.E.D. To resolve this case, however, we need not adopt a rule holding all credit cards responsible for all infringing Internet sales because plaintiff has alleged far more than the ordinary credit card/merchant relationship. *820 According to plaintiff, defendants have adopted special rules and practices that apply only to the Stolen Content Websites, and that are designed to make it easier for these websites to ply their illegal trade. First Am. Compl. at 9-11 ¶¶ 33-37. Plaintiff claims that the credit cards have singled out the Stolen Content Websites for preferential treatment because of the unusual and substantial profits they make on such transactions. Read fully and fairly, the complaint alleges that defendants are not merely passive providers of services available on equal terms to legal and illegal businesses alike; they are actually in cahoots with the pirates to prop up their illegal businesses and share their ill-gotten gains. If this is not vicarious infringement, nothing is. The majority claims that Amazon employs "reasoning closely analogous" to its own, maj. op. at 803, but it is mistaken. Amazon addressed two questions of vicarious infringement, one involving third-party websites whose images are picked up by Google's search engine, the other involving websites that participate in its AdSense program. As to the first, Google could not be vicariously liable because "Perfect 10 ha[d] not shown that Google has contracts with third-party websites that empower Google to stop or limit them from reproducing, displaying, and distributing infringing copies of Perfect 10's images on the Internet." 487 F.3d at 730.[19] In the absence of such a contractual relationship, there could be no vicarious infringement, because Google lacked "the legal right to stop or limit the direct infringement of third-party websites." Id. at 730. Why the majority believes this is in any way analogous, or even remotely instructive, to our situation, where the credit cards do have contracts giving them a right to control what merchants sell on their websites, is a mystery. Google's relationship with websites that participate in its AdSense program presents a somewhat closer analogy because Google did have contracts that would have allowed it to kick websites out of AdSense for displaying infringing images. But that's as far as the similarity goes: AdSense is an advertising program; Google pays participating merchants to host third-party ads on their websites. This is the cyberspace analogue of renting out space on your land for a billboard. The ads have no effect on the operation of the host websites; users can download infringing content whether or not ads are present. Being excluded from AdSense would thus mean some loss of revenue, but would have no effect on the operation of the business itself. It is therefore far from certain that merchants would be induced to modify their businesses to avoid being excluded from AdSense.[20] Because plaintiff had not presented proof that any third-party websites would stop infringing if they were threatened *821 with exclusion from AdSense, Amazon concluded that plaintiff there had not met its burden for a preliminary injunction. Our case is presented on a motion to dismiss and plaintiff here need only make allegations. And plaintiff alleges that the infringing websites could not continue doing business at all without the use of credit cards. Amazon's reasoning on this point gives the majority no help. The majority's attempt to distinguish Napster is equally thin. My colleagues argue that "[t]he Napster program's involvement with . . . the infringement was much more intimate and directly intertwined with it than Defendants' payment systems are." Maj. op. at 803-04. But I don't see how much more "directly intertwined" you can get in a purchase transaction than carrying the payment from buyer to seller. If this were a drug deal, for example, we would never say that the guy entrusted with delivery of the purchase money is less involved in the transaction than the guy who helps find the seller. Both would be held equally culpable. Thus, the majority's insistence that defendants "cannot themselves block access to the Internet, to any particular websites, or to search engines enabling the location of such websites," maj. op. at 804, is beside the point. Physical control over the infringing activity is one way to stop infringers, but it's certainly not the only way. Withdrawing crucial services, such as financial support, can be just as effective, and sometimes more effective, than technical measures that can often be circumvented.[21] Finally, the majority dismisses the Supreme Court's opinion in Grokster by suggesting that the Court could not have meant what it said because the standard it announced (and which we adopted in Amazon) would sweep in too many goods and services that contribute to infringing activity. See maj. op. at 806 (listing hardware manufacturers, software engineers, technical support companies and utilities). The majority misreads the Court's opinion. Providing a crucial service to an infringer may give someone the practical ability to stop infringement, but that's only half of what it takes to be a vicarious infringer. The other half is a right, found in contract, to control the infringer's actions. See Amazon, 487 F.3d at 730 (requiring "contracts with [direct infringers] that empower [defendant] to stop or limit them from reproducing, displaying, and distributing infringing copies"). Those third parties the majority worries about could not be held vicariously liable because they lack the legal right to stop the infringement. So far as I know, utilities are provided by public franchise, not by contract, and a utility has no right to stop providing electricity or phone service because it learns that its electrons are being put to illegal use.[22] Computer manufacturers don't usually *822 retain the right to reclaim computers they have sold because they are being used unlawfully. Ditto for software producers and repairmen. Having no contract that authorizes them to stop providing services on account of illegality, these actors do not meet the first prong of the test for vicarious infringement. See p. 799 n. 10 supra.[23] Trademark Infringement For precisely the same reasons, I disagree with the majority when it claims that defendants do not contributorily infringe on Perfect 10's trademark because they lack "[d]irect control and monitoring of the instrumentality used by a third party to infringe the plaintiff's mark." Maj. op. at 807 (internal quotation marks omitted). The Lanham Act forbids "use in commerce . . . of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion." 15 U.S.C. § 1114(1)(a). Plaintiff alleges that the Stolen Content Websites sell images marked with Perfect 10's trademark. First Am. Compl. at 17 ¶ 65. Without defendants' payment systems, the infringers would find it much harder to peddle their infringing goods. Plaintiff thus pled facts sufficient to state a claim for contributory trademark infringement. The cases on which the majority relies are not to the contrary. Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982), involved a manufacturer and says nothing of consequence bearing on our situation. Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 984 (9th Cir.1999), turned on the fact that the defendant there, a registrar of Internet domain names, lacked sufficient control "over the third party's means of infringement," because it lacked "control and monitoring of the instrumentality used by a third party to infringe the plaintiff's marks." Id. By contrast, credit cards are directly involved in every infringing transaction; not only do they process the payment for virtually every sale of pirated images by the Stolen Content Websites, they control whether such transactions will go forward. This is more than enough to establish the "control and monitoring" that Lockheed Martin requires for contributory trademark infringement. As to vicarious trademark infringement, the majority claims that there is neither a symbiotic partnership between the direct infringers and defendants, nor authority to bind one another in transactions with third parties. Maj. op. at 807 (citing Hard Rock Cafe Licensing Corp. v. Concession Servs., Inc., 955 F.2d 1143 (7th Cir.1992)). But plaintiff alleges that the Stolen Content *823 Websites cannot operate without the use of credit cards, First Am. Compl. at 2 ¶ 7, while defendants make huge profits by processing these illegal transactions. See also p. 820 supra. If this is not symbiosis, what is? Likewise, while "the websites' contracts with the consumers . . . bind the websites to provide the infringing images," maj. op. at 808 (emphasis removed), it is defendants' actions that bind the websites to that contract. Only after the credit cards approve and process the payment does the obligation to deliver the stolen content come into existence. The majority thus errs in absolving defendants of vicarious trademark infringement. State Law Claims The majority disposes of the state law claims on the same theory as the copyright claims, namely, that defendants are not directly involved in the infringing activity. Maj. op. at 808-09. But defendants are involved, because they provide the means to pay for the infringing content and thus make "massive quantities" of infringement possible. First Am. Compl. at 18 ¶ 73. The case on which the majority relies, Emery v. Visa International Service Association, 95 Cal.App.4th 952, 116 Cal. Rptr.2d 25 (2002), is not on point because, in that case, plaintiff sued only Visa, not the merchant banks that had a direct relationship with the alleged wrongdoer or the consumers. Id. at 956, 962, 116 Cal. Rptr.2d 25. Plaintiff there also based his theory of liability on advertising letters bearing the credit card logo. Emery held that plaintiff hadn't proven Visa could police the use of its logo in letters peddling an illegal lottery sent by merchants directly to consumers. By contrast, plaintiff here alleges that defendants are knowing participants in thousands of transactions that amount to unfair trade practices and infringe on the right of publicity of the women depicted in the stolen images. I see nothing in Emery that would preclude plaintiff's state law claims, as alleged in the complaint. * * * It would certainly be much easier for us if plaintiff were suing the Stolen Content Websites rather than the credit cards. No doubt, they would if they could.[24] But direct infringers are sometimes too ubiquitous, too small or too difficult to find. That's why we have cases such as Fonovisa, Napster, Aimster, Grokster and Amazon. Here, plaintiff alleges that many direct infringers have no physical presence in the United States. They operate from far-off jurisdictions, where lawsuits are difficult to bring and remedies impossible to enforce because the infringers can easily move their operations to servers in other remote jurisdictions. The weak link in the pirates' nefarious scheme is their need to get paid; for this they must use the services of legitimate financial institutions. If plaintiff's allegations are to be believed, the financial institutions (defendants here) collect billions for sellers of stolen merchandise; in a very real sense, they profit from making piracy possible. I can see no reason they should not be held responsible. The majority's refrain that imposing liability on defendants here would violate "the public policy of the United States," maj. op. at 795, 798, is equally off base. While the majority correctly identifies that *824 policy as facilitating the development of electronic commerce, id. at 794 n. 2, that solicitude does not extend to commerce in illegal merchandise. I am aware of no policy of the United States to encourage electronic commerce in stolen goods, illegal drugs or child pornography. When it comes to traffic in material that violates the Copyright Act, the policy of the United States is embedded in the FBI warning we see at the start of every lawfully purchased or rented video: Infringers are to be stopped and prosecuted. Preventing financial intermediaries from servicing such shady transactions is entirely consistent with that policy. If Congress believes that this places too heavy a burden on credit cards, it can grant the cards immunity (along with corresponding responsibilities), as it did for ISPs in passing the DMCA.[25] The majority's solicitude for "credit cards . . . as the primary engine of electronic commerce," and for preserving "the vibrant and competitive free market that presently exists for the Internet," maj. op. at 794, is understandable but misguided. It does not serve the interests of a free market, or a free society, to abet marauders who pilfer the property of law-abiding, tax-paying rights holders, and who turn consumers into recipients of stolen property. Requiring defendants to abide by their own rules, which "strictly prohibit members from servicing illegal businesses," First Am. Compl. at 6 ¶ 20, will hardly impair the operation of a "vibrant and competitive free market," any more than did the recent law prohibiting the use of credit cards for Internet gambling. See 31 U.S.C. § 5364. Nor does plaintiff seek to hold the credit cards responsible for illegal activities of which they are unaware. Plaintiff claims that it has repeatedly written to defendants, "putting them on notice of more than 240 specifically identified Celebrity Porn Websites with obvious stolen content that they were supporting." First Am. Compl. at 19 ¶ 75. Plaintiff has also sent defendants "[d]eclarations from celebrities [such as Britney Spears, Christina Aguilera, Anna Kournikova and Yasmine Bleeth] stating that they have not authorized the use of their name, likeness, or identity on pornographic websites and that they do not want their images and names so used. . . ." Id. at 19 ¶ 77. Credit cards already have the tools to police the activities of their merchants, which is why we don't see credit card sales of illegal drugs or child pornography. According to plaintiff, "defendants inspect websites and business premises, and obtain and review merchants' bank statements, tax returns, credit reports, and a merchant's other financial information. . . ." Id. at 7 ¶ 26. Plaintiff is not asking for a huge change in the way credit cards do business; they ask only that defendants abide by their own rules and stop doing business with crooks. Granting plaintiff the relief it seeks would not, I am confident, be the end of Capitalism as we know it. This is an easy case, squarely controlled by our precedent in all material respects. Fairly applying our cases to the facts alleged by Perfect 10, we should reverse the district court and give plaintiff an opportunity to prove its case through discovery and trial. In straining to escape the strictures *825 of our caselaw, the majority draws a series of ephemeral distinctions that are neither required nor permitted; the opinion will prove to be no end of trouble. NOTES [1] While Perfect 10's complaint does not clearly specify which of Perfect 10's rights are being infringed, it appears that at least four such rights are potentially at issue: reproduction (17 U.S.C. § 106(1)); derivative works (17 U.S.C. § 106(2)); distribution of copies (17 U.S.C. § 106(3)); and public display (17 U.S.C. § 106(5)). [2] Congress expressed similar sentiments when it enacted the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512, one of the stated purposes of which was to "facilitate the robust development and worldwide expansion of electronic commerce, communications, research, development, and education in the digital age." S. Rep. 105-190, at 1-2 (1998). [3] In her concurring opinion in Grokster, Justice Ginsburg identified another strand of contributory liability in the Supreme Court's jurisprudence, i.e., liability based on "distributing a product distributees use to infringe copyrights, if the product is not capable of `substantial' or `commercially significant' noninfringing uses." Grokster, 545 U.S. at 942, 125 S.Ct. 2764 (citing Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 442, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984)). Even assuming Defendants offer a "product" for these purposes, Perfect 10 does not claim that the "product" of credit card services is incapable of substantial and commercially significant noninfringing uses. [4] We note that an anomaly exists regarding the concept of notice in secondary copyright infringement cases outside a FRCP 12(b)(6) context. Congress addressed the issue of notice in the DMCA, which grants a safe harbor against liability to certain Internet service providers, even those with actual knowledge of infringement, if they have not received statutorily-compliant notice. See Perfect 10 v. CCBill LLC, 481 F.3d 751 (9th Cir.2007), amended and superceded, 488 F.3d 1102 (9th Cir.2007); 17 U.S.C. § 512(c)(3). Because Defendants are not "service providers" within the scope of the DMCA, they are not eligible for these safe harbors. The result, under Perfect 10's theories, would therefore be that a service provider with actual knowledge of infringement and the actual ability to remove the infringing material, but which has not received a statutorily compliant notice, is entitled to a safe harbor from liability, while credit card companies with actual knowledge but without the actual ability to remove infringing material, would benefit from no safe harbor. We recognize that the DMCA was not intended to displace the development of secondary liability in the courts; rather, we simply take note of the anomalous result Perfect 10 seeks. [5] Because the Grokster court focused primarily on an "inducement" theory rather than a "material contribution" theory, our primary discussion of Grokster is located below in the "inducement" section of this opinion. [6] As discussed in note 11, infra, the dissent's claims that payment processing is "an essential step in the infringement process," dissent at 812, and that "Defendants are directly involved in every infringing transaction where payment is made by credit card," dissent at 815, suggests that the dissent believes that the Defendants are directly infringing when they process these payments. [7] As discussed more fully in the vicarious infringement section, infra, Perfect 10's factual allegations are not to the contrary. [8] We recognize that Google is not the only search engine available to Internet users, and that users do not necessarily need Google to locate infringing images. The distinction we draw, however, is not specific to Google; it is between location services and payment services. Because location services lead Internet users directly to infringing images and often display them on the website of the service itself, we find that location services are more important and more essential—indeed, more "material"—to infringement than payment services are. [9] Our dissenting colleague assures us that we would not jeopardize Internet commerce by finding Defendants liable because he has "every confidence" that this court will simply find that other providers of essential services may contribute to infringement, but not materially so. Dissent at 816. We take little comfort in his assurances because the predicate of our colleague's optimistic view of future judicial refinement of his new world of secondary liability is a large number of expensive and drawn-out pieces of litigation that may, or may not, ever be filed. Meanwhile, what would stop a competitor of a web-site from sending bogus notices to a credit card company claiming infringement by its competitor in the hope of putting a competitor out of business, or, at least, requiring it to spend a great deal of money to clear its name? Threatened with significant potential secondary liability on a variety of fronts under the dissent's proposed expansion of existing secondary liability law, perhaps the credit card companies would soon decline to finance purchases that are more legally risky. They, after all, are as moved by Adam Smith's "invisible hand" as the next set of merchants. If that happened, would First Amendment rights of consumers be trampled? Would Perfect 10 itself be adversely impacted because no credit card company would want to take a chance on becoming secondarily liable? We similarly take little comfort in the dissent's resurrection of the "dance-hall-owner/absentee-landlord" cases as a source of any principled distinction in this area. Dissent at 815-16. Those tests were developed for a brick-and-mortar world, and, as the Napster and Grokster courts implicitly recognized by paying little attention to them, they do not lend themselves well to application in an electronic commerce context. In deciding this case, we are well-advised to follow the lead of the Supreme Court's and our own court's cases confronting online commerce issues. [10] In fact, as virtually every interested college student knew—and as the program's creator expressly admitted-the sole purpose of the Napster program was to provide a forum for easy copyright infringement. See Napster, 239 F.3d at 1020 n. 5. Perfect 10 does not contend that Defendants' payment systems were engineered for infringement in this way, and we decline to radically expand Napster's cursory treatment of "material contribution" to cover a credit card payment system that was not so designed. [11] Moreover, if the processing of payment for an infringing transaction were as central to the infringement as the dissent believes it to be—see, e.g., dissent at 811 (payment processing is "an essential step in the infringement process"), dissent at 815 ("Defendants are directly involved in every infringing transaction where payment is made by credit card")—it is difficult to see why Defendants would be not be direct infringers of the distribution right. Not even Perfect 10 has gone so far as to allege that theory here—Perfect 10 would undoubtedly be quite surprised to learn, after years of litigation attempting to expand the scope of secondary liability, that Defendants are direct infringers after all. [12] This allegation is considered below under vicarious infringement, but we also address it here in terms of contributory infringement. [13] Fonovisa essentially viewed "supervision" in this context in terms of the swap meet operator's ability to control the activities of the vendors, 76 F.3d at 262, and Napster essentially viewed it in terms of Napster's ability to police activities of its users, 239 F.3d at 1023. [14] The same analysis of Defendants' role in any violation of the distribution right under 17 U.S.C. § 106(3), discussed in note 11, supra, is equally applicable here. While the Napster program allowed its operators to block users from violation of the distribution right, Defendants' "policing" power is limited to refusing to process payments resulting from such violations and does not extend to directly stopping the violations themselves. [15] The conclusion that the Defendants operate outside the scope of the Napster rule is further bolstered by consideration—though as persuasive authority only—of this court's opinion in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 380 F.3d 1154 (9th Cir. 2004), which the Supreme Court vacated on other grounds, 545 U.S. 913, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005). In Grokster, we found the defendants not vicariously liable in part because they could not block individual users or remove copyrighted material from the network. Id. at 1165. Similarly, because none of the infringing images resides on or passes through present Defendants' own systems or any systems over which Defendants exercise direct control, Defendants have no ability to actually remove infringing material from the Internet or directly block its distribution. This distinguishes credit card companies from Napster, which could block access to the tools needed for the easy reproduction and distribution of the actual infringing content. [16] We do not, as the dissent suggests, hold that an absolute right to stop the infringement is a prerequisite for vicarious liability. Dissent at 818-19. Rather, we consider the Defendants' inability to directly control the actual infringing activities of third-party websites—reproduction, alteration, display, and distribution over the Internet, not over Defendants' payment systems—as evidence that they, much like Google, lack the right and ability to control those activities. [17] We do not hold, as the dissent suggests, that the ability to exert financial pressure is categorically insufficient to establish sufficient control for vicarious liability. We recognize that financial pressure is often very powerful, but it is precisely for this reason that we hesitate to expand the law of vicarious liability to encompass the sort of financial pressure Defendants may exert. The dissent believes that the gravamen of "right and ability to control" is the "practical ability" to limit infringement. Dissent at 818-19. But if this were true, despite the dissent's protestations to the contrary, there are many providers of essential services who could limit infringement by refusing to offer those services. If "practical ability" is the test, it does not matter if software operators, network technicians, or even utility companies do not have a contractual right to affect the websites' content. It is an article of faith of the free market that, subject to certain limited exceptions, one can refuse to deal with anyone for any reason, and by refusing to deal with the offending websites, these providers could limit infringement. [18] Specifically, Perfect 10 defines "Stolen Content Websites" as "websites . . . that routinely offer for sale to the public stolen [images]," First Am. Compl. at 2, ¶ 6 (emphasis added), and alleges that "Stolen Content Websites cannot exist without the knowledge and direct participation of the financial institutions that process the credit card transactions for such unlawful material," id. at 2, ¶ 7. We do acknowledge that at this procedural stage, Perfect 10 is entitled to all reasonable inferences, but we understand this to be a factual allegation that the "Stolen Content Websites" could not continue to exist as websites offering images for sale online should defendants withdraw their services, not an allegation that the websites would completely vanish or that infringement by these sites in all its forms would necessarily cease. [19] The dissent claims that no contractual relationship arises between the infringers and consumers until Defendants process a payment. Dissent at 822-23. Even if true as a factual and legal matter—and given the absence of any citation, it is difficult to know whether this is true—this results from a decision of the websites to delay formation of the relationship, not from any requirement Defendants impose on the transaction. [20] The dissent argues that Emery does not preclude Perfect 10's claims because the only defendant in Emery was Visa International Service Association, whereas Perfect 10 has also sued the member merchant banks who issue cards and process payments from merchants. Dissent at 822-23. This distinction is only relevant if the activities of the member banks constitute personal participation in the infringing activity, and for all the reasons discussed above, those banks are not personally involved in the reproduction, alteration, or distribution of the infringing images. Rather, they merely process payments related to those activities. [1] I join part C of the "California Statutory and Common Law Claims" section of the opinion, dealing with plaintiff's libel and prospective economic advantage claims. [2] Throughout this dissent, I refer to defendants collectively as credit card companies or credit cards. In so doing, I am adopting the same simplifying assumptions as the majority. I am aware that Visa and MasterCard don't deal directly with merchants; rather, merchants obtain credit card accounts from banks, which are in turn authorized by Visa or MasterCard to use their respective payment systems. Some of the other defendants are involved in clearing these transactions. For a description of how the system works, see Emery v. Visa Int'l Serv. Ass'n, 95 Cal. App.4th 952, 956, 116 Cal.Rptr.2d 25 (2002). It may well be that some of the defendants will be absolved of liability because they have no direct contact with merchants or consumers, but that is a matter to be sorted out after discovery. [3] As the majority points out, maj. op. at 797 n. 6, 800 n. 11, plaintiff's allegations might also support a theory of direct infringement. See First Am. Compl. at 8 ¶ 30 ("Defendants, jointly with the Stolen Content Websites, are engaged in . . . the willful and systematic infringement of the intellectual property rights of" plaintiff and others). Because plaintiff has not argued this theory on appeal, we have no occasion to address it. But the fact that defendants may also be committing direct infringement does not diminish their responsibility as indirect infringers for providing essential services to buyers and sellers of stolen merchandise. A defendant can be liable for both direct and indirect infringement based on the same conduct. See, e.g., Alcatel USA, Inc. v. DGI Technologies, Inc., 166 F.3d 772, 791 (5th Cir.1999). [4] Neither Google nor the credit cards here were designed for infringement. The majority tries to distinguish this case from Napster and Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005), where defendants' services were designed for no other purpose. Maj. op. at 799 n. 10, 801. But Napster and Grokster are not the endpoint of this court's caselaw: Even though Google has many legitimate, noninfringing uses, Amazon held that it would be guilty of contributory infringement if it could modify its service to avoid helping infringers. [5] Amazon, as well as Napster and Grokster, hold as much. [6] The majority argues that "[b]ecause location services lead Internet users directly to infringing images, and often display them on the website of the service itself, we find that location services are more important and more essential—indeed, more `material'—to infringement than payment services are." Maj. op. at 797-98 n. 8. Skipping lightly over the fact that we lack the power to "find" anything, the majority admits that payment services are important, essential and material. That location services may — or may not — be more so, is of no consequence; this is not a race where there can be only one winner. [7] The majority's claim that "Perfect 10's factual allegations are not to the contrary," maj. op. at 797 n. 7, is simply not accurate. Indeed, elsewhere in the opinion, the majority concedes that plaintiff has made "a factual allegation" that the Stolen Content Websites "could not continue to exist as websites offering images for sale online." Id. at 805-06 n. 18. How then can the majority hold here, apparently as a matter of law, that defendants are absolved of liability because "other viable funding mechanisms are available"? Maj. op. at 797. If we accept as true, as the majority says it does, that the Stolen Content Websites will no longer be able to sell their images, how can we hold that they could still do so by developing other (unknown and unsuspected) ways to get paid? [8] I note in passing that, even if we were to accept the majority's speculations, they would be insufficient. That the Stolen Content Websites "might" change the way they do business or develop alternative payment mechanisms hardly proves that "other viable funding mechanisms are available." Maj. op. at 797 (emphasis added). The majority's prognostication as to what "might" happen in the future leaves open the likelihood that it will not happen, and positively admits that there are no viable alternative payment mechanisms today. [9] The majority seeks to distinguish Napster and Grokster on similar grounds by arguing that the defendants do not provide the "tools to locate infringing material," id. at 800, and that the infringing material "[n]ever reside[s] on or pass[es] through any network or computer Defendants operate," id. [10] The majority consigns the dance hall/absentee landlord cases to oblivion by holding that they have no relevance to the Internet. Maj. op. at 798 n. 9. It is true that these cases were developed in a brick and mortar world, but the distinction they draw between those who materially assist infringement (and are therefore liable) and those who are more remotely involved (and are therefore not liable) is equally important—perhaps even more important—in cyberspace than in real space. That Napster and Grokster did not consider these cases is hardly significant. The defendants there were centrally involved in the infringing transactions—indeed, as the majority reminds us, their systems were created solely to promote infringement, maj. op. at 799 n. 10, 801 — and thus there could be no argument that their involvement in the infringing transactions was too peripheral to give rise to a claim of secondary infringement. The Seventh Circuit managed to apply the dance hall cases to the Internet, see In re Aimster Copyright Litig., 334 F.3d 643, 654 (7th Cir.2003), and I'm confident that federal judges west of the Rockies could have figured out how to do the same. [11] Amazon interprets the "stop or limit" language as requiring "a legal right to stop or limit the allegedly infringing conduct, as well as the practical ability to do so." Amazon, 487 F.3d at 730. [12] Plaintiff's allegation on this point, as on many others, is very specific: When MasterCard or Visa learns of a merchant engaged in illegal, fraudulent, or otherwise improper business practices, their own regulations require them to cause member banks to investigate and, depending on the nature of the misconduct, terminate the merchants from the Visa and MasterCard systems. The rules of both associations strictly prohibit members from servicing illegal businesses. First Am. Compl. at 6 ¶ 20. [13] In fact, there can be no doubt that it's true. For example, the MasterCard Merchant Rules Manual provides that "[a] Payment Transaction may not be effected for any of the following reasons: . . . to transfer gambling winnings or funds related to chips, currency, or other value usable for gambling that were purchased in connection with gambling; for any illegal purpose or any other purpose deemed by MasterCard to be impermissible." MasterCard International, Merchant Rules Manual § 2.1.11.3(6) (2006) (emphasis added), available at http://www.mastercard.com/ us/wce/PDF/12999—MERC-Entire—Manual. pdf. [14] Visa's website, for example, explains that "Visa and its card issuers and acquirers have in place an efficient dispute resolution process." Visa USA, Chargebacks & Dispute Resolution, http://www.usa.visa.com/ merchants/operations/chargebacks—dispute— resolution/index.html (last visited March 24, 2007). It also notes that "[c]hargebacks arise for many reasons, primary among which are customer disputes, fraud, processing errors, authorization issues, and non-fulfillment of copy requests." Id. (emphasis added). [15] The majority tries to take back in a footnote what it says in text by claiming that an "absolute right to stop" is not "a prerequisite" to vicarious liability, but that its absence is "evidence that[defendants], much like Google, lack the right and ability to control those [infringing] activities." Maj. op. at 804 n. 16. Alas, it won't work. If not having an "absolute right to stop" is merely "evidence" that defendants lack sufficient control for vicarious infringement, then this can be offset by other evidence that they do have such control. Conflicts in the evidence must be resolved after discovery and trial, not on a motion to dismiss. "Practical ability," the standard announced in Amazon, is a capacious concept, far broader than "absolute right to stop." Even if the majority were right that defendants lack the "absolute right to stop" the infringements, plaintiff would be entitled to show that defendants have the "practical ability" to do so. If the majority means what it says in its footnote, then what it says in text is beside the point. In fact, there can be no doubt that the majority means what it says in text, because it upholds dismissal of the complaint on the ground that defendants lack the "absolute right to stop" the infringers; the footnote is merely an unpersuasive attempt to sweep the conflict with Amazon under the rug. [16] The conflict with Amazon is clearly drawn in footnote 17, where the majority explicitly disavows "practical ability" as the standard for vicarious infringement. Maj. op. at 805 n. 17. The majority is free to disagree with the standard adopted by our caselaw, but it is not free to reject it. [17] Those customers may take their patronage to plaintiff's website. [18] The majority disparages this as mere "financial pressure," but I am aware of no prior case holding that the legal right to exercise "financial pressure" over infringing activity is insufficient to support a finding of vicarious infringement. This is a dangerous precedent. We live in a commercial world and economic incentives are often the strongest possible motivators — far stronger than the often empty threat of litigation. As this case demonstrates, litigation can be costly and protracted, and its results uncertain. By contrast, the threat of stopping an essential service can be implemented at once, without hiring an army of lawyers or persuading judges and juries of the rightness of one's cause. In an economy marked by competition, financial pressure which raises costs or diminishes patronage can be a powerful weapon. By holding that the legal right to exercise financial pressure is an insufficient basis for establishing vicarious infringement, my colleagues take a hasty and unwise step in the development of the law. [19] Amazon also relied on the district court's finding that Google "lacks the practical ability to police the third-party websites' infringing conduct" because the technical means for doing so suggested by plaintiff "were not workable." Id. at 731 (citing district court's opinion, Perfect 10 v. Google, Inc., 416 F.Supp.2d 828, 857-58 & n. 25 (C.D.Cal.2006)). There is not, and cannot be, such a finding here as the case is presented on a 12(b)(6) motion. [20] Anecdotal evidence suggests that the AdSense program produces vastly less revenue for most program members than what they earn through their businesses. One poll found that 45% of AdSense members surveyed earned less than $30 per month from the program, and only a small percentage earned a substantial amount. Darren Rowse, AdSense Earnings for November-Poll Results, Problogger (Dec. 19, 2005), http://www. problogger.net/archives/ 2005/12/19/adsense-earnings-for-november-poll-results/. [21] Providing financial support has long been held to be a basis for vicarious infringement, where that financial support carries with it the contractual right to approve the infringing activity. See Davis v. E.I. DuPont de Nemours & Co., 240 F.Supp. 612 (S.D.N.Y.1965). In Davis, DuPont sponsored a dramatization of "Ethan Frome," which was alleged to infringe several copyrights. DuPont was held vicariously liable, even though it did not own the studio or the broadcast facilities, and could not have prevented airing of the show with another sponsor. [22] See, e.g., Rules and General Orders of the Vermont Public Service Board § 3.302, available at http://www.state.vt.us/psb/rules/Official AdoptedRules/RulesComplete.pdf (last visited May 14, 2007) ("[N]o utility shall disconnect residential service of gas, electric, or water unless payment of a valid bill or charge is delinquent."); State of New Hampshire, Consumer Rights and Responsibilities, at 5 (1996), available at http://services.unitil.com/ content/info/consumer—rights.html. [23] The majority is also mistaken when it suggests that parties would be held vicariously liable for infringement simply because, in a market economy, they are free not to deal with one another. Maj. op. at 805 n. 17. Our cases have been very clear that more is required for vicarious infringement; defendant must have a formal contractual or principal-agent relationship with the infringer. It is that contract or relationship that forms the predicate for vicarious liability, and plaintiff must point to some term in the contract or formal relationship that gives defendant a right to stop the infringing activity. See, e.g., Aimster, 334 F.3d at 654; Fonovisa, 76 F.3d at 262; Amazon, 487 F.3d at 729-31. Responding to a service call, in the absence of a contract which provides that the service may be discontinued in the event of illegal conduct, cannot form the basis of vicarious liability and thus the fact that the technician is free to leave can't render him vicariously liable. The requirement that plaintiffs point to a relationship explicitly spelled out in a contract or other legal arrangement is an important limitation on who may be held to answer for vicarious infringement. It should not be casually discarded. [24] In fact, Perfect 10 has brought suit against some direct infringers. See Perfect 10, Inc. v. CCBill, LLC, 481 F.3d 751 (9th Cir.2007) (reversing summary judgment on direct infringement claim); Perfect 10, Inc. v. Talisman Commc'ns Inc., No. CV99-10450, 2000 WL 364813 (C.D.Cal. Mar.27, 2000). [25] The majority finds it "anomalous" to hold credit cards liable without DMCA-compliant notice, while ISPs are immune unless they receive such a notice. Maj. op. at 795-96 n. 4. But there is no anomaly in treating parties that are covered by the statute differently from those that are not. Plaintiff here did give ample notice to the credit cards, see p. 824 infra, and should not have its claim dismissed for failing to allege compliance with a statute that does not apply to them.

67 F.3d 297 NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Sean BROWN, Defendant-Appellant. No. 95-6642. United States Court of Appeals, Fourth Circuit. Submitted: Aug. 24, 1995.Decided: Sept. 13, 1995. Sean Brown, Appellant Pro Se. Before WIDENER, HALL, and WILLIAMS, Circuit Judges. PER CURIAM: 1 Appellant appeals from the district court's order denying his 28 U.S.C. Sec. 2255 (1988) motion. We have reviewed the record and the district court's opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. United States v. Brown, Nos. CR-91-129; CA-94-2461-K (D.Md. Apr. 5, 1995). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

61 F.2d 944 (1932) HATCH v. MOROSCO HOLDING CO., Inc. No. 6. Circuit Court of Appeals, Second Circuit. December 5, 1932. *945 Ernst, Gale & Bernays, of New York City (Henry Gale and George G. Ernst, both of New York City, of counsel), for receiver-appellant. George Z. Medalie, U. S. Atty., Samuel C. Coleman, Harry G. Herman, and Frank Chambers, Asst. U. S. Attys., all of New York City (Albert T. Clark, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C., of counsel), for the United States. Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges. CHASE, Circuit Judge (after stating the facts as above). If the government is entitled to priority in the payment of its claim for taxes, it must be solely because of the provisions of section 3466, R. S. (31 USCA § 191). Price v. United States, 269 U. S. 492, 46 S. Ct. 180, 182, 70 L. Ed. 373; United States v. State Bank of North Carolina, 6 Pet. 29, 8 L. Ed. 308. That section reads as follows: "Priority established. Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed." The statute applies to taxes, since they are embraced within the term "debts." Price v. United States, supra. Had the holding company been insolvent at the time the receiver was appointed in the sense of insolvency as used in section 3466, R. S. (see United States v. Oklahoma, 261 U. S. 253, 43 S. Ct. 295, 298, 67 L. Ed. 638), the government would certainly have been entitled to priority (United States v. Butterworth-Judson Corporation, 269 U. S. 504, 46 S. Ct. 179, 70 L. Ed. 380). As the holding company was not so insolvent at that time, it remains to be seen whether the government was entitled to priority when it did become insolvent in the sense of section 3466 during the receivership and some six years after the receiver was appointed. At the outset, it should be noticed that in Price v. United States, supra, insolvency at the time the receiver was appointed was not shown, but it did appear that the corporation was in a failing condition and within a short time was insolvent. It was held that the government was entitled to priority in payment of its taxes. But in this case neither a failing condition at the time of the appointment nor actual insolvency within a short time has been proved, and the problem, in a word, is whether the Price Case is, accordingly, to be distinguished from this. *946 In United States v. Oklahoma, supra, a bank had been taken over by a state bank examiner, and it became necessary to decide whether the United States was entitled to priority in payment of an Indian deposit over claims of the state under its lien law. In discussing whether the state's lien, and when the priority, if any, of the United States, attached, it was said that, "if priority in favor of the United States attaches at all, it takes effect immediately upon the taking over of the bank." The appellant earnestly urges us to accept this as foreclosing any right of the government to priority in this case since, if the only time priority could attach was when the receiver was appointed, there can be no priority for there was then no insolvency. We do not think, however, that the quotation from the Oklahoma case should be given such a broad meaning apart from its relation to the situation in which it was used. Cohens v. Virginia, 6 Wheat. 264, 399, 5 L. Ed. 257. The question then being discussed was whether the state could have obtained a lien under its law before the priority, if any, of the government attached, and what was said, we think, merely meant that, if the government, upon the facts proved in that case had any right to priority at all, its priority attached before the state lien could come into effect. As the state lien could not come into being until the examiner took possession of the bank and any priority of the United States would attach at the same time, it was pointed out that the priority of the government could not be impaired or taken away by state law. The guarded expression as to whether there was any priority at all was due to a failure to show any insolvency at any time within the meaning of section 3466, and on that ground it was held that there was no priority. In County of Spokane, Wash., v. United States, 279 U. S. 80, 49 S. Ct. 321, 73 L. Ed. 621, the corporation was insolvent at the time the receiver was appointed, and we do not understand there was any doubt of its insolvency being the kind required to make section 3466 applicable. The receiver was appointed in 1922. The taxes and penalties due the government were assessed in 1923, and, in considering whether there was priority over assessments in 1924 by counties upon property in the hands of the receiver, the case of United States v. Oklahoma, supra, was mentioned as authority to the effect that in a case like the one then being decided priority attached when the receiver was appointed. We take this to mean that, when insolvency is shown as of the time the receiver is appointed, priority will then take effect, but cannot believe that it is any indication that it will never come into being unless all requisite conditions are present at the time the receiver is appointed; for in the same opinion it is held that priority did attach "on or before" the taxes and penalties were assessed, and that, as should be noticed, was in the year following the appointment of the receiver. In United States v. Hooe et al., 3 Cranch, 73, 90, 2 L. Ed. 370, the question was whether a deed was fraudulent as to creditors, and one point made in the case was that it could be avoided on the ground that the government was entitled to priority because the maker of the deed, one Fitzgerald, was insolvent when it was made. In speaking of the evidence relied upon to prove the maker insolvent at that time, the court said: "It must appear that at the time of making the conveyance, Fitzgerald was `a debtor not having sufficient property to pay all his debts.'" This, too, can hardly be said to have a wider application than the facts in that case could give it, for, if there were proof of insolvency, it went to the time of the conveyance, and the court apparently was considering only the effect of that. Under the rule of construction already alluded to, we believe the statement should be taken to mean no more. It has long been understood that this statute is to be given a liberal construction to effectuate the intention of Congress to aid the government in the collection of debts due it. United States v. State Bank of North Carolina, supra; Bramwell v. United States Fidelity & Guaranty Co., 269 U. S. 483, 46 S. Ct. 176, 70 L. Ed. 368; Price v. United States, supra. While this does not mean that it covers anything which does not fall fairly and reasonably within its reach, we think it should be, and that no previous decision forbids its being, construed to apply to debts owed the government by a debtor in receivership who becomes insolvent after the receiver is appointed if the statute would have been applicable had the debtor been insolvent at the time the receiver was appointed. It is true that the statute speaks of insolvency in connection with the acts which have been held necessary as manifestations (see Prince v. Bartlett, 8 Cranch. 431, 3 L. Ed. 614; Conard v. Nicoll, 4 Pet. 291, 7 L. Ed. 862; Beaston v. Farmers' Bank of Delaware, 12 Pet. 102, 9 L. Ed. 1017; United States v. McLellan, Fed. Cas. No. 15,698; Strain v. United States Fidelity & Guaranty Co. (C. C. A.) 292 F. 694) as of the present and without *947 more that would, perhaps, compel the conclusion that only when the required manifestation and actual insolvency coexist as soon as the manifestation occurs does the priority take effect. But when one of the modes of releasing the condition which the explanatory clause of the statute makes upon the application of the first clause has been proved, and such a receivership as we have here is the equivalent of one of them, it falls fairly within the realm of reasonable construction to decide whether that is enough without contemporaneous insolvency to permit the first clause of the statute to be given effect whenever the government's debtor is shown to be insolvent. That clause provides that "Whenever any person indebted to the United States is insolvent, * * * the debts due to the United States shall be first satisfied"; and its coverage whenever it applies is as comprehensive as the words used. It too speaks in the present, and that present looks to the time of insolvency. We take Price v. United States, supra, to be a strong indication that the government is entitled to priority in a situation like that now before us. There insolvency and the appointment of the receiver were not coetaneous. Accordingly, that cannot be an absolute condition precedent upon the priority given the government in the first clause of the statute. Nor does it seem reasonable to believe that the amount of elapsed time between the appointment of a receiver and the date of insolvency can be decisive. If insolvency proved to exist for the first time shortly after the receiver is appointed is enough, it would seem to follow as of course that proof of insolvency at any time during the receiver's administration would have like effect, for every reason for granting a preference to the government in the one instance would apply to the other. Certainly, this would be so unless the "short time" in the Price Case is taken only to have some evidential force to show actual insolvency at the time that receiver was appointed. We find no basis in the opinion for that, and can perceive no reason why it could be so. On the contrary, it was there said that, "When the assets turned out to be less than the debts, the creditors were entitled to have them dealt with as a trust fund and distributed among them according to their rights and priorities. Under the statute, claims of the United States must first be satisfied. Bramwell v. United States Fidelity & Guaranty Co., 269 U. S. 483, 46 S. Ct. 176, 70 L. Ed. 368, and United States v. Butterworth-Judson Corporation, 269 U. S. 504, 46 S. Ct. 179, 70 L. Ed. 380." "When the assets turned out to be less than the debts" is an expression which we take to mean when insolvency was proved to exist, and so hold that the government is here entitled to priority. As the claim of the government, now granted priority, has already been allowed with interest, Hatch v. Morosco Holding Co. (C. C. A.) 50 F.(2d) 138, the question of interest is no longer open, Thompson, Adm'x, et al. v. Maxwell Land-Grant & Railway Co. et al., 168 U. S. 451, 456, 18 S. Ct. 121, 42 L. Ed. 539. Affirmed.

43 B.R. 140 (1984) In re TENNA CORPORATION, Debtor. Charles J. NEUGER, Trustee for Tenna Corporation, Plaintiff, v. UNITED STATES of America, Defendant. Bankruptcy No. B 79-2521, Adv. No. B 81-0164. United States Bankruptcy Court, N.D. Ohio, E.D. March 14, 1984. Charles J. Neuger, Cleveland, Ohio, Trustee. Gus J. Bahas, Kenneth A. Bravo, Alan E. Schabes, Cleveland, Ohio, for trustee-plaintiff. Robert L. Handros, Tax Div., U.S. Dept. of Justice, Washington, D.C., and Dennis Zapka, Asst. U.S. Atty., Cleveland, Ohio, for the U.S. MEMORANDUM OF OPINION AND DECISION WILLIAM J. O'NEILL, Bankruptcy Judge. The Tenna Corporation through its trustee seeks to avoid an alleged preference and recover from the United States of America the $527,264.37 payment of income tax assessments made to the Internal Revenue Service. From the stipulations submitted by the parties and the evidence at trial, the Court finds the pertinent facts as follows: 1. On December 5, 1979, Tenna Corporation filed a voluntary petition under Chapter 11 of the Bankruptcy Code. Upon creditor's motion, the case was converted *141 to a Chapter 7 proceeding on September 10, 1980. 2. On October 5, 1979, within 90 days of filing the petition, Tenna issued a check for $527,264.37 to the Internal Revenue Service in payment of income taxes and assessed deficiencies for fiscal years ending June 30th of 1969 and 1970. If these assessments were claims against the estate, the parties do not dispute the priority status accorded thereto under 11 U.S.C. § 507(a)(6). 3. Prior to the reorganization proceedings Central National Bank and Cleveland Trust, currently Ameritrust, advanced funds to the debtor under a "Credit Facility and Security Agreement" dated February 7, 1978. During the Chapter 11 proceeding, with Court authority, Tenna borrowed operating funds from the same Banks. As security for these post-petition loans, the lenders received a super-priority lien on all the debtor's property pursuant to Section 364 of the Bankruptcy Code. 4. On its behalf and as agent for Ameritrust, Central National Bank filed an "Amended Proof of Secured Administrative Claim". Evidence reflects the debtor's prepetition debt to these lenders was satisfied during the reorganization proceedings. The balance of post-petition debt is $4,197,289.51 consisting of $1,033,053.57 principal plus $860,865.90 interest owed Central National Bank and $1,276,674.81 with $1,026,695.23 interest to Ameritrust. The government does not dispute the super-priority status of this debt. 5. The trustee has substantially liquidated the Tenna estate. Total assets available for distribution under the Code may possibly include bearer bonds with a face value of $235,000.00, $26,500.00 in accounts receivable apparently uncollectible and the $527,264.37 in contention which the trustee seeks to recover in this proceeding. 6. Some of the claims against the estate are entitled to priority status including approximately $26,000.00 in administrative expenses (11 U.S.C. § 507(a)(1)), in excess of $221,000.00 wage claims (§ 507(a)(3)) and $31,000.00 plus for contributions to employee benefit plans (§ 507(a)(4)). There is also in excess of $2 million priority government claims (§ 507(a)(6)), the category in which the amount in issue belongs, should a claim be filed. LAW, COMMENTS AND CONCLUSIONS The government has stipulated receiving the $527,264.37 as a creditor of Tenna and that payment was a transfer of the debtor's property on account of an antecedent debt within 90 days before the filing of the Chapter 11 petition. Further, the government chose not to rebut the presumption of Tenna's insolvency (§ 547(f)). The elements of a preference under 11 U.S.C. § 547 are, therefore, conceded except for the preferential effect delineated in Subsection 547(b)(5). Consequently, the remaining issue is whether the transfer enabled the government to receive more than it would receive if "(A) the case were a case under Chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title." (11 U.S.C. § 547(b)(b)) Specifically the timing of this "preferential effect" will determine if the payment in question is a preference. The government maintains this subsection requires the Court to construct a hypothetical Chapter 7 distribution on the date of petition, thereby excluding consideration of the secured debt and administrative expense the debtor incurred during the Chapter 11 proceeding. Tenna argues that the actual anticipated distribution controls. This concept would include the super-priority lien and other administrative expense thereby rendering the payment preferential as alleged. Section 547(b)(5) requires comparison of the Tenna payment received by the government with the distribution it would receive under Chapter 7 if the transfer had not been made. Since the time of comparison *142 is pivotal and the language of Section 547 is subject to interpretation, it is imperative to refer to the law and practice under the pre-Code Bankruptcy Act of 1898. Section 547(b)(5) corresponds to Section 60(a)(1) of the prior Act which applied the "greater percentage test" to determine the preferential effect of a transfer. (11 U.S.C. § 96(a)(1), repealed 1979). It was established thereunder that the actual effect of payment in light of the ensuing bankruptcy proceeding is applicable rather than a hypothetical distribution on the date of petition. Palmer Clay Products Co. v. Brown, 297 U.S. 227, 56 S.Ct. 450, 80 L.Ed. 655 (1936); and In the Matter of Columbus Malleable, Inc., 459 F.2d 118 (6th Cir., 1972). Administrative expenses incurred in bankruptcy and reorganization proceedings were included in determining preferential effect. Ely v. Greenbaum, 85 F.2d 501 (2nd Cir., 1936) and Barry v. Crancer, 192 F.2d 939 (8th Cir., 1951). While Section 547 represents a substantial modification of the former law on preference avoidance, there is nothing to suggest that Congress intended to alter the results of the Palmer case, supra, and its progeny. Therefore, the actual result of payment in light of the ensuing Chapter 7 proceeding applies in determining preferential effect. Historically, the purpose and use of preference avoidance is to assure equality of distribution among creditors of the debtor's estate. Avoidance also serves to protect and prevent dismembering the estate by creditors. These concerns continue to be fundamental considerations of avoidance under the Code. H.R. Rept. No. 95-595, 95th Cong., 1st Sess. 177-78 (1977). U.S. Code Cong. & Admin. News 1978, p. 5787. Changes in elements of a preference under the Code were included to insure this equality of distribution. Id. at 178. With this stated principle and no precedent to support the government's position, it is inconceivable and illogical to apply the hypothetical concept in determining the preferential effect of a transfer. Recovery of the payment received by the government, therefore, is wholly consistent with the established purpose of preferential avoidance. The government's claim for taxes in this proceeding qualifies for priority status under Section 507(a)(6). There are other government claims entitled to like priority. All these claims, however, are subordinated to the super-priority liens and administrative debt incurred under Chapter 11. Consequently, there will be insufficient funds to benefit these claimants under the Chapter 7 distribution from this estate. The Tenna case was filed under Chapter 11 and converted to Chapter 7. The effect of the conversion is found in 11 U.S.C. § 348. Secured debt and administrative expense incurred by the debtor-in-possession in Chapter 11 retain priority status upon conversion, subordinated only to administrative debt in the subsequent Chapter 7 proceeding. (11 U.S.C. §§ 348(d) and 726(b)). The Code, therefore, assures payment of debtor-in-possession debt. In addition to the above, Section 547(b)(5)(C) refers to "the payment of such debt to the extent provided by the provisions of this title" thereby referencing an actual distribution scheme under Chapter 7. Distributions in Chapter 7 require payment of administrative debt. Since the Code is designed to protect the debtor-in-possession's secured and administrative debt upon conversion and in the absence of any provision to the contrary, there is no logical basis for excluding Tenna's super-priority lien and administrative debt in determining the preferential effect of the transfer. For reasons enumerated, the $527,264.37 payment to the I.R.S. is a preference. The Tenna estate available for distribution to creditors has a maximum value of $788,764.37, an amount that is contingent and uncertain. The outstanding balance of $4,197,289.51 due the super-priority creditors and other administrative debt will consume this entire estate. Government claimants including the defendant, though entitled to equal priority, unfortunately will receive no distribution. The payment in question, therefore, clearly enabled the *143 government to receive more than it would receive in the distribution of this estate. The trustee suggests the government was incorrectly paid with funds to which the Banks' security interest attached while the government insists moneys from the sale of inventory were co-mingled with other funds precluding the Banks' assertion of its security interest. This dispute is irrelevant. The only issue before the Court is an alleged preference. The government stipulated that payment was made from debtor's property thereby satisfying this element of section 547(b). The extraneous issues raised by the parties have no bearing on the transfer of $527,264.37, a preferential payment which is avoided.

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ DIANE KING, Petitioner v. DEPARTMENT OF THE ARMY, Respondent ______________________ 2015-3005 ______________________ Petition for review of the Merit Systems Protection Board in No. AT-1221-12-0143-W-3. ______________________ Decided: March 4, 2015 ______________________ DIANE KING, Prattville, AL, pro se. EMMA BOND, Commercial Litigation Branch, Civil Di- vision, United States Department of Justice, Washington, DC for respondent. Also represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., ALLISON KIDD-MILLER. ______________________ Before PROST, Chief Judge, DYK, and O’MALLEY, Cir- cuit Judges. 2 KING v. ARMY PER CURIAM. Diane King appeals from a decision of the Merit Sys- tems Protection Board (the “Board”) denying King’s request for corrective action under the Whistleblower Protection Act (“WPA”). We affirm. BACKGROUND In May 2011, Ms. King was terminated from her posi- tion as a Medical Technologist at the Winn Army Com- munity Hospital. The termination, which occurred during King’s one-year probationary period, was for “Conduct Unbecoming a Federal Employee.” Appellee’s App. 42 (hereinafter “App.”). Ms. King filed an individual right of action appeal to the Board, arguing that she was terminated in retaliation for making protected disclosures in violation of the WPA. Specifically, Ms. King argued that she disclosed (1) that another employee improperly put labels on test tubes that were supposed to be anonymous and (2) that instructions contained in the Blood Bank Procedure manual could lead to patient death. The administrative judge (“AJ”) held that Ms. King had established a prima facie case of whis- tleblowing reprisal. However, the AJ also determined that the agency had established by clear and convincing evi- dence that it would have terminated Ms. King even in the absence of her whistleblowing. The AJ denied Ms. King’s individual right of action appeal. The full Board denied review. The Board concluded that “ample evidence” supported Ms. King’s termination. Id. at 11. The full Board also concluded that Ms. King “did not identify any direct or circumstantial evidence of retaliatory animus, proffered no evidence of retaliatory motive, presented no evidence about any other probation- ers who behaved as she did and were not terminated, did not support her allegation that the agency’s witnesses KING v. ARMY 3 were untruthful, and offered no evidence of collusion.” Id. at 12. Ms. King seeks review of the Board decision. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION Our review of the Board’s decision is limited in scope. We may only set aside an agency’s “action, findings, or conclusions” if they are “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). The question here is whether the agency properly es- tablished “by clear and convincing evidence that it would have taken the same personnel action in the absence of [a protected] disclosure.” 5 U.S.C. § 1221(e)(2). We have identified three factors relevant to this determination: (1) “the strength of the agency’s evidence in support of its personnel action”; (2) “the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision”; and (3) “any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated.” Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999). With respect to the first Carr factor, the AJ found “ev- idence of serious performance and behavior prob- lems . . . .” App. 21. When removing Ms. King, the agency stated that she “ha[d] been discourteous to [her] co- workers and [she] ha[d] disrupted the work environment.” Id. at 42. Ms. King had failed a competency exam, had numerous conflicts with her trainers and other co- workers, and had refused to follow directions. At least three of her co-workers came to Ms. King’s supervisor to express concerns that Ms. King created a hostile work 4 KING v. ARMY environment. Ms. King admitted that she had called a co- worker a compulsive liar, rabid, and dysfunctional, and accused that co-worker of suffering from delusions. The AJ concluded that no reasonable agency management official would tolerate a probationary employee who cannot get along with coworkers, who fails to effectively communicate, and who creates an unpleasant work environment for her coworkers, much less one who speaks disrespectfully of her supervisors and coworkers while seemingly unable or unwill- ing to learn the skills necessary to perform suc- cessfully in her new job. Id. at 22. Ms. King challenges the AJ’s findings, including his credibility findings. The Board’s findings are amply supported by the evidence. As to the second Carr factor, the AJ concluded that Ms. King “presented no evidence to show that either [her direct supervisor or the management official taking the personnel action] had any motive to take a reprisal action against her.” Id. at 21. Ms. King argues that her entire chain of command met and decided to terminate her employment. But this does not point to a motive by the decision-makers to retaliate under the second factor. The AJ noted that both Ms. King’s direct supervisor and the management official who took the personnel action had viewed Ms. King’s whistleblowing favorably. 1 1 King further argues that the Board ignored the “cat’s paw” issue, as described in cases like Staub v. Proctor Hospital, 131 S. Ct. 1186, 1190, 1192 (2011)— whether the deciding official was improperly influenced by someone with animus. But there is no evidence that someone with animus against Ms. King had influence over the decision-makers. KING v. ARMY 5 With respect to the third Carr factor, the AJ stated that Ms. King “[wa]s unable to point to any probationer who engaged in comparable misconduct who has not been terminated during her probationary period.” Id. Ms. King argues that, while there were no other probationary employees, another non-whistleblower employee was insubordinate but was not disciplined. Ms. King acknowl- edges that there were no similarly situated probationary employees, and non-probationary employees are not situated similarly to King. The Board did not err in hold- ing that the agency properly established “by clear and convincing evidence that it would have taken the same personnel action in the absence of [a protected] disclo- sure.” 5 U.S.C. § 1221(e)(2). Ms. King also argues that she “was not made aware of [certain] statements [relied on by the agency in her ter- mination] and therefore, could not respond [to the notice of proposed removal].” Appellant’s Br. 2. There is no claim that Ms. King lacked access to the witness statements during the Board proceedings. If Ms. King had been an “employee” within the meaning of 5 U.S.C. § 7511(a)(1)(A), her argument concerning lack of notice at the agency level might have some relevance under our decision in Stone v. Fed. Deposit Ins. Corp., 179 F.3d 1368 (Fed. Cir. 1999), but we have not held that Stone applies to probationary employees and, in any event, Ms. King did not raise this issue with the Board in her petition for review, and the full Board did not address this argument. AFFIRMED 

764 N.W.2d 532 (2009) STATE v. DODDS. No. 2007AP1579-CR. Supreme Court of Wisconsin. January 13, 2009. Petition for review denied.

70 So.3d 596 (2011) JOSEPH v. STATE. No. 3D11-1825. District Court of Appeal of Florida, Third District. August 17, 2011. DECISION WITHOUT PUBLISHED OPINION Affirmed.

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596 F.Supp.2d 1005 (2009) SEOUL SEMICONDUCTOR CO. LTD., Plaintiff, v. NICHIA CORP.; Nichia America Corp.; and Daktronics, Inc., Defendants. Civil Action No. 9:07-CV-273. United States District Court, E.D. Texas, Lufkin Division. February 6, 2009. *1008 David C. Radulescu, Danielle Rosenthal, Weil Gotshal & Manges, New York, NY, Benjamin Charles Elacqua, Fish & Richardson PC, Houston, TX, Claude Edward Welch, Law Office of Claude E. Welch, Lufkin, TX, Hojin Chang, Yulchon, Seoul, Korea, KO, Jennifer L. Jonak, Lukens Law Group, San Francisco, CA, Rip Finst, Weil, Gotshal & Manges, LLP, Redwood Shores, CA, for Plaintiff. Otis W. Carroll, Jr., Collin Michael Maloney, Ireland Carroll & Kelley, Tyler, TX, Alison M. Tucher, Deok Keun Matthew Ahn, Morrison & Foerster LLP, San Francisco, CA, Clayton Edward Dark, Jr., Attorney at Law, Lufkin, TX, James Pooley, Marc David Peters, Morrison & Foerster, Palo Alto, CA, for Defendants. ORDER CONSTRUING CLAIM TERMS OF UNITED STATES PATENT NO. 5,075,742 RON CLARK, District Judge. Plaintiff Seoul Semiconductor Co, Ltd. ("Seoul") filed suit against Defendants Nichia Corp., Nichia America Corp., and Daktronics, Inc. (collectively "Nichia") claiming infringement of United States Patent No. 5,075,742 ("the '742 patent"). The court conducted a Markman hearing to assist it in interpreting the meaning of the claim terms in dispute.[1] Having considered the patents, and the parties' contentions as presented in their briefs and the arguments of counsel, the court now makes the following findings and construes the disputed claim terms.[2] I. CLAIM CONSTRUCTION STANDARD OF REVIEW Claim construction is a matter of law. Markman v. Westview Instruments, Inc., 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996) ("Markman II"). "The duty of the trial judge is to determine the meaning of the claims at issue, and to instruct the jury accordingly." Exxon Chem. Patents, Inc. v. Lubrizol Corp., 64 F.3d 1553, 1555 (Fed.Cir.1995) (citations omitted), cert. denied, 518 U.S. 1020, 116 S.Ct. 2554, 135 L.Ed.2d 1073 (1996). "`[T]he claims of the patent define the invention to which the patentee is entitled the right to exclude.'" Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.Cir. 2005)(en banc) (citation omitted), cert. denied, 546 U.S. 1170, 126 S.Ct. 1332, 164 L.Ed.2d 49 (2006). "Because the patentee *1009 is required to `define precisely what his invention is,' it is `unjust to the public, as well as an evasion of the law, to construe it in a manner different from the plain import of its terms.'" Id. at 1312 (quoting White v. Dunbar, 119 U.S. 47, 52, 7 S.Ct. 72, 30 L.Ed. 303 (1886)). The words of a claim are generally given their ordinary and customary meaning. Phillips, 415 F.3d 1303, 1312. The "ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention." Id. at 1313. Analyzing "how a person of ordinary skill in the art understands a claim term" is the starting point of a proper claim construction. Id. A "person of ordinary skill in the art is deemed to read the claim term not only in context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification." Id. Where a claim term has a particular meaning in the field of art, the court must examine those sources available to the public to show what a person skilled in the art would have understood the disputed claim language to mean. Id. at 1314. Those sources "include `words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art.'" Id. (citation omitted). "[T]he ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words." Id. In these instances, a general purpose dictionary may be helpful. Id. However, the Court emphasized the importance of the specification. "[T]he specification `is always highly relevant to the claim construction analysis. Usually it is dispositive; it is the single best guide to the meaning of a disputed term.'" Id. at 1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir. 1996)). A court is authorized to review extrinsic evidence, such as dictionaries, inventor testimony, and learned treaties. Phillips, 415 F.3d 1303, 1317. However, their use should be limited to edification purposes. Id. at 1319. The intrinsic evidence, that is, the patent specification, and, if in evidence, the prosecution history, may clarify whether the patentee clearly intended a meaning different from the ordinary meaning, or clearly disavowed the ordinary meaning in favor of some special meaning. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 979-80 (Fed.Cir.1995); aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Claim terms take on their ordinary and accustomed meanings unless the patentee demonstrated "clear intent" to deviate from the ordinary and accustomed meaning of a claim term by redefining the term in the patent specification. Johnson Worldwide Assoc., Inc. v. Zebco Corp., 175 F.3d 985, 990 (Fed.Cir.1999). The "`ordinary meaning' of a claim term is its meaning to the ordinary artisan after reading the entire patent." Phillips, 415 F.3d 1303, 1321. However, the patentee may deviate from the plain and ordinary meaning by characterizing the invention in the prosecution history using words or expressions of manifest exclusion or restriction, representing a "clear disavowal" of claim scope. Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed.Cir.2002). If the patentee clearly intended to provide his own definitions, *1010 the "inventor's lexicography governs." Phillips, 415 F.3d 1303, 1316. II. PATENT BACKGROUND AND TECHNOLOGY Seoul asserts Claims 1-5 of U.S. Patent No. 5,075,742. The '742 patent was filed on January 10, 1991 and issued on December 24, 1991. It is directed to semiconductor structures and claims priority back to a French patent dated January 10, 1990. Semiconductors have properties useful in controlling the flow of electrons in devices such as computers, televisions, and lasers. Semiconductors are grown (manufactured) using a variety of techniques and can be made of a single chemical element, such as silicon or from compounds of chemical elements such as gallium arsenide ("GaAs"). One of the problems that must be dealt with is the occurrence of dislocations—a type of defect that occurs during the growth process that can affect the performance of the semiconductor. Some semiconductors, known as "n-type semiconductors" have an excess of free electrons in a certain energy band known as the conduction band. Others, known as "p-type semiconductors" have a deficit of free electrons or "holes." These are in a lower energy grouping called a valence band. Layering a p-type semiconductor with an n-type results in a "p-n junction" in the region where the layers meet. A semiconductor possesses a bandgap which is the range of disallowed energy levels between the conduction and valence bands as illustrated in Figure 1. An electron in the conduction band may recombine with a hole in the valence band and release light. The reverse process may also occur in which light is absorbed, creating an electron and a hole. These processes are frustrated if an electron or hole combines encounters a dislocation. The '742 patent is directed toward a semiconductor structure that utilizes three-dimensional inclusions to confine charge carriers (the electrons and holes) and reduce the effect of dislocations. The patent discloses a structure with multiple layers made of semiconductor material. One layer contains three-dimensional inclusions *1011 that have a smaller bandgap than the bandgap of the layer itself. III. PERSON OF ORDINARY SKILL IN THE ART The importance of identifying the education and experience of one of skill in the art has long been established. See Nazomi Communications, Inc. v. Arm Holdings, PLC, 403 F.3d 1364, 1370-71 (Fed.Cir.2005). Nevertheless Seoul did not set out its position on this issue in its opening brief. Seoul stated in its Reply Brief, submitted almost ten months after suit was filed, that it was waiting for information "before it commits to a particular `level of ordinary skill in the art' in this case." Seoul's Reply Brief, Doc. # 56, p. 1, fn. 1. Tr. at p. 9, l. 17-p. 10, l. 14. The court understands the tactical advantage at trial, and the opportunities to claim error if an appeal is needed, that result from avoiding disclosure of contentions until the trial court rules on an important issue. However, the complexity and expense of modern commercial litigation make the cost of dilatory tactics and "trial by ambush" prohibitive. Accordingly, the Federal Rules of Civil Procedure have evolved, and local rules have been adopted by district courts, to reduce cost and delay. See Fed.R.Civ.P. 1 & 26 and the Advisory Committee Notes for the 1993 Amendments to those Rules. See also Finisar Corp. v. DirecTV Group, Inc., 424 F.Supp.2d 896, 898-99 (E.D.Tex.2006) At the Markman hearing Seoul's counsel finally stated its position that one of ordinary skill would have a Ph.D, but then observed "I don't really think it matters too much." Tr. p. 11, l. 20. Based on this remark and its failure to brief the subject, the court finds that Seoul has waived argument on this point. The court has reviewed the patent and extrinsic references in the field. Semiconductor technology and the potential use of layers of different materials from Groups III and V of the Mendeleevian classification were well known in 1991.[3] A number of significant scientific articles within the field were lead-authored by graduate students prior to receiving their doctoral degree. Tr. at p. 14, l. 24-p. 15, l. 12. These individuals possessed a bachelor's degree and experience making multilayer III-V semiconductor structures. The court concludes that a person of ordinary skill in the art has the equivalent of a four year degree (denoted in the United States as a bachelor's degree) in physics, electrical engineering, materials science, or a related area, coupled with three or more years of industrial or research experience making multi-layer III-V semiconductor structures. Extensive experience and technical training might substitute for some educational requirements, while advanced education might substitute for some experience. Nichia did not object to the definition. Tr. at p. 9, l. 16. IV. CLAIM CONSTRUCTION 1. "semiconductor/semiconductor material" Claims 1 and 5. Claim 1 of the '742 patent, states in part, with the disputed claim term in bold: "A structure having plural layers in semiconductor material,. . . ." Claim 5 states in part, with the disputed claim term in bold: "The structure claimed in claim 1, wherein said layer comprising said inclusion comprises one of the following semiconductor materials...." *1012 Nichia suggested defining this term as: "a compound made up of two or more of the following elements: gallium (Ga), arsenic (As), aluminum (Al), indium (In), and phosphorus (P)." Seoul proposed that the court construe semiconductor material to mean "a material whose conductivity properties can be controlled by either adding dopants or by applying an electric field." The background of the invention and the summary of the invention provide references to semiconductors in general. Col. 1, 1. 15-16; col. 4, 1. 33-36. Nitride semiconductors were known at the time of the patented invention. See e.g. H.U. Baierand W. Monch, Formation of Aluminum Nitride Films on GaAs(110) at Room-Temperature by Reactive Molecular-Beam Epitaxy: X-Ray and Soft-X-Ray Photoemission Spectroscopy, 68 Journal of Applied Physics 586 (1990); R.F. Davis et al., Critical Evaluation of the Status of the Areas for Future Research Regarding the Wide Band Gap Semiconductors Diamond, Gallium Nitride and Silicon Carbide, 104 Mat. Sci. and Eng. 77 (1988). The specification discusses III-V semiconductors, a list that includes more elements than the five identified by Nichia. It is true that the specification names the semiconductors formed from materials on Nichia's list, but these are descriptions of specific embodiments. Col. 1, 1. 20-23; col. 3, l. 11-14; col. 6, l. 20-24. Additionally, while Claim 1 uses the general term "semiconductor material," Claim 5 describes semiconductors made of only the five specific elements included in Nichia's list. Since neither the specification nor prosecution history indicates otherwise, this lends support to the argument that "semiconductor material" includes more than those five elements. As with many scientific terms there are a number of definitions of "semiconductor" that are partly correct, or that convey one or more properties or concepts associated with the term. A simple example would be to define a semiconductor as a material, the conductivity or resistivity of which, is between an insulator and a conductor. In this case that does not help one of skill in the art, or a juror. In the context of this patent the properties of carriers and forbidden bandgaps in semiconductors are important because the object of the invention is to reduce the influence of dislocations on the functioning of multilayer structures made from semiconductor material. See '742 Patent, Abstract; col. 1, l. 8-10; col. 2, l. 46-53; col. 2, l. 65-col. 3, l. 2. Based on these specification references, the following definition focuses on these properties of a semiconductor: "semiconductor" and "semiconductor material" mean "a solid material that conducts limited electric current by means of a small number of carriers (free electrons or holes) and additional carriers that can be freed from their local bonds by the addition of other elements (doping) or by application of an electrical or magnetic field." The parties agreed to this definition, Tr. at p. 36, l. 21-p. 38, l. 18. See McGraw-Hill Encyclopedia of Electronics and Computers 798-99 (Sybil P. Parker ed., 2d ed. 1988); see also The IEEE Standard Dictionary of Electrical and Electronic Terms 963 (6th ed. 1996). 2. "Inclusion" and "three-dimensional inclusion" Claims 1-5. This term is used in each of the five claims of the '742 patent. An exemplar use in Claim 1, stating in part, with the disputed term in bold: "each of said sublayers having three-dimensional inclusions in a semiconductor material...." *1013 Nichia argues that the proper term to construe is actually "three-dimensional inclusion" and offers the definition "islands of indium arsenide grown using three-dimensional nucleation and then buried by a different material." The specification discloses inclusions made from semiconductor materials other than indium arsenide ("InAs"). In addition, Claim 4 specifically states that the inclusions are made of InAs, while Claim 1 merely discloses the need for inclusions. Reading Claim 1 to require the inclusions to be made of InAs would render Claim 4 unnecessary. At the hearing Nichia agreed that the inclusions need not be made from InAs. Tr. at p. 50, l. 14-p. 51, l. 25. Seoul suggested that "inclusion" should be construed to mean "a crystal or a fragment of a crystal found within another crystal." This is somewhat broad, implying that an inclusion could be of any material. The "Summary Of The Invention" starts off with "one of the layers comprises three-dimensional inclusions in a semiconductor material...." '742 Patent, col. 2, l. 66-67. The patentees distinguished prior art, including U.S. Pat. No. 4,802,181 to Iwata which used etching and subsequent deposition to create quantum boxes and U.S. Pat. No. 4,751,194 to Cibert et al. which disclosed ion-implantation and lithographic masking techniques to form quantum boxes, by stating that the inclusions were grown in the material and not inserted later. Pl. Br., Ex. 5 (Prosecution File History), Examiner's First Office Action at 3-4; Response to First Office Action at 4-5. The patentee distinguished the references on the basis that the inclusions are formed "during the semiconductor crystal growth" Id. at 5. The only growth process discussed in the specification is three-dimensional nucleation. Col. 6, l. 37-39. Seoul contends that the specification discloses the two-dimensional growth mode as a route to the formation of inclusions. Tr. at p. 41, l. 2-9; See col. 5, l. 18-20. However, that part of the specification describes only the growth of the first monolayer of atoms. The specification then goes on to discuss a transition to a three-dimensional growth mode beginning with the second monolayer of atoms. Col. 5, l. 21-25; l. 38-40. The three-dimensional growth mode can be accomplished via different synthetic routes, such as molecular beam epitaxy, chemical vapor deposition and vapor phase epitaxy. See col. 6, l. 38-40. The fact that different techniques may be used to deposit the material that makes up the layers does not change the fact that the physical formation of the inclusions is by three-dimensional growth process. While the parties argued about the use of "island" in any definition, the word is used a number of times within the specification. Col. 4, l. 62; col. 5, l. 25; col. 5, l. 26; col. 5, l. 28; col. 5, l. 29. It does not necessarily convey a "flat region" as argued by Seoul. Tr. at p. 63, l. 22-23 (testimony of Seoul's expert Dr. Streetman). The "Description of the Preferred Embodiments" disclosed a hemispherical shape. Col. 4, l.62-63 ("the inclusions 8 of InAs form islands substantially of a semispherical cap shape"). Further, use of the term "island" to convey three-dimensional features is consistent with the extrinsic evidence. Def. Resp., Doc. # 53, Ex. 10, J-Y Marzin, II-V Semiconductor Strained-Layer Superlattices, in Physics, Fabrication, and Application of Multilayered Structures 215, 220 (Dhez & Weisbuch eds., 1988) ("the growth process can switch from bidimensional to three-dimensional: this process results in the formation of 3D islands"); see also Def. Resp., Doc. # 53, Ex. 2, Dieter Bimberg, Marius Grundmann, and Nikolai Ledentsov, *1014 Quantum Dot Heterostructures 43 (1999) (illustrating a pyramid and prism shapes). The court will therefore construe, the term "inclusion" as follows: "inclusion" and "three-dimensional inclusion" mean "island of semiconductor material grown by three-dimensional nucleation buried in a layer of a different semiconductor material that has a larger bandgap." "Three-dimensional nucleation" is a process where structures form and grow in three-dimensions, but does not include two-dimensional flat layer-by-layer growth. 3. "active layer" Claim 3. The term "active layer" appears in Claim 3: "The structure claimed in claim 1, wherein said layer comprising said inclusions is an active layer of an optoelectronic component." Nichia suggests that the court adopt wording contained in the specification which states that "the active layer[] is the only region of the structure in which the two types of carriers are simultaneously present...." Col. 2, l. 47-53. Nichia's construction does not go far enough, as it is possible for electrons and holes to be simultaneously present in other layers, although not in appreciable numbers relative to the active layer. One of skill in the art would know that outside the active layer, some hole and electrons exist in practice. Even in a pure, undoped semiconductor (called an intrinsic semiconductor) at room temperature, some holes and electrons simultaneously exist. See Tr. at p. 80, 1. 24 to p. 81, 1. 5. Therefore, the issue is really one of degree. Holes and electrons are simultaneously present in the active layer to a significantly greater degree than in any other layer. Seoul criticizes Nichia's proposed construction, citing a book by Nichia's technical advisor, for the proposition that "[c]arriers tend to escape from the active layer of an LED into the confinement layers." Seoul's Claim Const. Br. at 13, Ex. 9, E. Fred Schubert, Light-Emitting Diodes, 81 (2nd ed. 2006). However, earlier in the chapter, the text explains that "[i]n an ideal LED, the injected carriers are confined to the active region by the barrier layers adjoining the active regions." Id. at 75. Again, this illustrates that the issue is one of degree. While electrons and holes may simultaneously exist and they may recombine to emit light, this occurs to a greater degree in the active layer. The active layer may simultaneously contain a thousand times more electrons and holes than an intrinsic semiconductor. For example, the carrier density in intrinsic (undoped) GaAs in a quantum well device is 1015 cm-3 or less (see Sajal Paul et al., Empirical expressions for the alloy composition and temperature dependence of the band gap and intrinsic carrier density in GaxIn1-x As, 69 J. Appl. Phys. 827 (1991); Wallace C.H. Choy et al., AlGaAs-GaAs Quantum-Well Electrooptic Phase Modulator with Disorder Delineated Optical Confinement, 34 IEEE J. Quant. Elec. 84 (1998)), whereas the carrier density in the active region of a quantum well laser under operating conditions is over 1018 cm-3 (see A. Champage et al., The Performance of Double Active Region InGaAsP Lasers, 27 IEEE J. Quant. Elec. 2238 (1991)). Further, Seoul's proposal that "active layer" means "a layer in the device that is capable of emitting light (i.e., emitting photons as electrons and holes recombine) when current is applied" suffers the same practical problem. If electrons and holes exist in the same region, they may recombine and release a photon of light. Moreover, the specification discloses more than light emitting devices, specifically optical modulators and optical switches. Col. 4, 1. 33-36. The parties even agreed that the *1015 term "optoelectronic component" includes more than simply light emitting devices. It would be inappropriate to require the active layer to emit light as not every optoelectronic component that contains inclusions with a smaller bandgap than the surrounding material emits light. Tr. at p. 92, l. 3-13; Tr. at p. 136, l. 7-18; Pl. Resp., Doc. # 53, Ex. 8, U.S. Patent No. 5,187,715. The court will therefore construe the term as follows: "active layer" means "the layer in which both types of carriers (electrons and holes) are simultaneously present in significant numbers compared to an intrinsic semiconductor at room temperature." 4. "layer" Claim 1, 3, and 5. An exemplar use of the term layer is in Claim 1, stating in part, with the disputed term in bold: "A structure having plural layers in semiconductor material...." Seoul argues that "layer" be construed to mean "a layer of material but does not refer to a substrate in a device." Nichia does not think that the term needs to be construed, but if it is, Nichia proposes "a thickness of material" and does not exclude the substrate. Specifically, the parties dispute whether a layer includes the substrate. Seoul argues that the specification contrasts a layer with the substrate and that a person of ordinary skill in the art would understand the two terms to mean different things and would not think that a substrate is a layer. Nichia points to dictionaries for the proposition that a layer can include a substrate and criticizes Seoul's proposed claim construction because it indicates what a layer is not, rather than what it is. The latter argument is unavailing as it may be necessary to construe a claim term to exclude sub-portions of the claim term, as here where the court has been asked to interpret both "layer" and "sub-layer." AFG Industries, Inc. v. Cardinal IG Co., Inc., 239 F.3d 1239, 1250 (Fed.Cir.2001) (defining layer to exclude inter-layers which are too thin to be optically significant). Generally, the specification distinguishes between the substrate and a layer. See e.g. col. 3, l. 61-64 ("semiconductor substrate 1 and a stacking of three or four layers in semiconductor material 2, 3, 4 and 5 placed on a major side of the substrate 1."); Col 4, l. 11-13 ("According to a preferred embodiment, the stacking of layers 2 to 5 constitutes a double heterostructure GaAs/GaAlAs formed on a substrate in silicon Si."). Nichia's technical expert, Dr. Schubert, and Seoul's expert, Dr. Streetman both admit that a substrate must be present to deposit semiconductors. Tr. at p. 106, l. 19 to p. 107, l. 19; Tr. p. 109 at 9-10. However, in certain instances, the substrate should be included as a layer. At times the specification includes the substrate as a layer. In discussing the state of the prior art and dislocation formation in deposited semiconductors, the specification references a silicon substrate and the 4% lattice mismatch between GaAs and Si which results in a large number of dislocations. Col. 1, l. 39-42. The specification continues to explain that "when the crystalline lattice parameter of a layer is lower than that of a second layer, the first layer is subjected to tension and dislocations occur in the layer interface." Col. 1, l. 29-51. The Si substrate is the first layer and the GaAs is the second. Dislocations result from the lattice mismatch. The '742 patent specifically relies upon lattice mismatch and the three-dimensional growth mode to produce the inclusions. If the properties of the substrate are vitally important to the design and operation of the structure, the substrate is a layer. *1016 Further, the substrate could be an electronically active portion of the structure. If it is, it would be logical to include it in the definition of layer. Both GaAs and InP have been used as substrates. Col. 1, l. 64-66. When the substrate functions as an electronically active portion of the structure, such as the n-type or p-type layer, it would be incorrect to exclude it from the definition of a "layer." If the substrate only acts as a mechanical support, it is not a layer. The court will therefore construe "layer" as follows: "layer" means "a thickness of material, which may be made up of sublayers, but does not refer to a substrate in a device unless the substrate is an electronically active portion of the device." 5. "sub-layer" Claim 1. This term is used in Claim 1 of the '742 patent: "one of said layers comprising plural substantially parallel sublayers. . . each of said sub-layers having three-dimensional inclusions. . . ." Seoul argues that "sub-layer" should be construed as "a portion of a layer," while Nichia suggests "a distinguishable portion of a layer constituted of the same material as the layer." Figures 9 and 10 of the specification illustrate sub-layers. Each is distinguishable as a thin layer of InAs that separates the GaAs sub-layers containing InAs inclusions. The sub-layers are made of the same material as the other sublayers and thus the overall layer, except that the inclusions are also part of the sublayer. Thus, to require the entire sublayer to be made of exactly the same material as the layer is inaccurate. Moreover, graded junction materials also exist in the scientific literature. See e.g. C.K. Peng, S. Sinha, and H. Morkoc, Characterization of graded interface InxGa1-x/ In0.52Al0.48As (0.53 62 J. Appl. Phys. 2880 (1987); H.X. Jiang, Band Structure of Superlattice with Graded Interfaces, 61 J. Appl. Phys 624 (1987). The composition of graded materials varies, such that no two horizontal cross sections contain the same composition or bandgap. In support of its position that the sublayer be made of the same material as the layer, Defendant cites Col 4, l. 36-39 of the specification which states: "In particular, the confining layers 3 and 5 may each be constituted by several layers of the same material but with different doping concentrations" for the proposition that each sublayer must be made from the same material. Tr. at p. 120, l. 20-p. 121, l. 13. The specification used the word "may," which does not create a firm requirement. The prosecution history further refutes the requirement that all sub-layers must be made of the same material. During prosecution, the patentee combined Claims 1 and 2 to create current Claim 1. The applicants amended the claims by incorporating the concept of "several substantially parallel planes [of inclusions]" in claim 1 as "plural substantially parallel sub-layers having . . . inclusions." See Pl. Br., Doc. # 53, Ex. 5 (Prosecution File History), Response to First Office Action at 2-3. The patentee and the examiner understood that different materials, namely a plane of inclusions, would be within each sub-layer. Nothing in the specification or prosecution suggests that the patentee acted as his own lexicographer to require the sub-layer to be made of exactly the same material as the rest of the layer. Therefore, the court will construe the term as follows: "sub-layer" means "a distinguishable thickness of material in a layer" *1017 6. "[inclusions] in a semiconductor material." Claim 1. The term appears in Claim 1, stating in part, with the disputed term in bold: "each of said sub-layers having three-dimensional inclusions in a semiconductor material...." Seoul argues that this should be construed to mean that the inclusions are "made of a semiconductor material." Nichia claims that the phrase is indefinite because "in" could mean "made of or "inside," and either definition is consistent with the specification. The court has construed "inclusion" and "three-dimensional inclusion" to mean "island of semiconductor material grown by three-dimensional nucleation buried in a layer of a different semiconductor material that has a larger bandgap." Therefore both limitations suggested by Nichia are present in the phrase. The inclusions must be "made of semiconductor material and the inclusions must be buried or "inside" other semiconductor material. Nichia agreed that given the court's construction of "inclusion," the term is not indefinite. Tr. at p. 140, l. 8-12. Likewise, since the earlier definition of inclusion controls, there is no need to construe this phrase separately. 7. "structure having plural layers in semiconductor material" Claim 1. This term is seen in Claim 1 of the '742 patent, stating in part, with the disputed term in bold: "A structure having plural layers in semiconductor material,...." The parties agreed that in this phrase "in a semiconductor material" means "made of a semiconductor material." They also agreed that "plural" means "two or more." Here, the dispute is whether the "structures" disclosed by the '742 patent must be directed toward a device. Seoul suggests that the term be construed to mean "two or more layers of semiconductor material used in a semiconductor device." Nichia argues that this term need not be construed because the parties agreed to the definition of the term "plural" and the term "[plural layers] in semiconductor material." Figure 1 of the '742 patent discloses a prior art structure that is used as a device. It contains semiconductor layers sandwiched between two thin metal layers (6 and 7) that act as electrodes. Col. 4, l. 43-45. These metal layers are connected to leads. Once the metal electrodes in Figure 1 are connected to a suitable power source, such as a battery, light will be emitted. Similarly, Figure 4 discloses the present invention, including metal electrodes 6a and 7a. See col. 4, l. 48-49. Light emission would also result when this device is connected to a power supply. Moreover, the patent examiner considered this invention to be directed toward a device. In the first Office Action, the examiner described claims 1 through 6 in the original application as "drawn to a semiconductor device." See Rosenthal Decl. Exh. 5 [Office Action, March 11, 1991 at 2]. The examiner placed the invention in Class 357, entitled "Active Solid State Devices, e.g. Transistors, Solid State Diodes," and Class 372, entitled "Coherent Light Generators." See Cover Page at [52]. A simple device might be incorporated as part of another device. Sophisticated devices can be made up of many simpler components, each of which could be a device. For example, an LED is a device, which can also be used as part of a laser, a more complex device. Nichia argues that claim differentiation should apply to limit Claim 3 to specific optoelectronic components while limiting Claim 1 only to the broader definition of "structure." Claim 3 requires the layer containing the inclusions to be the "active layer" and the entire structure to be used as an optoelectronic component. The *1018 specification discloses that the "active layer" contains inclusions and that the invention is directed toward optoelectronic components. The doctrine of claim differentiation is a rebuttable presumption. Regents of University of Cal. v. Dakocytomation Cal., Inc., 517 F.3d 1364, 1375 (Fed.Cir. 2008). "The doctrine of claim differentiation is not a hard and fast rule and will be overcome by a contrary construction dictated by the written description or prosecution history." Id. (internal citations omitted). Here, the specification defines the active layer and the use of the invention. It also discloses that the invention is directed toward a device, a simple device that may also be used in more complex devices. Therefore, the court will construe the term as follows: "structure having plural layers in semiconductor material" means "two or more layers of semiconductor material used in a device." 8. "sub-layers deposited successively during growth of said one layer, each of said sub-layer having . . . inclusions" Claim 1. This term is seen in Claim 1 of the '742 patent, stating in part, with the disputed term in bold: "A structure having plural layers in semiconductor material, one of said layers comprising plural substantially parallel sub-layers deposited successively during growth of said onelayer, each of said sub-layers having three-dimensional inclusions in a semiconductor material. . . ." The specification describes the formation of an active layer by deposition of GaAs and InAs with no post-growth steps. See col. 5, l. 9-17 (describing the deposition of InAs after a deposition of GaAs); col. 5, l. 33-35 ("After each deposition of inclusions in a plane, the epitaxial growth of GaAs is again performed so as to form another active sub-layer"). Further, the preferred embodiment discloses sub-layers deposited one on top of another, right after each other. The specification mentions other heterostructures besides the one discussed in the preferred embodiment. Col. 6, l. 19-21. However, the specification does not describe a deviation from the method employed to create the sub-layers with the inclusions. Col. 6, l. 25-26 ("InAs inclusions can be fabricated here according to the method embodying the invention."). In addition, to overcome prior art references, the patentee indicated that the deposition of inclusions "is realized during semiconductor crystal growth." Pl. Br., Doc. # 53, Ex. 5 (Prosecution File History), Response to First Office Action at 4-5. The prior art references used post-growth steps, such as masking, annealing, and injecting ions, to create quantum boxes which serve the same function as the inclusions. Id. at 4-5. Therefore, the court will construe the term as follows: "sub-layers deposited successively during growth of said one layer, each of said sub-layer having . . . inclusions" means "the layer is formed by growing sub-layers, each of which has inclusions, one at a time, with each sublayer forming on the preceding sublayer." The parties agreed with this definition, subject to their dispute over the definition of "sub-layer," which is discussed above. Tr. at p. 158, l. 20-25; Tr. at p. 161, l. 9-p. 162, l. 2. 9. "each of said sub-layers having three-dimensional inclusions in a semiconductor material and a narrower forbidden band gap than a forbidden band gap of said one layer." Claim 1. This term is found in claim 1 of the '742 patent, stating in part, with the *1019 disputed term in bold: "A structure having plural layers in semiconductor material, one of said layers comprising plural substantially parallel sub-layers deposited successively during growth of said one layer, each of said sub-layers having three-dimensional inclusions in a semiconductor material and a narrower forbidden band gap than a forbidden band gap of said one layer." (the "and" at issue, which was changed from "having" during prosecution, is emphasized). The parties agree that the real dispute revolves around the "and" and whether it is the sub-layers or the three-dimensional inclusions that must possess the narrower forbidden bandgap than the layer. Tr. at p. 166, l. 6-p. 167, l. 22. Construing the word "and," according to its normal meaning, requires that the sublayers have two characteristics: (1) they contain three-dimensional inclusions; and (2) they possess a narrower forbidden bandgap than a bandgap found in the layer. The issue is whether the second requirement is possible, that is, whether a sub-layer can contain a narrower bandgap than a bandgap of a layer. Inclusions, as the specification discloses, possess a smaller bandgap than the surrounding material of the sub-layer and layer. See e.g. Figure 6; col. 4, l. 55-60; col. 5, l. 41-43. One of skill in the art would understand that the second requirement of a sub-layer is met precisely because the sub-layer contains two different types of materials, the material of the inclusions (InAs in the preferred embodiment) and the material surrounding the inclusions (GaAs in the preferred embodiment). When one of skill in the art measures the bandgap of the sub-layer, through techniques such as optical absorption, electroreelection or photoluminescence, the measurement yields both the bandgap of the InAs inclusions and the surrounding GaAs material as well as information about the size and electrical characteristics of the quantum wells or inclusions. See Tr. at p. 180, l. 14-17; see also Claude Weisbuch & Borge Vinter, Quantum Semiconductor Structures: Fundamentals and Applications 58, 71, 73, 75, 76 (1991). Because the sub-layer contains inclusions which have a narrower bandgap, the sub-layer necessarily must also possess a bandgap (the bandgap of the InAs inclusions) which is narrower than another bandgap found in the layer (the bandgap of the GaAs). Moreover, this is the required result even if the court had adopted Seoul's definition that "[inclusions] in a semiconductor material" means "made of a semiconductor material." Under this construction, Seoul argues that the claim requires that the inclusions contain a narrower bandgap, not the sub-layer. Tr. at p. 173, l. 4-9. The claim would then require that the inclusions (1) be made of a semiconductor material; and (2) be made of a narrower forbidden bandgap. In the context of the whole claim, this makes little grammatical or technical sense because it would describe an object that is "made" of a property; in this case, the property of a narrower forbidden bandgap. The patentee never hinted that "and" would have a special definition in this patent. Further, the prosecution history does not require any additional limitations be placed on the phrase at issue. The replacement of "having" with "and" was only a grammatical change and not done to overcome a prior art rejection. The patentee distinguished prior art, namely the Cibert et al. and Iwata references, based on structural differences and required postprocessing steps in the prior art. See Pl. Br., Ex. 5 (Response to First Office Action) at 4-5. The patentee also made a number of other grammatical changes as the examiner requested. See Pl. Br., Ex. 5 (Response to First Office Action) at 1-2 *1020 (illustrating a number of grammatical changes); (Examiner's Action) at 2 ("The disclosure is objected to because of the following informalities: The specification contains nonidiomatic English."). The court will therefore construe the entire phrase as follows: "each of said sub-layers having three-dimensional inclusions in a semiconductor material and a narrower forbidden band gap than a forbidden band gap of said one layer" means "that in addition to having three dimensional inclusions, each sub-layer must contain a forbidden band gap that is less than the band gap of the layer." V. CONCLUSION The jury will be instructed in accordance with the court's interpretation of the disputed claim terms in the '742 patent. NOTES [1] To become familiar with the technology underlying the '742 patent from the perspective of one skilled in the art and to better understand the technical aspects of both parties' arguments, the court appointed Dr. Howard Schmidt as technical advisor. [Doc. # 42]. Dr. Schmidt received his Ph.D. in Physical Chemistry from Rice in 1986. He is a Senior Research Fellow in the Department of Chemical and Biomolecular Engineering and the Smalley Institute of Rice University, and Senior Nanotechnology Advisor to the Advanced Energy Consortium. He joined Rice in 2003 as Executive Director of the Carbon Nanotechnology Laboratory and served in that capacity until February 2008. He is the recipient of the R & D 100 Award (1989) and the NSF Tibbett's Award (1994). His early research involved growth processes of electronic materials, including GaAs and diamond. His current research focuses on nanostructured materials for energy conversion and harvesting. He has 26 peer-reviewed papers and 28 conference presentations. [2] The transcript of the hearing contains a number of representations and agreements of the parties and the answers of their experts to technical questions from the court, all of which will not be repeated here, but which may assist in understanding the issues presented. This Order governs in the event of any conflict between the Order and the court's preliminary analysis at the hearing. The transcript will be cited as Tr. at p. ___, 1. ___. [3] The Mendeleevian classification is commonly referred to as the Periodic Table of the Elements. This patent refers to elements found in Groups III and IV of that table, as well as silicon, a Group IV element.

J-S29012-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY GOMEZ : : Appellant : No. 3412 EDA 2017 Appeal from the Judgment of Sentence June 14, 2017 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006523-2016 BEFORE: PANELLA, J., MURRAY, J., and STEVENS*, P.J.E. MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 14, 2018 Anthony Gomez appeals from the judgment of sentence entered in the Delaware County Court of Common Pleas, following the revocation of his probation. Gomez challenges the discretionary aspects of his sentence. We affirm. The relevant facts and procedural history are as follows. On October 20, 2016, Gomez pleaded guilty to one count each of theft by unlawful taking and criminal trespass.1 The trial court sentenced Gomez to two years’ probation for the theft conviction and 6 to 23 months’ imprisonment for the trespass conviction. ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 3921(a), and 3503(a)(1)(i), respectively. J-S29012-18 Gomez was eventually released from prison. Immediately following his release, he began to send threatening and harassing text and voice messages to E. C., his ex-girlfriend, and J. C., her mother. The messages continued for months, until April 2017, when the victims brought these messages to the police and Gomez was charged with harassment. Gomez pled guilty to summary harassment. Along with allegations of non-compliance with the terms of his probation and parole, Gomez’s conviction triggered a probation and parole violation hearing for his underlying charges. On June 14, 2017, the court held a hearing and concluded that Gomez violated the terms of his probation and his parole. The court revoked Gomez’s probation for his theft conviction and resentenced him to 30 to 60 months’ imprisonment.2 While Gomez filed a post-sentence motion challenging the discretionary aspects of his sentence for theft, he did not file an appeal following the motion’s denial. Gomez filed a timely pro se PCRA petition seeking reinstatement of his appellate rights. The PCRA court appointed counsel, and later reinstated Gomez’s direct appeal rights nunc pro tunc. This timely appeal follows. ____________________________________________ 2 The court also revoked Gomez’s parole for criminal trespass and recommitted him to serve 351 days. Gomez does not challenge the revocation of his parole in this appeal. -2- J-S29012-18 On appeal, Gomez contends that the court abused its discretion in imposing sentence.3 Specifically, Gomez claims his sentence was excessive, harsh, and unreasonable because it “far surpassed what was required to protect the public, the complainants, and the community; went well beyond what was necessary to foster [Gomez’s] rehabilitation; and was grossly disproportionate to the crime.” Appellant’s Brief, at 8. Therefore, Gomez asserts the revocation court committed reversible error. This claim challenges the discretionary aspects of Gomez’s sentence. Initially, we note that our “scope of review in an appeal from a revocation sentencing includes discretionary sentencing challenges.” Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc). “A challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation omitted). ____________________________________________ 3 Gomez attempts to raise additional discretionary aspects of sentencing claims in the argument section of his brief, i.e., that the trial court abused its discretion by failing to consider various mitigating factors and failed to impose an impartial sentence. See Appellant’s Brief, at 14-27. However, because Gomez failed to include these issues in his statement of questions involved, we cannot consider them. See Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.”); Pa.R.A.P. 2116(b) (“An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall include any questions relating to the discretionary aspects of the sentence imposed … in the statement required by paragraph (a).”) -3- J-S29012-18 An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test: [We] conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42. Pa.C.S.A. § 9781(b). Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation marks and some citations omitted). Gomez filed a timely notice of appeal and preserved his claim in a timely post-sentence motion. While Gomez’s brief does not contain a separate Rule 2119(f) statement, the Commonwealth has not objected to this defect. See, e.g., Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super. 2006). Therefore, we will not find waiver on this basis. And, Gomez’s claim that his sentence is unreasonable in light of the situation, and grossly disproportionate to his crimes, raises a substantial question for our review. See Commonwealth v. Vega, 850 A.2d 1277, 1280-1281 (Pa. Super. 2004) (finding claim that sentence is excessive and disproportionate to the crime, particularly in light of facts surrounding appellants’ background, raises a substantial question for review). Therefore, we will address the merits of Gomez’s claim. The imposition of sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. An abuse of discretion is more than an error in judgment— a sentencing court has not abused its discretion unless the record -4- J-S29012-18 discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. Commonwealth v. Simmons, 56 A.3d 1280, 1283-1284 (Pa. Super. 2012) (citation omitted). “Upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.” 42 Pa.C.S.A. § 9771(b). And the revocation court may impose a sentence of total confinement upon revocation if “the defendant has been convicted of another crime[.]” Id., at (c)(1). “[T]he trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence.” Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (citation omitted). In addition, in all cases where the court resentences an offender following revocation of probation … the court shall make as a part of the record, and disclose in open court at the time of sentencing a statement of the reason or reasons for the sentence imposed [and] [f]ailure to comply with these provisions shall be grounds for vacating the sentence or resentence and resentencing the defendant. 42 Pa.C.S. § 9721(b). A trial court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically reference the statute in question, but the record as a whole must reflect the sentencing court’s consideration of the facts of the crime and character of the offender. Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014) (citations and quotation marks omitted). Here, the court placed the following reasons for imposing sentence on the record at the revocation hearing: -5- J-S29012-18 All right. So I’m looking at this report, and I’m using this as a guideline to what I’m finding is the case here. Let’s go to #1, report to probation and parole officer as directed. By the way, I do not look at these allegations separately. I think that when taken together they paint a picture pretty accurately and credibly of a person who is the very opposite of someone who is responding to probation. What they present to me is someone who’s absolutely intent on evading and violating every concept connected to probation. And if you look at each one under a microscope if that was the only violation taken by itself, you might say, well, it doesn’t warrant a substantial punishment. Quite true. But what I’m talking about here is taking all these things together and looking at what they present to the [c]ourt by way of a unified picture of what [Gomez] is when he’s on probation. Report to probation/parole officer as directed. He never did it. He never did it. He had this weird notion in his mind that his case was going to be -- or was transferred to Philadelphia and it never was. Yet he continuously reported to Philadelphia asking -- raising a pretext that he’s actually reporting. So #2, obtaining permission from the probation officer before changing address. [Defense counsel], you say that he was easy to find. It’s not their obligation to find him whether it’s easy []or hard. He has to according to the sentencing sheet provide a verifiable address which he never did. They didn’t know where he was. #3, comply with municipal, county and state laws. Somehow he managed to convince somebody that this horrendous situation that he created with th[ese] women was something that was worthy of a summary offense. I find it incredible that that was the outcome of all this. Refrain from overt behavior which may endanger oneself or others. All this pattern of harassment and whatever else he was described as doing[,] the lowest point is the point at which this young woman was trying to deal with her addiction and he drew her back into addiction by providing her with drugs. That’s a major felony and there’s no doubt in my mind that he actually did that, and he may have done it more than once, and when he couldn’t do it anymore he started on a campaign of harassment, getting her fired. It’s incredible to me that he would confront her at her work before he got her fired. I can understand why she might have been dissatisfied with that approach. -6- J-S29012-18 Complete the special conditions. I don’t believe [Gomez’s witness] is telling the truth about that. He went to Philadelphia still under some kind of pretext that he was being supervised in Philadelphia to get treatment. I haven’t seen anything in the record and it needs to be there if I’m to believe it that he actually did that. It ain’t there. So and then we have this long, long criminal history. Many of these things have to deal with dealings in drugs and other things. The case in Montgomery County where he’s still alive [sic] and he’s under supervision or he’s going to be violated or looked to for violation from the 2012 harassment of these people. So there’s a quality of relentlessness about his behavior in a criminal context from early on. And I don’t think that there’s any prospect of any kind of rehabilitative probation or supervision for him other than a jail sentence. It’ll give the public and people relief from him for as long as the law would provide for. Therefore, I’m sentencing him to 30 to 60 months in a state correctional institution without RRI. N.T., Revocation Hearing, 6/14/17, at 162-165 (paragraph demarcations added). Based upon our independent review of the record, the revocation court’s findings set forth above, and our scope and standard of review, we conclude that the revocation court did not abuse its discretion in sentencing Gomez to 30 to 60 month’s imprisonment following the revocation of his probation. The court clearly considered the facts surrounding Gomez’s violations, as well as the evidence presented as to his character. See Colon, 102 A.3d at 1044. Based upon its consideration of these factors, the court concluded that the public would best be protected by giving Gomez a sentence of 30 to 60 months’ imprisonment. Gomez has failed establish that the court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. -7- J-S29012-18 Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 9/14/18 -8- 

United States Court of Appeals, Eleventh Circuit. No. 95-9552. UNITED STATES of America, Plaintiff-Appellee, v. Brenda KUKU, Defendant-Appellant. Dec. 2, 1997. Appeal from the United States District Court for the Northern District of Georgia. (No. 1:94-CR- 280-4-RCF), Richard C. Freeman, Judge. Before BLACK, Circuit Judge, and HILL and HENDERSON, Senior Circuit Judges. PER CURIAM: Brenda Kuku (Kuku) was convicted of offenses arising from her participation in a conspiracy to unlawfully produce social security cards and sell them to illegal aliens. We address two issues raised by Kuku on appeal: (1) whether the district court erred in permitting a co-defendant witness to invoke the Fifth Amendment privilege after the co-defendant entered a guilty plea but before the co-defendant was sentenced; and (2) whether the district court erred in using U.S.S.G. § 2F1.1 rather than U.S.S.G. § 2L2.1 to calculate Kuku's sentence.1 We hold that the district court properly sustained the witness' invocation of the Fifth Amendment privilege, but that the district court erred 1 Kuku also raised the following issues: (1) whether the district court erred in admitting testimony regarding the prior convictions of Kuku's ex-boyfriend and ex-husband; (2) whether the evidence was sufficient to support Kuku's conviction for encouraging and inducing aliens to reside in the United States; (3) whether the district court erred in assessing a two-point enhancement to Kuku's sentence after determining that Kuku held a position of trust at the Social Security Administration; and (4) whether the district court erred in assessing a four-point aggravating role enhancement to Kuku's sentence. After carefully considering these issues, we affirm the district court. See 11th Cir. R. 36-1. in using § 2F1.1 rather than § 2L2.1 to calculate Kuku's sentence. I. BACKGROUND Kuku worked as a service representative for the Social Security Administration (SSA). Her duties included accepting social security applications, checking the applications for the required documentation, inputting applicant information into the SSA computer system, and processing changes to SSA records. SSA guidelines require that a social security application be accompanied by documentation establishing the applicant's age, citizenship, and lawful admission to the United States. Applicants over age 18 are required to have a personal interview. Kuku used her position at the SSA to engage in a conspiracy in which social security cards were unlawfully produced and sold to illegal immigrants. Pursuant to the conspiracy, a number of individuals with close ties to the Indian and Pakistani communities in the Atlanta area solicited illegal aliens from those communities to purchase social security cards.2 At trial, illegal aliens testified that they purchased the social security cards for various reasons, including to apply for federal benefits, to attend school, and to obtain employment. Kuku's role in the conspiracy was to approve the applications filed on behalf of the solicited illegal aliens, whom she never met. The applications were not accompanied by the required documentation. Social security cards were mailed to the illegal aliens at various in-state addresses, although it appears that some of the illegal aliens lived in other states. The testimony at trial regarding the number of cards produced by the conspiracy conflicted; between 800 and 1,300 cards were produced, and the illegal aliens were charged prices ranging from less than $100 to $800, with most cards being sold for prices between $300 and $500. 2 The co-conspirators who solicited illegal aliens included Shanez Master, Sherali Master, and Minaz Ali Moody, all of whom were named in the indictment.  The three co-conspirators who solicited the illegal aliens each entered into plea agreements with the Government. Kuku went to trial and the jury convicted her of conspiring to defraud the United States, in violation of 18 U.S.C. § 371; encouraging and inducing aliens to reside in the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv); making false statements on applications for social security cards, in violation of 18 U.S.C. § 1001; and producing social security cards without lawful authority, in violation of 18 U.S.C. § 1028(a)(1). The court sentenced Kuku to 60 months' imprisonment and 3 years' supervised release, and imposed a special assessment of $2,200 ($50 for each of the 44 counts on which she was convicted). II. MOODY'S INVOCATION OF THE FIFTH AMENDMENT Kuku asserts the district court erred in permitting Minaz Ali Moody (Moody), one of Kuku's co-conspirators, to invoke his Fifth Amendment privilege when Kuku attempted to call Moody to testify at trial. At the time of Kuku's trial, Moody had entered a guilty plea and agreed to testify as a prosecution witness, but had not yet been sentenced. Kuku's counsel sought to elicit from Moody that Moody did not know Kuku in order to rebut testimony that Kuku was at the heart of the conspiracy. Kuku contends that her Sixth Amendment compulsory process and confrontation rights entitled her to compel Moody to testify. The Government responds that Moody could properly invoke the Fifth Amendment because information elicited from Moody could have adversely affected his sentence. Furthermore, information elicited from Moody during the Government's cross-examination would have incriminated him in another crime involving the distribution of drivers' licenses to illegal aliens in exchange for money. The district court agreed with the Government that Moody's testimony posed a sufficient threat of self-incrimination to trigger the Fifth Amendment privilege. The question of whether a defendant retains the Fifth Amendment privilege after entering a guilty plea but before being sentenced is one of first impression in this Circuit. The other circuits that have considered the issue have all held that a defendant does retain the Fifth Amendment privilege until sentencing. See United States v. De La Cruz, 996 F.2d 1307, 1312-13 (1st Cir.1993) (defendant's right to compulsory process did not override witness' Fifth Amendment privilege, despite witness's guilty plea, where testimony could incriminate witness prior to sentencing or implicate witness in other crimes); United States v. Hernandez, 962 F.2d 1152, 1161 (5th Cir.1992) ("impending sentencing may furnish grounds for a legitimate fear of incurring additional criminal liability from testifying, in which case the privilege should remain in effect"); United States v. Lugg, 892 F.2d 101, 103 (D.C.Cir.1989) ("the convicted but unsentenced defendant retains a legitimate protectable Fifth Amendment interest in not testifying as to incriminating matters that could yet have an impact on his sentence"). We agree and hold that a defendant retains the Fifth Amendment privilege against self-incrimination prior to sentencing, despite having entered a guilty plea, because of the possible impact that compelled testimony may have on the defendant's as yet undetermined sentence. In addition, the prospect of Moody incriminating himself in a separate crime if compelled to testify permits him to invoke the Fifth Amendment privilege. The district court did not err in sustaining Moody's invocation of the Fifth Amendment privilege. III. THE DISTRICT COURT'S SENTENCING CALCULATION Kuku contends that the district court erred in calculating her offense level based on U.S.S.G. § 2F1.1,3 rather than on U.S.S.G. § 2L2.1,4 which specifically applies to offenses involving counterfeit identification documents. We review the district court's factual findings for clear error and the district court's application of law de novo. United States v. Kirkland, 985 F.2d 535, 537 (11th Cir.1993). A. The District Court's Use of U.S.S.G. § 2F1.1 In calculating Kuku's sentence, the district court determined the applicable sentencing guideline section for each offense of conviction by referring to the Statutory Index to the United States Sentencing Guidelines (Appendix A). U.S.S.G. § 1B1.1(a). The Statutory Index matches each federal criminal statute to a corresponding list of sentencing guidelines. Where multiple counts of conviction have been adjudged, the calculation process is repeated for each count. U.S.S.G. § 1B1.1(d). The district court grouped Kuku's offenses because they involved substantially the same harm, U.S.S.G. § 3D1.2, and used a single guideline to calculate the sentence. U.S.S.G. § 3D1.3(a). Pursuant to § 3D1.3(a), the district court selected this single guideline by determining which of the offenses in the group produces the "highest offense level of the counts in the Group." The district court determined that 18 U.S.C. § 1001 produced the highest offense level because Appendix A directs that violations of 18 U.S.C. § 1001 be sentenced based on § 2F1.1, which produced an offense level that was higher than the offense level produced by the guidelines for the other counts.5 3 U.S.S.G. § 2F1.1 is entitled "Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States." This guideline is applicable "to a wide variety of fraud cases." United States v. Orton, 73 F.3d 331, 333 (11th Cir.1996). 4 U.S.S.G. § 2L2.1 is entitled "Trafficking in a Document Relating to Naturalization, Citizenship, or Legal Resident Status, or a United States Passport; False Statement in Respect to the Citizenship or Immigration Status of Another; Fraudulent Marriage to Assist Alien to Evade Immigration Law." 5 Our review is limited to the two guideline sections argued before the district court. In reaching this determination, the district court overruled Kuku's objection and did not examine her underlying offense conduct to determine whether § 2F1.1 actually envisioned Kuku's offense conduct. B. Offense Conduct Underlying the Conviction There are two places in the sentencing guidelines that permit the district court to examine the underlying offense conduct to determine whether the case is atypical, thereby warranting application of another guideline: (1) the introductory note to Appendix A; and (2) Comment 13 to § 2F1.1.6 The introductory language of Appendix A explains: "If, in an atypical case, the guideline section indicated for the statute of conviction is inappropriate because of the particular conduct involved, use the guideline section most applicable to the nature of the offense conduct charged in the count of which the defendant was convicted. (See § 1B1.2.)." Section 1B1.2(a) of the Guidelines directs the court to determine the applicable guideline based on "the offense of conviction (i.e., the offense conduct charged....)." U.S.S.G. § 1B1.2(a).7 This general focus on the offense conduct of the defendant is buttressed when applying § 2F1.1 by Comment 13, which states: Sometimes, offenses involving fraudulent statements are prosecuted under 18 U.S.C. § 1001, or a similarly general statute, although the offense is also covered by a more specific statute.... Where the indictment or information setting forth the count of conviction ... establishes an offense more aptly covered by another guideline, apply that guideline rather 6 The commentary is entitled to "controlling weight unless it is plainly erroneous or inconsistent" with the guideline itself. See Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 1919, 123 L.Ed.2d 598 (1993). 7 Under this Circuit's precedent, a district court should look at the specific offense conduct underlying the conviction to ensure that the listed guideline is actually appropriate in each case. United States v. Shriver, 967 F.2d 572, 574 (11th Cir.1992) (citing United States v. Day, 943 F.2d 1306, 1307 (11th Cir.1991)).  than § 2F1.1. U.S.S.G. § 2F1.1, comment. (n. 13); see also United States v. Castaneda-Gallardo, 951 F.2d 1451, 1452 (5th Cir.1992) ("Comment 13 to § 2F1.1 explicitly grants the district court the discretion to look for the most applicable guideline when the Statutory Index refers the court to § 2F1.1."). Thus, the final question before applying § 2F1.1 is whether another guideline section more aptly covers the offense conduct on which the conviction was based.8 Accordingly, it must be determined whether Kuku's offense conduct that violated 18 U.S.C. § 1001 is "more aptly" sentenced by a guideline other than § 2F1.1.9 8 See United States v. Carrillo-Hernandez, 963 F.2d 1316, 1317-18 (9th Cir.1992) (determining which guideline was "most analogous" to the offense conduct underlying an 18 U.S.C. § 1001 conviction); United States v. Obiuwevbi, 962 F.2d 1236, 1242 (7th Cir.1992) (following Comment 13's instruction to determine which guideline more aptly covered the offense conduct underlying an 18 U.S.C. § 1001 conviction). The Seventh Circuit has examined Comment 13 to § 2F1.1 in United States v. Rubin, 999 F.2d 194 (7th Cir.1993). In Rubin, the defendant was convicted of criminal antitrust conspiracy for price fixing, and mail fraud for concealing the conspiracy. The offense level for the antitrust count was determined based on U.S.S.G. § 2R1.1 ("Antitrust Offenses"), and the offense level for the mail fraud count was determined by § 2F1.1. Because § 2F1.1 produced the more serious offense level, the district court used § 2F1.1 to calculate the sentence for the grouped counts. The Seventh Circuit reversed the district court's use of § 2F1.1 based on Comment 13, stating: [T]he defendants' mail fraud was directly related to the price-fixing scheme and was not a separate course of conduct.... The nature of the conduct charged in counts two and three dealt with price-fixing rather than with mail fraud. Therefore, Application Note 13 requires that the defendants be sentenced under the Antitrust Offense Guideline, section 2R1.1, and not under the Fraud or Deceit Guideline, section 2F1.1, even though the Statutory Index lists section 2F1.1 as the ordinarily applicable Guideline for offenses under [the mail fraud statute]. Id. at 199. 9 The Government points to United States v. Jackson, 117 F.3d 533 (11th Cir.1997), for the proposition that the defendant's offense conduct is not the appropriate focus in selecting a guideline. In Jackson, a police officer was convicted of theft but was sentenced using § 2H1.1, the guideline governing civil rights violations, rather than § 2B1.1, the guideline for theft offenses. This Circuit held that the district court erred because the jury conviction was for theft and the indictment "did not charge a civil rights violation or give any indication that a civil C. Kuku's Specific Offense Conduct is More Aptly Characterized by § 2L2.1 Kuku's offense conduct is more appropriately sentenced under § 2L2.1 than under § 2F1.1 for three reasons: (1) the descriptive language of § 2L2.1 more specifically characterizes Kuku's offense conduct than does § 2F1.1; (2) Comment 11 to § 2F1.1 suggests that Kuku's offense conduct is more aptly covered by § 2L2.1; and (3) the loss-based method of sentence enhancement used by § 2F1.1 does not suit the nature of Kuku's offense conduct. First, the language of § 2L2.1 better describes Kuku's offense conduct. Each social security card produced by Kuku qualifies as "a Document Relating to Naturalization, Citizenship, or Legal Resident Status" under § 2L2.1. Section 2L2.1 has in fact been applied in cases involving counterfeit social security cards. See United States v. Marquez, 48 F.3d 243, 245 (7th Cir.1995) (referring to counterfeit alien registration cards and counterfeit social security cards as "counterfeit identification documents"); see also United States v. Coello, 899 F.Supp. 1240, 1243 (S.D.N.Y.1995) (defining "identification document" as any document which, when completed, is intended or commonly accepted to identify individuals). Accordingly, the conduct described in § 2L2.1 more aptly characterizes Kuku's offense conduct than the general language of § 2F1.1.10 Second, § 2F1.1 provides further assistance regarding the sentencing of offenses involving rights violation was implicated." Id. at 536, 538. Kuku's indictment is distinguishable because the essence of her indictment was that she engaged in a conspiracy to traffic in unlawfully produced social security cards. 10 The Ninth Circuit dealt with a factually similar decision between applying § 2F1.1 or § 2L2.1 in United States v. Velez, 113 F.3d 1035 (9th Cir.1997). In Velez, the defendant was convicted of filing false applications and false statements with the INS. The district court used § 2F1.1 to calculate the defendant's sentence. The Ninth Circuit looked to Comment 13 and reversed the district court, concluding that "the Index is only an "interpretive aid' and that courts should apply the "most applicable guideline.' " Id. at 1037. The Ninth Circuit explained that the district court should have applied § 2L2.1 because it more specifically addressed the defendant's offense conduct: "By its very title § 2L2.1 concerns false statements relating to naturalization and immigration." Id. at 1038. counterfeit identification documents or access devices. In determining whether to sentence violations of 18 U.S.C. §§ 1028 and 1029 pursuant to § 2F1.1 or § 2L2.1, Comment 11 explains that § 2L2.1 more accurately describes offense conduct similar to Kuku's: Offenses involving fraudulent identification documents and access devices, in violation of 18 U.S.C. §§ 1028 and 1029, are also covered by this guideline. Where the primary purpose of the offense involved the unlawful production, transfer, possession, or use of identification documents for the purpose of violating, or assisting another to violate, the laws relating to naturalization, citizenship, or legal resident status, apply § 2L2.1 or § 2L2.2, as appropriate, rather than § 2F1.1. U.S.S.G. § 2F1.1, comment. (n. 11). Although Comment 11 does not expressly address 18 U.S.C. § 1001, its analysis of the offense conduct is equally applicable. The primary purpose of Kuku's offense appears to have been assisting illegal aliens in violating the laws relating to naturalization, citizenship, and legal resident status, as contemplated by Comment 11. Indeed, the fact that Comment 11 describes Kuku's conduct but lists 18 U.S.C. §§ 1028 and 1029 rather than 18 U.S.C. § 1001 as the statute under which such conduct would be prosecuted suggests that the guidelines do not contemplate that Kuku's conduct would be prosecuted as a violation of 18 U.S.C. § 1001. Given this framework, it is difficult to imagine that Kuku's conduct is most aptly characterized as an 18 U.S.C. § 1001 offense resulting in a § 2F1.1 sentence.11 A strict focus on the technicalities of the sentencing process obscures the overarching directive to match the guideline to the offense conduct 11 The Government argues that Comment 11 of § 2F1.1 is literally inapplicable because the primary purpose of Kuku's production of the social security cards was to earn money, not to assist "another to violate, the laws relating to naturalization, citizenship, or legal resident status." U.S.S.G. § 2F1.1, comment. (n. 11). This argument proves too much. The Government's interpretation of Comment 11 would make § 2L2.1 applicable only where the offense conduct is engaged in for non-monetary reasons. The structure of § 2L2.1 belies this contention. Section 2L2.1(b)(1) explicitly assumes that the offense conduct was engaged in for profit, and then provides for a three-level reduction "[i]f the defendant committed the offense other than for profit." See also United States v. Torres, 81 F.3d 900, 902 (9th Cir.1996) (considering the issue of profit versus personal motive only to determine whether three-level reduction was applicable). Furthermore, we are only consulting Comment 11 for guidance in applying Comment 13. which formed the basis of the underlying conviction. Third, the method of sentence enhancement used by § 2F1.1 demonstrates the difficulty of applying that section to Kuku's offense conduct. The enhancement structure in § 2F1.1 is based in part on the amount of loss suffered by the victim as a result of the defendant's fraud. U.S.S.G. § 2F1.1(b)(1). The awkwardness in the present case arises because the loss suffered by the government from Kuku's conduct cannot be quantified. Comment 8 to § 2F1.1 suggests that the defendant's gain is an alternative estimate of loss, but states that this method "will ordinarily underestimate the loss." U.S.S.G. § 2F1.1, comment. (n. 8). It is not clear whether this alternative estimate of loss applies where the defendant's gain bears no relation to the loss suffered by the victim (the government).12 This difficulty in determining loss demonstrates the problem with applying § 2F1.1 to the present facts. See Velez, 113 F.3d at 1038 (noting this difficulty). Section 2L2.1 is more appropriate in this context because subsection (b)(2) increases the offense level based on the number of documents fraudulently produced, rather than on the amount of loss to the victim.13 12 Compare United States v. Chatterji, 46 F.3d 1336, 1342 (4th Cir.1995) (holding that gain may not serve as a substitute for loss where there is no actual loss), United States v. Andersen, 45 F.3d 217, 221 (7th Cir.1995) (not substituting gain for loss when sentencing defendant who sold cattle drugs without FDA approval because "there is no persuasive evidence of monetary loss"), and United States v. Haddock, 12 F.3d 950, 960-61 (10th Cir.1993) ("If gain to the defendant does not correspond to any actual, intended, or probable loss, the defendant's gain is not a reasonable estimate of loss.") with United States v. Adam, 70 F.3d 776, 781-82 (4th Cir.1995) (using gain as a substitute for loss in determining the sentence for a scheme in which physicians received kickbacks for referrals paid out of welfare funds, emphasizing the special Congressional findings regarding welfare fraud) and United States v. Cambra, 933 F.2d 752, 756 (9th Cir.1991) (using the defendant's gain to calculate § 2F1.1(b)(1) enhancement in case of fraud on the FDA involving the sale of counterfeit steroids). 13 Kuku uses the awkwardness in determining loss to argue that § 2F1.1 should be used to calculate her sentence without any enhancement for loss, which would produce a lower offense level than is produced under § 2L2.1. Because we hold that § 2L2.1 is the appropriate guideline, we do not reach the merits of Kuku's argument; we merely note that Kuku's ability to make this argument demonstrates the awkwardness of applying § 2F1.1 to Kuku's offense conduct.  IV. CONCLUSION The district court did not err in sustaining Moody's invocation of the Fifth Amendment privilege. The district court did, however, err in applying U.S.S.G. § 2F1.1 to calculate Kuku's sentence because § 2L2.1 more aptly characterizes Kuku's offense conduct. AFFIRMED in part, VACATED in part, and REMANDED for resentencing. 

IN THE COURT OF APPEALS OF IOWA No. 4-028 / 13-0566 Filed February 19, 2014 IN RE THE MARRIAGE OF ALICIA R. WILLIAMS AND JUSTIN WILLIAMS Upon the Petition of ALICIA R. WILLIAMS, Petitioner-Appellant/Cross-Appellee, And Concerning JUSTIN WILLIAMS, Respondent-Appellee/Cross-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge. A wife appeals and a husband cross-appeals the decree dissolving their marriage raising issues of child custody and property distribution. AFFIRMED. Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West Des Moines, for appellant/cross-appellee. Susan L. Ekstrom of Elverson, Vasey & Peterson, Des Moines, for appellee/cross-appellant. Considered by Vogel, P.J., and Tabor and McDonald, JJ.  2 VOGEL, P.J. Alicia Williams appeals, and Justin Williams cross-appeals, the decree dissolving their marriage. Alicia claims the district court should have given her physical care of the parties’ children and should have stricken or disregarded the custody evaluator’s report. Justin, on cross-appeal, claims the district court should have awarded him one-half of Alicia’s 401(k) account. He also seeks appellate attorney fees in this matter. After our de novo review, we affirm the physical care and property distribution provisions of the district court’s decree. We conclude the children’s best interests justify placing them in Justin’s physical care, and the short-term nature of this marriage along with the rest of the property distribution makes it equitable for Alicia to keep sole possession of her 401(k). I. BACKGROUND FACTS AND PROCEEDINGS. Alicia and Justin were married in December 2009, after finding out they were expecting their first child. Their first son was born in May 2010. After their relationship turned rocky, Alicia filed to dissolve the marriage in March of 2012. A few days after filing, the parties got in a heated altercation, and Alicia called the police. Justin was arrested and charged with domestic abuse and harassment. Justin ultimately entered an Alford plea to harassment, and the domestic abuse charge was dropped. The court entered a no-contact order at sentencing. Alicia also filed for relief from domestic abuse under Iowa Code chapter 236 (2011). After a hearing the court concluded Alicia had not proven that Justin engaged in domestic abuse. Thus, the court dismissed the case.  3 At the temporary hearing in the dissolution action the court granted the parties joint legal custody of their child and placed physical care with Alicia subject to Justin’s visitation. The court set the child support obligation and awarded Alicia possession of the martial home, ordering Justin to contribute toward the mortgage payment. The court also appointed a custody evaluator, Mary Hilliard, at Justin’s request. During the pendency of the dissolution proceeding, approximately three weeks before trial, Alicia delivered the parties’ second son. Following a three day trial, the court issued its dissolution decree in March 2013. The court noted there were allegations of domestic abuse made against both parties. The court however found that neither party presented a physical threat to the other at the present time, but rather, each had used these accusations to attempt to bolster their own position in the dissolution action. Both parties had refused to allow the other party to see the oldest child for several weeks during the dissolution proceeding, and both behaved in a manner unproductive to co-parenting. Following the advice of the custody evaluator, the court determined the parties should have joint legal custody, granted Justin physical care, and provided Alicia a liberal amount of visitation, which amounted to fifty percent of the overnights.1 The court required the parties to engage the 1 Alicia was granted alternating weekly visitation with Week A’s schedule being: Sunday at 6 p.m. until Tuesday at 6 p.m. and Friday at 6 p.m. until Sunday at 6 p.m., and Week B’s schedule being: Tuesday at 6 p.m. until Friday at 6 p.m. This schedule results in each parent receiving seven overnights with the children every two weeks. While the parents here had roughly equal time with the children, the court specifically awarded physical care of the children to Justin. Our focus to determine the nature of the physical care arrangement is on the language used by the court and not the number of overnights each parent receives. See In re Seay, 746 N.W.2d 833, 835 (Iowa 2008) (determining the off-set method of calculating child support should be  4 services of a parenting coordinator for the next twelve months and ordered Alicia to pay child support in accordance with the support guidelines. The court concluded the marital home had no equity and awarded it along with its debt to Alicia. The court ordered Alicia to pay Justin $5000 for his interest in a car she sold during the dissolution proceedings, and it ordered Alicia to pay Justin $2000 for his portion of the 2011 tax refund she received after taking all of the applicable deductions. These payments were to be made in $200 per month installments over the next thirty-five months. Finally, the court awarded each party their own retirement accounts and bank accounts, while assigning each their separate credit card debts, all based on the short-term nature of the marriage. Both parties appeal. II. SCOPE AND STANDARD OF REVIEW. We review dissolution of marriage cases de novo as they are heard in equity. In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013). We examine the entire record and adjudicate anew the issues before us, though we give weight to the findings of the district court, especially its determinations of credibility. Id. We will disturb a property distribution award only where there has been a failure to do equity. Id. Our only concern in determining child custody applied in a case where the district court awarded shared care but the parenting time was not equal); but see In re Marriage of Fox, 559 N.W.2d 26, 29 (Iowa 1997) (refusing to apply the off-set support calculation where the record showed the child spent one- third of her time with the father but the parties stipulated to shared physical care because the court concluded the time the father spent with the child did not exceed that typically enjoyed in a liberal visitation situation); see also In re Marriage of Hynick, 727 N.W.2d 575, 579-80 (Iowa 2007) (noting the difference between shared care and physical care with visitation and noting visitation varies widely and “can even approach an amount almost equal to the time spent with the caretaker parent” (emphasis added)).  5 and care is the best interest of the children. In re Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007). III. PHYSICAL CARE. Alicia claims on appeal that she was the children’s primary caretaker, particularly of Michael who was three weeks old at the time of trial, and as such, she should be awarded physical care of both children. She admits that Justin was a good father but claims there was substantial evidence that he controlled, intimidated, and physically abused her, and placing the children in his physical care is not in the children’s long-term best interests. Our objective when deciding which parent should have physical care is to place the children “in the environment most likely to bring them to health, both physically and mentally, and to social maturity.” In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). We consider the nonexclusive lists of factors found in Iowa Code section 598.41(3)2 along with other factors found in In re 2 These factors include: a. Whether each parent would be a suitable custodian for the child. b. Whether the psychological and emotional needs and development of the child will suffer due to lack of active contact with and attention from both parents. c. Whether the parents can communicate with each other regarding the child’s needs. d. Whether both parents have actively cared for the child before and since the separation. e. Whether each parent can support the other parent’s relationship with the child. f. Whether the custody arrangement is in accord with the child’s wishes or whether the child has strong opposition, taking into consideration the child’s age and maturity. g. Whether one or both the parents agree or are opposed to joint custody. h. The geographic proximity of the parents. i. Whether the safety of the child, other children, or the other parent will be jeopardized by the awarding of joint custody or by unsupervised or unrestricted visitation.  6 Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974).3 Stability and continuity are important factors to be considered because “the successful caregiving by one spouse in the past is a strong predictor that future care of the children will be of the same quality.” Hansen, 733 N.W.2d at 696–97. In this case the court, after hearing the allegations of abuse posed by both parties, was convinced neither party presented a physical threat to the other. We j. Whether a history of domestic abuse, as defined in section 236.2, exists. In determining whether a history of domestic abuse exists, the court’s consideration shall include but is not limited to commencement of an action pursuant to section 236.3, the issuance of a protective order against the parent or the issuance of a court order or consent agreement pursuant to section 236.5, the issuance of an emergency order pursuant to section 236.6, the holding of a parent in contempt pursuant to section 664A.7, the response of a peace officer to the scene of alleged domestic abuse or the arrest of a parent following response to a report of alleged domestic abuse, or a conviction for domestic abuse assault pursuant to section 708.2A. k. Whether a parent has allowed a person custody or control of, or unsupervised access to a child after knowing the person is required to register or is on the sex offender registry as a sex offender under chapter 692A. Iowa Code § 598.41(3). 3 These factors include: 1. The characteristics of each child, including age, maturity, mental and physical health. 2. The emotional, social, moral, material, and educational needs of the child. 3. The characteristics of each parent, including age, character, stability, mental and physical health. 4. The capacity and interest of each parent to provide for the emotional, social, moral, material, and educational needs of the child. 5. The interpersonal relationship between the child and each parent. 6. The interpersonal relationship between the child and its siblings. 7. The effect on the child of continuing or disrupting an existing custodial status. 8. The nature of each proposed environment, including its stability and wholesomeness. 9. The preference of the child, if the child is of sufficient age and maturity. 10. The report and recommendation of the attorney for the child or other independent investigator. 11. Available alternatives. 12. Any other relevant matter the evidence in a particular case may disclose. Winter, 223 N.W.2d at 166–67.  7 agree. Both Justin and Alicia have historically provided care for the oldest child; the age of the youngest at the time of the dissolution trial prevents an assessment of the historical primary caregiver. The court considered, and ultimately agreed with, the custody evaluator. Alicia asserts it was improper for the court to accept and rely on this evaluation report because Hilliard ignored several key facts that undermine her conclusion and unfairly favored Justin. Specifically, Alicia believes the report should have been rejected because Hilliard viewed a video taken by Justin of one of the visitation exchanges, and this video was not provided to Alicia during discovery, though it was specifically requested. Alicia objected to questions posed to Hilliard about the video, which the court sustained. However, the court refused to reject the whole report, instead stating it would take the lack of production of the video into account as it evaluated and weighed the report. We have reviewed Hilliard’s report and find that there was no mention of the video Alicia complains of. While Hilliard at trial admitted to seeing the video, it was not listed in the report as an item Hilliard reviewed, and it does not appear to have helped form the basis of any of her opinions. It is within the court’s discretion to admit or exclude a custody evaluator’s report from the record. In re Marriage of Kunkel, 555 N.W.2d 250, 254 (Iowa 1996). The custody evaluator’s recommendation is not binding on the district court or on appeal. Based on our de novo review of the record, we agree with the district court’s decision placing the physical care of the children with Justin. The court noted it would have preferred to award shared physical care but could not because of the parties’ inability to work together, their failure to foster the  8 children’s relationship with the other parent, and the no-contact order that remained in effect. The court found Justin was better able to be fair in overseeing and consulting with Alicia on parenting issues, justifying placing physical care, and the decision making power that entails, with Justin. Alicia’s visitation schedule is set at fifty-percent of the time, which is indicative of the confidence the district court had in her ability to appropriately care for the children. We affirm the district court’s decision on physical care. IV. RETIREMENT ACCOUNT. In his cross-appeal, Justin claims the district court should have awarded him fifty percent of Alicia’s 401(k). Justin asserts this is equitable in light of the fact that Alicia was awarded the marital home without having to pay him any equity. Our focus in dividing martial property is to do so equitably after considering the factors in Iowa Code section 598.21(5).4 McDermott, 827 4 These factors include: a. The length of the marriage. b. The property brought to the marriage by each party. c. The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services. d. The age and physical and emotional health of the parties. e. The contribution by one party to the education, training, or increased earning power of the other. f. The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage. g. The desirability of awarding the family home or the right to live in the family home for a reasonable period to the party having custody of the children, or if the parties have joint legal custody, to the party having physical care of the children.  9 N.W.2d at 678. In this case the court refused to divide the retirement plans of the parties in light of the short-term nature of the marriage. We agree this was equitable in this case. Alicia had started funding her 401(k) with her employer before the marriage. The marriage lasted less than three years. Both parties are employed with good incomes, which should allow them each the financial resources to save for retirement. Justin’s argument that the 401(k) needs to be divided because Alicia was awarded the marital home holds little weight as the district court found the home had no equity, as the assessed value was lower than the amount secured by the mortgage. We affirm the district court’s property distribution award. V. APPELLATE ATTORNEY FEES. Finally, Justin claims he is entitled to appellate attorney fees. Appellate attorney fees are not a matter of right, but rather rest in this court’s discretion. Factors to be considered in determining whether to award attorney fees include: “the needs of the party seeking the award, the ability of the other party to pay, and the relative merits of the appeal.” h. The amount and duration of an order granting support payments to either party pursuant to section 598.21A and whether the property division should be in lieu of such payments. i. Other economic circumstances of each party, including pension benefits, vested or unvested. Future interests may be considered, but expectancies or interests arising from inherited or gifted property created under a will or other instrument under which the trustee, trustor, trust protector, or owner has the power to remove the party in question as a beneficiary, shall not be considered. j. The tax consequences to each party. k. Any written agreement made by the parties concerning property distribution. l. The provisions of an antenuptial agreement. m. Other factors the court may determine to be relevant in an individual case.  10 In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006) (citation omitted). In light of the fact that both parties have the ability to pay their own attorney fees and the fact Justin’s cross-appeal was not granted, we decline to award appellate attorney fees to Justin. Costs on appeal are assessed to Alicia. AFFIRMED. 

[Cite as State v. O'Keefe, 2019-Ohio-841.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO STATE OF OHIO, : OPINION Plaintiff-Appellee, : CASE NO. 2018-L-088 - vs - : JOSHUA T. O’KEEFE, : Defendant-Appellant. : Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2017 CR 000810. Judgment: Affirmed. Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant Prosecutor, Lake County Administration Building, 105, Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee). Hector G. Martinez, and Leslie S. Johns, The Martinez Firm, 4230 State Route 306, Suite 240, Willoughby, OH 44094 (For Defendant-Appellant). MARY JANE TRAPP, J. {¶1} Joshua T. O’Keefe appeals the nine-year sentence imposed by the Lake County Court of Common Pleas. At issue is whether the sentence for aggravated vehicular homicide is disproportionate and inconsistent with other similar cases and whether the trial court erred in imposing the 180-day maximum term of imprisonment for operating a vehicle under the influence of alcohol (“OVI”). After a careful review of the record and pertinent law, we find Mr. O’Keefe’s assignments of error without merit and affirm the trial court’s judgment. Substantive History and Procedural Background {¶2} Mr. O’Keefe’s convictions stem from the devastating consequences of driving under the influence of alcohol. Mr. O’Keefe and his friend, Taylor Castilyn, had been drinking at a local bar despite the fact that Ms. Castilyn was underage. When they left the bar in Mr. O’Keefe’s father’s car, Mr. O’Keefe was driving under suspension and over the legal blood alcohol limit, so when he failed to yield at a stop sign and was being pursued by the police, he made the decision to flee. In an attempt to elude the officer, Mr. O’Keefe turned into an unlighted private driveway, turned off the lights to the vehicle, but continued driving at a high rate of speed. His car left the driveway, crashed through one section of fence, turned, and crashed through another section of fence. A cross bar from the fence smashed through the passenger side window into Ms. Castilyn’s face and head, causing catastrophic injuries to her face, skull and brain. She later succumbed to those injuries at the hospital. {¶3} Mr. O’Keefe voluntarily entered a written plea of “guilty” to the charge of aggravated vehicular homicide, a second degree felony in violation of R.C. 2903.01(A)(1)(a); failure to comply with an order or signal of a police officer, a third degree felony in violation of R.C. 2921.331(B); and operating a vehicle under the influence of alcohol, a drug of abuse, or a combination of them (“OVI”), a first degree misdemeanor in violation of R.C. 4511.19(A)(1)(a). {¶4} The court accepted Mr. O’Keefe’s guilty plea, finding that he waived his right to have the case presented to the grand jury and agreed to proceed by way of information. The court then deferred the sentencing hearing until May 21, 2018. A pre-sentence 2 investigation and report, a victim impact statement, and a drug and alcohol evaluation were ordered. {¶5} At the sentencing hearing, four members from Mr. O’Keefe’s family and the community gave oral statements and Mr. O’Keefe’s counsel presented an extensive sentencing memorandum together with 91 letters of support. In turn, the state presented victim impact statements, both written and oral, including four members of Ms. Castilyn’s family describing the loss of her love and their recommendation for a maximum prison term. The state advocated the maximum term of 11 and a half years. {¶6} In imposing its sentence, the court stated that in addition to the record, oral statements, the victim impact statements, the pre-sentence reports, and the drug and alcohol evaluation, it considered the purposes and principles of felony sentencing as set forth in R.C. 2929.11, as well as those of misdemeanor sentencing as set forth in R.C. 2929.21, including those related to the seriousness of the crime and the likelihood that Mr. O’Keefe will commit crimes in the future. {¶7} The court found the crimes to be more serious than normal because the victim suffered “very serious, severe, physical harm” and “suffering” that resulted in the loss of Ms. Castilyn’s life. The court also considered the suffering of her family. The court then determined that Mr. O’Keefe’s relationship with his victim facilitated the commission of the crime. {¶8} In reviewing factors making recidivism more likely, the court noted that Mr. O’Keefe had been driving intoxicated that night while under suspension, and moreover, his conviction record included eight misdemeanor traffic offenses within four years, which was indicative of “disrespect and disregard of law.” The court also reviewed factors that would indicate recidivism less likely: Mr. O’Keefe voluntarily entered a guilty plea by way 3 of information, accepted responsibility, and showed genuine remorse for the criminal conduct and the consequences of his conduct. In addition, the trial court considered that Mr. O’Keefe has no prior delinquency other than the traffic offenses and no history of criminal convictions. {¶9} Finally, the trial court observed there were mistakes and lapses in judgment, but also “a conscious effort,” noting “[i]t wasn’t a mistake to attempt to flee and elude the police.” While the trial court accepted the fact that Mr. O’Keefe was not likely to reoffend, it noted the court also has the responsibility to deter others from future crimes. {¶10} Ultimately, the trial court sentenced Mr. O’Keefe to a mandatory, definite term of 7 years with respect to the aggravated vehicular homicide, a definite term of 18 months with respect to fleeing from an order or signal of a police officer, and 6 months with respect to the OVI, all to run consecutively to one another, for a total term of imprisonment of 9 years due to the serious nature of Mr. O’Keefe’s conduct. {¶11} Mr. O’Keefe timely appealed, and now brings the following assignments of error: {¶12} “[1.] The trial court erred when it sentenced Appellant in a manner inconsistent and disproportionate with other, similar Ohio Cases. {¶13} “[2.] The trial court erred when it sentenced Appellant to a maximum jail term of 180 days for one (1) count of Operating a Vehicle Under the Influence of Alcohol.” Felony Sentencing {¶14} In his first assignment of error, Mr. O’Keefe contends the trial court erred when it sentenced Mr. O’Keefe to a nine-year term of imprisonment in that the sentence is inconsistent and disproportionate to similar crimes. Standard of Review 4  {¶15} “The Supreme Court of Ohio in State v. Marcum, 146 Ohio St.3d 516, 2016- Ohio-1002, held that appellate courts must apply the standard of review set forth in R.C. 2953.08(G)(2) when reviewing felony sentences.” State v. Talley, 11th Dist. Lake Nos. 2017-L-143 & 2017-L-144, 2018-Ohio-5065, ¶45, quoting Marcum at ¶1. “Thus, applying the plain language of that statute, the Supreme Court held that ‘an appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial court’s findings under relevant statutes or that the sentence is otherwise contrary to law.’” Id. “The clear and convincing standard in R.C. 2953.08(G)(2) is highly deferential.” Id., quoting State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶21. {¶16} Moreover, the Supreme Court of Ohio in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, held that R.C. 2929.11 and R.C. 2929.12 do not “mandate judicial fact- finding; rather in exercising its discretion, a court is merely required to ‘consider’ the purposes of sentencing in R.C. 2929.11 and the statutory guidelines and factors set forth in R.C. 2929.12.” State v. Lloyd, 11th Dist. Lake No. 2006-L-185, 2007-Ohio-3013, ¶44, citing Foster at ¶36-42. {¶17} Further, “sentencing consistency is not derived from the trial court’s comparison of the current case to prior sentences for similar offenders and similar offenses.” Id. at ¶51, citing State v. Spellman, 160 Ohio App.3d 718, 2005-Ohio-2065, ¶12 (11th Dist.). “Instead, ‘it is the trial court’s proper application of the statutory sentencing guidelines that ensures consistency.’” Id., quoting State v. Swiderski, 11th Dist. Lake No. 2004-L-112, 2005-Ohio-6705, ¶58. “Thus, in order to show a sentence is inconsistent, a defendant must show the trial court failed to properly consider the statutory guidelines and factors.” Id. 5  Consistency and Proportionality in Sentencing {¶18} Mr. O’Keefe contends that his nine-year term of imprisonment is inconsistent and disproportionate with similar, other crimes because the trial court failed to properly consider the “more serious” and “less serious” factors found in R.C. 2929.12(B) and (C). {¶19} A review of the sentencing hearing transcript and the trial court’s judgment entry reveals this argument is without merit. As noted above, the trial court expressly addressed the factors that indicated recidivism more and less likely as well as the seriousness of the crime. This includes those factors Mr. O’Keefe argues should have been given more weight, such as the oral and written statements in his support, the voluntariness of his plea, and the Ohio Risk Assessment System Analysis that indicated Mr. O’Keefe is less likely to reoffend in the future. Indeed, the court thoroughly and conscientiously weighed each factor, specifically discussing each of these during the hearing, more than satisfying its statutory obligation. {¶20} Quite simply, the trial court satisfies its obligation to consider the seriousness and recidivism factors by stating that it considered them. Lloyd at ¶44. “‘[T]he trial court is not obligated * * * to give any particular weight or consideration to any * * * sentencing factor.’” State v. Spencer, 11th Dist. Trumbull No. 2017-T-0117, 2018- Ohio-4276, ¶46, quoting State v. Pishner, 11th Dist. Portage No. 2017-P-0004, 2017- Ohio-8689, ¶20, quoting State v. Holin, 174 Ohio App.3d 1, 2007-Ohio-6255, ¶34 (11th Dist.). {¶21} There is nothing in this record indicating that the nine-year sentence in this case, less than the maximum possible sentence of 11 and a half years, is contrary to law. {¶22} Mr. O’Keefe’s first assignment of error is without merit. 6  Misdemeanor Sentencing {¶23} Mr. O’Keefe next argues that the trial court erred in sentencing him to the maximum term of 180 days imprisonment for one count of OVI. Standard of Review {¶24} “Misdemeanor sentencing is within the discretion of the trial court and a sentence will not be disturbed absent an abuse of discretion.” State v. Corbissero, 11th Dist. Ashtabula No. 2011-A-0028, 2012-Ohio-1449, ¶53, quoting Conneaut v. Peaspanen, 11th Dist. Ashtabula No. 2004-A-053, 2005-Ohio-4658, ¶18, citing State v. Wagner, 80 Ohio App.3d 88, 95-96 (12th Dist.1992). “* * * [T]he term ‘abuse of discretion’ is one of art, ‘connoting judgment exercised by a court, which does not comport with reason or the record.’” Id., citing State v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089, ¶30, citing State v. Ferranto, 112 Ohio St. 667, 676-678 (1925). Stated differently, an “abuse of discretion,” is the trial court’s “failure to exercise sound, reasonable, and legal decision-making.” Id., citing State v. Beechler, 2d Dist. Clarke No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004). {¶25} “In fashioning an appropriate sentence in a misdemeanor case, the trial court must consider the factors set forth under R.C. 2929.22. Those factors include: the nature and circumstances of the offense; whether the offender has a history of criminal behavior and the likelihood of recidivism; whether there is a substantial risk the offender will be a danger to others; whether the offender’s conduct has been characterized by a pattern of ‘repetitive, compulsive, or aggressive behavior with heedless indifference to the consequences;’ and whether the victim’s age, disability or other factor made him or her more vulnerable. R.C. 2929.22(B)(1)(a)-(e).” Id. at ¶54, quoting City of Conneaut v. Coleman, 11th Dist. Ashtabula No. 2010-A-0062, 2011-Ohio-5099, ¶22. 7  {¶26} “A trial court’s failure to consider the R.C. 2929.22 factors amounts to an abuse of discretion.” Id. at ¶55, See State v. Rogers, 11th Dist. Trumbull Nos. 2009-T- 0051 & 2009-T-0052, 2010-Ohio-197, ¶11. “Absent a showing otherwise, however, if the sentence lies within the statutory limit, a reviewing court will presume that the trial judge followed the standards required by the statute.” Id., citing State v. Peppeard, 11th Dist. Portage No. 2008-P-0058, 2009-Ohio-1648, ¶75. “A silent record raises the presumption that the trial court considered all of the factors.” Id. “Further, there is no requirement that the court state on the record it considered the statutory sentencing criteria.” Id., citing State v. Kish, 11th Dist. Lake No. 2010-L-138, 2011-Ohio-4172, ¶8, citing Peaspanen at ¶29. {¶27} No evidence in the record suggests that the trial court failed to consider the required statutory factors, nor does Mr. O’Keefe point to anything in the record that would lead this court to believe the trial court abused its discretion. As noted in the first assignment of error, the trial court amply reviewed all relevant factors in imposing Mr. O’Keefe’s sentence. {¶28} Mr. O’Keefe specifically takes issue with the modification of his sentence during the hearing due to a misstatement on the state’s part during a pre-sentence conference in chambers, regarding whether the sentence on the OVI charge must run consecutive to the aggravated vehicular homicide sentence. {¶29} The court initially stated during the hearing “[A]nd I specifically find that consecutive sentences were not disproportionate to the seriousness of the Defendant’s conduct and to the danger he poses to the public. And again as matter of law because of the nature of the failure to comply, Count 1 and 2 will be served consecutive to each other; Count 3 [the OVI charge] will be serv[ed] [sic] concurrent with the other two. The 8 total prison term effectively will be 9 years in prison, 7 years of which are mandatory as a matter of law. * * *.” {¶30} After being informed of the requirement, the court stated, “All right. Well, no, if it’s go[t] [sic] to be sentenced that way, I will make the modification. And what we’ll do is we’re still going to do the 9 years. So, we will make Count 2, 18 months instead of 24, and we’ll make the OVI 6 months, and it will all be run consecutive. But the end result is still going to be the same, 9 years.” {¶31} Clearly, correcting the sentence without altering the term imposed to accurately reflect the change of plea agreement is not an abuse of discretion. Upon notification of the error, the court merely amended the sentence to comply with the statutory requirements without affecting the total time to be served. {¶32} Mr. O’Keefe’s second assignment of error is without merit. {¶33} For the foregoing reasons, we affirm the judgment and sentence of the Lake County Court of Common Pleas. THOMAS R. WRIGHT, P.J., MATT LYNCH, J., concur. 9 

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS ******************** * GARY ABDULLA, * * No. 13-853V Petitioner, * Special Master Christian J. Moran * v. * Filed: February 13, 2015 * SECRETARY OF HEALTH * Damages; decision based on proffer; AND HUMAN SERVICES, * influenza (“flu”) vaccine; * shoulder bursitis; rotator cuff tear. Respondent. * ******************** * Ronald C. Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioner; Claudia B. Gangi, United States Dep’t of Justice, Washington, DC, for respondent. UNPUBLISHED DECISION AWARDING DAMAGES1 On October 29, 2013, Gary Adbulla filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §300aa—10 through 34, alleging that he suffered bursitis in his left shoulder and a rotator cuff tear related to his receipt of the influenza (“flu”) vaccine on October 12, 2011. On February 14, 2014, the undersigned determined that petitioner is entitled to compensation under the Vaccine Act. On February 12, 2015, respondent filed a Proffer on Award of Compensation, to which petitioner agrees. Based upon the record as a whole, the special master finds the proffer reasonable and that petitioner is entitled to an award as stated in the Proffer. Pursuant to the attached Proffer, the court awards petitioner: 1 The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will appear in the document posted on the website.  A. A lump sum payment of $177,250.43, representing life care expenses for Year 1 ($9,021.00), compensation for lost earnings ($13,129.58), past un-reimbursed expenses ($5,099.85), and pain and suffering ($150,000.00), in the form of a check payable to petitioner, Gary Abdulla. B. An amount sufficient to purchase the annuity contract described in section II.B. of the attached Proffer (“Appendix A”). In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment herewith. Any questions may be directed to my law clerk, Mary Holmes, at (202) 357- 6360. IT IS SO ORDERED. s/Christian J. Moran Christian J. Moran Special Master 2  Case 1:13-vv-00853-UNJ Document 46 Filed 02/12/15 Page 1 of 5 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF THE SPECIAL MASTERS ___________________________________ ) GARY ABDULLA, ) ) Petitioner, ) ) No. 12-853V v. ) Special Master Moran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES ) ) Respondent, ) ___________________________________ ) RESPONDENT'S PROFFER ON DAMAGES Respondent submits the following recommendations regarding items of compensation to be awarded to petitioner under the Vaccine Act. I. Items of Compensation A. Life Care Items Respondent engaged life care planner Linda Curtis, RN, MS, CCM, CNLCP, and petitioner engaged Maureen Clancy, RN, BSN, CLCP, to provide an estimation of Gary Abdulla’s future vaccine-injury related needs. All items identified in the agreed life care plan dated December 3, 2014, are supported by the evidence and are illustrated by the chart entitled Tab A: Summary of Life Care Items. 1 Respondent proffers Gary Abdulla (“petitioner”) should be awarded all items of compensation that are set forth in the agreed life care plan and illustrated by the chart attached as Tab A. Petitioner agrees. Respondent further proffers that the appropriate growth rate for life care items of compensation should be four percent (4.0%) for 1 The chart at Tab A illustrates the annual benefits as contained in the life care plan. The annual benefit years run from the date of judgment up to the first anniversary of the date of judgment and every year thereafter up to the anniversary of the date of judgment.  Case 1:13-vv-00853-UNJ Document 46 Filed 02/12/15 Page 2 of 5 non-medical items and six percent (6.0%) for medical items, compounded annually from the date of judgment, as set forth in Tab B: Annuity Funding Portfolio. Petitioner agrees. B. Lost Earnings The parties agree that based upon the evidence of record, Gary Abdulla has suffered a past loss of earnings as a result of her vaccine-related injury. Therefore, respondent proffers that the Court should award Gary Abdulla a lump sum of $13,129.58 for his lost earnings as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A). Petitioner agrees. C. Pain and Suffering Respondent proffers that petitioner should be awarded $150,000.00 in actual and projected pain and suffering. This amount reflects that the award for projected pain and suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees. D. Past Unreimbursed Expenses Evidence supplied by petitioner documents his expenditure of past un-reimbursable expenses related to his vaccine-related injury. Respondent proffers that the petitioner is entitled to past un-reimbursed expenses in the amount of $5,099.85. Petitioner agrees. E. Medicaid Lien Petitioner represents that there are no outstanding Medicaid liens related to his vaccine- related injury. F. Attorney’s Fees and Costs This proffer does not address final attorneys’ fees and costs. Petitioner is entitled to reasonable attorneys’ fees and costs, to be determined at a later date upon petitioner filing substantiating documentation. 2  Case 1:13-vv-00853-UNJ Document 46 Filed 02/12/15 Page 3 of 5 II. Form of the Award The parties recommend that the compensation provided to petitioner for his future medical care needs should be made through a combination of a one-time cash payment and future annuity payments as described below, and request that the special master’s decision and the Court’s judgment reflect the following items of compensation. 2 Respondent proffers and petitioner agrees that an award of compensation include the following elements: A. A lump sum payment of $177,250.43, representing life care expenses for Year 1 ($9,021.00), compensation for lost earnings ($13,129.58), past un-reimbursed expenses ($5,099.85), and pain and suffering ($150,000.00), in the form of a check payable to petitioner. B. An amount sufficient to purchase an annuity contract, 3 subject to the conditions described below, that will provide payments for the life care items contained in the life care plan, as illustrated by the chart at Tab A, attached hereto, and paid to the life insurance company 4 from 2 Should petitioner die prior to entry of judgment, respondent would oppose any award for future medical expenses and future pain and suffering, and the parties reserve the right to move the Court for appropriate relief. 3 In respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life insurance companies. 4 The Life Insurance Company must have a minimum of $250,000,000 capital and surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company must have one of the following ratings from two of the following rating organizations: a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s; b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa; c. Standard and Poor’s Corporation Insurer Claims-Paying Ability Rating: AA-, AA, AA+, or AAA; d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA-, AA, AA+, or AAA. 3  Case 1:13-vv-00853-UNJ Document 46 Filed 02/12/15 Page 4 of 5 which the annuity will be purchased. 5 Compensation for Year Two (beginning on the first anniversary of the date of judgment) and all subsequent payments shall be provided through respondent’s purchase of an annuity, which annuity will make payments directly to the petitioner only so long as he is alive at the time a particular payment is due. The “annual amounts” set forth in Tab B describe the total year sum to be paid and do not require that the payment be made in one single payment. The parties agree that petitioner is a competent adult and that no guardians/ conservators of his estate will be required. 1. Growth Rates Respondent proffers that a four percent (4.0%) growth rate should be applied to all non- medical items, and a six percent (6.0%) growth rate should be applied to all medical items. The benefits illustrated in the chart at Tab B that are to be paid through annuity payments should grow as follows: four percent (4.0%) for all non-medical items, and six percent (6.0%) for all medical items, compounded annually from the date of judgment. Petitioner agrees. 2. Life-contingent Annuity Petitioner will continue to receive the annuity payments for future medical care from the Life Insurance Company only so long as he is alive at the time that a particular payment is due. Written notice to the Secretary of Health and Human Services and the Life Insurance Company shall be made within twenty (20) days of petitioner’s death. III. Summary of Recommended Payments Following Judgment A. Lump Sum paid to Petitioner: $177,250.43 5 Petitioner authorizes the disclosure of certain documents filed by the petitioner in this case consistent with the Privacy Act and the routine uses described in the National Vaccine Injury Compensation Program System of Records, No.09-15-0056. 4  Case 1:13-vv-00853-UNJ Document 46 Filed 02/12/15 Page 5 of 5 B. An amount sufficient to purchase the annuity contract described above in section II. B. Respectfully submitted, JOYCE R. BRANDA Acting Assistant Attorney General RUPA BHATTACHARYYA Director Torts Branch, Civil Division VINCENT J. MATANOSKI Deputy Director Torts Branch, Civil Division GLENN A. MACLEOD Senior Trial Counsel Torts Branch, Civil Division /s/ Claudia B. Gangi CLAUDIA B. GANGI Senior Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel.: (202) 616-4138 Dated: February 12, 2015 5  Case 1:13-vv-00853-UNJ Document 46-1 Filed 02/12/15 Page 1 of 2 PET: Gary Abdulla TAB A D.O.B. 10/26/1963 DATE: 02/10/15 TIME: 08:12 AM SUMMARY OF LIFE CARE ITEMS - AGREED LIFE CARE PLAN dated 12/03/2014 ITEM OF CARE Insurance Medical Ancillary Medical Medications Home Transportation TOTALS TOTALS TOTALS OF Care Services Equipment Services of Items of Items 4.0% & 6.0% ITEMS with a 6.0% with a 4.0% & APPLYING Growth Rate Growth Rate THE GROWTH GROWTH RATE 6.0% 6.0% 6.0% 6.0% 6.0% 4.0% 4.0% RATE AGE YEAR 52 2015 1,000.00 160.00 360.00 261.78 318.27 6,158.95 761.73 2,100.05 6,920.68 9,021 53 2016 1,000.00 160.00 480.00 14.57 318.27 6,064.90 271.71 1,972.84 6,336.61 8,681 54 2017 1,000.00 160.00 462.00 14.57 318.27 6,064.90 271.71 1,954.84 6,336.61 9,050 55 2018 1,000.00 160.00 462.00 14.57 318.27 6,064.90 271.71 1,954.84 6,336.61 9,456 56 2019 1,000.00 160.00 462.00 14.57 318.27 6,064.90 271.71 1,954.84 6,336.61 9,881 57 2020 1,000.00 90.00 462.00 14.57 318.27 6,064.90 246.23 1,884.84 6,311.12 10,201 58 2021 1,000.00 90.00 462.00 14.57 318.27 6,064.90 246.23 1,884.84 6,311.12 10,659 59 2022 1,000.00 90.00 462.00 14.57 318.27 6,064.90 246.23 1,884.84 6,311.12 11,139 60 2023 1,000.00 90.00 462.00 14.57 318.27 6,064.90 246.23 1,884.84 6,311.12 11,641 61 2024 1,000.00 90.00 462.00 14.57 318.27 6,064.90 246.23 1,884.84 6,311.12 12,167 62 2025 0.00 90.00 462.00 14.57 318.27 6,064.90 246.23 884.84 6,311.12 10,927 63 2026 0.00 90.00 462.00 14.57 318.27 6,064.90 246.23 884.84 6,311.12 11,395 64 2027 0.00 90.00 462.00 14.57 318.27 6,064.90 246.23 884.84 6,311.12 11,885 65 2028 0.00 119.00 380.40 103.57 318.27 8,316.90 246.23 921.24 8,563.12 16,223 66 2029 0.00 119.00 380.40 237.07 318.27 8,316.90 246.23 1,054.74 8,563.12 17,213 67 2030 0.00 119.00 380.40 27.28 318.27 8,316.90 246.23 844.95 8,563.12 17,447 68 2031 0.00 119.00 380.40 27.28 318.27 8,316.90 246.23 844.95 8,563.12 18,185 69 2032 0.00 119.00 380.40 27.28 318.27 8,316.90 246.23 844.95 8,563.12 18,955 70 2033 0.00 119.00 380.40 27.28 318.27 8,316.90 246.23 844.95 8,563.12 19,759 71 2034 0.00 119.00 380.40 27.28 318.27 6,816.90 246.23 844.95 7,063.12 17,437 72 2035 0.00 119.00 380.40 27.28 318.27 6,504.90 218.73 844.95 6,723.62 17,442 73 2036 0.00 119.00 380.40 27.28 318.27 6,504.90 218.73 844.95 6,723.62 18,194 74 2037 0.00 119.00 380.40 27.28 318.27 6,504.90 218.73 844.95 6,723.62 18,979 75 2038 0.00 119.00 380.40 27.28 318.27 6,504.90 218.73 844.95 6,723.62 19,799 76 2039 0.00 119.00 380.40 27.28 318.27 6,504.90 218.73 844.95 6,723.62 20,656 77 2040 0.00 119.00 380.40 27.28 318.27 6,504.90 218.73 844.95 6,723.62 21,551 78 2041 0.00 119.00 380.40 27.28 318.27 6,504.90 218.73 844.95 6,723.62 22,485 10,000 3,186 11,248 1,105 8,593 181,190 7,073 34,132 188,263 400,430 4.50% 1.43% 5.06% 0.50% 3.86% 81.47% 3.18% 100.00% This Report was generated using Sequoia Settlement Services, LLC Software (c) 1990 Abdulla AGREED LC Plan 12 03 14 02 10 15 REV3 PAGE 1  Case 1:13-vv-00853-UNJ Document 46-1 Filed 02/12/15 Page 2 of 2 TAB B ANNUITY FUNDING PORTFOLIO AGREED LIFE CARE PLAN dated 12/03/2014 4.0 % & 6.0% GROWTH RATES DATE: 02/10/15 TIME: 08:12 AM Case No: 13-853V PET: Gary Abdulla D.O.B. 10/26/1963 Column 1 Column 2 Column 3 Column 4 Column 5 Column 6 Column 7 Column 8 Column 9 Funding Item TOTAL ANNUAL CASH & ANNUITY ANNUITY ANNUITY ANNUITY ANNUAL CUMULATIVE Starting Amount MEDICAL STRUCTURED ANNUITY 896 1,221 6,564 11,195 SAFETY SAFETY Inflation Factor CARE NEEDS SETTLEMENT LUMP 6.00% 6.00% 4.00% 4.00% MARGIN MARGIN Beginning Year 2015 BENEFITS SUMS 2016 2016 2016 2028 2015 2015 Ending Year 2041 LIFE 2027 2027 LIFE 2041 2041 TOTAL S/S Cash & Deferred Deferred Deferred Deferred Safety Cum.Safety AGE YEAR NEEDS TOTAL Lump Sums Annuity Annuity Annuity Annuity Margin Margin 52 2015 9,021 9,021 9,021 0 0 53 2016 8,681 8,681 896 1,221 6,564 0 0 54 2017 9,050 9,071 950 1,294 6,827 20 20 55 2018 9,456 9,478 1,007 1,372 7,100 22 43 56 2019 9,881 9,905 1,067 1,454 7,384 24 67 57 2020 10,201 10,352 1,131 1,541 7,679 151 218 58 2021 10,659 10,819 1,199 1,634 7,986 160 377 59 2022 11,139 11,309 1,271 1,732 8,306 169 547 60 2023 11,641 11,821 1,347 1,836 8,638 180 727 61 2024 12,167 12,357 1,428 1,946 8,983 190 917 62 2025 10,927 12,919 1,514 2,063 9,343 1,993 2,910 63 2026 11,395 13,508 1,605 2,187 9,716 2,112 5,022 64 2027 11,885 14,124 1,701 2,318 10,105 2,239 7,261 65 2028 16,223 12,998 1,803 11,195 -3,225 4,035 66 2029 17,213 13,554 1,911 11,643 -3,659 376 67 2030 17,447 28,538 14,404 2,026 12,109 11,092 11,468 68 2031 18,185 14,740 2,147 12,593 -3,445 8,023 69 2032 18,955 15,373 2,276 13,097 -3,583 4,440 70 2033 19,759 16,033 2,413 13,620 -3,726 714 71 2034 17,437 16,723 2,557 14,165 -715 0 72 2035 17,442 17,443 2,711 14,732 1 0 73 2036 18,194 18,195 2,874 15,321 1 1 74 2037 18,979 18,980 3,046 15,934 1 2 75 2038 19,799 19,800 3,229 16,571 1 2 76 2039 20,656 20,657 3,422 17,234 1 3 77 2040 21,551 21,551 3,628 17,924 1 4 78 2041 22,485 22,486 3,846 18,640 1 5 ITEMIZED TOTALS 400,430 400,435 23,425 53,004 20,598 98,629 204,778 5 5 Abdulla AGREED LC Plan 12 03 14 02 10 15 REV3 This Report was generated using Sequoia Settlement Services, LLC Software (c) 1990 PAGE 2 

983 F.2d 899 71 A.F.T.R.2d 93-622, 93-1 USTC P 50,086 Richard REISS, Appellant,v.UNITED STATES, Appellee. No. 92-1226. United States Court of Appeals,Eighth Circuit. Submitted Nov. 10, 1992.Decided Jan. 14, 1993. 1 Neal Shapiro, Minneapolis, MN, argued, for appellant. 2 Christine Grant, Washington, DC, argued (James A. Bruton, Gary R. Allen and Robert S. Pomerance, on the brief), for appellee. 3 Before JOHN R. GIBSON and MAGILL, Circuit Judges, and VAN SICKLE,* Senior District Judge. 4 VAN SICKLE, Senior District Judge. 5 Richard Reiss appeals from the action of the district court1 granting the motion of the IRS for a Rule 12 dismissal of his action seeking a refund of penalties. We affirm. 6 Reiss was an income tax preparer as defined in 26 U.S.C. § 7701(a)(36). After auditing a number of Reiss' clients' returns, the IRS determined that Reiss had willfully or negligently overstated deductions in some of the returns he prepared during 1986 and 1987. The IRS assessed penalties against Reiss in the amount of $5,000.00 for 1986 and $5,200.00 for 1987, in accordance with 26 U.S.C. § 6694. 7 As is provided in 26 U.S.C. § 6694(c), Reiss paid fifteen percent of the assessment and filed a claim for a refund with the IRS. The IRS denied the claim because Reiss failed to set forth his grounds for the claim as required by 26 C.F.R. § 301.6402-2(b)(1). 8 Reiss concedes that his application did not set forth the grounds of his claim. He asserts that his failure to state the grounds was excused by the IRS' failure to inform him of the grounds for the imposition of the penalties. 9 The district court found that "... the IRS sent Reiss a letter notifying Reiss of the assessments, a list of the taxpayers involved, and the particular subsections of 26 U.S.C. § 6694 involved." The district court then went on to hold that "the IRS did ... inform Reiss of the assessment and the particular taxpayers, forms and statutes involved" in a meeting with Reiss' attorney and later in a letter. This, the court held by implication, satisfied the duty of the IRS to inform Reiss of the reasons for the assessment and that he had the necessary information to list any claim he may have felt he had for getting a refund. 10 We affirm a district court's factual findings unless we find them to be clearly erroneous, United States v. Walker, 900 F.2d 1201 (8th Cir.1990). And we subject the district court's legal conclusions to de novo review. United States v. Whitehead, 912 F.2d 448 (10th Cir.1990). 11 The statute which mandates notice by the IRS, 26 U.S.C. § 7522, provides: 12 (a) General rule.--Any notice to which this section applies shall describe the basis for, and identify the amounts (if any) of, the tax due, interest, additional amounts, additions to the tax, and assessable penalties included in such notice. An inadequate description under the preceding sentence shall not invalidate such notice. 13 (b) Notices to which section applies.--This section shall apply to-- 14 (1) any tax due notice or deficiency notice described in section 6155, 6212, or 6303. 15 (§ 6155 applies to assessable penalties.) § 7522 became effective in its present form after January 1, 1990. (Pub.L. 100-647, Title VI, # 6233(c), November 10, 1988, 102 Stat. 3755). 16 As pointed out by the court below, the IRS in its notice of assessment of penalty notified appellant Reiss of the assessment against each of ten returns prepared by him, the taxpayers involved, the tax years and forms involved, and the particular subsections of 26 U.S.C. § 6694 involved. The notice gave Reiss all the information he needed to identify the returns involved, the nature of the error charged, and the amounts of the assessment. The notice meets the "general fairness requirements of due process." See Planned Investments, Inc. v. United States, 881 F.2d 340, 344 (6th Cir.1989). 17 Reiss apparently does not realize that the assessment against him is not against him as a taxpayer, but as a tax preparer. Thus the notice to him is concerned only with assessable penalties, and adequate disclosure of the cause of those penalties. Also, the burden is on the taxpayer and the preparer, who made their statements on the tax return subject to the penalties of perjury, to prove their claims that the returns are accurate. This is logical because the tax payer and tax preparer are uniquely able to control the evidence,2 and the tax preparer--appellant is the plaintiff in the refund action. 18 In that penalties have only been asserted against the preparer, we conclude that the IRS has fully complied with 26 U.S.C. § 7522. Appellant's responsive claim as filed did not comply with 26 U.S.C. § 7422. It requires that in an action in any court for the recovery of a penalty claimed to have been collected without authority, or wrongfully collected, suit cannot be maintained until a claim for refund has been filed according to law and the regulations of the IRS. And the regulations require that a claim for refund must "set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise the commissioner of the exact basis thereof .." 26 C.F.R. § 301.6402-2(b)(1). If the claim for refund does not meet these requirements, the refund suit must be dismissed. Bohn v. United States, 467 F.2d 1278, 1280 (8th Cir.1972); Shanker v. United States, 571 F.2d 8, 10 (8th Cir.1978). 19 To summarize, a failure of a notice of assessment to include a description in accordance with section 7522 "shall not invalidate such notice." Even if there was a failure by the IRS to comply with Section 7522 (and there was not), appellant was still obliged under § 7422 to file a proper administrative claim for a refund, as a jurisdictional prerequisite to suing for the refund. 20 Accordingly, the judgment of the district court is affirmed. * The Honorable Bruce M. Van Sickle, Senior District Judge, District of North Dakota, sitting by designation 1 The Honorable Paul A. Magnuson, Judge, United States District Court for the District of Minnesota 2 The preparer may be shooting himself in the foot when he demands that the basis for the penalties be recited with more particularity. 26 U.S.C. §§ 6694(a) & (b) both provide that the penalties may be assessed "with respect to each return or claim." If the agent recites several specific claims of error within a given return, how can the agent justify a failure to assess a penalty as to each claim?

309 S.W.3d 771 (2010) Dawn A. ALEWINE, et al., Appellants, v. The CITY OF HOUSTON, Appellee. No. 14-08-00473-CV. Court of Appeals of Texas, Houston (14th Dist.). April 8, 2010. *772 Larry G. Dunbar, James E. Bradley, for appellants. R. Paul Yetter, Collin J. Cox, Dori Kornfeld Goldman, Yetter, Warden & Coleman, LLP, Houston, for appellee. Panel consists of Chief Justice HEDGES and Justices SEYMORE and SULLIVAN. OPINION KENT C. SULLIVAN, Justice. Appellants, a collection of homeowners in a subdivision neighboring Bush Intercontinental Airport, sued appellee, the City of Houston, because the construction of a new runway resulted in increased airplane flights over a corner of their neighborhood. The City successfully moved for summary judgment, arguing the homeowners were not entitled to compensation for inverse condemnation or intentional nuisance because they had not shown their property was "taken" by the government. This appeal ensued. Under current Texas law, appellants are not entitled to compensation because they have not shown the increase in overflights — though a constant source of frustration — has rendered their homes unusable for residential use. Therefore, we must affirm the judgment. I. BACKGROUND Appellants, sometimes referred to as "the homeowners," consist of eighty-three residents who live in forty-six houses in the Woodcreek Subdivision. The neighborhood contains a total of 539 homes, constructed at various times since 1979. *773 The neighborhood is located near Bush Intercontinental Airport, which opened in 1969. On November 1, 2003, the airport opened a new east-west runway, designated "8L-26R." The flight path for some aircraft that use this runway extends over the southwest tip of the neighborhood,[1] which lies just west-northwest of the airport, and therefore through the airspace of a handful of homes in the subdivision. Thus, while the neighborhood experienced some overhead air traffic before 2003, the number of airplanes passing over a corner of their subdivision greatly increased following the construction of the new runway. On October 31, 2005, residents from various parts of the neighborhood filed suit against appellee, the City of Houston (the "City"), alleging intentional nuisance and inverse condemnation. Generally, the plaintiffs claimed the City, by building a new runway leading to increased overflights, "took" their property without compensation, in violation of Article I, Section 17 of the Texas Constitution. The City denied liability and filed a motion for summary judgment, arguing (1) the homeowners' complaints do not rise to the level of a constitutional "taking" because their homes remain habitable; (2) no "taking" occurred because the average noise level in the neighborhood does not exceed that approved by the federal government for residential use; and (3) the "community damages rule" bars recovery because all plaintiffs claimed similar injuries. The trial court granted summary judgment without specifying the basis for its ruling. On appeal, the homeowners contend the trial court erred by granting summary judgment on their claims. We begin with their first issue, in which appellants argue they stated a valid "takings" claim, after considering the legal standard we use to review the trial court's summary-judgment ruling. II. STANDARD OF REVIEW We review the trial court's order granting summary judgment under well-established standards. See Seidner v. Citibank (S.D.) N.A., 201 S.W.3d 332, 334 (Tex. App.-Houston [14th Dist.] 2006, pet. denied). That is, a party moving for traditional summary judgment — here, the City — must prove its entitlement to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). At that point, the burden shifts to the non-movants — the homeowners, in this case — to raise a genuine issue of material fact to defeat summary judgment. See Va. Power Energy Mktg., Inc. v. Apache Corp., 297 S.W.3d 397, 402 (Tex.App.-Houston [14th Dist.] 2009, pet. denied). A genuine fact issue exists if reasonable and fair-minded jurors could reach different conclusions after considering the evidence. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007). On appeal, we review the summary-judgment motion and evidence de novo. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). We consider the evidence in the light most beneficial to the non-movants, indulging reasonable inferences and resolving doubts in their favor. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.2005); Va. Power, 297 S.W.3d at 402. When, as here, the trial court grants summary judgment without *774 specifying the basis for its ruling, we must affirm if any of the grounds advanced in the motion is meritorious. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). To prevail on appeal, then, the homeowners must show the trial court could not properly grant summary judgment on any of the grounds stated in the motion. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995). III. ANALYSIS In their first issue, the homeowners contend their summary-judgment evidence, taken as true, demonstrates a governmental "taking" because the increased overflights have interfered with the use and enjoyment of their property. In response, the City urges us to apply a higher legal standard requiring the homeowners to also show their property is no longer usable for residential purposes. Thus, the resolution of this issue requires us to decide upon the appropriate legal test to prove a taking-by-overflight claim. A. "Takings" Jurisprudence, Generally A government is vested with certain inherent powers commensurate with its status as a sovereign, including the right of "eminent domain" in which private property is taken — in exchange for compensation — and converted for public use. See Taub v. Aquila Sw. Pipeline Corp., 93 S.W.3d 451, 456 (Tex.App.-Houston [14th Dist.] 2002, no pet.); Villarreal v. Harris County, 226 S.W.3d 537, 544 (Tex.App.-Houston [1st Dist.] 2006, no pet.); see also Byrd Irrigation Co. v. Smythe, 146 S.W. 1064, 1065 (Tex.Civ.App.-San Antonio 1912, no writ) ("The power of eminent domain is an attribute of government, and is inherent in it."). Some "takings" are more conspicuous than others. For example, the government may institute a formal "condemnation proceeding" to acquire property for public use if it cannot reach agreement with the owner as to the appropriate amount of compensation. See Tex. Prop.Code Ann. § 21.012 (Vernon 2004 & Supp.2009). That process is governed by statute,[2] and the statutory requirements must be strictly observed. Coastal Indus. Water Auth. v. Celanese Corp. of Am., 592 S.W.2d 597, 599 (Tex. 1979); see State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 646-47 (Tex.2001). Here, however, the City did not file condemnation proceedings seeking to acquire the homeowners' property. Instead, this case would more appropriately be described as an "inverse condemnation" action, in which an owner claims his property has already been taken — outside of proper condemnation proceedings — without compensation. See Tarrant County Water Control & Improvement Dist. No. 1 v. Haupt, Inc., 854 S.W.2d 909, 912 n. 4 (Tex.1993); City of Houston v. Mack, ___ S.W.3d ___, ___ (Tex.App.-Houston [1st Dist.] 2009, no pet.). In that situation, an aggrieved property owner may bring an inverse-condemnation action under Article I, Section 17 of the Texas Constitution which, like the United States Constitution,[3] protects against a governmental "taking" of private property without compensation. See TEX. CONST. art. I, § 17; Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001). To recover compensation for inverse condemnation under Article I, Section *775 17, a claimant must plead and prove (1) an intentional governmental act; (2) resulted in a "taking" of his property; (3) for public use.[4]See Little-Tex, 39 S.W.3d at 598; Park v. City of San Antonio, 230 S.W.3d 860, 867 (Tex.App.-El Paso 2007, pet. denied). Here, the parties' dispute focuses only on the second prong of this test,[5] that is, the proof necessary to establish a "taking" of property by airplane overflights. Actually, the scope of their disagreement as to the appropriate legal test is quite narrow. Both cite City of Austin v. Travis County Landfill Co., 73 S.W.3d 234 (Tex.2002) ("TCLC") as controlling authority. In addition, the parties agree that, under TCLC, "to establish a taking by aircraft overflights, a landowner must show that the flights directly, immediately, and substantially interfere with the land's use and enjoyment." Id. at 240. However, the City contends the homeowners must also show the overflights have rendered their homes uninhabitable — that is, unusable for their intended purpose — to prove a constitutional "taking" of property. Appellants disagree. Whether particular facts give rise to a "taking" of property is a question of law we review de novo.[6]See id. at 241; Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 937 (Tex.1998). In deciding whether a "taking" has occurred, we may consult federal cases interpreting comparable language in the Fifth Amendment to the United States Constitution. See Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 669 (Tex.2004); Mack, ___ S.W.3d ___, ___. We begin, then, with authority from the United States Supreme Court. B. Taking by Overflight The seminal case in the area of overflight-takings jurisprudence is United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). There, the United States Supreme Court addressed the question of whether property could be considered "taken," under the Fifth Amendment, by the frequent and low-altitude passage of military aircraft above the owner's land. See id. at 258, 66 S.Ct. 1062. The owners had operated a chicken ranch *776 on the property but were forced to give up their business because of the noise generated by heavy military planes flying only sixty-three feet above the barn: [Aircraft] come close enough at times to appear barely to miss the tops of the trees and at times so close to the tops of the trees as to blow the old leaves off. The noise is startling.... As a result of the noise, respondents had to give up their chicken business. As many as six to ten of their chickens were killed in one day by flying into the walls from fright. The total chickens lost in that manner was about 150. Production also fell off. The result was the destruction of the use of the property as a commercial chicken farm. Id. at 259, 66 S.Ct. 1062 (emphasis added). In addition, the Court observed that the owners, who also lived on the property, were frequently unable to sleep and had become nervous and frightened. See id. The Court found those facts sufficient to establish a Fifth Amendment taking but declined to define the outer boundary of proof necessary to show a taking by overflight: The airspace, apart from the immediate reaches above the land, is part of the public domain. We need not determine at this time what those precise limits are. Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land. We need not speculate on that phase of the present case. Id. at 266-67, 66 S.Ct. 1062. Notably, the Court suggested a compensable taking would occur if overflights limited the utility of the land, as by rendering residential property uninhabitable. See id. at 261-62, 66 S.Ct. 1062. However, the Court did not directly indicate whether such a showing was necessary.[7] The topic of "unusability" was again mentioned, but not expressly described as essential to a "takings" claim, in the subsequent case of Griggs v. County of Allegheny, Pennsylvania, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962). As with the chicken ranch in Causby,[8] the Griggs Court concluded a "taking" had occurred because frequent low-altitude overflights rendered the affected property unusable as a residence. See id. at 87, 89, 82 S.Ct. 531. Specifically, the flights made conversation and sleep impossible, rattled house windows and caused plaster to fall, and impaired the occupants' health. See id. at 87, 82 S.Ct. 531. In addition, the house was located so near the runways that, in the event of aircraft engine failure, the pilot "would have no course but to plow into [the] house." Id. Five years later, this Court cited Griggs in affirming an inverse-condemnation judgment in favor of a property owner whose *777 residence had become uninhabitable because of overflights. See City of Houston v. McFadden, 420 S.W.2d 811, 816 (Tex. Civ.App.-Houston [14th Dist.] 1967, writ ref'd n.r.e.). In that case, airplanes flew as low as eighty feet above the house, leading to broken windows, cracks in the wall, and deafening noise levels of up to 109 decibels. See id. at 813. Because the Federal Housing Administration deemed noise levels of 100 decibels "unacceptable for residential use," it refused to insure the plaintiff's mortgage. See id. at 814, 816. Thus, it was determined that the property could not be used as a residence, and was instead better suited for industrial use. See id. at 814. However, McFadden, like Causby and Griggs, does not squarely address the issue presented here. Those courts determined only that proof of uninhabitability can be sufficient to establish a taking of residential property. See Causby, 328 U.S. at 261-62, 66 S.Ct. 1062; Griggs, 369 U.S. at 87, 89, 82 S.Ct. 531; McFadden, 420 S.W.2d at 813-14. They did not, however, expressly describe such evidence as necessary to a valid inverse-condemnation claim. Nevertheless, the Texas Supreme Court added that evidentiary requirement in 2002, when it decided TCLC. There, the plaintiff owned property, which it intended to operate as a landfill, roughly one-half mile away from the main runway at Austin-Bergstrom International Airport. See TCLC, 73 S.W.3d at 237. In 1997, however, the airport begin accepting civilian air traffic, prompting TCLC to sue the City of Austin for an alleged taking-by-overflight under Article I, Section 17 of the Texas Constitution. See id. The jury found a compensable taking and awarded damages, but the Texas Supreme Court granted the City of Austin's petition for review "to decide whether TCLC established that the civilian overflights ... constituted a taking under the Texas Constitution." Id. at 238. The parties apparently assumed, as they do here, that Texas follows the federal taking-by-overflight standard. See id. at 239. Therefore, the Court analyzed the validity of TCLC's claim under Causby, without specifically addressing whether the Texas Constitution affords the same level of protection from overflight effects. See id. After reviewing Causby, Griggs, and McFadden, as well as authority from other jurisdictions, the Court recited the applicable legal standard as follows: [T]o establish a taking by aircraft overflights, a landowner must show that the flights directly, immediately, and substantially interfere with the land's use and enjoyment. To meet this standard, the landowner must show that the overflight effects directly and immediately impact the land so that the property is no longer usable for its intended purpose. Id. at 240 (emphases added). Thus, although not explicitly stated in Causby and Griggs, the Court expressly interpreted those cases as requiring the landowner to prove his property unusable for its intended purpose to establish a compensable taking. See id.[9] The insertion of an "unusability" requirement in TCLC was neither careless nor inadvertent; instead, similar language *778 appears at least eight other times in the Court's opinion: • "To establish a taking by aircraft overflights, a landowner must show... that the property was unusable for its intended purpose." Id. at 237. • "[T]o rise to the level of a constitutional taking, the overflight-related effects must directly, immediately, and substantially impact the property's surface so that it is no longer usable for its intended purpose." Id. at 240. • "None of [TCLC's evidence shows] immediate, direct and substantial overflight effects that rendered TCLC's property unusable for its intended purpose." Id. at 241. • "TCLC does not even allege that overflight effects ... impacted the use and enjoyment of its property as a landfill." Id. at 242 (emphasis added). • "[T]o establish a taking claim, TCLC must show that the civilian overflights... interfered with the property's use as a landfill." Id. at 243 (emphasis added). • "Here, however, TCLC presented no evidence that the addition of civilian overflights caused overflight effects that interfered with the use of TCLC's property as a landfill." Id. (emphasis added). • "[T]he testimony fails to ... establish that those risks interfered with the property's use as a landfill." Id. (emphasis added). • "[B]ecause before and after the alleged taking TCLC was authorized to operate a Type IV landfill — the property's intended use — there is no evidence that the overflights rendered the property unusable for its intended purpose." Id. at 244 (emphases added). Further, the Court's disposition of the case hinged upon the evidence — or lack thereof — of usability. Ultimately, the Court determined TCLC had not proven its property unusable as a landfill, concluded no "taking" had occurred, and therefore reversed and rendered judgment in the City's favor: To establish a taking of private property by aircraft overflights in this case the landowner had to show that the overflight effects directly, immediately, and substantially impacted the land so that the property was unusable for its intended purpose. TCLC presented no such evidence.... [T]he evidence does not establish a taking[.] Id. We do not divine from Causby and Griggs any overt requirement that the landowner prove his property unusable for its intended purpose; the Texas Supreme Court, however, does. Whether we agree with TCLC is of no moment because, as an intermediate court of appeals, we are obligated to follow established precedent from the Texas Supreme Court. See Lubbock County, Tex. v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.2002); Lundstrom v. United Servs. Auto. Ass'n-CIC, 192 S.W.3d 78, 94 (Tex.App.-Houston [14th Dist.] 2006, pet. denied). In this case, then, we hold that, to demonstrate a compensable taking-by-overflight under current Texas law, the homeowners were required to prove the overflights directly, immediately, and substantially impacted the land so as to render their property unusable for its intended purpose as a residence. See TCLC, 73 S.W.3d at 244. C. Application to Facts Applying that stringent standard to the summary-judgment evidence contained in the record, we must conclude the homeowners have not stated a viable "takings" *779 claim. In their brief, appellants do not contend their houses have been rendered uninhabitable.[10] Instead, they fairly summarize their complaints, which are described more fully in over 900 pages of deposition testimony in the record, as follows: "Plaintiffs have testified that conversations were impossible, television reception was disturbed, sleep was interrupted, children and pets were frightened or became nervous or irritable, and it was difficult to entertain company or to conduct telephone conversations." None of the homeowners testified they cannot live in their homes because of the overflights. To the contrary, some residents either flatly refused to move or confirmed they can still "lead normal lives" despite the increased noise levels. In addition, the record does not suggest that houses in the neighborhood have been abandoned or lie vacant. Instead, residents seeking to leave the subdivision, for whatever reason, apparently have been able to find ready purchasers for their property since the construction of the new runway in 2003. Moreover, the record contains evidence that roughly half of the houses have increased in value since 2003. The homeowners uniformly testified the increase in overflights has made their neighborhood a less desirable place to live. Under TCLC, however, that evidence does not rise to the level of a compensable "taking" under Article I, Section 17. See TCLC, 73 S.W.3d at 244; see also Genter v. Blair County Convention & Sports Facilities Auth., 805 A.2d 51, 56 (Pa. Commw.Ct.2002) ("`Merely having a house that is somewhat less desirable to live in does not constitute the type of exception circumstance needed to prove a de facto taking of an entire residential property.'") (citation omitted). We hold that, under current Texas law, appellants have not presented evidence raising a genuine fact issue as to a "taking" of their property. Therefore, the trial court did not err by granting the City's motion for summary judgment, and we overrule their first issue on appeal. Having done so, we need not address their remaining challenges to the trial court's judgment. See Tex. R.App. 47.1; W. Invs., Inc., 162 S.W.3d at 550 (requiring courts to affirm summary judgment if any stated ground is found to be meritorious). Accordingly, we must affirm the judgment. III. CONCLUSION We are not unsympathetic to the frustration the homeowners have experienced as a result of the increased noise levels in their neighborhood. Several residents testified to such problems as increased irritability and stress caused by a disruption in their normal sleep habits, and embarrassment in trying — often unsuccessfully — to *780 hold outdoor gatherings for friends and family. However, these complaints, though certainly not insignificant, do not amount to a constitutional "taking" of their property, under current Texas law, absent a showing by individual homeowners that their houses are no longer usable for residential purposes. See TCLC, 73 S.W.3d at 244. Accordingly, we affirm the trial court's judgment. NOTES [1] One of appellants' expert witnesses confirmed the flight path does not intrude "very far into the neighborhood." [2] See Tex. Prop.Code Ann. §§ 21.001-.024 (Vernon 2004 & Supp.2009), 21.041-.065 (Vernon 2000 & Supp.2009). [3] See U.S. CONST. amend. V. [4] This same test also applies to the homeowners' claims for intentional nuisance. See City of Dallas v. Jennings, 142 S.W.3d 310, 315-16 (Tex.2004) ("[A] city may be held liable for a nuisance that rises to the level of a constitutional taking.") (emphasis added) (citing City of Abilene v. Downs, 367 S.W.2d 153, 159 (Tex. 1963)). [5] In its motion for summary judgment, the City did not challenge the homeowners' proof as to the first and third elements of the constitutional-takings test. [6] At least one court has observed that constitutional-takings analysis is not particularly user-friendly. See Md. Port Admin. v. QC Corp., 310 Md. 379, 529 A.2d 829, 833 (1987) ("To date courts have not developed a test which can be comprehensively and consistently applied to determine whether a government has taken property."). Often, the determination depends heavily upon the unique facts of each case. See Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1212 (Fed.Cir.2005). In this case, the City suggests average noise levels could be used as an objective barometer of whether residential property has been rendered uninhabitable by overflights. That approach would seemingly appeal to those seeking a more predictable, quantifiable test in this context. However, the test might be considered underinclusive of some unacceptable living situations to the extent it may not account for temporary "spikes" of deafening noise that could render a house uninhabitable even though the average decibel level falls within an acceptable threshold. In this case, for example, one resident testified, "[T]he [noise-level] rating ... averages events over a 24-hour period ... when in fact numerous events that are in excess of 90 decibels can occur and really disrupt your life." [7] In their brief, appellants contend the Court expressly rejected an uninhabitability requirement in Causby. We disagree; the Court held only that an owner need not prove his property has been completely destroyed and unusable for all purposes in order to recover compensation for a taking. See Causby, 328 U.S. at 262, 66 S.Ct. 1062. Stated differently, under Causby, the government may not avoid an otherwise valid takings claim simply by, for example, arguing residential purpose could be repurposed for industrial use. See id. [8] In Griggs, the Court summarized its previous holding in Causby as follows: "[Causby] held that the United States by low flights of its military planes over a chicken farm made the property unusable for that purpose and that therefore there had been a `taking', in the constitutional sense, of an air easement for which compensation must be made." Griggs, 369 U.S. at 88, 82 S.Ct. 531 (emphases added). [9] But see Hillsborough County Aviation Auth. v. Benitez, 200 So.2d 194, 198-99 (Fla.Dist.Ct. App.1967) (finding residential property was "taken" under the Florida Constitution even though overflights did not render houses uninhabitable), cited in TCLC, 73 S.W.3d at 240. In Benitez, however, the plaintiffs also demonstrated, unlike here, that the overflights were actually weakening the structural integrity of their homes, raising a question as to their continued habitability. See id. at 196, 199. [10] We are not aware of any objective test for habitability in this "takings" context. Under the landlord-tenant framework, for example, the Texas Legislature has recognized that premises may be rendered uninhabitable by a "condition [that] materially affects the physical health or safety of an ordinary tenant." Tex. Prop.Code Ann. §§ 92.052(a)(3), 92.056(b)(2) (Vernon 2007 & Supp.2009); Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 755 (Tex. 1998) (indicating chapter 92 sets out "specific minimum standards of habitability"). Because appellants do not contend their homes are uninhabitable, we need not define the scope of that term here. See Thompson v. Ricardo, 269 S.W.3d 100, 103 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (holding appellate courts lack authority to render advisory opinions). However, we note an objective standard for proving a residence has been rendered "unusable for its intended purpose," see TCLC, 73 S.W.3d at 244, would add some degree of predictability to a decidedly unclear and fact-bound area of the law.

USCA1 Opinion [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 96-2039 RICHARD RILEY, ET AL., Plaintiffs, Appellants, v. LARRY E. DUBOIS, Defendant, Appellee. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge] ___________________ ____________________ Before Torruella, Chief Judge, ___________ Stahl and Lynch, Circuit Judges. ______________ ____________________ Christopher Masonoff, Sr., John Tarrant and Charles Mitchell on __________________________ ____________ _________________ brief pro se. Nancy Ankers White, Special Assistant Attorney General, and ____________________ William D. Saltzman, Department of Correction, on brief for appellee. ___________________ ____________________ October 14, 1997 ____________________ Per Curiam. In 1994, the Massachusetts Commissioner of ___________ Correction promulgated a "sex offender treatment" program ("the program"), see 103 DOC 446, designed to provide ___ treatment for those inmates "with a present indication or prior history of involvement in the commission of sex offenses," id. 446.07. With a sequential series of ___ treatment phases, first at the medium-security level and then in minimum-security and pre-release settings, the program is intended to offer "a continuum of service from the time an inmate with such a background is committed, until he/she is released to the community, and hopefully beyond." Id. While ___ the program is voluntary, any inmate who declines to participate (or who has not completed the initial treatment stages) is barred from moving beyond minimum security. See ___ Dominique v. Weld, 73 F.3d 1156, 1161 n.8 (1st Cir. 1996) _________ ____ (discussing program). The plaintiffs here are four inmates who have declined to participate in the program, allegedly out of fear of retribution from other prisoners should their sex-offender status become known. They have accordingly been confined to medium security with a consequent loss of privileges. Plaintiff Tarrant further complains that he has been denied parole as a result, while plaintiff Masonoff protests that his parole reserve date has been rescinded. All of the plaintiffs committed their offenses before the program was -2- introduced. Three of them were allegedly screened and "cleared" under an earlier regime calling for the indefinite civil commitment of "sexually dangerous persons." See Mass. ___ G. L. c. 123A. In this pro se action under 42 U.S.C. 1983, plaintiffs insist that applying the program to them is impermissible on a variety of constitutional and other grounds. Declaratory and injunctive relief and damages are sought; the Commissioner of Correction is the sole named defendant. From an adverse award of summary judgment, plaintiffs now appeal. We affirm. Extended discussion is unnecessary. Plaintiffs' principal contention, which underlies many of their claims, is that it is improper to subject them to the program after they had been cleared under the c. 123A regime. In their view, the program is simply a "mirror image"--a revamped version--of the c. 123A system, which could not be applied to them absent some intervening sexual misconduct. They argue that doing so violates notions of due process, equal protection, ex post facto law, res judicata and collateral estoppel. We disagree. The two regimes share nothing more than a common purpose of treating sex offenders. Whereas c. 123A involves involuntary and indeterminate civil commitment based upon a judicial finding of sexual dangerousness, the program involves a voluntary treatment scheme that can affect -3- a prisoner's classification level but does not alter his underlying criminal sentence. That one has previously been determined not to be a "sexually dangerous person" under c. 123A thus does not preclude subjecting him to the program. Applying the program to plaintiffs does not otherwise violate due process. Imposing limitations on a prisoner's access to minimum security entails no "atypical and significant hardship" under Sandin v. Conner, 515 U.S. 472, ______ ______ 484 (1995). See, e.g., Dominique, 73 F.3d at 1158-61 ___ ____ _________ (finding prisoner's removal from work release and restriction to medium security to be permissible under Sandin). Nor is ______ due process implicated by the denial of parole, see, e.g., ___ ____ Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979), __________ _______________________ or by the rescission of a parole reserve date, see, e.g., ___ ____ Jago v. Van Curen, 454 U.S. 14 (1981) (per curiam); Lanier v. ____ _________ ______ Massachusetts Parole Bd., 396 Mass. 1018 (1986) (rescript). ________________________ Plaintiffs' equal protection claim is also misplaced; sex offenders are not a suspect class, see, e.g., Lustgarden v. ___ ____ __________ Gunter, 966 F.2d 552, 555 (10th Cir. 1992), and a treatment ______ program such as this is rationally related to the legitimate state interest in protecting public safety, see, e.g., Neal ___ ____ ____ v. Shimoda, 905 F. Supp. 813, 819 (D. Haw. 1995); see also _______ _________ Martel v. Feidovich, 14 F.3d 1, 2-3 (1st Cir. 1994) (per ______ _________ curiam). Nor does the program constitute a bill of -4- attainder. See, e.g., Schafer v. Moore, 46 F.3d 43, 45 (8th ___ ____ _______ _____ Cir. 1995). As to whether the program might constitute an ex post facto violation by resulting in the deferral or denial of parole (or of a parole hearing), we need express no general view.1 At least one court has held, albeit in a case 1 predating California Dep't of Corrections v. Morales, 514 ________________________________ _______ U.S. 499 (1995), that conditioning parole on an inmate's participation in a sex offender treatment program can violate the Ex Post Facto Clause. See Parton v. Armontrout, 895 F.2d ___ ______ __________ 1214, 1215-16 (8th Cir. 1990); cf. Knox v. Lanham, 895 F. ___ ____ ______ Supp. 750, 756-58 (D. Md. 1995) (invalidating restrictions on parole eligibility for "lifers"). Contra Russell v. Eaves, ______ _______ _____ 722 F. Supp. 558, 560 (E.D. Mo. 1989), appeal dismissed, 902 ________________ F.2d 1574 (8th Cir. 1990). Yet plaintiffs have presented no direct claim that this is what happened here; indeed, the interplay between the program and the parole system is unexplained on the present record. Nor, in the course of their ex post facto discussion, have they referred to parole in anything more than oblique fashion--either below or on appeal. Plaintiffs bore the burden of establishing an ex post facto violation. See Morales, 514 U.S. at 510 n.6. It ___ _______ ____________________ 1 Contrary to defendant's suggestion, our Dominique 1 _________ decision does not appear to address this issue, much less "foreclose" it. There is no indication that any complaint was there voiced regarding the program's effect on parole eligibility. -5- suffices here to conclude that the minimal facts they have adduced and the perfunctory arguments they have advanced fall short of doing so. Plaintiffs' remaining claims are rejected for the reasons recited by the district court (or because they require no separate comment). Affirmed. _________ -6-

338 F.2d 701 Ana Guerrero GARRIDO, Appellant,v.Paul BORDALLO and Audrey Bordallo, Appellees. No. 19104. United States Court of Appeals Ninth Circuit. Nov. 16, 1964. Finton J. Phelan, Jr., Agana, Guam, Alvin Buchignani, San Francisco, Cal., for appellant. Gerald F. Ellersdorfer, Arriola, Bohn & Gayle, Benicia, Cal., for appellees. Before CHAMBERS, BROWNING and DUNIWAY, Circuit Judges. PER CURIAM. 1 The judgment of the district court is affirmed. 2 Appellant made a challenge in the trial court to the jury panel. As framed and as timed there, we cannot sustain it. 3 We have considered all specifications of error, but do not agree with them.

555 S.E.2d 419 (2001) 37 Va. App. 188 NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY v. Mary Gertrude HOLMES. Record No. 0899-01-1. Court of Appeals of Virginia, Chesapeake. December 4, 2001. *420 Christopher R. Hedrick, (Mason, Cowardin & Mason, P.C., on brief), Newport News, for appellant. Richard B. Donaldson, Jr. (Jones, Blechman, Woltz & Kelly, P.C., on brief), Newport News, for appellee. Present: BRAY, FRANK and CLEMENTS, JJ. BRAY, Judge. Newport News Shipbuilding and Dry Dock Company (employer) appeals the determination of the Workers' Compensation Commission (commission) that employer, seeking to recoup a credit accrued from payments to claimant in accordance with the federal Longshore and Harbor Workers' Compensation Act (LHWCA), wrongfully suspended compensation benefits subsequently awarded claimant pursuant to the Workers' Compensation Act (Act). Additionally, employer appeals the penalty assessed by the commission on such suspended compensation. Finding no error, we affirm the decision. I. The substantive facts and procedural history are uncontroverted. On August 13, 1993 claimant sustained a work-related injury, which entitled her to benefits pursuant to both the LHWCA and the Act. Initially, she pursued and received a LHWCA disability award but, "to protect her right to all benefits . . . under the . . . Act," also lodged a related claim with the commission, then advising the commission, "[n]o hearing is requested at this time."[1] After claimant had received LHWCA benefits totaling $68,942.78, employer terminated payments on August 30, 1998. Thereafter, by letter to the commission dated September 21, claimant "request[ed] that this matter be moved to the hearing docket on an expedited basis to request . . . benefits [under the Act] beginning August 31, 1998, and continuing." The parties subsequently agreed to a schedule of compensation to claimant for various periods of disability, including a lump sum of $21,831.22 for "a 50% permanent partial disability to the left leg" and "[t]emporary partial disability . . . of $104.87 per week from 1/19/99 to the present and continuing," and the commission so ordered. On May 8, 2000, claimant notified the commission that employer had unilaterally ceased payment of the $104.87 weekly benefit on July 4, 1999, and, pursuant to Code § 65.2-254, sought assessment of a twenty percent penalty on "all payments in arrears more than two weeks." The commission immediately granted claimant's motion. However, within several days, employer objected, advising the commission that, after realizing "that payments had also been made under the [LHWCA]," employer was "now taking a dollar for dollar credit" against the award. The dispute was promptly designated "for determination on the record," and each party was directed to submit written "statements of position" and related documentary proofs for further consideration by the commission. Guided by Moore v. Va. Int'l Terminals, Inc., 254 Va. 46, 486 S.E.2d 528 (1997) (Moore II), and an unpublished opinion of this Court, Dodson v. Newport News Shipbuilding & Dry Dock Co., Record No. 0278-99-1, 1999 WL 1133301 (Va.Ct.App., Aug. 10, 1999), the deputy commissioner decided that, while employer was entitled to a credit for LHWCA benefits previously paid to claimant, "the method by which overpayments are to be recognized" was governed by the "requirements of [Code] § 65.2-520." Thus, employer's *421 recoupment was limited "to . . . a reduction of one-fourth of the amount of weekly payments" due claimant "through the present and continuing," not a suspension of benefits. Additionally, pursuant to Code § 65.2-524, the deputy assessed a statutory penalty against employer upon those payments wrongfully withheld from claimant's award under the Act. The commission affirmed the decision following appeal by employer. Employer now appeals to this Court, disputing the application of Code § 65.2-520 to limit recoupment of payments made pursuant the LHWCA, and the related penalty. II. Code § 65.2-520 provides, in pertinent part, that [a]ny payments made by the employer to the injured employee during the period of his disability . . . , which by the terms of this title were not due and payable when made, may, subject to the approval of the Commission, be deducted from the amount to be paid as compensation provided that, in the case of disability, such deductions shall be made by reducing the amount of the weekly payment in an amount not to exceed one-fourth of the amount of the weekly payment for as long as is necessary for the employer to recover his voluntary payment. Employer correctly concedes "that numerous appellate decisions have considered payments under the [LHWCA] in the context of `voluntary payments' as defined by § 65.2-520." See, e.g., Va. Int'l Terminals, Inc. v. Moore, 22 Va.App. 396, 405, 470 S.E.2d 574, 578 (1996) (Moore I) ("[D]isability payments employer paid claimant under the LHWCA were `voluntary' because . . . they were not `due and payable' under `the terms of' the Virginia Act."), aff'd, 254 Va. 46, 486 S.E.2d 528 (1997). However, employer posits that application of the statute to the instant facts would confer benefits upon claimant violative of Code § 65.2-518 and inconsistent with the rationale of Moore II and, further, encourage delay in the prosecution of like claims under the Act.[2] Code § 65.2-518 limits "total compensation under this title" to "500 weeks" or "the average weekly wage of the Commonwealth . . . for the applicable year [multiplied] by 500." Moore II instructs that "[w]here, as here, a worker is covered by both the [LHWCA] and the state [Act], . . . the injured worker may proceed under either or both statutes" but "is entitled to only a single recovery for his injuries." Moore II, 254 Va. at 49, 486 S.E.2d at 529 (citations omitted). Thus, the Court in Moore II construed Code § 65.2-520 to assure an employer a "dollar for dollar" credit for LHWCA compensation benefits paid an injured employee against like benefits due under the Act, thereby avoiding an impermissible "double recovery." Id. at 50, 486 S.E.2d at 530. Employer, therefore, reasons the commission may not restrict recovery of LHWCA credits under Code § 65.2-520 with the result that claimant receives both a "total recovery" violative of Code § 65.2-518 and a "double recovery" contrary to Moore II. Employer's argument misconstrues both Code § 65.2-518 and Moore II. The benefit limitations prescribed by Code § 65.2-518 are restricted to "total compensation payable under" the Act. Therefore, recoupment of credits resulting from voluntary payments by an employer to an injured employee of monies, "not due and payable [under the Act] when made," is a circumstance clearly not contemplated by Code § 65.2-518 but, rather, specifically embraced by Code § 65.2-520. Code § 65.2-520 (emphasis added). Code § 65.2-520 facilitates an employer's right to collect LHWCA credits by "deductions" from compensation due an employee under the Act but expressly restricts such offsets to one-fourth of the "weekly payment." Code § 65.2-520 creates no alternative or exception to the collection mechanism to redress circumstances that may result in a diminished recovery by *422 an employer. "If a statute is clear and unambiguous, a court will give the statute its plain meaning." Loudoun Co. Dep't of Soc. Servs. v. Etzold, 245 Va. 80, 84, 425 S.E.2d 800, 802 (1993) (citations omitted). Similarly, a proper reading of Moore II offers no support for employer's argument. Moore II simply affirms the well established principle disfavoring double recovery by an employee of benefits arising from the same industrial accident and construes Code § 65.2-520 to allow a "dollar for dollar" recoupment by an employer of overpayment credits. Id. at 49-50, 486 S.E.2d at 530. Moore II neither disapproves the method of recovery specified by Code § 65.2-520 nor suggests exceptions to preclude shortfalls to employer or windfalls to employee. To the contrary, the court defers to the "clear intent of the General Assembly" in construing Code § 65.2-520, thereby countenancing the explicit statutory limitations upon recovery of overpayment credits. Lastly, employer maintains that the promise of undeserved benefits resulting from statutory limitations upon an employer's recoupment of overpayments would encourage claimants receiving benefits pursuant to the LHWCA to delay a proceeding under the Act and urges this Court to fashion a remedy to this perceived deficiency in the statutory scheme. However, such public policy determinations are within the province of the legislature, not the judiciary. Thus, absent evidence that the instant claim was time-barred by the Act or attendant Rules of the Commission, we decline employer's invitation to impose a judicial limitation. III. Claimant's brief includes a conclusionary prayer for "interest due under [Code] § 65.2-707 [and] attorney's fees and costs due under [Code §] 65.2-713." A review of the record discloses claimant requested "an award of attorney's fees" in correspondence to the commission dated May 25, 2000. In subsequently deciding the instant cause, the deputy expressly did "not find" claimant entitled to "any attorney's fees under [Code] § 65.2-513[sic]," a decision claimant did not submit for review by the commission. Accordingly, the commission did not address the issue and we decline to entertain it on appeal. With respect to an award of fees and costs incident to the proceedings before this Court, we find "reasonable grounds" supported employer's defense and deny claimant such relief. Code § 65.2-713(A). Accordingly, the commission properly limited employer's right of recoupment to the method prescribed by Code § 65.2-520 and correctly assessed a penalty on those benefit payments withheld contrary to statute. We, therefore, affirm the decision and remand the proceedings to the commission solely for entry of an appropriate order directing the immediate payment of those benefits improperly withheld by employer, together with the attendant penalty and interest, and the restoration of benefits to claimant, subject to the provisions of Code § 65.2-520. Affirmed and remanded. NOTES [1] In response, the commission acknowledged the claim and notified both employer and claimant, without objection, "[n]o further action will be taken . . . until requested by the parties." [2] Employer's uncontroverted calculations reflect that recoupment at the statutory rate, $26.21 per week (25% of $104.87), would permit "recapture" of only $42,944.04 from claimant over the benefit period under the Act, resulting in a "windfall" to claimant of $25,998.74 and a "pennies-for-dollar" credit recovery for employer.

355 F.3d 310 Ira W. MADISON, Petitioner-Appellant,v.R. RITER, a/k/a R. Ruter, CCS Chairman; Duncan Mills; D.J. Armstrong; Gary Bass, Chief of Operations, CCS; Commonwealth of Virginia; Lewis B. Cei, Special Programs Manager, Respondents-Appellees.Aleph Institute; American Civil Liberties Union; The American Jewish Committee; The American Jewish Congress; The Baptist Joint Committee on Public Affairs; The Becket Fund for Religious Liberty; The Christian Legal Society; People for the American Way, Amici Supporting Appellant.United States of America, Intervenor-Appellant,v.R. Riter, a/k/a R. Ruter, CCS Chairman; Duncan Mills; D.J. Armstrong; Gary Bass, Chief of Operations, CCS; Commonwealth of Virginia; Lewis B. Cei, Special Programs Manager, Respondents-Appellees.Aleph Institute; American Civil Liberties Union; The American Jewish Committee; The American Jewish Congress; The Baptist Joint Committeeon Public Affairs; The Becket Fund for Religious Liberty; The Christian Legal Society; People for the American Way, Amici Supporting Appellant. No. 03-6362. No. 03-6363. United States Court of Appeals, Fourth Circuit. Argued: October 28, 2003. Decided: December 8, 2003. Appeal from the United States District Court for the Western District of Virginia, James C. Turk, J. ARGUED: Gene C. Schaerr, Sidley, Austin, Brown & Wood, L.L.P., Washington, D.C.; Michael Scott Raab, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Appellants. William Eugene Thro, Deputy State Solicitor, Office of the Attorney General, Richmond, VA, for Appellees. ON BRIEF: Richard H. Menard, Jr., Sidley, Austin, Brown & Wood, L.L.P., Washington, D.C.; Robert D. McCallum, Jr., Assistant Attorney General, Stuart E. Schiffer, Acting Assistant Attorney General, John L. Brownlee, United States Attorney, Mark B. Stern, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Appellants. Jerry W. Kilgore, Attorney General, William H. Hurd, State Solicitor, Maureen Riley Matsen, Deputy State Solicitor, Pamela A. Sargent, Senior Assistant Attorney General, Office of the Attorney General, Richmond, VA, for Appellees. Kevin J. Hasson, Anthony R. Picarello, Jr., Roman P. Storzer, Derek L. Gaubatz, the Becket Fund for Religious Liberty, Washington, D.C., for Amici Curiae. Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges. Reversed and remanded by published opinion. Judge WILKINSON wrote the opinion, in which Judge MICHAEL and Judge DUNCAN joined. OPINION WILKINSON, Circuit Judge. 1 Appellant Ira W. Madison, a convict held in a Virginia Department of Corrections prison, was denied his requests for kosher meals that he claims his religious beliefs require. He sued the Commonwealth of Virginia and officials of the Virginia Department of Corrections, alleging among other claims a violation of section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The district court ruled that the provision had an impermissible effect of advancing religion under the second prong of the Lemon test. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Because we find that Congress can accommodate religion in section 3 of RLUIPA without violating the Establishment Clause, we reverse. To hold otherwise and find an Establishment Clause violation would severely undermine the ability of our society to accommodate the most basic rights of conscience and belief in neutral yet constructive ways. I. A. 2 From 2000 to the present, Madison has claimed to be a member of the Church of God and Saints of Christ, a congregation founded in 1896 and headquartered at Temple Beth El in Suffolk, Virginia. Church members are commonly known as Hebrew Israelites, and they claim to be "followers of the anointed God" who honor but do not worship Jesus Christ. Most importantly for purposes of this case, Madison's church requires its members to abide by the dietary laws laid out in the Hebrew Scriptures. 3 The parties dispute the timing of Madison's conversion and his affiliation with a wide range of other religious groups during his incarceration. What is clear is that in July 2000 and again in March 2001, Madison informed correctional officials that his religious beliefs required him to receive a kosher diet, defined as a "common fare diet" by the Virginia Department of Corrections. Both requests were approved by local prison officials, but denied by Department of Corrections administrators in Richmond. The Commonwealth rejected Madison's requests because it determined that Madison already had adequate alternatives from the regular, vegetarian, and no pork daily menus; because it doubted the sincerity of Madison's religious beliefs; and because it considered Madison's history of disciplinary problems. 4 In August 2001, Madison challenged the denial of his request in district court, relying in part on section 3 of RLUIPA. Section 3(a) of RLUIPA states that "[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person — (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest." 42 U.S.C. § 2000cc-1(a) (2000). Section 3(b) of RLUIPA states that Section 3(a) applies whenever the substantial burden at issue "is imposed in a program or activity that receives Federal financial assistance." 42 U.S.C. § 2000cc-1(b)(1). In 2002 the Commonwealth Department of Corrections received $4.72 million — approximately 0.5% of its budget — from the federal government, thus triggering the statute's applicability. Madison's lawsuit relied on section 4(a) of RLUIPA, which creates a private right of action that allows any person to "assert a violation of this chapter as a claim or defense in a judicial proceeding" and to "obtain appropriate relief against a government." 42 U.S.C. § 2000cc-2(a). 5 The district court denied Madison's motion for summary judgment concerning his constitutional claims on August 23, 2002, and it deferred ruling on his RLUIPA claim pending briefing and argument on the statute's constitutionality. The district court also granted the United States leave to intervene to defend the statute, pursuant to 28 U.S.C. § 2403(a). 6 On January 23, 2003, the district court found that section 3 of RLUIPA impermissibly advanced religion by offering greater legislative protection to the religious rights of prisoners than to other fundamental rights that were similarly burdened. See Madison v. Riter, 240 F.Supp.2d 566, 577 (W.D.Va.2003). The district court therefore rejected Madison's statutory claim, and simultaneously certified the question of RLUIPA's constitutionality for interlocutory appeal under 28 U.S.C. § 1292(b). Madison and the United States filed timely petitions with this court to appeal the order, and their petitions were granted. B. 7 The legislative and judicial background that led to RLUIPA's enactment are important for considering Madison's appeal. Congress crafted RLUIPA to conform to the Supreme Court's decisions in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), and City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). In Smith, the Court held that laws of general applicability that incidentally burden religious conduct do not offend the First Amendment. See 494 U.S. at 890. The neutrality principle in Smith largely complemented the traditional deference that courts afford to prison regulations that impose burdens on prisoners' rights. See Turner v. Safley, 482 U.S. 78, 89-90, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).1 At the same time, however, the Smith Court openly invited the political branches to provide greater protection to religious exercise through legislative action. See 494 U.S. at 890, 110 S.Ct. 1595. 8 In 1993, Congress responded to Smith by enacting the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq., which Congress claimed was premised on its remedial powers under section 5 of the Fourteenth Amendment. RFRA prohibited federal and state governments from "substantially burden[ing]" a person's exercise of religion, even as the result of a law of general applicability, unless the government could demonstrate that the burden "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1(a)-(b). 9 The Supreme Court's decision in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), invalidated RFRA as it applied to states and localities. The Court held that the scope of the statute exceeded Congress's remedial powers under section 5 of the Fourteenth Amendment. See 521 U.S. at 532-36, 117 S.Ct. 2157. 10 While RFRA continued to apply to the federal government, see Guam v. Guerrero, 290 F.3d 1210, 1221 (9th Cir.2002); O'Bryan v. Bureau of Prisons, No. 02-4012, 2003 WL 22533454, at *2 (7th Cir. Nov.10, 2003), in September 2000, Congress attempted to reinstate RFRA's protection against government burdens on religious exercise imposed by states and localities by enacting the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc et seq. This statute mirrored the provisions of RFRA, but its scope was limited to laws and regulations concerning land use and institutionalized persons. See 42 U.S.C. § 2000cc-1(a). RLUIPA's enactment was premised on congressional findings similar to those made for RFRA, namely, that in the absence of federal legislation, prisoners, detainees, and institutionalized mental health patients faced substantial burdens in practicing their religious faiths. See Joint Statement of Senator Hatch and Senator Kennedy, 146 Cong. Rec. S7774-01 (daily ed. July 27, 2000). 11 In passing RLUIPA, Congress sought to avoid Boerne's constitutional barrier by relying on its Spending and Commerce Clause powers, rather than on its remedial powers under section 5 of the Fourteenth Amendment as it had in RFRA. See 42 U.S.C. § 2000cc-1(b)(1) (establishing that Section 3 of RLUIPA applies whenever the burden at issue "is imposed in a program or activity that receives Federal financial assistance"); 42 U.S.C. § 2000cc-1(b)(2) (establishing that section 3 of RLUIPA applies in cases in which "the substantial burden [on religion] affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes"). II. 12 Among its numerous constitutional challenges to RLUIPA, the Commonwealth contends that the statute violates the Establishment Clause. The district court held that section 3 of RLUIPA violates the Establishment Clause because it singled out the religious exercise rights of prisoners for special protection. The district court explained: 13 [P]rison inmates exist in a society of universally limited rights, one that is required by the nature of the institution. When Congress acts to lift the limitations on one right while ignoring all others, it abandons a position of neutrality towards these rights, placing its power behind one system of belief. 14 Madison, 240 F.Supp.2d at 577. The district court stated that "the practical effect of RLUIPA on the prison system in the United States is to grant religious and professed religious inmates a multitude of exceptions and benefits not available to non-believers." Id. at 580. It concluded that "RLUIPA extends far beyond regulations targeting religion, protecting religious inmates against even generally applicable and facially neutral prison regulations that have a substantial effect on a multitude of fundamental rights." Id. at 575-76. 15 Because Congress had failed to compile "demonstrable evidence that religious constitutional rights are at any greater risk of deprivation in the prison system than other fundamental rights," id. at 575, the district court found that protecting the religious exercise of prisoners violated the Establishment Clause. It concluded that this provision sends "non-religious inmates a message that they are outsiders of a privileged community," id. at 580, and it unconstitutionally advanced religion by providing an inmate with incentives to "claim religious rebirth and cloak himself in the protections of RLUIPA." Id. 16 The district court's decision is at odds with two other circuits that have examined this question and found that section 3 of RLUIPA does not violate the Establishment Clause. See, e.g., Charles v. Verhagen, No. 02-3572, 348 F.3d 601, 610-11, 2003 WL 22455960, at *6-7 (7th Cir. Oct.30, 2003); Mayweathers v. Newland, 314 F.3d 1062, 1068-69 (9th Cir.2002), cert. denied, 540 U.S. 815, 124 S.Ct. 66, 157 L.Ed.2d 30 (2003); see also Williams v. Bitner, 285 F.Supp.2d 593, 599-601 (M.D.Pa.2003). Courts have also rejected similar Establishment Clause challenges to the Religious Freedom Restoration Act, whose religious accommodation provisions are identical to section 3 of RLUIPA. See, e.g., In Re Young, 141 F.3d 854, 862-63 (8th Cir.1998); Mockaitis v. Harcleroad, 104 F.3d 1522, 1530 (9th Cir.1997); Sasnett v. Sullivan, 91 F.3d 1018, 1022 (7th Cir. 1996); EEOC v. Catholic. Univ. of Am., 83 F.3d 455, 470 (D.C.Cir.1996); Flores v. City of Boerne, 73 F.3d 1352, 1364 (5th Cir.1996), rev'd on other grounds, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). One circuit court, however, has relied extensively upon the district court's decision in this case to hold that section 3 of RLUIPA does violate the Establishment Clause. See Cutter v. Wilkinson, 349 F.3d 257, 263-68 (6th Cir.2003). It is this conclusion that we must address with care. 17 This court must review de novo the constitutionality of a federal law. See United States v. Buculei, 262 F.3d 322, 327 (4th Cir.2001); Farmer v. Employment Security Commission of North Carolina, 4 F.3d 1274, 1279 (4th Cir.1993). The basic framework for Establishment Clause challenges is well-settled: "[f]irst the [targeted] statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion." Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (internal and quotations omitted). We address each of the three Lemon prongs in turn. A. 18 We first consider whether section 3 of RLUIPA has a legitimate secular purpose. Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105. We are guided here by the Supreme Court's decision in Corporation of the Presiding Bishop v. Amos, which established that Congress may accommodate the exercise of faith by lifting government-imposed burdens on free exercise. 483 U.S. 327, 335, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987). The Amos Court stated that the Establishment Clause seeks to prevent government decisionmakers "from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters." Id. But in commanding neutrality, the Establishment Clause does not require the government to be oblivious to the burdens that state action may impose upon religious practice and belief. Rather, there is "ample room under the Establishment Clause for `benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.'" Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 705, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994) (quoting Amos, 483 U.S. at 334, 107 S.Ct. 2862). The Supreme Court therefore held in Amos that "it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions." Amos, 483 U.S. at 335, 107 S.Ct. 2862. 19 This alleviation of government burdens on prisoners' religious exercise is precisely the legitimate secular purpose that RLUIPA seeks to advance. RLUIPA is not designed to advance a particular religious viewpoint or even religion in general, but rather to facilitate opportunities for inmates to engage in the free exercise of religion. This secular goal of exempting religious exercise from regulatory burdens in a neutral fashion, as distinguished from advancing religion in any sense, is indeed permissible under the Establishment Clause. See id. 20 To be sure, Congress has no constitutional duty to remove or to mitigate the government-imposed burdens on prisoners' religious exercise. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 349-50, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). But the Supreme Court has held that Congress may choose to reduce government-imposed burdens on specific fundamental rights when it deems it appropriate. The Supreme Court "has upheld a broad range of statutory religious accommodations against Establishment-Clause challenges." Brown v. Gilmore, 258 F.3d 265, 275 (4th Cir.2001). These include statutes that allow public school students time off during the day solely for religious worship or instruction, see Zorach v. Clauson, 343 U.S. 306, 315, 72 S.Ct. 679, 96 L.Ed. 954 (1952), property tax exemptions for religious properties used solely for religious worship, see Walz v. Tax Commission, 397 U.S. 664, 680, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), and exemptions for religious organizations from statutory prohibitions against discrimination on the basis of religion, see Amos, 483 U.S. at 335, 107 S.Ct. 2862. While RLUIPA's scope may in some ways be broader than the specific religious exceptions that the Supreme Court has previously upheld, the central principle — that Congress may legitimately minimize government burdens on religious exercise — remains the same. Congress here has acted properly in embracing this secular purpose. B. 21 We next consider whether section 3 of RLUIPA has the impermissible effect of advancing religion. See Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105. The district court found that RLUIPA impermissibly advanced religion by according special protection only to prisoners' religious exercise. The district court stated: 22 The singling out of religious belief as the one fundamental right of prisoners deserving of legislative protection rejects any notion of congressional neutrality in the passage of RLUIPA. In the absence of any proof that religious rights are more at risk in prison than other fundamental rights, and with the knowledge that strict scrutiny is not required to protect the religious belief of prisoners under the Free Exercise Clause, Congress acted only to protect religious rights. Such an action, while labeled a neutral "accommodation," is not in fact neutral at all, and the Court is not allowed to defer to the mere characterization of RLUIPA as such. 23 Madison, 240 F.Supp.2d at 576. 24 We disagree. "For a law to have forbidden `effects' under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence." Amos, 483 U.S. at 337, 107 S.Ct. 2862 (emphasis in original). Evidence of the impermissible government advancement of religion includes "sponsorship, financial support, and active involvement of the sovereign in religious activity." Walz, 397 U.S. at 668, 90 S.Ct. 1409. Here, however, Congress has not sponsored religion or become actively involved in religious activity, and RLUIPA in no way is attempting to indoctrinate prisoners in any particular belief or to advance religion in general in the prisons. Congress has simply lifted government burdens on religious exercise and thereby facilitated free exercise of religion for those who wish to practice their faiths. 25 We cannot accept the theory advanced by the district court that Congress impermissibly advances religion when it acts to lift burdens on religious exercise yet fails to consider whether other rights are similarly threatened. Madison, 240 F.Supp.2d at 577; see also Cutter v. Wilkinson, 349 F.3d 257, 266-67 (6th Cir. 2003). There is no requirement that legislative protections for fundamental rights march in lockstep. The mere fact that RLUIPA seeks to lift government burdens on a prisoner's religious exercise does not mean that the statute must provide commensurate protections for other fundamental rights. Amos clearly established that "[w]here, as here, government acts with the proper purpose of lifting a regulation that burdens the exercise of religion, we see no reason to require that the exemption comes packaged with benefits to secular entities." Amos, 483 U.S. at 338, 107 S.Ct. 2862. 26 The district court attempted to distinguish Amos from the present case by stating that in Amos, Congress had found that Title VII's prohibitions on hiring or firing on the basis of religion had a much greater effect on religious groups than on secular organizations. Madison, 240 F.Supp.2d at 577 n. 9. While congressional supporters of RLUIPA also emphasized the "egregious and unnecessary" burdens that prison regulations impose on religious exercise, the district court concluded that the restrictions inherent in prison life could not help but burden other fundamental rights as well. Id. at 575. The district court thus concluded that "[w]hen Congress acts to lift limitations on one right while ignoring all others, it abandons neutrality towards these rights, placing its power behind one system of belief." Id. at 577. 27 The Establishment Clause's requirement of neutrality does not mandate that when Congress relieves the burdens of regulation on one fundamental right, that it must similarly reduce government burdens on all other rights. Amos stands, as we have noted, for the simple proposition that Congress can intervene to lift governmental burdens on religious exercise. The Amos decision does not at all indicate that Congress must examine how or if any other fundamental rights are similarly burdened. The Amos Court in no way made its ruling turn on a congressional finding that religious exercise was threatened more by the application of Title VII than were other rights. It is doubtful that such congressional findings — a compilation of evidence on how all fundamental rights would or would not be affected by Title VII — even existed. Regardless, such a heightened standard for congressional action was not part of the inquiry in Amos.2 28 Indeed, the context in which Congress was acting made it sensible for Congress to lift only state-imposed burdens on free exercise through RLUIPA. It was reasonable for Congress to seek to reduce the burdens on religious exercise for prisoners without simultaneously enhancing, say, an inmate's First Amendment rights to access pornography. Free exercise and other First Amendment rights may be equally burdened by prison regulations, but the Constitution itself provides religious exercise with special safeguards. And no provision of the Constitution even suggests that Congress cannot single out fundamental rights for additional protection. To attempt to read a requirement of symmetry of protection for fundamental liberties would not only conflict with all binding precedent, but it would also place prison administrators and other public officials in the untenable position of calibrating burdens and remedies with the specter of judicial second-guessing at every turn. 29 Apart from advancing religion, the district court further found that RLUIPA may create incentives for secular prisoners to cloak secular requests in religious garb and thus may increase the burden on state and local officials in processing RLUIPA claims. See Madison, 240 F.Supp.2d at 580. This may be true, but it is simply not a concern under the Establishment Clause. Any additional burdens that RLUIPA may impose on states and localities speak more to the wisdom of the law and to the disincentives for states to assume their RLUIPA obligations than to RLUIPA's validity under the Establishment Clause. We therefore conclude that section 3 of RLUIPA has the effect of lifting burdens on prisoners' religious exercise, but does not impermissibly advance religion. C. 30 We further conclude that section 3 of RLUIPA does not create excessive government entanglement with religion in violation of the third prong of the Lemon test. See Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105; see also Agostini v. Felton, 521 U.S. 203, 232-35, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (suggesting that the effects and entanglement prongs of Lemon focus on substantially the same factors). While the statute may require some state action in lifting state-imposed burdens on religious exercise, RLUIPA does not require "pervasive monitoring" by public authorities. Agostini v. Felton, 521 U.S. at 233-34, 117 S.Ct. 1997; see also Mayweathers v. Newland, 314 F.3d 1062, 1069 (9th Cir.2002). RLUIPA itself minimizes the likelihood of entanglement through its carefully crafted enforcement provisions. For example, the statute's broad definition of "religious exercise" to "include any exercise of religion, whether or not compelled by, or central to, a system of religious belief," 42 U.S.C. § 2000cc-5(7)(A), mitigates any dangers that entanglement may result from administrative review of good-faith religious belief. D. 31 Section 3 of RLUIPA thus satisfies the three prongs of the Lemon test. The opposite conclusion, we believe, would work a profound change in the Supreme Court's Establishment Clause jurisprudence and in the ability of Congress to facilitate the free exercise of religion in this country. It would throw into question a wide variety of religious accommodation laws. It could upset exemptions from compulsory military service for ordained ministers and divinity students under federal law, since these exemptions are not paired with parallel secular allowances or provisions to protect other fundamental rights threatened by compulsory military service. See 50 U.S.C.App. § 456(g) (2000). It would similarly imperil Virginia's and other states' recognition of a "clergy-penitent privilege," which exempts from discovery an individual's statements to clergy when "seeking spiritual counsel and advice." See, e.g., Va.Code Ann. §§ 8.01-400, 19.2-271.3 (2000). Other specific religious accommodation statutes, ranging from tax exemptions to exemptions from compulsory public school attendance, see, e.g., Va. Code Ann. § 22.1-254(B) (2000), would also be threatened. 32 Perhaps more importantly, the principle of neutrality advanced by the district court would create a test that Congress could rarely, if ever, meet in attempting to lift regulatory burdens on religious entities or individuals. For example, if Congress sought to grant religious organizations an exemption from a particularly demanding legal requirement, then Congress might have to grant similar exemptions to radio and TV stations or secular advocacy groups, absent congressional findings that free exercise rights were somehow more endangered by the law than other rights. Congress would have to make determinations in every instance of what fundamental rights are at risk and to what degree they are at risk, and it would be able only to heighten protection for fundamental rights in a symmetric fashion according to these assessments. The byzantine complexities that such compliance would entail would likely cripple government at all levels from providing any fundamental rights with protection above the Constitution's minimum requirements. III. A. 33 The Commonwealth recognized at argument the problematic nature of the trial court's rationale, but pressed several alternative points in support of affirmance which we feel obliged to address. It first contends that RLUIPA's mandate for the religious accommodation of prisoners violates the Establishment Clause because it subjects third parties to substantial burdens. The Commonwealth relies primarily on Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710-11, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985), for this contention. In Caldor, a Connecticut statute required employers to excuse employees from work on whatever day the employee designated as his Sabbath. Id. at 708, 105 S.Ct. 2914. Importantly, that statute mandated the accommodation of the religious needs of not only state employees, but also private employees. The Supreme Court struck the statute down on Establishment Clause grounds because it imposed significant burdens on private employers by requiring them to lift privately-imposed burdens on religious exercise. Id. at 708-10, 105 S.Ct. 2914. 34 It is true that section 3 of RLUIPA also seeks to have third parties — states accepting federal correctional funds — accommodate religious needs. But any comparison between RLUIPA and the statute in Caldor ends there. Caldor concerned an unfunded mandate imposed on private employers to lift privately-imposed burdens on the religious exercise of employees. Here the Commonwealth has voluntarily committed itself to lifting government-imposed burdens on the religious exercise of publicly institutionalized persons in exchange for federal correctional funds. These distinctions make the Commonwealth's reliance on Caldor unpersuasive. B. 35 The Commonwealth also protests that RLUIPA's compelling interest test will bind its hands and make it nearly impossible for the Commonwealth to prevail if prisoners challenge burdens on their religious exercise. The district court echoed this concern by proclaiming that "the change that RLUIPA imposes is revolutionary, switching from a scheme of deference to prison administrators to one of presumptive unconstitutionality." Madison, 240 F.Supp.2d at 575. 36 We do not make light of this concern. RLUIPA may impose burdens on prison administrators as they act to accommodate an inmates' right to free exercise. But RLUIPA still affords prison administrators with flexibility to regulate prisoners' religious practices if the Commonwealth "demonstrates that imposition of the burden on that person — (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest." 42 U.S.C. § 2000cc-1(a). 37 Moreover, the experience of federal correctional officials in complying with RLUIPA's predecessor statute, RFRA, suggests that the similar provisions of RLUIPA would not impose an unreasonable burden on state or local prisons. In the cases litigated under RFRA, federal correctional officials have continued to prevail the overwhelming majority of the time. See Developments in the Law — Religious Practice in Prison, 115 Harv. L.Rev. 1891, 1894 (2002). This fact suggests that RLUIPA should not hamstring the ability of the Commonwealth's correctional officials to ensure order and safety in the Commonwealth's prisons. 38 Admittedly, prison administrators' litigation successes may obscure the extent to which RLUIPA provides incentives for administrators to accommodate religious needs before litigation. But there is little empirical evidence from the federal government's experience under RFRA to suggest that the Commonwealth's compliance with RLUIPA will prove unworkable. And if it does, the Commonwealth at any time can decline the federal government's correctional funding. State legislators or administrators may weigh the burdens and benefits of RLUIPA and reject the federal funding if the tie-in of religious accommodation is not worth the financial benefits. In the final analysis, however, practical difficulties speak more to the wisdom of the legislation than to the precise Establishment Clause challenge under review in this appeal. IV. 39 Our society has a long history of accommodation with respect to matters of belief and conscience. If Americans may not set their beliefs above the law, there must be room to accommodate belief and faith within the law. See Smith, 494 U.S. at 878-79, 110 S.Ct. 1595. Regardless of the nature of their beliefs, people must pay taxes and observe other secular laws of general applicability. See Minersville School Dist. v. Gobitis, 310 U.S. 586, 594-95, 60 S.Ct. 1010, 84 L.Ed. 1375 (1940). However, legislative bodies have every right to accommodate free exercise, so long as government does not privilege any faith, belief, or religious viewpoint in particular. Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 696-97, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994). Section 3 of RLUIPA fits comfortably within this broad tradition. 40 We thus cannot find that section 3 of RLUIPA creates an Establishment Clause violation. We address here only the Establishment Clause challenge to RLUIPA. The Commonwealth has challenged the statute on a variety of other grounds, namely that it exceeds Congress's authority under the Spending and Commerce Clauses and that it runs afoul of the Tenth and Eleventh Amendments. We do not address these issues in this interlocutory appeal because the district court has not yet had sufficient opportunity to consider them. The Commonwealth also argues that it retains the exclusive authority to regulate in a zone of discretion between what the Establishment Clause prohibits and what the Free Exercise Clause requires. Although couched in religious terms, this is really a variant of the Commonwealth's many federalism-based or residual power contentions, which we have left to the district court on remand. 41 The judgment is therefore reversed, and the case is remanded to the district court for further proceedings. REVERSED AND REMANDED Notes: 1 Turner v. Safley laid out a four-factor "rational-relationship" test for analyzing the constitutionality of regulations that burden prisoners' fundamental rights. 482 U.S. at 89-90, 107 S.Ct. 2254. Under Turner, courts must consider (1) whether a "valid, rational connection [exists] between the prison regulation and the legitimate governmental interest put forward to justify it," (2) whether "alternative means of exercising the right [exist] that remain open to prison inmates," (3) what "impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally," and (4) whether there was an "absence of ready alternatives" to the regulation in question. Id. State and local prison regulations that burden prisoners' religious exercise have been subject to this rational-relationship test. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 349-50, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987); see also In re Long Term Administrative Segregation of Inmates Designated as Five Percenters, 174 F.3d 464, 468-69 (4th Cir.1999); Hines v. South Carolina Dept. of Corrections, 148 F.3d 353, 357 (4th Cir.1998). The deferential test that courts customarily apply to prison regulations, however, does not operate to prevent legislative bodies from adopting a more searching standard. 2 A concurrence inCity of Boerne v. Flores admittedly states a view related to that of the district court. 521 U.S. at 536-37, 117 S.Ct. 2157 (Stevens, J., concurring) (holding that the Religious Freedom Restoration Act provides religious groups "with a legal weapon that no atheist or agnostic can obtain" and thus constitutes a "governmental preference for religion, as opposed to irreligion"). This view, however, has not been adopted by the Supreme Court.

668 F.2d 533 Robinsonv.Price 80-2185 UNITED STATES COURT OF APPEALS Fifth Circuit 1/20/82 1 S.D.Tex. AFFIRMED

COURT OF APPEALS OF VIRGINIA Present: Judges Elder, Humphreys and Alston Argued at Richmond, Virginia TERRY MONTAIN MILLER MEMORANDUM OPINION * BY v. Record No. 1353-08-2 JUDGE LARRY G. ELDER SEPTEMBER 22, 2009 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Clarence N. Jenkins, Jr., Judge Elliott B. Bender (Elliott B. Bender, PLLC, on briefs), for appellant. Robert H. Anderson, III, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee. Terry Montain Miller (appellant) appeals from his jury trial convictions for two counts of robbery, one count of attempted robbery, three counts of using a firearm in the commission of a robbery or attempted robbery, and possession of a firearm by a convicted felon. On appeal, he contends the trial court erred in permitting the Commonwealth to use its four peremptory strikes against African-American venirepersons given that the Commonwealth’s only explanation for three of the strikes was based on alleged facts known only to the Commonwealth and not on any information elicited during voir dire of the venire panel. Appellant also contends the trial court erred in ruling the admission of the firearms and ballistics examination certificate did not violate appellant’s right of confrontation and that Virginia’s statutory provision allowing him to call the analyst did not alleviate the Confrontation Clause violation because it constituted impermissible burden-shifting. * Pursuant to Code § 17.1-413, this opinion is not designated for publication.  We hold appellant failed to present an adequate record from which we might determine whether the trial court erred in denying appellant’s challenge to the racial composition of the jury. We also hold that although the ballistics certificate contained testimonial hearsay, appellant waived his right to confront the preparer of the certificate or, in the alternative, that if appellant did not waive this right, any error in admitting the ballistics certificate was harmless on the facts of this case, in which the certificate was never actually marked as an exhibit or published to the jury. Thus, we affirm appellant’s convictions. I. A. JURY SELECTION AND PEREMPTORY STRIKES The appellate courts of this Commonwealth have many times pointed out that on appeal the judgment of the lower court is presumed to be correct and the burden is on the appellant to present to us a sufficient record from which we can determine whether the lower court has erred in the respect complained of. If the appellant fails to do this, the judgment will be affirmed. Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961). Here, appellant challenges the Commonwealth’s stated basis for peremptorily striking four potential jurors, whom appellant contends were all African-American. However, the partial transcript of the jury selection and trial before us on appeal contains conflicting information about which jurors were struck and how many of the stricken jurors were African-American, and it does not include the Commonwealth’s individual voir dire of any of the venire members. It contains only the trial court’s voir dire of the panel, appellant’s Batson challenge to the Commonwealth’s peremptory strikes, the Commonwealth’s recitation of its reasons for the strikes, and the trial court’s ruling on the Batson motion. It does not contain the questions appellant’s counsel and the prosecutors asked the potential jurors or the responses they received. -2- Appellant contends that because he argued his objections on the record “with no objections or corrections by the Commonwealth,” his averments amounted to a “proffer” and the “fact that the court reporter failed to transcribe the voir dire examination should be of no significance.” We disagree. “[P]roffers and statements do not constitute evidence from which this Court can make a determination as to whether the trial court erred in reaching its judgment.” Crawley v. Ford, 43 Va. App. 308, 315-16, 597 S.E.2d 264, 268 (2004) (emphasis added). A proffer is proper when a party seeks the admission of certain testimony or other evidence and the trial court rules that evidence inadmissible. Id. at 316, 597 S.E.2d at 268. A proffer of the actual or expected testimony or exhibit is necessary to permit appellate review of the ruling excluding the evidence. Id. Here, by contrast, the voir dire of the potential jurors actually occurred but was not transcribed. Appellant may not now rely upon his unilateral assertions concerning what transpired simply because the Commonwealth did not object to each of the factual assertions he made to support his argument in the trial court. Id. (discussing what is required to constitute a stipulation, judicial admission or evidential admission); see Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993) (“An appellate court must dispose of the case upon the record and cannot base its decision upon appellant’s petition or brief, or statement of counsel in open court.”); see also Rule 5A:8(c) (permitting a party to submit a written statement of facts, expressly approved by the trial judge, in lieu of or in conjunction with a transcript). In sum, “‘A proffer is not evidence, ipso facto.’ Without such evidence, or a proper record of the proceedings during which the [challenged action occurred], this Court simply cannot conduct an examination of the circumstances in order to determine whether the trial court erred . . . .” Crawley, 43 Va. App. at 316-17, 597 S.E.2d at 268-69 (quoting United States v. -3- Reed, 114 F.3d 1067, 1070 (10th Cir. 1997)). Accordingly, we may not consider appellant’s Batson claim. B. ADMISSION OF THE BALLISTICS CERTIFICATE Appellant contends on appeal that the ballistics certificate was testimonial under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), that the trial court’s ruling admitting the ballistics certificate without requiring the Commonwealth to call the preparer of the certificate violated his Confrontation Clause rights, and that the provision of Code § 19.2-187.1 permitting him to call the ballistics analyst as a witness did not alleviate this violation because this mechanism amounted to unconstitutional “burden shifting.” We agree that the ballistics certificate was testimonial under Crawford. See Melendez-Diaz v. Massachusetts, 557 U.S. ___, ___, 129 S. Ct. 2527, 2531-32, 174 L. Ed. 2d 314, 320-22 (2009) (holding certificates of drug analysis were affidavits that qualified as testimonial under Crawford, triggering the defendant’s right to confront the preparers); see also Grant v. Commonwealth, __ Va. App. ___, ___, ___ S.E.2d ___, ___ (Sept. 1, 2009) (applying Melendez-Diaz to hold that the attestation clause on a certificate of breath analysis is testimonial in nature and that its admission in the face of a proper objection, without providing an opportunity for cross-examination of the attestor, constituted a violation of the Confrontation Clause). Nevertheless, we conclude the admission of the ballistics certificate did not violate appellant’s Confrontation Clause rights under the facts of this case. As our Supreme Court has recognized, “it is undisputed that a criminal defendant can waive the right to confrontation,” and “[t]he decision in Crawford did not alter that fact.” Magruder v. Commonwealth, 275 Va. 283, 302, 657 S.E.2d 113, 122-23 (2008), cert. granted sub nom. Briscoe v. Virginia, ___ U.S. ___, -4- 129 S. Ct. 2858, 174 L. Ed. 2d 600 (2009); see Melendez-Diaz, 557 U.S. at ___ n.3, 129 S. Ct. at 2534 n.3, 174 L. Ed. 2d at 323 n.3. The Court has held that “‘Code § 19.2-187.1 sets out a reasonable procedure to be followed in order for a defendant to exercise his right to confront a particular limited class of scientific witnesses at trial’” and that this procedure “adequately safeguards a criminal defendant’s rights under the Confrontation Clause.” Magruder, 275 Va. at 301, 305, 657 S.E.2d at 122, 124 (quoting Brooks v. Commonwealth, 49 Va. App. 155, 164, 638 S.E.2d 131, 136 (2006)). Finally, the Court has concluded “that [a] defendant[’s] failure . . . to utilize that procedure waive[s] [the] right to be confronted with the forensic analyst[], i.e., to enjoy the elements of confrontation.” Id. at 305, 657 S.E.2d at 124; see Grant, ___ Va. App. at ___, ___ S.E.2d at ___ (applying Magruder to hold the defendant preserved his right of confrontation by “notify[ing] the Commonwealth [in a timely fashion] ‘that he desire[d] that the preparer of the certificate . . . be summoned by the Commonwealth to appear at trial . . . at the cost of the Commonwealth to be cross-examined in this matter’” (emphasis added in Grant)). Here, the trial court ruled, consistent with Virginia Supreme Court precedent, see Magruder, 275 Va. at 305, 657 S.E.2d at 124, that appellant waived his confrontation right by failing to call the analyst. Further, appellant did not contend in the trial court, as he now argues on appeal, that Virginia’s statutory scheme impermissibly shifted to him the burden of calling the analyst. See id. at 301, 657 S.E.2d at 122 (concluding that “[t]his burden shifting argument is not cognizable under the Confrontation Clause [and] [i]nstead . . . raises due process concerns that are not properly before us [on] appeal[] [b]ecause the defendants did not avail themselves of the opportunity to require the presence of a particular forensic analyst at trial [and, thus,] . . . were never in the position of being forced, over their objection, to call a forensic analyst as a witness” (citation omitted)); see also Brooks, 49 Va. App. at 168-69 & n.6, 638 S.E.2d at 138 & n.6 (suggesting how Virginia’s statutory scheme might be construed so as to avoid any allegation -5- of impermissible burden-shifting). Thus, appellant failed to satisfy the contemporaneous objection requirement of Rule 5A:18. He also does not seek application of Rule 5A:18’s ends of justice exception, which we may not invoke sua sponte. Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc), aff’d by unpub’d order, No. 040019 (Va. Oct. 15, 2004); see also Melendez-Diaz, 557 U.S. at ___ & n.12, 129 S. Ct. at 2541 & n.12, 174 L. Ed. 2d at 332 & n.12 (without “pass[ing] on the constitutionality of every variety of statute commonly given the notice-and-demand label,” holding that “the simplest form [of] notice-and-demand statutes” is constitutional because a “defendant always has the burden of raising his Confrontation Clause objection” and “notice-and-demand statutes simply govern the time within which he must do so,” and observing further that “[s]tates are free to adopt procedural rules governing objections”). Finally, even if the trial court erred in concluding that appellant waived his right of confrontation and, thus, erred in admitting the certificate of analysis into evidence, we nevertheless conclude any such error was harmless on the facts of this case. Error involving the Confrontation Clause is subject to constitutional harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674, 686 (1986). “The correct inquiry is whether, assuming that the damaging potential of the [evidence] were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” Id. Thus, “a harmless error analysis . . . [is not] simply a sufficiency of the evidence analysis.” Hooker v. Commonwealth, 14 Va. App. 454, 458, 418 S.E.2d 343, 345 (1992). Whether an error is harmless must be “determined ‘without usurping the jury’s fact finding function.’” Corado v. Commonwealth, 47 Va. App. 315, 323, 623 S.E.2d 452, 456 (2005) (quoting Hooker, 14 Va. App. at 457, 418 S.E.2d at 345). “Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. -6-  These factors include the importance of the [evidence] in the prosecution’s case, whether the [evidence] was cumulative, the presence or absence of evidence corroborating or contradicting the [erroneously admitted evidence] on material points, the extent of [confrontation] otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Dearing v. Commonwealth, 260 Va. 671, 673, 536 S.E.2d 903, 904 (2000) (quoting Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438, 89 L. Ed. 2d at 686-87). This case involves a somewhat unique twist in that, although the trial court ruled the challenged ballistics certificate would be admitted as Commonwealth’s Exhibit Number 4, the document so marked was actually a duplicate of a different certificate of analysis, one involving DNA, which was subsequently admitted without objection as Commonwealth’s Exhibit Number 5. As a result, although the document labeled Commonwealth’s Exhibit Number 4 was published to the jury, the exhibit as published contained none of the ballistics information appellant had sought to exclude. Thus, the admission of the exhibit itself caused no direct harm to appellant, and we turn to an examination of any indirect harm that may have resulted from references made about the exhibit by the witnesses in their testimony and by counsel in argument. Appellant’s theory of the case was that he did not attempt to rob Gillings, Ray, and Windley and that he did not possess a weapon at the scene of their encounter. He contended instead that Gillings accosted him, that Gillings was the only person who possessed and fired a weapon, and that Gillings and his companions were lying to keep Gillings from getting into trouble for discharging his weapon without cause. The Commonwealth’s theory of the case was that appellant robbed Gillings, Ray, and Windley 1 at gunpoint, that Gillings discharged his own 1 The Commonwealth admitted the evidence proved that appellant only attempted to rob Windley, and the trial court agreed, striking the evidence as to the indictment for robbery of Windley. Appellant was convicted of attempted robbery of Windley. -7- firearm, a .357 caliber weapon, in an attempt to protect his property, and that appellant fired at least two shots at the scene after Gillings began to discharge his weapon. Gillings testified that he fired his weapon “maybe about nine times” in all from his position between two cars and that after Gillings fired his first shot, appellant fired once, fell backward, and then fired two more shots, for a total of three shots. Sergeant House testified that he recovered an unattended .40 caliber firearm at the scene and that Gillings relinquished his own .357 caliber firearm to House at the scene. House testified that he collected two different “bunches” of shells at the scene, for a total of nine, but he gave no further testimony describing the quantity of shells in each group or indicating the caliber of the weapon any of the shells was designed to be used in. Sergeant House also testified he did not recall whether he sent the spent shell casings “to the lab for comparison to the two firearms.” The ballistics certificate—which indicated that two of the shells were .40 caliber shells that had been fired from the unattended .40 caliber weapon seized at the scene and that the other seven shells were .357 caliber shells that had been fired from Gillings’ .357 caliber weapon—was the only evidence affirmatively linking the shells to the two weapons or even to weapons of their caliber. The record indicates that, despite the court’s ruling admitting the ballistics certificate, it was never published to the jury, and all proceedings related to the admission of the certificate were held outside the hearing of the jury. In argument, the Commonwealth contended that if the victims had fabricated their story about what happened, they would have to have planted their belongings in the road, planted the unattended firearm, “and then they would have had to have fired it, because remember there are spent shell casings that go along with that gun. You have seen the ballistics report and you can take it back with you into [the jury room].” The Commonwealth also later argued that “the gun that [appellant] held when he left the DNA, the gun that left the gunshot primer residue on his -8- hand, the gun that three people saw him holding, pointing at them, demanding their stuff, that gun had spent shell casings in the road where the robbery occurred.” Appellant contends that although a duplicate DNA certificate rather than the ballistics certificate was published to the jury, he was still prejudiced by the trial court’s ruling that the ballistics certificate was admissible because the jury was aware such a certificate existed, the Commonwealth argued its contents, and he, himself, was thus “unable to argue in closing that there was no evidence inconsistent with one gun being fired and where each shell casing might have originated.” Despite appellant’s contentions, the record indicates the Commonwealth’s arguments to the jury about the ballistics certificate were very general. The Commonwealth did not mention the caliber of the weapons or the casings and argued merely that “there are spent shell casings that go along with that gun,” “spent shell casings in the road where the robbery occurred.” Although the ballistics certificate indicated two of the shells had been fired from the unattended .40 caliber weapon, neither the Commonwealth’s evidence, other than the ballistics certificate never published to the jury, nor the Commonwealth’s argument mentioned this fact. Further, appellant expressly argued in closing that Gillings “clear[ly] . . . stated . . . he shot nine times,” that “the evidence [showed] [o]nly nine shell casings [were] found,” and, thus, that “the evidence you have before you” showed Gillings “shot all of them. . . . That’s what the proof is.” The Commonwealth, in rebuttal argument, made no specific reference at all to the ballistics report or the shell casings, saying only that “[Mr. Gillings] doesn’t have to frame [appellant] to cover [his] behavior. [Mr. Gillings] didn’t do what [appellant] did. He didn’t run away. The evidence doesn’t create an elaborate evidence planting.” Thus, although appellant was not able to argue a complete lack of ballistics evidence, he was able to argue, without any attempt by the Commonwealth to use the ballistics evidence to refute his argument, that Gillings must have -9- fired the only gunshots at the scene because he said he fired nine times and nine shell casings were found at the scene. In sum, we conclude from examining the parties’ treatment of the ballistics evidence, in conjunction with the record as a whole, that any error in admitting the certificate was harmless on the facts of this case. The Commonwealth did not argue the specific contents of the ballistics certificate and did not rely heavily on it, and appellant was able to rely on other evidence in the record—Gillings’s testimony that he fired nine times—to challenge the Commonwealth’s argument that some of the nine shells found at the scene came from the unattended .40 caliber weapon. The overall strength of the Commonwealth’s case also supports the conclusion that the error, if any, was harmless. The three victims, although acquaintances, were interviewed separately at the scene and gave consistent reports about appellant’s attempts to rob them at gunpoint. The evidence established that Gillings operated an auto repair shop and that Windley worked for him at that time. At trial, neither of the female victims was impeached with prior convictions, and Gillings was impeached only by a prior conviction for utility theft. The physical evidence at the scene was consistent with the three victims’ testimony concerning appellant’s taking their property and dropping it as he fled. It was undisputed Gillings remained at the scene and cooperated with the efforts of the police to take custody of his gun and swab his hands for gunshot residue. Appellant, by contrast, attempted to leave the scene and to decline the efforts of police to obtain a DNA swab from him, consenting only after being told the police had a search warrant and that he had no choice. Further, the DNA evidence from the unattended .40 caliber gun at the scene, although not conclusive in establishing appellant had held it, could not exclude him as a contributor to the DNA on it. The results of the gunshot residue tests on appellant’s hands showed he had two of the three particles that comprise gunshot primer residue - 10 - on his hands and that the particles were in the proper shape to have come from firing a weapon. Appellant’s only explanation for why he might have had such residue on his hands was that it could have been transferred to both of his hands by the officers who arrested him, a result the gunshot residue expert testified was difficult to achieve even in controlled laboratory testing. Finally, appellant testified in his own defense and admitted he had numerous prior convictions for felonies of moral turpitude. He claimed Gillings initiated the confrontation because appellant had the name of a rival area of Richmond written on his shoes, but the evidence failed to support appellant’s claim. The shoe appellant left at the scene did not bear any notation, “Highland Park” or “HP,” and his second shoe was never found. Based on the strength of the Commonwealth’s case as compared to the error, if any, resulting from the admission of the ballistics certificate, we conclude beyond a reasonable doubt that any error was harmless. II. For these reasons, we hold appellant failed to present an adequate record from which we might determine whether the trial court erred in denying appellant’s challenge to the racial composition of the jury. We also hold that although the ballistics certificate contained testimonial hearsay, appellant waived his right to confront the preparer of the certificate or, in the alternative, that if appellant did not waive this right, any error in admitting the ballistics certificate was harmless on the facts of this case, in which the certificate was never actually marked as an exhibit or published to the jury. Thus, we affirm appellant’s convictions. Affirmed. - 11 - 

593 So.2d 351 (1992) Theo H. HARVEY, Jr. v. DIXIE GRAPHICS, INC. and Touche Ross & Co. No. 91-C-1382. Supreme Court of Louisiana. January 17, 1992. *352 Robert Emmet Tarcza, New Orleans, for applicant. H. Paul Simon and Charles C. Coffee, Simon, Peragine, Smith & Redfearn, New Orleans, for respondent. DENNIS, Justice. The issue is whether plaintiff's delictual action for damages resulting from an accountant's professional malpractice is prescribed. We must decide if the lower courts correctly held that the plaintiff suffered damage sufficient to commence the running of prescription over one year before filing suit, and that prescription was not suspended during the period that plaintiff defended himself against a third party's attack brought on by the alleged malpractice. The trial court, on recommendation of its commissioner, held that the claim against the defendant accounting firm Touche Ross & Co. was prescribed, reasoning that plaintiff Theo Harvey had knowledge of his malpractice cause of action over one year in advance of filing suit. The court of appeal affirmed, finding that over one year before filing suit, Harvey became aware of actual and appreciable harm which he knew was brought on by the alleged malpractice of Touche Ross. It also concluded that the doctrine of contra non valentum did not apply to suspend the running of prescription during the time that Harvey defended Touche Ross' work product in proceedings by the IRS. Harvey v. Dixie Graphics, Inc., 580 So.2d 518 (La.App. 4th Cir.1991). We granted certiorari, 586 So.2d 545, in order to consider whether appreciable damage had occurred as of the time specified by the court of appeal. After reviewing the record and arguments of the parties, we conclude that the court of appeal's determinations were correct and should be affirmed. *353 FACTS Plaintiff Theo H. Harvey, Jr. sued the accounting firm of Touche Ross & Company for alleged negligence in preparing income tax returns for Harvey Press International (HPI). Harvey formerly owned HPI, and by agreement in June 1981 sold it to Dixie Graphics, Inc. Harvey then repurchased HPI in November 1982, and three days later sold it to Rebsamen Companies, Inc. While Dixie owned HPI, Dixie hired Touche Ross to prepare HPI's income tax return and other financial statements. According to the allegations of Harvey's petition, Touche Ross and Dixie negligently understated HPI's tax liability. Relying on the statements in the tax returns and other statements prepared by Touche Ross and approved by Dixie, Harvey reacquired HPI and sold it to Rebsamen with warranty. In July 1984, Rebsamen informed Harvey that the IRS was auditing HPI and was proposing adjustments which would result in greater tax liability. In November 1984 Harvey's own accountant and attorney met with the IRS agent at IRS regional offices in Nashville. The agent told them that the tax returns were prepared incorrectly. In October 1985 the IRS issued a "thirty day letter" proposing a deficiency of $157,438.00. According to the letter, the taxpayer must formally protest within 30 days to avoid a formal assessment. In December 1986, after negotiating with the IRS, Harvey, as Rebsamen's indemnitor under Harvey's sale agreement with Rebsamen, paid the IRS $91,542.00 in tax and $85,682 in interest, and paid legal and accounting fees of over $31,000. Harvey filed this suit against Touche Ross and Dixie Graphics on June 15, 1987 alleging that the defendants are indebted in solido for the amounts Harvey paid in tax, interest and fees. Touche Ross filed a peremptory exception of prescription, which, after hearing, the trial court sustained. The court reasoned that the one-year prescriptive period of La.Civ.Code art. 3492 began to run in July 1984 when Harvey learned of the IRS audit and its proposal for adjustments. The Fourth Circuit Court of Appeal affirmed. It reasoned that the prescriptive period began in November 1984, because on that date Harvey was aware that the tax return prepared by Touche Ross was not approved by the IRS, was subject to serious dispute and that damage, at least to the extent of accountant and attorney fees, was inevitable. Harvey v. Dixie Graphics, Inc., 580 So.2d at 520. The court of appeal also concluded that contra non valentum did not suspend the running of prescription merely because the plaintiff would have been forced to take a position in a malpractice suit inconsistent with his position in the proceedings against him by the IRS. Id., at 521. LAW No contract ever existed between the plaintiff Harvey and the defendant accounting firm Touche Ross. Plaintiff's suit is for damages arising from the negligent act of the defendant. We will not answer the interesting question, not before us, as to whether the scope of a professional accountant's duty encompasses the risk of harm to a person not in privity with the accountant but who nevertheless relies on the accountant's work product and consequently suffers damages. See, e.g. Penalber v. Blount, 550 So.2d 577 (La.1989) and authorities cited therein; Devore v. Hobart Mfg. Co., 367 So.2d 836 (La.1979); Restatement (Second) of Torts § 552. If such an action does exist, which we assume only for purposes of determining the question whether the claim is prescribed, the action is subject to the rules of prescription of tort actions. At the time this suit arose, a delictual action for negligence in professional malpractice prescribed in one year, in the absence of more specific legislation. La.Civ. Code art. 3492; Braud v. New England Ins. Co., 576 So.2d 466 (La.1991); Rayne State Bank and Trust Company v. National Union Fire Insurance Co., 483 So.2d 987 (La.1986); Sciacca v. Polizzi, 403 So.2d 728 (La.1981); Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963); Cherokee Restaurant, Inc. v. Pierson, 428 So.2d 995 (La.App. 1st Cir.1983), writ den. 431 So.2d 773; Carey v. Pannell, Kerr, Foster, 559 So.2d 867 (La.App. 4th Cir.1990). (Subsequently, *354 in 1990, a specific revised statute was added governing the liberative prescription of actions for professional accounting liability. See La. R.S. 9:5604 (1990). We decline to comment on whether this statute would apply to the action which we assume plaintiff has against the accountant with whom he is not in privity. We merely conclude that because the facts arose before the effective date of this statute, the statute can not apply. Lott v. Haley, 370 So.2d 521 (La.1979).) Prescription of a delictual action begins to run from the date that injury or damage is sustained. La.Civ.Code art. 3492. This statute is rooted in the recognition that a prescriptive period is a time limitation on the exercise of a right of action, and a right of action in tort comes into being only when the plaintiff's right to be free of illegal damage has been violated. Baudry-Lacantinerie & Tissier, Prescription, 5 Civil Law Transl. § 384 at p. 204 (1972). When damages are not immediate, the action in damages thus is formed and begins to prescribe only when the tortious act actually produces damage and not on the day the act was committed. Id. The damage suffered must at least be actual and appreciable in quality— that is, determinable and not merely speculative. Braud v. New England Ins. Co., 576 So.2d 466 (La.1991). But there is no requirement that the quantum of damages be certain or that they be fully incurred, or incurred in some particular quantum, before the plaintiff has a right of action. Braud, supra; Rayne State Bank v. National Union Fire Insurance Co., 483 So.2d 987 (La.1986). Thus in cases in which a plaintiff has suffered some but not all of his damages, prescription runs from the date on which he first suffered actual and appreciable damage, Rayne, supra; Braud, supra; Baudry Lacantinerie & Tissier, supra, even though he may thereafter come to a more precise realization of the damages he has already incurred or incur further damage as a result of the completed tortious act. Rayne, supra. In order to mitigate occasional harshness of the operation of the prescription statute our courts have implemented the jurisprudential principle of contra non valentum. This principle is based on the equitable notion that no one is required to exercise a right when it is impossible for him or her to do so. Rajnowski v. St. Patrick's Hospital, 564 So.2d 671 (La. 1990); Plaquemines Parish Commission Council v. Delta Development Co., Inc., 502 So.2d 1034, 1054-1060 (La.1987). In the case in which a plaintiff is not aware of the damage suffered, see R.J. Reynolds Tobacco v. Hudson, 314 F.2d 776 (5th Cir. 1963), or is not aware that the damage suffered is the fault of the defendant, see Jordan v. Employee Transfer Co., 509 So.2d 420 (La.1987), contra non valentum has operated to suspend the running of prescription until such time as the plaintiff knew or reasonably should have known that his or her damages were the fault of the defendant's negligent act. Stone, Tort Doctrine, 12 Louisiana Civil Law Treatise § 120 (1977) at 167. The other general instances in which contra non valentum is recognized to apply are legal impossibility, existence of a condition coupled with a contract or the proceedings that prevent plaintiff from acting, and presence of an obstacle set up by the defendant. Rajnowski, supra; Plaquemines Parish Commission Council, supra. To summarize the jurisprudential precepts explicated above, for prescription to begin to run under Article 3492, it must be shown that the plaintiff knew or reasonably should have known that he or she has suffered harm due to a tortious act of the defendant, unless one of the contra non valentum exceptions applies to delay further the commencement or to suspend the running of prescription. Applying these precepts to the facts of this case, we affirm the lower courts' ultimate conclusions that the claim has prescribed. The court of appeal was not manifestly erroneous in concluding that prescription had begun to run by November 1984. Harvey knew of the accountant's negligence at that time because the IRS informed him of it through his attorney and his own accountant at the Nashville *355 meeting. He also sustained appreciable harm because he had incurred substantial accountant's and attorney's fees in investigating and informing himself of the deficiencies of the return Touche Ross had prepared. The mere fact that all of his damages were not yet suffered because he had not yet written a check to the IRS does not change the key fact that the plaintiff was certainly aware that he had suffered appreciable harm from the allegedly tortious act of Touche Ross. Because this action was filed more than one year after Harvey knowingly sustained appreciable damage due to the malpractice of the accounting firm, the suit is prescribed. La. Civ.Code art. 3492 (1983). The plaintiff argues that some formal proceedings must have been initiated against him by the IRS before prescription can begin to run, citing Rayne State Bank v. National Union Fire Insurance Co., 483 So.2d 987 (La.1986); Braud v. New England Ins. Co., 576 So.2d 466 (La.1991). He urges that until formal assessment by the IRS, the plaintiff cannot sue because the extent of damages is unknown or uncertain. We disagree. The conclusions in Rayne and Braud, like the conclusions of the lower courts in this case, were reached after inquiry purely and simply as to whether actual damage was brought home to the plaintiffs before one year before filing suit, based on the facts and circumstances of each case. Neither Rayne nor Braud was an effort to find a fixed point in time at which damages were deemed to be certain. In Rayne, for example, we recognized that the amount of damages need not be known with certainty, pointing out that "the full extent of the damage was not yet known at th[e] time [suit was filed], [but] the fact that some damage would occur was known, since the bank had to defend against the attack." Rayne, supra at 996. Nor have we ever sought to establish that the date of "formal action" or of filing suit was in itself significant. In Braud the plaintiff argued that prescription had not commenced even when the third party filed suit attacking the work product of the defendant. We concluded that on the date of filing of the suit plaintiff had suffered "appreciable damage" sufficient to begin the running of prescription. There was no necessity to determine whether prescription had begun to run any earlier. In both those cases, it was the fact that the plaintiff was forced to incur expense to defend the tortfeasor's work product (knowing that the attack was caused by the tortfeasor's negligence) which led to the conclusion that the plaintiff had sustained damage and was expected to act upon his right within the prescriptive period. To make a rule for cases of negligent preparation of a tax return that prescription does not commence to run until formal assessment would require us to ignore Article 3492 and to discard the civilian principles we have developed thus far. The foreign cases cited to us which appear to set forth such a rule either dealt with state law which developed differently from our own or dealt with issues not presented in the present case, such as whether plaintiff had knowledge of the claim. See Mills v. Garlow, 768 P.2d 554 (Wyo.1989) and cases cited therein. Because our law provides a solution that is easily applicable to the facts of this case, we see no reason to resort to rules from foreign jurisdictions. Plaintiff also argues that prescription was suspended during the time that he and the IRS were in adversarial positions, until he had settled with the IRS. Plaintiff urges that requiring him to formally allege in a lawsuit against Touche Ross that the return was defective while he was defending the same return as accurate in the proceedings with the IRS would set a bad public policy. However, litigants in Louisiana and in federal tax court are allowed to maintain alternative, inconsistent and even mutually exclusive positions in the course of litigation, La.Code Civ.Proc. art. 892; 26 U.S.C.A. 26 foll. § 7453, Rule 31(c) (West 1989 & Supp.1990). Harvey was not prevented from asserting inconsistent positions in the two actions, so contra non valentum did not operate to suspend the running of prescription. Braud, supra. CONCLUSION We therefore affirm, at plaintiff's cost, the judgment of the court of appeal which *356 affirmed the trial court's granting of Touche Ross and Company's peremptory exception of prescription. JUDGMENT OF COURT OF APPEAL AFFIRMING, AT PLAINTIFF'S COST, THE TRIAL COURT'S GRANTING OF DEFENDANT TOUCHE ROSS AND COMPANY'S PEREMPTORY EXCEPTION OF PRESCRIPTION AFFIRMED. TOUCHE ROSS AND COMPANY IS DISMISSED AT PLAINTIFF'S COST. LEMMON, J., concurs and will assign reasons. WATSON, J., dissents and assigns reasons. WATSON, Justice, dissenting. The majority holds that a taxpayer's claim for an accountant's malpractice prescribed while the taxpayer was negotiating with the IRS about his tax deficiency. Taxpayer Harvey did not sustain actual harm from his accountant's negligence until he compromised his claim with the IRS in 1986. It is unconscionable to require Harvey to file suit against his accountant while simultaneously defending the accountant's return before the IRS. The great majority of other jurisdictions hold that prescription does not begin to run on a malpractice action against an accountant based on federal tax work until there is a statutory notice of deficiency. See, for example, Mills v. Garlow, 768 P.2d 554 (Wyo.1989); Streib v. Veigel, 109 Idaho 174, 706 P.2d 63 (1985); Chisholm v. Scott, 86 N.M. 707, 526 P.2d 1300 (1974); Atkins v. Crosland, 417 S.W.2d 150 (Texas 1967); Feldman v. Granger, 255 Md. 288, 257 A.2d 421 (1969); Leonhart v. Atkinson, 265 Md. 219, 289 A.2d 1 (1972); Isaacson, Stolper & Co. v. Artisan's Savings Bank, 330 A.2d 130 (Del.1974); Wynn v. Estate of Holmes, 815 P.2d 1231 (Okla.1991) and Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323 (Fla.1990). The analysis of IRS procedures in Mills v. Garlow shows that the prescriptive period should not commence until the IRS issues a notice of deficiency or compromises the claim with the taxpayer: Certain federal tax returns are selected for examination or audit, and the examination is generally done by examiners in the district offices of the IRS. 20 Fed. Proc., L.Ed., Internal Revenue § 48:305 (1983). At the conclusion of the examination, the taxpayer is sent a report of the examiner's findings, indicating any proposed adjustments in tax liability. Id. at § 48:389. At this point the taxpayer is given the opportunity to agree with the findings of the examiner by signing a form agreement (form 870) or, alternatively, the taxpayer is informed of his appeal rights if he does not agree. Id. If the taxpayer signs the agreement form, he thereby waives the required statutory notice of deficiency pursuant to 26 U.S.C. § 6212 (1982) (the ninety-day letter) and the corresponding prohibition on collection for ninety days under 26 U.S.C. § 6213 (1982), and the taxpayer is precluded from litigating the proposed deficiency in Tax Court. J. Chommie, Federal Income Taxation § 295 (2d ed. 1973). If the taxpayer does not agree with the examiner's proposed findings, the findings will be reviewed in the district office, and the taxpayer will be sent a "30-day letter" instructing him that he has thirty days to file a protest. 20 Fed.Proc., supra at § 48:392. If the taxpayer fails to respond within the thirty days, a notice of deficiency will be issued. Id. at § 48:393. If the taxpayer timely files a protest, he will be accorded an appeals office conference. Id. at §§ 48:392 and 48:406. The appeals office has broader negotiation and settlement authority than does the district office. Id. at §§ 48:401 and 48:411. If a settlement is reached, the taxpayer will again be requested to sign the agreement form 870. Id. at § 48:412. A determination by the appeals office, however, is final insofar as the taxpayer's appeal rights within the IRS, and if the taxpayer continues to disagree, the statutory notice of deficiency will be sent giving the taxpayer ninety days to file a petition in the Tax Court before collection actions are begun. Id. at §§ 48:440 and 48:463. See also J. Chommie, supra at § 295, for an overview of the described procedure. *357 Thus, it can be seen that the preliminary findings of the examiner are merely proposed findings, subject to review and negotiation prior to any determination of a deficiency, unless the taxpayer agrees with such findings or fails to pursue the internal review provided by the IRS. An agreement by the taxpayer with the proposed adjustment at any point in this procedure results in a binding determination of tax liability upon which enforcement actions may immediately commence and precludes the necessity for the statutory notice of deficiency. It would seem, therefore, given the provisional nature of the examining officer's proposed deficiency, that a reasonable taxpayer would not know or have reason to know that he had a cause of action against his accountant until such time as the notice of deficiency issues or, alternatively, when the taxpayer has indicated his agreement with the IRS. We conclude that IRS procedures support a policy of starting the statute of limitations at the time of the statutory notice of deficiency or, in the alternative, at the equivalent time of taxpayer agreement with the IRS, precluding the otherwise required notice. 768 P.2d at 556, 557. In view of Louisiana's short prescriptive period, commencing that period at the first indication of negligence is wrong. Harvey did not sustain actual injury or damage until he compromised his claim with the IRS in 1986. LSA-C.C. art. 3492. I respectfully dissent.

44 F.Supp.2d 53 (1999) UNITED STATES of America, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants. No. Civ.A. 95-601(RMU). United States District Court, District of Columbia. March 31, 1999. *54 Valinda Jones, John Michael Facciola, William Mark Nebeker, Timothy S. Susanin, U.S. Attorney's Office, Washington, DC, for United States of America, plaintiff. Janet L. Maher, Sharlene E. Williams, Michelle E. Connor, Office of the Corporation Counsel, Mental Health Division, Washington, DC, for District of Columbia, defendant. David Loris Norman, D.C. Public Defender's Service, Washington, DC, William James Mertens, Swidler, Berlin, Shereff & Friedman, L.L.P., Washington, DC, for William Bennett, defendant. MEMORANDUM OPINION URBINA, District Judge. Granting the Plaintiff's Motion for Summary Judgment; Denying the Defendants' Motions for Summary Judgment The above captioned case arises out of two cases now consolidated into one. The *55 first case, Civil Action No. 95-601, was originally filed by the United States of America against the District of Columbia and William Bennett, a representative patient at Saint Elizabeths Hospital in Washington, D.C. The second case, Civil Action No. 96-2551, was originally filed by a group of patients at Saint Elizabeths Hospital, including Mr. Bennett, against Janet Reno in her official capacity as Attorney General of the United States and Zanni Guido in his official capacity as Commissioner on Mental Health Services for the District of Columbia. In the consolidated case, Civil Action No. 95-601, the plaintiff is the United States of America and the defendants are the District of Columbia and the group of patients at Saint Elizabeths Hospital. The consolidated case is currently before the court on all parties' motions for summary judgment. For the reasons stated herein, the court will grant the plaintiff's motion for summary judgment and deny the defendants' motions for summary judgment. I. BACKGROUND This action commenced on March 29, 1995, when the United States of America (hereinafter "plaintiff") filed a complaint against the District of Columbia and Mr. Bennett seeking release of the psychiatric records of a group of patients who had been committed to Saint Elizabeths Hospital (hereinafter "St. Elizabeths") pursuant to D.C.Code Ann. § 24-301(d)(1) after having been found not guilty of federal crimes by reason of insanity. In the original complaint, the plaintiff alleged that it was entitled to access the patients' psychiatric records pursuant to 24 U.S.C. § 225f, which provided for the transfer to the District of Columbia of "all right, title, and interest of the United States in all real property at Saint Elizabeths Hospital...." 24 U.S.C. § 225f(a)(1). During the pendency of this litigation, however, Congress amended 18 U.S.C. § 4243 to include a provision that specifically grants the plaintiff access to the records sought. See Title III of the Economic Espionage Act of 1996, Pub.L. No. 104-294, § 301, 110 Stat. 3488, 3494-95 (Oct. 11, 1996) (hereinafter "Title III"). Consequently, the plaintiff now relies primarily on Title III to support its allegation of entitlement to the patients' psychiatric records. Both the District of Columbia and the patients whose records are being sought (hereinafter collectively referred to as "defendants") contend that the plaintiff is not legally entitled to the records. Consequently, on November 8, 1996, the patients filed a complaint seeking a declaration that the provision of Title III that grants the plaintiff access to their records (hereinafter "access provision") is unconstitutional and seeking an injunction barring St. Elizabeths from releasing their records. The patients also seek a declaration that a separate provision of Title III, which provides for the transfer of the patients themselves into the custody of the Attorney General, (hereinafter "transfer provision") is unconstitutional. In addition, they seek an injunction barring the plaintiff from attempting to obtain custody of the patients. On November 20, 1996, the court granted the patients' motion for a temporary restraining order, thus barring the plaintiff from either accessing the records or attempting to obtain custody of the patients. Subsequently, the court consolidated the plaintiff's original complaint and the complaint later filed by the patients into the action currently before the court. II. LEGAL STANDARD FOR SUMMARY JUDGMENT All parties to this action have filed motions for summary judgment. Summary judgment is appropriate upon a finding that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law upon which a claim rests determines which facts are "material." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If a *56 fact bears upon an essential element of the legal claim, then it is material; otherwise, it is not. See id.; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Only disputes over facts that can establish an element of the claim, and thus might affect its ultimate resolution, can create a "genuine issue" sufficient to preclude summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Celotex, 477 U.S. at 322, 106 S.Ct. 2548. To prevail on a motion for summary judgment, the moving party bears the burden of establishing that there are no genuine issues of material fact and that the nonmoving party has failed to offer sufficient evidence to support a valid legal claim. See Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 325, 106 S.Ct. 2548. In ruling on the motion, the court must accept the evidence of the nonmoving party as true and must draw all justifiable inferences in favor of the nonmoving party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. It is not sufficient, however, for the nonmoving party to establish "the mere existence of a scintilla of evidence in support of the [nonmoving party's] position ...; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Id. at 252, 106 S.Ct. 2505. If the evidence in favor of the nonmoving party "is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. 2505 (internal citations omitted). In this case, the court concludes that there are no genuine issues of material fact and that the plaintiff is entitled to judgment as a matter of law. Accordingly, the plaintiff's motion for summary judgment will be granted and the defendants' motions for summary judgment will be denied. III. DISCUSSION A. Legislative History The Insanity Defense Reform Act, 18 U.S.C. § 4243, which Congress enacted in 1984, provides for the mandatory hospitalization of defendants found not guilty of federal crimes by reason of insanity. Even prior to the enactment of 18 U.S.C. § 4243, however, defendants charged with federal crimes in the District of Columbia who were found not guilty by reason of insanity were automatically committed to a hospital for the mentally ill. These defendants were committed to St. Elizabeths pursuant to D.C.Code Ann. § 24-301(d)(1), which provides as follows: If any person tried upon an indictment or information for an offense raises the defense of insanity and is acquitted solely on the ground that he was insane at the time of its commission, he shall be committed to a hospital for the mentally ill until such time as he is eligible for release.... It was pursuant to D.C.Code Ann. § 24-301(d)(1) that all of the patients who are parties to this action were committed to St. Elizabeths. From 1855 until 1987, St. Elizabeths was owned and operated by the United States government. See 24 U.S.C. §§ 225, 225f. On October 1, 1987, however, Congress transferred ownership and control of St. Elizabeths to the District of Columbia. See 24 U.S.C. § 225f. Nevertheless, the United States remained financially responsible for all patients committed to St. Elizabeths as a result of having been found not guilty of federal crimes by reason of insanity. See 24 U.S.C. § 225g(b)(1)(C) (directing the United States to pay "the full costs for the provision of mental health diagnostic and treatment services for ... any individual referred to the system as a result of a criminal proceeding in a Federal court"). Nothing in 24 U.S.C. §§ 225-225h expressly entities the United States to access to the psychiatric records of the patients for whom it is financially responsible. Title III, however, does just that. In relevant part, the access provision of Title III states: *57 [T]he District of Columbia and St. Elizabeths Hospital — (1) not later than 30 days after the date of enactment of this Act, shall provide to the Attorney General copies of all records in the custody or control of the District or the Hospital on such date of enactment pertaining to persons described in section 4243(i) of title 18, United States Code (as added by subsection (a)); (2) not later than 30 days after the creation of any records by employees, agents, or contractors of the District of Columbia or of St. Elizabeth's Hospital pertaining to persons described in section 4243(i) of title 18, United States Code, provide to the Attorney General copies of all such records created after the date of enactment of this Act.... See Pub.L. No. 104-294, § 301, 110 Stat. at 3495. "Persons described in section 4243(i) of title 18, United States Code (as added by subsection (a))" includes "all persons who have been committed to a hospital for the mentally ill pursuant to section 301(d)(1) of title 24 of the District of Columbia Code, and for whom the United States has continuing financial responsibility." See Pub.L. No. 104-294, § 301, 110 Stat. at 3494. Accordingly, Title III expressly mandates the release of the defendant patients' records to the plaintiff. Title III does not stop there, however. In addition to providing for access to the patients' records, Title III also provides for the transfer of the patients themselves into the custody of the Attorney General. In relevant part, the transfer provision of Title III states: [A]ll persons who have been committed to a hospital for the mentally ill pursuant to section 301(d)(1) of title 24 of the District of Columbia Code, and for whom the United States has continuing financial responsibility, may be transferred to the custody of the Attorney General, who shall hospitalize the person for treatment in a suitable facility. See Pub.L. No. 104-294, § 301, 110 Stat. at 3494. This court begins its analysis of the claims presently before it in the wake of Title III and its clearly expressed intent to entitle the United States to access the patients' records and to transfer the patients into its custody. B. Justiciability With respect to the constitutionality of Title III's transfer provision, the plaintiff argues that the issue is not ripe for adjudication. Having reviewed the parties' submissions, the relevant law and the record herein, the court agrees with the plaintiff that the issue regarding the constitutionality of Title III's transfer provision is not yet ripe for review and, thus, is not properly before the court at this time. To determine whether or not an issue is ripe for adjudication, a court must "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Texas v. United States, 523 U.S. 296, 118 S.Ct. 1257, 1260, 140 L.Ed.2d 406 (1998) (quoting Abbott Lab. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)) (internal quotations omitted). With respect to the "fitness for judicial decision" prong, the Supreme Court has said that "[a] claim is not ripe for adjudication if it rests upon `contingent future events that may not occur as anticipated, or indeed may not occur at all.'" Texas, 118 S.Ct. at 1259 (quoting Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)). Similarly, with respect to the "hardship to the parties" prong, the Supreme Court has said that an abstract harm is not sufficient; there must be an immediate harm with a "direct effect on the day-to-day business of the plaintiffs." Texas, 118 S.Ct. at 1260 (quoting Abbott, 387 U.S. at 152, 87 S.Ct. 1507) (internal citations omitted). Examining the allegations in the instant case through the lens of Texas v. United States, the court concludes that the *58 future events contemplated by the defendants are too speculative and the hardship is too abstract to warrant judicial consideration of the defendants' constitutional challenge to Title III's transfer provision. On its face, the transfer provision of Title III does nothing more than authorize the Attorney General to establish custody over the defendant patients. It does not, however, mandate that the Attorney General take such action. Moreover, even if the Attorney General were to exercise her authority under Title III to establish custody over the defendants, Title III does not mandate a physical transfer of the patients from St. Elizabeths to some other facility. Title III merely states that the Attorney General, upon taking custody of any patient, "shall hospitalize the person for treatment in a suitable facility." This could mean keeping the patient at St. Elizabeths or moving the patient elsewhere, but nothing in Title III suggests that any one outcome is more likely than another. Under these circumstances, where the court has no idea whether one or any of several possibilities will occur, the potential harm from one anticipated possibility is not immediate and the issue is not fit for adjudication. See Texas, 118 S.Ct. at 1260 ("Under these circumstances, where we have no idea whether or when such a sanction will be ordered, the issue is not fit for adjudication." (quoting Toilet Goods Assn., Inc. v. Gardner, 387 U.S. 158, 163, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967)) (internal quotations omitted)). Accordingly, the court concludes that the defendants' constitutional challenge to Title III's transfer provision is not ripe for review and, therefore, not justiciable at this time. C. Unclean Hands Having determined that the issue regarding the constitutionality of Title III's transfer provision is not properly before it, the court will limit the remainder of its analysis to the issue of whether or not the United States is entitled to access the defendant patients' psychiatric records. At the outset of this analysis, the court will address the defendants' argument that the United States may not seek declaratory relief because it has "unclean hands." "The doctrine of `unclean hands' is designed to preserve the integrity of the Court by protecting it from exercising its powers to aid those who are before the Court as a result of their own fraudulent behavior." Rubin v. Warner, 881 F.Supp. 23, 25 (D.D.C.1995). The defendants offer three arguments in support of their assertion that the plaintiff has unclean hands. First, they argue that the plaintiff has disregarded its duty under 24 U.S.C. § 225g(b)(1)(C) to pay for the care and treatment of the defendant patients. (Mem. of Points and Auth. in Supp. of D.C.'s Mot. for Summ.J. at 9.) Second, they argue that the plaintiff has misrepresented facts to this court by incorrectly stating that it pays "millions of dollars each year" for the care and treatment of the defendant patients. (Mem. of Points and Auth. in Supp. of D.C.'s Mot. for Summ.J. at 9.) Finally, they argue that the plaintiff is "request[ing] confidential records under the pretense of administrative need when in fact, the United States wants to assert a punitive, prosecutorial role with regard to the [defendant patients]." (Mem. of Points and Auth. in Supp. of D.C.'s Mot. for Summ.J. at 10.) With respect to the defendants' second and third arguments, the court concludes that there is not sufficient evidence in the record to support the defendants' allegations or to warrant application of the unclean hands doctrine. With respect to the defendants' first argument, the court also concludes that application of the unclean hands doctrine would be inappropriate. The unclean hands doctrine is appropriately applied when "the alleged misconduct is connected with the transaction upon which the plaintiff seeks relief." Rubin, 881 F.Supp. at 26 (quoting Adams v. Manown, 328 Md. 463, 615 A.2d 611, 617 (1992)) (internal quotations omitted). In the instant case, the court concludes *59 that the alleged uncleanliness proffered by the defendants is not sufficiently connected with the transaction upon which the plaintiff seeks relief. This is especially so given that the alleged uncleanliness is itself the subject of separate litigation filed by the defendants. (See Mem. of Points and Auth. in Supp. of D.C.'s Mot. for Summ.J. at 8 (referencing United States Court of Federal Claims No. 93-601C).) Accordingly, the court will not invoke the unclean hands doctrine to preclude the plaintiff from seeking declaratory relief in this case. D. Preemption Turning now to the merits of the issue of whether the United States is entitled to access the psychiatric records of the defendant patients, the court will first address the question of preemption. The defendants argue that Title III does not preempt District of Columbia laws prohibiting access to the patients' records because Title III is, in essence, a local law, not a federal law. The defendants base this argument on the fact that Title III applies exclusively to the District of Columbia and has no effect on any other state. Despite the limited repercussions of Title III, however, the court concludes that Title III is indeed a federal law and that it preempts District of Columbia law. 1. Federal Versus State Law In Brown v. United States, 742 F.2d 1498 (D.C.Cir.1984), the United States Court of Appeals for the District of Columbia Circuit recognized that [u]nder the Constitution, Congress has authority to act as the local legislature for the District of Columbia, and thus Congress frequently enacts legislation applicable only to the District and tailored to meet local needs. Absent evidence of contrary congressional intent, such enactments should be treated as local law, interacting with federal law as would the laws of the several states. Id. at 1502. The defendants cite this and other similar cases in support of their proposition that Title III constitutes a local, not federal, law. These cases, however, represent instances in which Congress, by its authority to act as the local legislature for the District of Columbia, enacted provisions of law within the D.C.Code, not the United States Code. See, e.g., Brown, 742 F.2d at 1501 (discussing federal applicability of D.C.Code Ann. § 12-309); Key v. Doyle, 434 U.S. 59, 61, 98 S.Ct. 280, 54 L.Ed.2d 238 (1977) (discussing whether D.C.Code Ann. § 18-302 was a "statute of the United States"). The instant case is distinguishable in that it represents an instance in which Congress enacted an amendment to an already existing federal statute within the United States Code, namely 18 U.S.C. § 4243. There is no question but that 18 U.S.C. § 4243 is a federal law applicable to all states in the Union. As an amendment to 18 U.S.C. § 4243, Title III merely supplements that law by addressing an issue that was left unresolved by the original statute. The fact that the issue is germane to the District of Columbia and Title III is, therefore, limited in its application to the District does not take the amendment out of the scope of the overall statute. Accordingly, the court concludes that Title III has the force and effect of a federal law. 2. Federal Preemption of State Law Under the preemption doctrine "state law that conflicts with federal law is `without effect.'" Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981)). In determining whether Congress intended a federal law to preempt a state law, "the purpose of Congress is the ultimate touchstone of [the] analysis." Cipollone, 505 U.S. at 516, 112 S.Ct. 2608 (quoting Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978)) (internal quotations omitted). Congress *60 may explicitly state its intent in the language of a statute or it may implicitly state its intent via a statute's structure and purpose. See Cipollone, 505 U.S. at 516, 112 S.Ct. 2608. "In the absence of an express congressional command, state law is preempted if that law actually conflicts with federal law." Id. The explicit language of Title III makes clear that Congress intended to provide for the acquisition by the United States of "all records in the custody or control of the District or [St. Elizabeths] Hospital" pertaining to the defendant patients. Pub.L. No. 104-294, § 301, 110 Stat. at 3495. There is no reasonable way to reconcile this purpose with any congressional intent but that Title III would preempt any D.C. law that prohibited such acquisition by the United States. Accordingly, the court concludes that Congress intended by the explicit language of Title III to preempt any D.C. law in conflict with Title III's stated purpose. Having concluded that Title III is a federal law which preempts District of Columbia law, the court will dispense with those arguments of the defendants that are grounded in D.C. law and will instead move to a discussion of the constitutionality of Title III's access provision. E. Right to Privacy The defendants argue that the access provision of Title III violates the defendant patients' rights to privacy and is, therefore, unconstitutional. Consequently, the defendants argue that the court should not enforce the mandates of the access provision. The court, however, concludes that Title III's access provision is constitutional and enforceable. There is no express provision in the Constitution of the United States that bestows upon individuals a right to privacy. The Supreme Court, however, has recognized that such a right exists by virtue of the Due Process Clause of the Fourteenth Amendment. See Carey v. Population Services Int'l, 431 U.S. 678, 684, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). The right to privacy protects at least two separate interests. The first is an individual's interest in "avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). The second is an individual's interest in "independence in making certain kinds of important decisions." Id. The defendant patients in the instant case argue that the court should recognize a privacy right protecting their interest in avoiding disclosure of their psychiatric records. Several courts, including the Supreme Court, have recognized an individual's right to privacy in avoiding disclosure of medical records. See, e.g., Whalen, 429 U.S. at 603-604, 97 S.Ct. 869 (recognizing a limited privacy interest in the confidentiality of medical records); Doe v. Southeastern Pennsylvania Transp. Auth., 72 F.3d 1133, 1137 (3d Cir.1995) (stating that medical records fall within the scope of the right to privacy); F.E.R. v. Valdez, 58 F.3d 1530, 1530 (10th Cir.1995) (recognizing that patients have a legitimate expectation of privacy in their psychiatric records). This right to privacy is not absolute, however, and "a limited impairment of the right may be allowed if properly justified." Soto v. City of Concord, 162 F.R.D. 603, 618 (N.D.Cal.1995). Various courts have developed slightly different tests to determine whether encroachment upon an individual's right to privacy rises to the level of a constitutional violation. See, e.g., Doe, 72 F.3d at 1140 (setting forth seven factors to be weighed in determining whether disclosure of medical records constitutes an invasion of privacy); F.E.R., 58 F.3d at 1535 (employing a three-part balancing test); Soto, 162 F.R.D. at 619 (setting forth five factors to be considered); Fraternal Order of Police v. Philadelphia, 812 F.2d 105, 111 (3d Cir.1987) (applying a "flexible balancing test"). In essence, however, all courts agree that the constitutionality of a government action that encroaches upon the *61 privacy rights of an individual is determined by balancing the nature and extent of the intrusion against the government's interest in obtaining the information it seeks. The court begins its analysis therefore, by examining the nature and extent of the defendant patients' interest in avoiding disclosure of their psychiatric records. In this respect, several facts seem particularly relevant. First, the defendant patients in the instant case have, to some extent, made their mental conditions matters of public record by pleading not guilty to federal crimes by reason of insanity. The United States Court of Appeals for the Eighth Circuit has noted that "[w]hatever the scope of the constitutional right of privacy ..., it is clear that `the interests in privacy fade when the information involved already appears on the public record.'" McNally v. Pulitzer Pub. Co., 532 F.2d 69, 77 (8th Cir.1976) (quoting Cox Broad. Corp. v. Cohn, 420 U.S. 469, 494-95, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975)). In McNally, the Eighth Circuit held that the publication of an inmate's confidential psychiatric report did "not support a claim for invasion of any constitutional right of privacy" because "substantial information regarding [the inmate's] mental competency was a matter of public record." Id. at 77-78. Thus, although the court believes that the defendant patients do have a privacy interest in avoiding disclosure of their psychiatric records, this interest is somewhat lessened by the fact that the patients have to some extent made their mental conditions matters of public record. Second, the plaintiff in the instant case does not seek to obtain the patients' records for public disclosure. The United States merely seeks to obtain the records for its own use. In a similar case, the Supreme Court noted that non-public disclosures of medical records constitute less of an intrusion upon an individual's right to privacy than do public disclosures. See, e.g., Whalen, 429 U.S. at 601, 97 S.Ct. 869 (taking into consideration the fact that there was "no support in the record ... for an assumption that the security provisions of the statute [would] be administered improperly"). Indeed, in Whalen the Supreme Court went so far as to state that non-public disclosures of private medical records to authorized government employees are not meaningfully distinguishable from a host of other unpleasant invasions of privacy that are associated with many facets of health care.... [D]isclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient. Requiring such disclosures to representatives of the State having responsibility for the health of the community, does not automatically amount to an impermissible invasion of privacy. Whalen, 429 U.S. at 602, 97 S.Ct. 869 (internal footnote omitted). Similarly, the court concludes in the instant case that requiring disclosure of the defendant patients' psychiatric records to representatives of the United States having financial responsibility for the care and treatment of the patients does not automatically amount to an impermissible invasion of the patients' privacy rights. On one side of the scale, then, is a limited privacy interest of the defendant patients in avoiding disclosure of their psychiatric records to the plaintiff. On the other side of the scale is the plaintiff's interest in obtaining the patients' records. In considering the plaintiff's interest, the court notes that the plaintiff is financially responsible as a matter of law for the care and treatment of the patients. The plaintiff has a compelling interest "in ensuring that services and supplies for which it is being billed have been provided, and that [it] is not being defrauded." Hawaii Psychiatric Soc'y v. Ariyoshi, 481 F.Supp. 1028, 1041 (D.Haw.1979). Moreover, the plaintiff in the instant case has an additional *62 responsibility to ensure that the defendant patients who have been committed to St. Elizabeths after having been found not guilty of federal crimes by reason of insanity are afforded the highest quality care in a facility that is most suited to their needs as well as the needs of the public. Cf. Jones v. United States, 463 U.S. 354, 368, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) ("The Due Process Clause requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed. The purpose of commitment following an insanity acquittal ... is to treat the individual's mental illness and protect him and society from his potential dangerousness." (internal quotations and citations omitted)); Youngberg v. Romeo, 457 U.S. 307, 317, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) ("When a person is institutionalized — and wholly dependent on the State — ... a duty to provide certain services and care does exist...."); Reese v. United States, 614 A.2d 506, 506 (D.C. 1992) ("The dual purposes of [commitment of individuals found not guilty by reason of insanity] are first, the treatment and recovery of the patient, and second, the protection of society and the patient." (internal quotations omitted)). Weighing the competing interests asserted by the parties, the court concludes that the intrusion upon the defendant patients' privacy rights caused by allowing the plaintiff access to their records does not rise to the level of a constitutional violation given the plaintiff's compelling interest in obtaining the records. Accordingly, the court concludes that the access provision of Title III is constitutionally valid. Moreover, the court concludes that the plaintiff cannot properly fulfill its responsibilities to the patients without the benefit of access to all of their psychiatric records. Accordingly, the court will grant the plaintiff's request for declaratory relief to secure access to the patients' records pursuant to Title III. IV. CONCLUSION For the reasons stated herein, the court rules that the issue regarding the constitutionality of Title III's transfer provision is not ripe for adjudication at this time. With respect to the access provision of Title III, the court rules that the provision is constitutionally valid. The court further rules that the plaintiff, the United States of America, is entitled under Title III to access the psychiatric records of the defendant patients. Accordingly, the court will grant the plaintiff's motion for summary judgment and deny the defendants' motions for summary judgment. An appropriate Order directing the parties in a fashion consistent with this Memorandum Opinion is separately and contemporaneously executed and issued this 31st day of March, 1999.

295 F.3d 934 Ester DAZO, an individual, Plaintiff-Appellant,v.GLOBE AIRPORT SECURITY SERVICES, a Delaware corporation; Trans World Airlines, Inc., a Delaware corporation; Continental Airlines Inc., a Delaware corporation; America West Airlines, a Delaware corporation, Defendants-Appellees. No. 00-15058. United States Court of Appeals, Ninth Circuit. Submitted May 16, 2001.* Opinion Filed October 11, 2001. Filed July 1, 2002. COPYRIGHT MATERIAL OMITTED Christopher Ashworth, San Jose, CA, for the plaintiff-appellant. Thomas P. Gmelich, Barry A. Bradley, Glendale, CA, for defendant-appellee Globe Airport Security Services. Bonnie R. Cohen, Kymberly E. Speer, San Francisco, CA, for defendants-appellees America West Airlines, Inc., Trans World Airlines, Inc., and Continental Airlines, Inc. Before O'SCANNLAIN, TASHIMA, and THOMAS, Circuit Judges. ORDER TASHIMA, Circuit Judge. 1 The petition for panel rehearing is granted. The opinions filed October 11, 2001, slip op. 14341, and reported at 268 F.3d 671, are withdrawn, and the opinions filed concurrently with this order are substituted in their place. OPINION 2 We address the reach of the Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934), reprinted in note following 49 U.S.C. § 40105 (the "Warsaw Convention" or the "Convention"), which applies to international, not domestic, air transportation. We hold that the Warsaw Convention does not apply to an airport security company rendering services to both international and domestic air passengers; nor does it apply to airlines that did not provide international air carriage to the plaintiff. We therefore reverse the judgment of the district court. 3 * On May 12, 1999, Ester Dazo entered Terminal C of the San Jose International Airport, where she intended to board an 11:50 a.m. flight to Toronto, connecting in St. Louis. To enter the secured area of the terminal, persons must pass through a security checkpoint, where they are examined by metal detectors and their possessions are x-rayed. Globe Airport Security Services ("Globe") operates the security checkpoints at Terminal C of San Jose International on behalf of three air carriers who operate out of that terminal — America West Airlines, Inc., Trans World Airlines, Inc., and Continental Airlines (collectively the "Airlines"). At the time, both ticketed passengers and the general public were allowed to enter the secured area, which contains embarkation gates and retail establishments. 4 At 10:00 a.m., Dazo approached the terminal's security checkpoint. She placed her carry-on baggage on the x-ray machine conveyor belt, which carried her bags through the x-ray machine and for an additional distance of ten to fifteen feet. By the time Dazo passed through the metal detector, an unknown person or persons had taken her carry-on baggage and disappeared. According to Dazo's complaint, one of the stolen carry-on bags contained jewelry with a wholesale value of approximately $100,000 in the Philippines and considerably more in the United States. 5 Dazo filed this action against Globe and the Airlines, asserting claims for negligence and breach of the implied contract of bailment. She also sought punitive damages based on defendants' alleged wilful misconduct. 6 Globe filed a motion to dismiss Dazo's complaint for failure to state a claim upon which relief can be granted. In its motion, which the Airlines joined, Globe argued that Dazo's state law claims were preempted by the Warsaw Convention. The district court granted defendants' motion to dismiss Dazo's complaint, holding that the theft occurred while Dazo was "in the course of embarking," and, therefore, that the Warsaw Convention preempted her claims. The court also held that Dazo's allegations of wilful misconduct were insufficient to escape the Convention's limitation on liability. The district court granted Dazo leave to file an amended complaint in conformity with its ruling, but entered judgment in defendants' favor after Dazo informed the court that she did not wish to file an amended complaint. Dazo then filed this timely appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. II 7 The district court's order dismissing Dazo's complaint for failure to state a claim and its decision regarding preemption are subject to de novo review. Transmission Agency of N. Cal. v. Sierra Pac. Power Co., 287 F.3d 771, 780 (9th Cir. 2002). III 8 * "The Warsaw Convention is an international treaty governing the liability of air carriers engaged in the international transportation of passengers and cargo. The Convention creates a presumption of air carrier liability but, in turn, substantially limits that liability." Ins. Co. of N. Am. v. Fed. Express Corp., 189 F.3d 914, 917 (9th Cir.1999). The Convention's purpose is "to create a uniform body of law governing the rights and responsibilities of passengers and air carriers in international air transportation." Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1258 (9th Cir.1977). It was intended to protect the "international air transportation industry[, which] was in its beginning stages" at the time the Convention was drafted. Id.; see also Carey v. United Airlines, 255 F.3d 1044, 1047 (9th Cir. 2001) (describing the belief "`that limitations on liability would promote the development of the fledgling commercial air industry by allowing the airlines to predict their exposure to monetary damages'") (quoting In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1484 (D.C.Cir.1991)); McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315-16 (1st Cir.1995) (stating that the Convention "arose out of a perceived need to provide a fledgling industry with a uniform set of legal rules that would govern accidents occurring in international air travel"). The Convention caps the liability of "carriers," but it does not define that term. See Warsaw Convention, art. 22(3) ("As regards objects of which the passenger takes charge himself, the liability of the carrier shall be limited to 5,000 francs per passenger."); see also id. art. 22(1) ("carrier" liability to passengers); id. art. 22(2) ("carrier" liability for checked baggage and goods). 9 The Warsaw Convention applies to "all international transportation of persons, baggage, or goods performed by aircraft for hire." Id. art. 1(1). It defines "international transportation" in part as "any transportation in which, according to the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the transportation or a transshipment, are situated... within the territories of two High Contracting Parties." Id. art. 1(2). Therefore, Dazo's flight would be considered an "international flight" for purposes of the Convention, even though she was traveling first to St. Louis, and only then to Toronto. B 10 The district court held that Dazo's state law claims were preempted by the Warsaw Convention because Dazo was in the "course of embarking," relying on language found in Article 17 of the Convention and on Baker v. Lansdell Protective Agency, Inc., 590 F.Supp. 165 (S.D.N.Y. 1984). The district court noted that the Warsaw Convention applies only to carriers, but concluded that it applied to Globe because it has been extended to agents of carriers, citing Kabbani v. Int'l Total Servs., 805 F.Supp. 1033 (D.D.C.1992). The facts of this case, however, do not support a finding that Globe is a "carrier" for Warsaw Convention purposes. 11 It is undisputed that Globe was operating the security checkpoint on behalf of all three air carriers and therefore was acting as the common agent of all three Airlines at the time of the theft.1 It is also undisputed that only one of the three carriers actually provided the international carriage to Toronto.2 Furthermore, both domestic and international passengers for all three airlines had to pass through the security checkpoint, as did non-passengers who merely wanted to access the gates or retail establishments beyond the checkpoint. Globe was conducting a security check that every airline must perform under federal law, regardless of whether the flight being boarded is a domestic or international flight, or whether the person being screened is boarding any flight at all. 12 From these facts, it does not follow that Globe is a Warsaw Convention "carrier." The services being rendered by Globe were not in furtherance of the contract of carriage of an international flight, but were basic airport security services required at all airports by domestic federal law, regardless of the flights' destination and regardless, in fact, of whether the person being screened was even a passenger. See 49 U.S.C. §§ 44901-44916. These security screenings are not required by the Warsaw Convention. Thus, the Warsaw Convention does not apply to this case.3 13 Dazo's case is distinguishable from those cases extending Warsaw Convention "carrier" status to agents of the airline providing the international carriage. None of those cases involves extending "carrier" status to a company that was a dual agent — the agent of more than one airline, including an airline with non-Warsaw Convention status. For example, Reed v. Wiser, 555 F.2d 1079 (2d Cir.1977) simply involved the airline's own employees. See id. at 1081. In re Air Disaster at Lockerbie, Scotland, 776 F.Supp. 710 (E.D.N.Y.1991), involved a security company that was a wholly-owned subsidiary of the airline involved. See id. at 711 n. 2. Kabbani and Baker each involved, as far as the record shows, a security company that was the agent exclusively of the air carrier involved. See Kabbani, 805 F.Supp. at 1033-34; Baker, 590 F.Supp. at 170. Thus, no case supports the proposition that a security company that is acting as the common agent of multiple airlines, domestic and international, and providing basic airport security services mandated by federal law, regardless of whether the flight involved is domestic or international, should be accorded "carrier" status under the Warsaw Convention simply because the person whose belongings were stolen happened to be ticketed on an international flight. 14 Nor does the Convention shield those carrier-principals of Globe who did not provide Dazo's international carriage. As noted above, the parties agree that Globe was the "non-exclusive agent of the Carriers for the performance of the relevant security services." When an agent is acting within the scope of its agency, its principal is liable for the agent's acts. See Restatement (Second) of Agency § 216 (1958) (stating that "[a] principal is often subject to liability for the unauthorized conduct of an agent with respect to matters which, under the agreement creating the relation, he has the right to direct"); id. § 265 (stating that a principal is liable for torts of an agent when the agent is acting within the apparent scope of employment). According Warsaw Convention "carrier" status to the airlines that did not provide the international carriage would conflict with this common law rule and grant the remaining two carriers a windfall in the form of the Warsaw Convention's limitation-of-liability benefit. This would not further the purposes or policy of the Warsaw Convention. 15 Under long-accepted agency principles, "[a] person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other." Id. § 226; see also Abraham v. United States, 932 F.2d 900, 903 (11th Cir.1991) (citing Restatement for the proposition that "a single act may be done with the purpose of benefiting two masters and both may then be liable for the servant's negligence"). In operating the security checkpoint, Globe, therefore, was acting on behalf of all three Airlines, not solely on behalf of the carrier-principal who actually provided Dazo's international carriage. If not for the Warsaw Convention's limitation of liability, therefore, Globe and all three Airlines would be liable for Dazo's loss. At most, therefore, only the carrier-principal who provided the international carriage is entitled to the Convention's limitation of liability. Both Globe, as agent of the non-Warsaw Convention carriers, and the non-Warsaw Convention carriers themselves should be held accountable for any loss proven without regard to the Convention's limitation of liability. C 16 The district court also dismissed Dazo's claim for wilful misconduct, concluding that she had failed to state a claim for willfulness that would avoid the limitation of liability imposed by Article 25 of the Warsaw Convention.4 The Warsaw Convention provides the exclusive remedy for claims arising out of a carrier's intentional misconduct. Carey, 255 F.3d at 1051. If a plaintiff establishes wilful misconduct by the carrier, Article 25 lifts the Convention's limits on liability, but the Convention remains the exclusive source for the plaintiff's remedy. Id. at 1049-51. Thus, if Dazo can establish wilful misconduct, the Convention's limits on liability would be lifted with respect to the carrier that provided her international carriage. We agree with the district court, however, that the complaint's allegations are insufficient to establish wilful misconduct. 17 In support of her wilful misconduct claim, Dazo alleged that Globe and the Airlines knew that similar thefts had occurred at the airport but failed to make reasonable efforts to prevent such thefts, thereby subjecting her to an unreasonable degree of risk. The district court held that this allegation was insufficient to constitute wilful misconduct because her grievance was "essentially that Globe failed to completely prevent thefts at the security checkpoint.... [A]bsent concrete allegations of intentional performance of acts committed with the knowledge that the theft of baggage would occur ... a stolen bag is simply not tantamount to wilful misconduct." The district court did not err when it concluded that Dazo's allegations do not rise to the level of Article 25 wilful misconduct. 18 In Insurance Company of North America, we held that California law, not federal common law, applied to a determination of whether theft by an employee constituted "wilful misconduct" under Article 25(1) of the Warsaw Convention. Ins. Co. of N. Am., 189 F.3d at 919-21. But see id. at 923-29 (W.Fletcher, J., concurring) (disagreeing with the conclusion that California law applied and discussing why federal common law should apply); see also Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1284-87 (11th Cir.1999) (discussing interpretations of "wilful misconduct" for Article 25 purposes in federal circuit courts, none of which applied state law), cert. denied, 528 U.S. 1136, 120 S.Ct. 980, 145 L.Ed.2d 930 (2000); Koirala v. Thai Airways Int'l, Ltd., 126 F.3d 1205, 1208-10 (9th Cir.1997) (relying on Ninth Circuit definition of "wilful misconduct" in affirming district court, which "appl[ied] U.S. federal law" and found that the airline crew's "wilful misconduct" caused the plane to crash); Saba v. Compagnie Nationale Air France, 78 F.3d 664, 667-69 (D.C.Cir.1996) (relying on federal standard of "willful misconduct" in determining whether Article 25 applied). Under either California law or federal common law, Dazo's allegations do not establish wilful misconduct for Article 25 purposes. 19 Under California law, "willful or wanton misconduct is separate and distinct from negligence.... Unlike negligence, which implies a failure to use ordinary care, and even gross negligence, which connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results, willful misconduct is not marked by a mere absence of care. Rather, it involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences." Calvillo-Silva v. Home Grocery, 19 Cal.4th 714, 80 Cal.Rptr.2d 506, 968 P.2d 65, 76 (1998) (citations and internal quotation marks omitted), disapproved on other grounds, Aguilar v. Atl. Richfield Co., 25 Cal.4th 826, 107 Cal.Rptr.2d 841, 24 P.3d 493, 512 n. 19 (2001). Alternatively, "`[w]ilful misconduct under the Convention means the intentional performance of an act with knowledge that the ... act will probably result in injury or damage or the intentional performance of an act in such a manner as to imply reckless disregard of the probable consequences.'" Koirala, 126 F.3d at 1209 (quoting Johnson v. Am. Airlines, Inc., 834 F.2d 721, 724 (9th Cir.1987) (ellipsis in the original)). Dazo does not allege that defendants had a positive intent to harm her, or that they had a positive, active and absolute disregard, or even reckless disregard, for the consequences of any lapses in security. Thus, the district court's conclusion that Dazo's allegations do not rise to the level of wilful misconduct is not erroneous.5 20 Neither Globe nor the air carriers that did not provide Dazo's international air carriage should be entitled to the Warsaw Convention's limitation of liability. The district court's dismissal of Dazo's claims, as preempted by the Warsaw Convention, is therefore reversed and the case remanded for further proceedings. 21 REVERSED and REMANDED. Notes: * The panel unanimously finds this case suitable for decision without oral argumentSee Fed. R.App. P. 34(a)(2). 1 In her complaint, Dazo alleged that Globe was the "non-exclusive agent of the Carriers for the performance of the relevant security services," and the parties do not dispute this characterization on appeal 2 The record does not disclose which of the three carriers actually provided the international carriage. In her petition for rehearing, Dazo identifies TWA as the carrier which provided the international carriage. Based on this extra-record assertion, the partial dissent concludes that in screening Dazo, Globe was acting only as TWA's agent. At this stage, however, we do not know the terms of any agreement between Globe and the three airlines under which Globe was rendering services to them and acting as their individual or collective agent 3 In the wake of the tragic events of September 11, 2001, Congress enacted the Aviation and Transportation Security Act, Pub.L. No. 107-71, 2002 U.S.C.C.A.N. (115 Stat.) 597 (2001), enhancing security measures at the nation's airports, including the eventual federalization of the passenger screening function performed by Globe in this case. These developments only serve to emphasize that airport security and passenger screening are part of a national program wholly independent of the Warsaw Convention 4 Article 25 provides: The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to wilful misconduct. Warsaw Convention, art. 25(1). 5 The Convention's wilful misconduct standard was later amended to the formulation "intentionally or recklessly with knowledge that damage would probably result."See Carey, 255 F.3d at 1047 n. 11 (citing Montreal Protocol No. 4 to Amend the Warsaw Convention, reprinted in S. Exec. Rep. No. 105-20, at 21-32 (1998)). Montreal Protocol 4 went into force in the United States on March 4, 1999. Id. Our analysis applies to either formulation of Article 25: Dazo's allegations cannot support the conclusion that the defendants acted intentionally or recklessly with knowledge that the loss of Dazo's bag would probably result. 22 O'SCANNLAIN, Circuit Judge, concurring in part and dissenting in part. 23 I concur in the court's affirmance of Dazo's wilful misconduct claim, but I must respectfully dissent from its holding that Globe, as agent of TWA, is not entitled to the protection of the Warsaw Convention. 24 At the time of Dazo's flight, airlines were charged by federal statute with the responsibility to screen all passengers and property. See 49 U.S.C. § 44901 (2000).1 TWA, which provided Dazo carriage to Toronto, delegated its screening responsibility to Globe.2 Thus, Dazo concedes, as she must, that Globe acted as TWA's agent when she passed through the security checkpoint. The Warsaw Convention extends to an airline's agents and employees, a premise not challenged by the majority. See, e.g., Reed v. Wiser, 555 F.2d 1079, 1089-92 (2d Cir.1977); Kabbani v. Int'l Total Servs., 805 F.Supp. 1033, 1039-40 (D.D.C.1992); In re Air Disaster at Lockerbie, Scotland on Dec. 21, 1988, 776 F.Supp. 710, 712-14 (E.D.N.Y.1991); Baker v. Lansdell Protective Agency, Inc., 590 F.Supp. 165, 170-71 (S.D.N.Y.1984). Hence, to the extent that Globe acts as agent of TWA, it must be afforded the protection of the Warsaw Convention. See, e.g., In re Air Disaster, 776 F.Supp. at 714 (holding airport security company protected by the Convention). 25 The majority implies that if Globe provided screening only for TWA, Globe would indeed fall within the Convention. Supra at 939.3 Nevertheless, it claims the fact that Globe also provides screening for two other airlines at the checkpoint somehow destroys its Convention status. According to the majority, an agent of multiple airlines can never fall within the Convention because the agent performs services for airlines other than the one that provided international carriage. 26 The majority's approach suffers from a fundamental misunderstanding of agency principles. An agent may serve two masters at once, as long as service to one does not involve abandonment of service to the other. See Restatement (Second) of Agency § 226 (1958); see also Ward v. Gordon, 999 F.2d 1399, 1404 (9th Cir.1993). Globe served multiple masters; TWA, America West Airlines, and Continental Airlines each arranged for Globe to provide screening at Terminal C of the airport. However, Globe's service to one airline in no way involved an abandonment to the others. Globe was fulfilling its duty to TWA when Dazo passed through security. In short, Globe's association with America West and Continental does not destroy its agency relationship with TWA. 27 Apart from proper application of agency principles, common sense dictates that the majority's approach is misguided. Under that approach, a security company serving one airline is entitled to the protection of the Convention, but a security company serving multiple airlines is not. Why should the arbitrary happenstance of whether a security service contracts with multiple partners determine whether a person's claims are preempted by the Warsaw Convention?4 28 Of course, the majority is correct in saying that the protections of the Warsaw Convention do not extend to America West and Continental. The Warsaw Convention is limited to airlines and its agents that actually provide international carriage, and neither America West nor Continental provided any carriage to Dazo whatsoever. Accordingly, while TWA and Globe are entitled to Warsaw Convention status, America West and Continental are not. 29 Nonetheless, I disagree with the majority's decision to reinstate Dazo's claims against America West and Continental. Dazo has made no attempt to distinguish among the three airlines she has sued. Indeed, she waited until her petitions for rehearing to even identify which airline provided her carriage to Toronto. In these circumstances, Dazo has waived any claim against America West and Continental. See, e.g., Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.1994) ("We review only issues which are argued specifically and distinctly in a party's opening brief."). 30 I appreciate the fact that the tragic events of September 11, 2001 have cast this case in a different light from when it was first taken under submission. To some, the experience of September 11 undoubtedly makes it far less palatable to shroud airport security companies within the liability caps of the Warsaw Convention. Globe's parent, after all, screened passengers for American Airlines Flight 11, which was used to destroy the north tower of the World Trade Center. See, e.g., Milo Geyelin, Judge Wants Victims of Sept. 11 Who Sue to Know Risks of Action, Wall St. J., Apr. 12, 2002, at B2; Patricia Hurtado, Victim's Kin Sues Airline, Newsday (New York), Apr. 9, 2002, at A3. But this nation's recent tragedy simply does not bear on the legal question presented in this case, and does not justify a panel majority reversing course. Our judicial charge is to stand above the inflamed passions of the public, however much we may share them; we must apply the law faithfully and evenhandedly. See LaVine v. Blaine Sch. Dist., 279 F.3d 719, 728 (9th Cir.2002) (Kleinfeld, J., dissenting from denial of rehearing en banc) ("[The] ... law ought to be based on neutral principles, and should not easily sway in the winds of popular concerns, for that would make our liberty a weak reed that swayed in the winds."). 31 I respectfully dissent. 32 Opinion by Judge TASHIMA; Partial Concurrence and Partial Dissent by Judge O'SCANNLAIN. Notes: 1 In the wake of September 11, 2001, Congress enacted the Aviation and Transportation Security Act, Pub.L. No. 107-71, 115 Stat. 597 (2001) (codified in scattered sections of 49 U.S.C.). The Act shifts the responsibility for screening from the airlines to the federal government effective November 19, 2001 2 While the record does not reveal which airline provided international carriage, Dazo identified TWA as the airline in her petitions for rehearing. Thus, for ease of discussion, I refer to TWA as the airline that provided carriage to Toronto. Of course, Globe's Convention status is not affected by the absence of the airline's identity in the record. It is undisputed that Globe acted as the agent for the airline (whichever one it was) that provided international carriage 3 I recognize that the majority does not explicitly concede this point. However, the majority distinguishes several cases extending Convention status to an airline's agentsolely on the ground that in those cases the agent served one airline exclusively. Supra at 939. Thus, the majority implicitly concedes that the result in this case would be different if Globe served only TWA. 4 Apparently, even Dazo appreciates the deficiency of the majority's approach. Judge Tashima articulated this approach in his dissent to the original panel decision. In her twelve page petition for rehearing, Dazo afforded merely a single sentence in support, under the heading "Miscellaneous."

216 Cal.App.2d 860 (1963) E. A. TALIAFERRO, Cross-complainant and Appellant, v. DOROTHY DAVIS, Cross-defendant and Respondent. Civ. No. 19954. California Court of Appeals. First Dist., Div. One. June 6, 1963. E. A. Taliaferro, in pro. per., for Cross-complainant and Appellant. Frisbie & Hoogs and W. H. Hoogs for Cross-defendant and Respondent. *861 SULLIVAN, J. The instant action of interpleader was originally filed in the municipal court and, upon the filing of two cross-complaints seeking relief beyond the jurisdiction of said court, was transferred to the court below. We are concerned here only with the "cross-complaint to determine adverse claims" filed against the cross-defendant Davis, respondent herein, and others, [fn. 1] which set forth two separately stated causes of action and sought a declaration of the rights of the parties in respect to certain real property and also a judgment quieting the cross- complainant's title thereto. Following is a chronology of the procedural events pertinent here: On June 27, 1960, the cause was transferred to and filed in the court below; on August 2, 1960, respondent's default was entered; on August 3, 1960, after a hearing, the matter was submitted on the cross-complaint; and, on October 27, 1960, the court filed its memorandum decision, stating that appellant was entitled to certain relief and directing him to prepare a judgment in accordance with the views therein expressed. On November 4, 1960, respondent filed her "Notice of Motion for Order Setting Aside Default and Any Judgment Entered Thereon." Despite the filing of this motion, appellant caused to be presented to the court a "Judgment for Declaratory Relief and Decree Quieting Title" which was signed, filed and entered on November 9, 1960. This default judgment was in favor of appellant and against respondent. Nevertheless, on November 10, 1960, appellant filed a notice of appeal from it. On November 14, 1960, the court made its order setting aside the defaults of respondent together with any judgment entered thereon. On November 17, 1960, appellant moved to vacate this last order [fn. 2] which motion was denied on November 21, 1960, On January 13, 1961, appellant filed his notice of appeal stating that he "appeals ... from the denial of a motion to vacate order of November 15, 1960, setting aside a default judgment; ..." In the meantime, on November 23, 1960, respondent filed a cross- appeal apparently precautionary in nature from the default judgment. On January 30, 1961, appellant moved in the court below to dismiss the cross-appeal upon the ground that respondent failed and refused to "deposit her share of the *862 costs of preparation of the transcript on appeal. ..." On February 15, 1961, the motion was denied. On March 13, 1961, appellant filed a notice of appeal "from the denial of a motion to dismiss cross-appeal. ..." Appellant has caused to be transmitted here a clerk's transcript of 127 pages containing three notices of appeal: (1) that filed November 10, 1960, from the default judgment in his favor; (2) that filed January 13, 1961, from the denial of his motion to vacate an order setting aside the default judgment; and (3) that filed March 13, 1961, from the denial of his motion in the trial court to dismiss respondent's cross-appeal. Our attention is directed to the fact that in 1 Civil 19904 appellant caused to be transmitted to this court a clerk's transcript duplicative of the instant record in many respects and also containing the notice of appeal filed November 10, 1960. Thus in two records, filed within approximately a month of each other, appellant for a purpose not made entirely clear has included the same notice of appeal. Despite this circumstance, appellant takes the position that the only appeal involved here is the one taken by him on January 13, 1961. Appellant directs our attention to the fact that the appeal in 1 Civil 19904 which was purportedly that taken by him on November 10, 1960, from the default judgment in his favor, was dismissed at his request on April 4, 1963. This was before the instant cause came before us for oral argument. Appellant concedes that he dismissed 1 Civil 19904 because he feared that the court would charge him with taking a frivolous appeal. Appellant betrays a sensitive clairvoyance. [fn. 3] However, since we granted appellant's request for dismissal in 1 Civil 19904, we do not choose to consider in connection with this record the question whether appellant misused the right of appeal. [fn. 4] Therefore the first above mentioned appeal, filed November *863 10, 1960, has been disposed of and need not concern us further. The third appeal filed March 13, 1961, from the denial of appellant's motion to dismiss respondent's cross-appeal is now moot, since it appears that respondent's cross-appeal has already been dismissed by order of this court on October 13, 1961. Therefore the appeal taken by appellant on March 13, 1961, must be dismissed. (Consolidated Vultee etc. Corp. v. United Auto etc. Workers (1946) 27 Cal.2d 859, 862-863 [167 P.2d 725].) We turn to appellant's appeal filed January 13, 1961, from the denial of his motion to vacate the previous order of court setting aside the default. [1] While the order setting aside the default and default judgment was appealable (Yarbrough v. Yarbrough (1956) 144 Cal.App.2d 610, 613 [301 P.2d 426]; Paul v. Walburn (1933) 135 Cal.App. 364, 365 [26 P.2d 1002]; 3 Witkin, Cal. Procedure, Appeal, 25, p. 2170), appellant did not appeal therefrom. Appellant appealed from the denial of his motion to vacate such order. An appeal does not lie from an order refusing to vacate a judgment or order which is itself appealable. (Nuckolls v. Bank of California (1937) 10 Cal.2d 266, 270-271 [74 P.2d 264, 114 A.L.R. 708].) The order of November 14, 1960, was appealable. The order of November 21, 1960, refusing to vacate it was not appealable. The appeal therefrom must therefore be dismissed. The appeal filed March 13, 1961, from the denial of appellant's motion to dismiss respondent's cross-appeal and the appeal filed January 13, 1961, from the denial of appellant's motion to vacate the order setting aside the default judgment, are, and each of them is, dismissed. The respondent is awarded costs on both appeals. Bray, P. J., and Molinari, J., concurred. NOTES [fn. 1] 1. The record does not reflect the disposition of the issues raised by other pleadings including a separate cross-complaint against the plaintiff for unlawful detainer and conspiracy. [fn. 2] 2. Erroneously referred to as dated November 15, 1960. [fn. 3] 3. It is not indicated whether appellant's "fear" derives from the fact that his conduct of the appeal might be deemed susceptible of the conclusion that he took the appeal with the apparent purpose of divesting the court below of jurisdiction to hear and decide respondent's motion to vacate. As pointed out above, this motion was filed on November 4, 1960, and set for hearing on November 14, 1960; appellant procured the entry of judgment on November 9, 1960; and immediately appealed therefrom on November 10, 1960. [fn. 4] 4. Our disinclination to do so is not based on the fact that appellant appears in propria persona. Appellant is no neophyte in appellate proceedings. The records of this court disclose that from July 14, 1952, to the date of oral argument herein, appellant has appeared in propria persona 83 times as appellant or petitioner and 18 times as respondent.

687 A.2d 886 (1996) David A. CLEMENT v. WOODSTOCK RESORT CORP. No. 95-375. Supreme Court of Vermont. October 10, 1996. Before DOOLEY, MORSE and JOHNSON, JJ. ENTRY ORDER Defendant Woodstock Resort Corporation appeals a jury verdict awarding plaintiff David A. Clement damages for wrongful discharge. Defendant contends that (1) the court's instructions erroneously substituted its judgment for that of the jury's on whether defendant's employee handbook and policy manual created an employment contract obligating defendant to follow progressive disciplinary steps and to fire plaintiff only for cause; (2) there was insufficient evidence to support the jury's verdict; and (3) there was insufficient evidence to support the damage award. We affirm. Plaintiff worked for defendant as a groundskeeper and mechanic for several summers before being hired as a custodian on a full-time basis. After one year on the job, plaintiff was suspended and discharged for "insubordination" stemming from a critical *887 and profane note he allegedly sent his supervisor. Plaintiff testified that he wrote the note to himself to ventilate his frustrations and did not intend that it be read by anyone else. Defendant claimed at trial that other misconduct also played a role in plaintiffs firing, including allegations that he improperly examined confidential papers on his supervisor's desk and sexually harassed a co-worker. Although the co-worker corroborated the allegation at trial, no complaint, investigation, or warning ever issued in connection with these additional allegations of misconduct. Plaintiff argued at trial that his discharge violated an implied agreement or promise by defendant to terminate only for cause and to follow a progressive disciplinary procedure (verbal warning, written warning, suspension, hearing, termination) based upon its employee handbook and policy manual. See Taylor v. National Life Ins. Co., 161 Vt. 457, 464, 652 A.2d 466, 471 (1993) (personnel policy manuals inconsistent with at-will relationship may serve as evidence of contract requiring progressive discipline and good cause for termination). Defendant countered that plaintiff was an employee at-will and denied that the manual suggested otherwise, noting it contained an express disclaimer of intent to create an employment contract. The court instructed the jury on several theories of liability, including implied contract, promissory estoppel, and termination in violation of public policy. The jury returned a general verdict in favor of plaintiff and awarded him $58,024. The trial court denied defendant's subsequent motions for judgment notwithstanding the verdict, remittitur, or, in the alternative, a new trial. This appeal followed. Defendant first contends the trial court erroneously responded to a jury question concerning the breach of contract claim. During deliberations, the court received the following question from the jury: "What is the specific question(s) that we need to answer in coming to our decision ... regarding which party prevails, i.e., was there a contract or implied contract? If so, was it breached, etc." After discussing with counsel various possible responses, the court — with counsel's approval — reread its original instructions on breach of contract. Defendant now objects to the following specific language in the charge: "but whether defendant could terminate [plaintiff's] employment at any time for any reason depends on how you decide the terms of his contract, how the terms of the contract were modified." Defendant asserts that the instruction erroneously informed the jury that the contract had, in fact, been modified, rather than leaving that issue for the jury's determination. See Farnum v. Brattleboro Retreat, Inc., 164 Vt. ___, ___, 671 A.2d 1249, 1254 (1995) (whether conflicting provisions of employee manual create an implied contract is a jury question); Logan v. Bennington College Corp., 72 F.3d 1017, 1022 (2d Cir.1995) ("Under Vermont law, disputes concerning the agreed-upon terms and conditions of an employment contract are an issue of fact for the jury to decide."). Defendant did not object, however, to the giving of the original instruction, and expressly concurred in the decision to reread the instruction in response to the jury question.[*] Thus, defendant has waived any claim of error on appeal. V.R.C.P. 51(b) ("No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection."); Winey v. William E. Dailey, Inc., 161 Vt. 129, 137, 636 A.2d 744, 750 (1993); Ainsworth v. Franklin County Cheese Corp., 156 Vt. 325, 332-33, 592 A.2d 871, 875 (1991). Furthermore, the instructions read as a whole clearly informed the jury of its responsibility to determine whether the at-will employment relationship had been modified. Winey, 161 Vt. at 143, 636 A.2d at 753 ("In reviewing jury instructions, we look at them as a whole, not piecemeal."). The claim of error is thus without merit. Assuming the jury determined that the employer's handbook and policy manual *888 modified the at-will employment relationship, defendant next contends the evidence established just cause under the contract to dismiss plaintiff immediately rather than follow the progressive disciplinary procedures set forth in the policy manual. Defendant's argument, in essence, is that no credible evidence supported the jury's verdict and that its motion for judgment notwithstanding the verdict should have been granted. Whether plaintiff's conduct justified his immediate suspension and termination was the heart of the dispute at trial, and the evidence was sharply in conflict. Plaintiff denied that he read confidential documents on his supervisor's desk, denied that he had sexually harassed a co-worker, and claimed that the note that precipitated his dismissal was written to himself while he was under enormous stress and was never intended to be read by anyone else. Several witnesses testified that plaintiff was a good worker and that any problems on the job stemmed from overconscientiousness compounded by a learning disability, which hindered his ability to process verbal instructions. The jury could thus reasonably have determined that plaintiff's misconduct did not justify immediate termination and that he should have been given further verbal and written warnings. Accordingly, the verdict must be upheld. See Claude G. Dern Elec., Inc. v. Bernstein, 144 Vt. 423, 426, 479 A.2d 136, 138 (1984) ("if the verdict is justified by `any reasonable view of the evidence, it must stand.'"); Farnum, 164 Vt. at ___, 671 A.2d at 1256 ("if any evidence fairly or reasonably supports nonmoving party's claim, judgment notwithstanding verdict would be improper"). Finally, defendant contends the award of damages was unsupported by the evidence and that, consequently, the court erred by denying its motion for remittitur and a new trial on the issue of damages. The measure of damages for wrongful termination of an employment contract is the amount the plaintiff would have earned absent the breach, less what he actually earned or could have earned by the exercise of reasonable diligence. Benoir v. Ethan Allen, Inc., 147 Vt. 268, 272, 514 A.2d 716, 719 (1986). In Jackson v. Rogers, 120 Vt. 138, 150, 134 A.2d 620, 627 (1957), we reaffirmed the longstanding rule to be applied in reviewing jury awards in circumstances such as those presented here: If the verdict can be justified upon any reasonable view of the evidence, it must stand. To warrant interference where there is no standard of damages disclosed by a contract, or otherwise ascertainable by exact evidence of pecuniary loss, the amount must be clearly shown to have been grossly insufficient or excessive and the fact that the verdict has received the express approval of the trial court inclines us strongly in its favor. See also Winey, 161 Vt. at 144, 636 A.2d at 753; In re Estate of Boisvert, 135 Vt. 69, 73-74, 370 A.2d 209, 212 (1977). Plaintiff gave his own estimate at trial of his hourly wages and average work week and the value of his employment benefits and tips. Although there was some evidence that the number of hours worked per week varied, the average of forty hours was supported by the evidence. Defendant's president confirmed the hourly wage rate for custodians in plaintiff's position. Plaintiff also testified about his efforts to secure subsequent employment. The total lost wages and compensation over the four-year period between his termination and trial exceeded $71,000. The evidence was thus sufficient for the jury to "estimate the amount [of damages] within reasonable limits" and "with reasonable certainty." Benoir, 147 Vt. at 272, 514 A.2d at 719. We find no basis to reverse the jury's verdict and no error in the trial court's denial of the motion for remittitur and new trial. Affirmed. Note: Chief Justice ALLEN sat for oral argument in this matter but did not participate in the decision. NOTES [*] Indeed, the record discloses that the trial court specifically tailored the breach of contract instruction to accommodate defendant's expressed concern that it preserve the issue for the jury.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-00-00401-CR Carl Wayne Truan, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT NO. 7987, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING Appellant Carl Wayne Truan was placed on deferred adjudication community supervision after he pleaded guilty to the unauthorized use of a vehicle. See Tex. Penal Code Ann. § 31.07 (West 1994). The court later revoked supervision, adjudicated appellant guilty, and assessed punishment at imprisonment for two years and a $5000 fine. Appellant’s court-appointed attorney filed a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U. S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel’s brief was delivered to appellant, and appellant was advised of his right to examine the appellate record and to file a pro se brief. No pro se brief has been filed. We have reviewed the record and counsel’s brief and agree that the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. The judgment of conviction is affirmed. ____________________________________ David Puryear, Justice Before Justices Kidd, B. A. Smith and Puryear Affirmed Filed: March 8, 2001 Do Not Publish 2 

603 F.2d 219 U. S.v.Baker No. 78-5011 United States Court of Appeals, Fourth Circuit 8/1/79 1 E.D.Va. AFFIRMED

74 F.3d 91 67 Empl. Prac. Dec. P 43,882, 131 Lab.Cas. P 33,342,3 Wage & Hour Cas.2d (BNA) 126, 5 A.D. Cases 385,7 NDLR P 348 Kevin OSWALT, Plaintiff-Appellant,v.SARA LEE CORPORATION, d/b/a Bryan Foods, Inc., Defendant-Appellee. No. 95-60402 Summary Calendar. United States Court of Appeals,Fifth Circuit. Feb. 6, 1996. Jim D. Waide, III, Tupelo, MS, for plaintiff-appellant. Rosemary C. Lumpkins, Constangy, Brooks & Smith, Atlanta, GA, for defendant-appellee. Appeal from the United States District Court for the Northern District of Mississippi. Before WIENER, PARKER and DENNIS, Circuit Judges. PER CURIAM: I. PROCEDURAL HISTORY 1 Kevin Oswalt, an employee of Bryan Foods, Inc., brought this action against the defendant alleging claims of wrongful discharge in violation of his rights under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). The district court granted the defendant's motion for summary judgment on both claims. A full recital of the pertinent facts is included in the lower court's opinion. See Oswalt v. Sara Lee Corp., 889 F.Supp. 253, 255 (N.D.Miss.1995). II. ANALYSIS 2 This court reviews a district court's decision to grant summary judgment de novo. Moore v. Eli Lilly & Co., 990 F.2d 812, 815 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993). Summary judgment is appropriate where the movant demonstrates the absence of any genuine issue of material fact and entitlement to judgment as a matter of law. Slaughter v. Southern Talc Co., 949 F.2d 167, 170 (5th Cir.1991). Whether there exists a genuine issue of material fact is determined by whether a fair-minded jury could return a verdict for the non-moving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). 1. ADA Claim: 3 To sustain a claim of wrongful discharge under the ADA, Oswalt must be a person with a "disability." The statutory definition of "disability" includes "a physical or mental impairment that substantially limits one or more of the major life activities." 42 U.S.C. Sec. 12102(2)(A). According to Oswalt, his physical impairment was his high blood pressure, and this impairment substantially limited a major life activity when his doctor authorized him to miss work while he adjusted to medication. 4 The Equal Employment Opportunity Commission has set forth factors that should be considered in determining whether an individual is substantially limited in a major life activity. These include (1) the nature and severity of the impairment; (2) the duration of the impairment; and (3) the long term impact of the impairment. See 29 C.F.R. Sec. 1630.2(j)(2). 5 In this case, Oswalt has provided no evidence to show that either the high blood pressure or the alleged side effects from the medication substantially limited his job. We agree with the district court that "[h]igh blood pressure alone, without any evidence that it substantially affects one or more major life activities, is insufficient to bring an employee within the protection of the ADA." Oswalt, 889 F.Supp. at 258. We do not imply that high blood pressure in general can never be a "disability," as defined by the statute. We hold only that Oswalt failed to provide any evidence that his high blood pressure substantially limited a major life activity. 2. FMLA Claim: 6 The FMLA provides that an eligible employee shall be entitled to leave from work when he has a "serious health condition" that makes him "unable to perform the functions of the position." 29 U.S.C. Sec. 2612(a)(1). "Serious health condition" involves either inpatient care in a medical care facility or continuing treatment by a health care provider. 29 U.S.C. Sec. 2611(11). 7 According to Oswalt, his serious health condition included both his high blood pressure and an unrelated case of food poisoning. The food poisoning required neither inpatient care nor continued medical treatment and was therefore not a "serious health condition" within the meaning of the statute. The high blood pressure, however, did apparently involve continued treatment and therefore could be considered a "serious health condition." 8 Nevertheless, the period of work Oswalt missed allegedly due to his high blood pressure medication was in July of 1993. The FMLA did not go into effect until August 5, 1993. 29 C.F.R. Sec. 825.102. Any leave taken prior to the effective date is not protected by the FMLA. 29 C.F.R. Sec. 825.103(a). 9 The district court's granting of the defendant's motion for summary judgment is therefore AFFIRMED as to both the ADA and the FMLA claims.

110 N.W.2d 224 (1961) UNIVERSAL UNDERWRITERS INSURANCE COMPANY, a corporation, Plaintiff and Appellant, v. Edwin JOHNSON, d/b/a Johnson Motor Sales, and Agnes Johnson, Defendants and Respondents. No. 7888. Supreme Court of North Dakota. August 9, 1961. Ilvedson, Pringle, Herigstad & Meschke, Minot, for plaintiff and appellant. Ella Van Berkom, Minot, for defendants and respondents. SATHRE, Chief Justice. This is an appeal from a judgment of the district court of Mountrail County, rendered August 11, 1959 in favor of the defendants and against plaintiffs. The plaintiff brought the action for a declaratory judgment relieving it from any liability, under a liability insurance policy sold to the defendants for any damages resulting from an accident in which the defendant *225 Agnes Johnson was involved in driving a Cadillac automobile at Miami Beach, Florida. The facts out of which this action arose are substantially as follows: The defendant, Edwin Johnson individually is engaged in the retail sale of new and used automobiles and trucks, at Stanley, North Dakota. He operates a garage in connection with his sales business and maintains a repair shop for servicing and repairing trucks and automobiles. He has a franchise for the sale of Buick automobiles. The defendants have a home at Stanley, North Dakota, and they also maintain a home at Hollywood Beach, Florida. It is customary for defendant's wife, Agnes Johnson, to go to their Florida home and spend the winter months, and on occasion her husband would take trips to the Florida home. Mr. Johnson carried liability insurance with several insurance companies covering cars and trucks owned by him and damages that might result from the use of same. Both Mr. and Mrs. Johnson would drive any of the cars in the garage at any time, anywhere and any place they might desire to go. On or about November 3rd, 1954, Jack Harris the agent of the plaintiff sold the defendant a garage liability insurance policy, covering liability in connection with the use and operations of cars and trucks owned by him and used in the conduct of his garage business. The policy No. AL-24461 was admitted in evidence as plaintiff's exhibit "1". This policy was automatically renewed from year to year. Johnson thereupon cancelled his other insurance policies, or permitted them to lapse at their expiration dates. The defendants kept and maintained a Buick automobile at their Florida home for use by himself or his wife, while they were living there. In January 1958, the defendant, Edwin Johnson purchased a new Cadillac automobile from Fisher Motors, at Minot, North Dakota to use in driving to Hollywood Beach, Florida, to attend a convention of the National Automobile Dealers. The Cadillac was purchased at wholesale price and paid from the bank account of Edwin Johnson d/b/a Johnson Motor Sales. Edwin Johnson drove the Cadillac car to Hollywood Beach, Florida. The Cadillac was titled and licensed in the name of Edwin Johnson. On January 11, 1958, the defendant Agnes Johnson, wife of Edwin Johnson, was driving the Cadillac automobile in Miami Beach, Florida and while driving became involved in a two-car collision. As a result of the collision a personal injury action was brought against the defendants in the State of Florida. The plaintiff Insurance Company contends that the liability policy issued to Edwin Johnson d/b/a Johnson Motor Sales, did not cover the Cadillac car or any damages resulting from the collision in which the defendant, Mrs. Johnson was involved. The insurance company then brought this action in the district court of Mountrail County for a declaratory judgment construing the terms of the policy in question. The defendants answered claiming that the Cadillac automobile was fully covered under the policy issued by the plaintiff and that under its terms the plaintiff is liable for any property damages in any suit brought against the defendants arising out of operation of said vehicle. Judgment is demanded, declaring plaintiff be adjudged responsible for any legal liability of the defendants. The case was tried in the district court of Mountrail County to the court without a jury and judgment was rendered for the defendants to the effect that the insurance policy in controversy does cover the Cadillac automobile and any damages resulting from the two-car collision in which the defendant Agnes Johnson was involved *226 while driving the Cadillac in the State of Florida. From this judgment the plaintiff brought this appeal. The question for determination is whether under the conditions and terms of the policy the plaintiff, as insurer, is liable for property damage resulting from the accident in which the defendant Agnes Johnson was involved while driving the Cadillac car in Florida. The policy defines the operations it covers as follows: "Definition of Hazards. Division 1, Premises, Operations, Automobiles: "The ownership, maintenance or use of the premises for the purpose of an automobile sales agency, repair shop, service station, storage garage, or public parking place, and all operations necessary or incidental thereto; and the ownership, maintenance or use of any automobile in connection with the above defined operations, and the occasional use for other business purposes and the use for non-business purposes of "`(1) Any automobile owned by or in charge of the named insured and used principally in the above defined operations, and "`(2) Any automobile owned by the named insured in connection with the above defined operations for the use of the named insured, a partner therein, an executive officer thereof, or a member of the household of any such person.'" The policy further provides: "Policy Period. Territory: "`This policy applies only to accidents which occur during the policy period within the United States of America, its territories or possessions or Canada.'" As pointed out it is undisputed that the defendant, Edwin Johnson purchased the Cadillac automobile referred to herein at wholesale price from Fishers Motors at Minot, North Dakota and paid for it from the funds of Edwin Johnson d/b/a Johnson Motor Sales. Johnson purchased the Cadillac for the purpose of driving it to Hollywood Beach, Florida, to attend a convention of the National Automobile Dealers Association. It is a common practice of people who are engaged in the same kind of business to meet together periodically in conventions for the purpose of discussing the various problems arising in their business operations; and attendance at such conventions is considered a part of and incident to the successful conduct of their business. However, under the terms and conditions of the policy under consideration it covers not only cars and trucks used in the operation of the business, but covers "the occasional use for other business purposes and the use for non-business purposes of (1) of any automobile owned by or in charge of the named insured used principally in the above defined operations." The policy further covers any car owned by the insured in connection with his business "for the use of the named insured, a partner therein, an executive officer thereof, or a member of the household of any such person." The coverage of the policy is not limited to operations of the business in the State of North Dakota, but by its terms it covers "accidents which occur during the policy period within the United States of America, its territories or possessions or Canada." The general rule applicable in the construction of insurance policies is that since the language employed therein is that of the insurer, any ambiguity or any reasonable doubt as to its meaning should be construed strictly against the insurer, and the doubt or ambiguity favorably to the insured. In 44 C.J.S. Insurance § 297c, pages 1166-1169 it is stated: *227 "It is a cardinal principle of insurance law that a policy or contract of insurance is to be construed liberally in favor of insured or his beneficiary and strictly as against insurer. * * * Stated more fully, the rule is that, where, by reason of ambiguity in the language employed in a policy or contract of insurance, there is doubt or uncertainty as to its meaning and it is fairly susceptible of two interpretations, one favorable to insured or his beneficiary and the other favorable to the company, the former will be adopted, even though it was the intention of insurer that the policy, or a particular clause or provision thereof, should have a different meaning; and this rule is especially applicable where the ambiguity or doubt relates to matters subsequent to the loss or the attaching of liability. The reason for the rule is that insured usually has no voice in the selection or arrangement of the words employed and that the language of the contract is selected with great care and deliberation by experts and legal advisers employed by, and acting exclusively in the interest of, the insurance company, which, therefore, is at fault for any ambiguity or uncertainty therein, and accordingly the rule itself is frequently stated that, in case of ambiguity or doubt, a contract of insurance should be strictly construed against the insurance company and liberally in favor of insured where, as is usually the case, the contract has been written or prepared by the company." We have carefully examined the pertinent stipulations of the insurance policy, plaintiff's exhibit 1, and we cannot say that the language is ambiguous or that there is any reasonable doubt as to its meaning. It covers the use of cars for "the occasional use for other business purposes and the use for non-business purposes of any automobile owned by or in charge of the named insured." Furthermore the policy covers "a member of the household of any such person." It is undisputed that the Cadillac car driven by the defendant Mrs. Agnes Johnson was owned and purchased by, and paid for from, the bank account of Edwin Johnson d/b/a Johnson Motor Sales. Edwin Johnson drove it to Florida to attend a convention of the National Automobile Dealers Association of which he was a member and an area chairman. The convention was held at Miami Beach, Florida, and Mrs. Agnes Johnson had the two-car accident when she was driving the Cadillac to the auditorium where she expected to meet her husband, who was there attending the convention. The policy covers any automobile owned and used in connection with operations of the insured, a partner, as executive officer thereof, or a member of the household of any such person. There can be no doubt that Agnes Johnson is a member of her husband's household under its accepted meaning. Websters New International Dictionary defines household as "Those who dwell under the same roof and compose a family; a domestic establishment; family." In the case of Arthur v. Morgan, 112 U.S. 495, 5 S.Ct. 241, 243, 28 L.Ed. 825 the court said: "Persons who dwell together as a family constitute a `household'." In the instant case there is no dispute as to the facts. The insurance policy here involved constitutes the contract between insurer and insured and the question as to the liability of the insurer must be determined from the terms and stipulations contained in the policy. It covers automobiles owned by the insured used for business purposes other than his automobile sales operations. It specifically provides for coverage of automobiles used for non-business purposes *228 when driven by the insured, an executive officer, partner, or member of the household of any such person. The wife of the insured is of course a member of his household. She was driving the Cadillac the insured had purchased for use in driving to Florida to attend the convention of the National Automobile Dealers Association. It is immaterial whether or not she was driving the Cadillac for purposes connected with the business of the insured, because the policy covered automobiles driven for non-business purposes as well as business operations of insured business operations. Upon the record before us we reach the conclusion that the coverage of the policy in controversy issued by plaintiff to the defendant includes the Cadillac driven by Mrs. Agnes Johnson when she was involved in the two-car accident, and that the judgment of the district court must be and it is affirmed. STRUTZ, BURKE, MORRIS and TEIGEN, JJ., concur.

350 F.3d 1297 Don E. WATKINS, Plaintiff-Appellant,v.Jo Anne B. BARNHART, Commissioner, Social Security Administration, Defendant-Appellee. No. 03-7046. United States Court of Appeals, Tenth Circuit. December 2, 2003. Marianna E. McKnight of Troutman & Troutman, P.C., Tulsa, Oklahoma, for Plaintiff-Appellant. Sheldon J. Sperling, United States Attorney, Cheryl R. Triplett, Assistant United States Attorney, Tina M. Waddell, Regional Chief Counsel, Michael McGaughran, Deputy Regional Chief Counsel, Robert T. Bowman, Assistant Regional Counsel, Office of the General Counsel, Region VI, Social Security Administration, Dallas, Texas, for Defendant-Appellee. Before O'BRIEN and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge. BALDOCK, Circuit Judge. 1 Plaintiff-appellant Don E. Watkins appeals from an order of the district court affirming the Commissioner's decision denying his application for Social Security disability benefits.1 Appellant filed for these benefits on August 25, 2000. He alleged disability based on osteoarthritis, degenerative disc disease, sleep apnea, diabetes, and hypertension. The agency denied his applications initially and on reconsideration. 2 On November 6, 2001, appellant received a de novo hearing before an administrative law judge (ALJ). The ALJ determined that appellant retained the residual functional capacity (RFC) to perform light work with limitations to only occasional climbing, balancing, stooping, kneeling, crouching, and crawling. The ALJ denied benefits for appellant concluding that he was not disabled at step four of the analysis because he could still perform his past relevant work as a social worker. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988) (explaining five-step sequential process for evaluating claims for disability benefits). The Appeals Council denied review, making the ALJ's decision the Commissioner's final decision. 3 We review the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied. See Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir.1996). On appeal, appellant contends that the ALJ erred in the following ways: by failing to apply the correct legal standard to reject or weigh the opinion of appellant's treating physician; by ignoring significant probative evidence in the record that conflicted with his RFC conclusions; and by making a finding of an RFC for light work that was not supported by substantial evidence. Because we conclude the ALJ did not follow the correct legal standards in considering the opinion of appellant's treating physician, we reverse and remand for further proceedings. We will not reach the remaining issues raised by appellant because they may be affected by the ALJ's treatment of this case on remand. 4 Dr. Rowland, the treating physician, diagnosed appellant with degenerative disc disease in 1985. Appellant was referred by one of Dr. Rowland's colleagues to a sleep disorder specialist in 1995 because of sleep apnea. In August 2000, Dr. Rowland diagnosed appellant with minimal degenerative arthritis in his left knee. On October 8, 2001, Dr. Rowland examined appellant again. In a letter dated October 9, 2001, Dr. Rowland concluded that the nature and severity of appellant's "multiple health problems," including chronic back pain, knee pain, and sleep apnea, rendered appellant "unable to work an eight-hour day doing anything, sitting or standing." Aplt. App. Vol. II at 200. Nonetheless, the ALJ ultimately concluded that appellant could perform "light work," including "considerable walking, standing, and sitting during an 8-hour workday." Id. at 14. This RFC determination was consistent with the opinion of the non-examining medical consultant, but not with that of Dr. Rowland. 5 Under the regulations, the agency rulings, and our case law, an ALJ must "give good reasons in [the] notice of determination or decision" for the weight assigned to a treating physician's opinion. 20 C.F.R. § 404.1527(d)(2); see also Social Security Ruling 96-2p, 1996 WL 374188, at *5; Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir.2003). Further, the notice of determination or decision "must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p, 1996 WL 374188, at *5. In this case, the ALJ offered no explanation for the weight, if any, he gave to the opinion of Dr. Rowland, the treating physician. We must remand because we cannot properly review the ALJ's decision without these necessary findings. 6 The regulations and agency rulings give guidance on the framework an ALJ should follow when dealing with treating source medical opinions relating to the nature and severity of impairments. An ALJ should "[g]enerally, ... give more weight to opinions from [claimant's] treating sources." 20 C.F.R. § 404.1527(d)(2). In deciding how much weight to give a treating source opinion, an ALJ must first determine whether the opinion qualifies for "controlling weight." An ALJ should keep in mind that "[i]t is an error to give an opinion controlling weight simply because it is the opinion of a treating source if it is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence in the case record." SSR 96-2p, 1996 WL 374188, at *2; see also 20 C.F.R. § 404.1527(d)(2). 7 The analysis is sequential. An ALJ must first consider whether the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques." SSR 96-2p, 1996 WL 374188, at *2 (quotations omitted). If the answer to this question is "no," then the inquiry at this stage is complete. If the ALJ finds that the opinion is well-supported, he must then confirm that the opinion is consistent with other substantial evidence in the record. Id. In other words, if the opinion is deficient in either of these respects, then it is not entitled to controlling weight. Id. The agency ruling contemplates that the ALJ will make a finding as to whether a treating source opinion is entitled to controlling weight. In this case, the ALJ obviously did not give Dr. Rowland's opinion controlling weight, but he did not articulate a reason. A finding at this stage (as to whether the opinion is either unsupported or inconsistent with other substantial evidence) is necessary so that we can properly review the ALJ's determination on appeal. 8 But resolving the "controlling weight" issue does not end our review. In completing the analysis: 9 [a]djudicators must remember that a finding that a treating source medical opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence in the case record means only that the opinion is not entitled to "controlling weight," not that the opinion should be rejected. Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527 and 416.927. 10 SSR 96-2p, 1996 WL 374188, at *4. Those factors are: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion. 11 Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir.2001) (quotation omitted). After considering the pertinent factors, the ALJ must "give good reasons in [the] notice of determination or decision" for the weight he ultimately assigns the opinion. 20 C.F.R. § 404.1527(d)(2). Finally, if the ALJ rejects the opinion completely, he must then give "`specific, legitimate reasons'" for doing so. See Miller v. Chater, 99 F.3d 972, 976 (10th Cir.1996) (quoting Frey v. Bowen, 816 F.2d 508, 513 (10th Cir.1987)). 12 Here, the ALJ failed to articulate the weight, if any, he gave Dr. Rowland's opinion, and he failed also to explain the reasons for assigning that weight or for rejecting the opinion altogether. We cannot simply presume the ALJ applied the correct legal standards in considering Dr. Rowland's opinion. We must remand because we cannot meaningfully review the ALJ's determination absent findings explaining the weight assigned to the treating physician's opinion. See, e.g., Drapeau, 255 F.3d at 1214. 13 We remand this case to the district court with instructions to remand to the Commissioner for further proceedings consistent with this order and judgment. The judgment of the district court is REVERSED and REMANDED. Notes: 1 After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argumentSee Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

FILED NOT FOR PUBLICATION JUL 12 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT VICENTA LOPEZ-BOBADILLA, No. 08-71090 Petitioner, Agency No. A072-168-238 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 29, 2010 ** Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges. Vicenta Lopez-Bobadilla, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her application for relief under the * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Nicaraguan and Central American Relief Act (“NACARA”). We dismiss the petition for review. We lack jurisdiction to review the agency’s determination that Lopez- Bobadilla was not eligible for NACARA relief because she failed to establish that she timely registered for ABC benefits, and she does not raise a legal or constitutional question that invokes our jurisdiction. See Lanuza v. Holder, 597 F.3d 970, 972 (9th Cir. 2010) (per curiam). We lack jurisdiction to consider Lopez-Bobadilla’s remaining contentions, because she failed to exhaust them before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (explaining that this court lacks jurisdiction to review contentions not raised before the agency). PETITION FOR REVIEW DISMISSED. 2 08-71090 

678 F.Supp. 259 (1988) UNITED STATES of America, Plaintiff, v. Fernando PEREZ-PAREDES, et al., Defendants. No. 87-0301-CR. United States District Court, S.D. Florida, Miami Division. January 20, 1988. *260 John O'Sullivan, Asst. U.S. Atty., Miami, Fla., for U.S. Michael P. Joseph, New York City, for Perez-Paredes. Arturo Alvarez, Miami, Fla., for Romon Capalleja. Joel Kaplan, Miami, Fla., for More. Joel Rosenthal, Miami, Fla., for Vergara. MEMORANDUM OPINION AND ORDER DENYING POST TRIAL MOTIONS SPELLMAN, District Judge. This CAUSE comes before the Court on Defendants', FERNANDO PEREZ-PAREDES, YOLANDA MORE, and MIGUEL VERGARA, Post Trial Motions. FACTUAL HISTORY: On the night of April 30, 1987, a special agent responded to a call from Metro Dade Narcotics for the smell of ether emanating from a residence located at 4316 S.W. 134 Place, Miami, Florida. Ether is an ingredient used in the manufacture of cocaine. Several hours later, two Latin males, later identified as Fernando Perez-Paredes and Miguel Vergara, and one Latin female, later identified as Yolanda More, departed from the residence. Perez-Paredes and More departed in one car and Vergara in another. The police, having been advised of the happenings, stopped the cars and arrested the three defendants. A substantial sum of money was found in the possession of More. Thereafter, the police returned to the residence and knocked on the door. Defendant Capalleja, who was still in house, opened the door and upon doing so, the smell of ether was detected from inside. Capalleja was then arrested and the police entered the house to make a protective sweep for other people as well as out of a concern for the highly combustible ether. Approximately one hour later, officers arrived at the residence with a signed search warrant. Inside the house a cocaine laboratory was found in one of the bedrooms as well as a five gallon can of ether and a quantity of cocaine in a closet. PROCEDURAL HISTORY: On May 8, 1987, the grand jury returned a two count indictment against four defendants: ORLANDO RAMON CAPALLEJA, YOLANDA MORE, FERNANDO PEREZ-PAREDES and MIGUEL VERGARA. The two count indictment charged each with I) knowingly and intentionally manufacturing and possessing with the intent to distribute a quantity of cocaine in excess of five kilograms in violation of 21 U.S.C. section 841 (a)(1), as amended by the Anti-Drug Abuse Act of 1986, Public Law No. 99-570, effective October 27, 1986, and 18 U.S.C. section 2 and II) knowingly and intentionally conspiring to commit an offense against the United States in violation of 21 U.S.C. section 841(a)(1), as amended by the Anti-Drug Abuse Act of 1986, Public Law No. 99-570, effective October 27, 1986. The trial began on August 11, 1987. On August 12, 1987, Capalleja plead guilty to both counts. On August 14, 1987, after the trial ended, the jury returned guilty verdicts against the remaining defendants on each count. Defendants FERNANDO PEREZ-PAREDES and YOLANDA MORE moved for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure on the grounds of newly discovered evidence. Defendant MIGUEL VERGARA moved for a judgment of acquittal in arrest of judgment pursuant to Rule 29(c), 33, and 34 of the Federal Rules of Criminal Procedure. For the following reasons, all motions are DENIED. MOTIONS FOR NEW TRIAL: After the remaining defendants were convicted, defendant Capalleja agreed to provide by affidavit exculpatory testimony as to More and Perez-Paredes. Accordingly, defendants More and Perez-Paredes have moved for a new trial on the grounds of this "newly discovered evidence." According to Capalleja's affidavit (i) Perez-Paredes had nothing to do with leasing the house and Perez-Paredes had no way of knowing that the residence was used as a cocaine conversion laboratory, (ii) More posed as Capalleja's wife when he leased the residence only as a favor because on *261 previous occasions owners would lease only to a couple; she did not do so as part of a scheme to establish a site for a cocaine laboratory and, in fact, did not know the residence was used for such purpose, (iii) More called Capalleja on the night of April 30, 1987 to advise him that she would be coming over to meet her boyfriend, Perez-Paredes, (iv) neither More nor Perez-Paredes knew that a cocaine conversion process was in operation at the residence, (v) they remained mostly in the master bedroom, out of sight of the cocaine processing, and (vi) after spending a long time in the bedroom, they came out, spoke briefly to Capalleja in the living room, and then left the house. It is within the sound discretion of the trial court whether to grant a motion for a new trial. U.S. v. Martinez, 763 F.2d 1297, 1312 (11th Cir.1985). A motion will not be granted unless a defendant can establish all of the following: (1) the evidence must be discovered following the trial; (2) the movant must show due diligence to discover the evidence; (3) the evidence must not be merely cumulative or impeaching; (4) the evidence must be material to issues before the court; and (5) the evidence must be of such a nature that a new trial would probably produce a new result. U.S. v. Hobson, 825 F.2d 364, 366 (11th Cir.1987) (quoting U.S. v. Bollinger, 796 F.2d 1394, 1401 (11th Cir.1986)); Valladares v. U.S., 833 F.2d 1543 (11th Cir.1987). Defendants More and Perez-Parades fail to satisfy elements one, three, and five. First, Capalleja's affidavit is not newly discovered. Courts addressing whether exculpatory testimony of a co-defendant which was not elicited during trial but subsequently becomes available have generally held that it is not newly discovered evidence. See, e.g. U.S. v. Metz, 652 F.2d 478 (5th Cir. Unit A 1981); McAteer v. U.S., 148 F.2d 992 (5th Cir.1945); U.S. v. Diggs, 649 F.2d 731 (9th Cir.1980). For example, in U.S. v. Metz, defendant Metz moved for a new trial based on newly discovered evidence after being convicted of a drug conspiracy offense. Metz argued that the exculpatory affidavit of convicted co-conspirator, Schiller, who was tried jointly with Metz, was newly discovered and warranted a new trial. Schiller was unable to testify at their joint trial because he invoked the Fifth Amendment. After trial, Schiller expressed his willingness to give testimony which would exculpate defendant Metz as a co-conspirator. In particular, Schiller would testify that Metz knew nothing of the cocaine and knew nothing of the cocaine deal and was not at the house on the day in question. The court stated that Metz had not "cleared the hurdle of showing that the evidence was unknown to him at the time of trial," because even though Schiller was unavailable to testify on behalf of Metz at their joint trial, Metz himself was not precluded from testifying on his own behalf. Metz, 652 F.2d at 480. He could have offered basically the same testimony as Schiller was willing to testify to. Like Metz, defendants Perez-Paredes and More rely on Ledet v. U.S., 297 F.2d 737 (5th Cir.1962) and Newsom v. U.S., 311 F.2d 74 (5th Cir.1962), for the proposition that testimony newly available is, in fact, newly discovered. Metz rejects this argument. 652 F.2d at 480. In both Ledet and Newsom the respective defendants' motions for new trial on the basis of newly discovered evidence were granted. The newly discovered evidence consisted of exculpatory testimony of a witness who came forward to testify after being adjudicated guilty of the same crime as the defendants. Both Ledet and Newsom appear to be an anomaly in the case law. What seems to have justified the outcome in those cases was "the ambiguous fact situation of Ledet or the sentencing situation in Newsom." Id. Metz narrowly restricts both Ledet and Newsom to their own facts and, as indicated, rejects the notion that newly available evidence is synonymous with newly discovered evidence for purposes of a motion for a new trial. Id. Second, Capalleja's affidavit provides testimony that is merely cumulative. When More took the stand at trial, she testified that neither she, Perez-Paredes, nor Vergara were involved in the cocaine transactions. *262 Specifically, More testified to the following relevant facts: (i) that she did not live at the residence in question, but only posed as Capalleja's wife when he went to rent the house as a favor to him because as a single man he had a hard time being approved as a tenant; (ii) that Perez-Paredes was her boyfriend and because their relationship was deteriorating she was planning to leave him, (iii) that to raise cash she sold some jewelry to a jeweler for $6800, (iv) that she agreed to meet with Perez-Paredes on the night in question at Capalleja's house, (v) that at Capalleja's house she and Perez-Paredes remained most of the evening in the bedroom trying to resolve their domestic disputes, (vi) that at no time did she partake in or even view the cocaine conversion operation. Capalleja's proposed exculpatory testimony would be merely cumulative to that of More, especially as it relates to defendant More because she took the stand in her own behalf. The defendants argue that because Capalleja has not been sentenced his credibility will be enhanced and therefore his testimony will not be cumulative to More's. This court disagrees. Regardless of when Capalleja testifies, he would be at risk of the same perjury charge if he lies and therefore, the distinction made by the defendants is really a distinction without a difference. The defendants additionally argue that Capalleja's testimony would not be cumulative to More's because it would be the only testimony introduced at trial from a witness who admits involvement in and knowledge about the cocaine, who actually resides at the residence in question, and who was not a defendant in the case and who could not be impeached by showing that the outcome of the case would affect his liberty. This argument makes little sense. Carried to its logical conclusion, defendants argue that any time a different person testifies to the same facts as another person the testimony of the two is not cumulative. Defendants confuse "weight" duly accorded testimony with the definition of cumulativeness.[1] The defendants have not shown the court any cases wherein identical testimony is held not to be cumulative merely because the weight that might be accorded one is different than the other. Finally, defendants have failed to show that Capalleja's testimony would result in a judgment of acquittal. The fact that Capalleja's testimony is cumulative seriously undermines its ability to change the outcome of the trial. Cf. U.S. v. Carlin, 573 F.Supp. 44 (N.D.Ga.1983) (where proposed newly discovered evidence mirrored testimony already adduced at trial, a judgment of acquittal based on this alleged newly discovered evidence was unlikely); U.S. v. Gonzalez, 661 F.2d 488, 495-96 (5th Cir. Unit B 1981) (same proposition). Accordingly, these defendants' motions are denied. MOTION FOR JUDGMENT OF ACQUITTAL IN ARREST OF JUDGMENT: Defendant Vergara moves for a judgment of acquittal in arrest of judgment[2] on the alleged insufficiency of evidence to sustain a conviction. The proper standard on such a motion is whether there is "substantial evidence, taking the view most favorable to the Government, to support" the verdict of the jury. Glasser v. U.S., 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). "It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt." U.S. v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982); see also *263 U.S. v. Henderson, 693 F.2d 1028, 1030 (11th Cir.1983) (quoting Bell for standard of review on motion for acquittal based on insufficiency of evidence). Vergara argues that his mere presence at the house where the cocaine processing was taking place is not enough to sustain a conviction. He argues that, at most, the inferences to be drawn from the facts could support a conclusion that Vergara knew that a crime was afoot. Vergara relies primarily on U.S. v. Rackley, 742 F.2d 1266 (11th Cir.1984), for the proposition that he, like one of the defendants in Rackley, was merely present where the cocaine transactions were taking place and mere presence is insufficient to support a conviction. True, while mere presence alone is insufficient, Rackley, 742 F.2d at 1271, presence is a material and probative factor which the jury may consider. U.S. v. Kincade, 714 F.2d 1064, 1065 (11th Cir.1963). As the Eleventh Circuit recently stated: [i]t is not disputed that mere presence, standing alone, is not sufficient to convict a person of a conspiracy and presence and association with others at the time of the commission of an offense is not sufficient to convict such person. However, presence and association are factors to be considered with other evidence in evaluating the "totality of the circumstances" by which a jury can determine whether a defendant is guilty. U.S. v. Bell, 833 F.2d 272 (11th Cir.1987) (citing U.S. v. Blasco, 702 S.2d 1315 (11th Cir.1983)). Something other than mere presence, "some nexus between the accused and the contraband," must exist. Rackley, 742 F.2d at 1272. In Rackley, Rackley's motion for a new trial was denied where, in addition to presence, there was dominion and control of traces of cocaine on Rackley's truck which the court found sufficient to sustain the conviction for both possession and conspiracy. 742 F.2d at 1272. Rackley's co-defendant, Crosbey's, motion was granted, however, where there was nothing but mere presence at the place where cocaine was found. Here, there is more evidence presented linking Vergara to the possession and manufacture of cocaine than there was in Rackley. The pertinent facts established at trial are as follows: (1) the defendant Vergara drove co-defendant More to the residence in which the cocaine processing plant was located, (2) Vergara arrived at the residence prior to 9:00 p.m. and remained there until approximately 2:00 a.m., (3) Vergara was allowed into the residence by co-defendant Capalleja, (4) the residence reeked of ether, (5) cocaine was drying throughout the time the defendant Vergara was in the residence, (6) the drying of cocaine resulted in an overwhelming smell of ether, (7) prolonged exposure to ether causes severe headaches and nausea, (8) Vergara left the house and a short distance down the street met with defendants More and Perez-Paredes, and (9) Vergara, his clothing, and his automobile all reeked of ether. Vergara was in the residence where the cocaine conversion plant was located. It is seemingly improbable that Capalleja would allow Vergara into the residence/processing plant if Vergara was not participating in the processing of the cocaine. Vergara remained in the house for approximately five hours during the late evening and early morning. These are the hours when there would be less normal activity in a residential area. He subjected himself to the intense smell of ether for a prolonged period which one would not ordinarily do because ether makes one nauseous and causes headache. While no one factor standing alone (in addition to mere presence) might be sufficient to support Vergara's conviction, certainly all of them in the "totality of circumstances" provide a sufficient nexus between Vergara and the contraband. Here, the "government [has] provided ... [an] evidentiary basis other than [defendant's] presence ... from which an inference of conspiratorial participation could be drawn." U.S. v. Pintado, 715 F.2d 1501, 1505 (11th Cir.1983). The court is comfortable in finding that "the jury properly could have found beyond a reasonable doubt that [Vergara was] not present for *264 some innocuous reason, but [was] a part of the overall and well orchestrated conspiracy to [distribute cocaine]." U.S. v. Blasco, 702 F.2d 1315, 1332 (11th Cir.1983). As in Blasco, the circumstantial evidence adduced at trial was sufficient to sustain Vergara's conviction on both counts. Accord U.S. v. Bell, 833 F.2d 272 (11th Cir.1987). Accordingly, Vergara's motion is denied. CONCLUSION: In sum, defendants MORE and PEREZ-PAREDES have failed to establish the requisite showing for a new trial based on newly discovered evidence. Similarly, defendant VERGARA has not convinced the Court that there was not substantial evidence to support the verdict. Accordingly, it is hereby ORDERED AND ADJUDGED that all post trial motions are DENIED. NOTES [1] See, e.g. U.S. v. Riley, 544 F.2d 237 (5th Cir. 1976) (where testimony of witness adds nothing new to testimony already elicited at trial, such testimony is merely cumulative); U.S. v. Bollinger, 796 F.2d 1394 (11th Cir.1986) (same proposition). [2] Vergara's motion for judgment of acquittal in arrest of judgment was filed September 28, 1987. Such motion was denied on October 2, 1987. Thereafter, on November 16, 1987, nunc pro tunc to October 2, 1987, this Court granted defendant Vergara's motion to reconsider the Court's denial of his motion for judgment of acquittal, and in so doing vacated the October 2, 1987 order.

24 F.3d 240 Bellv.Bolivar County* NO. 93-07596 United States Court of Appeals,Fifth Circuit. May 20, 1994 1 Appeal From: N.D.Miss. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

11 B.R. 359 (1981) In re VERO COOLING & HEATING, INC., Debtor. VERO COOLING & HEATING, INC., Plaintiff, v. R.T. DOBECK, as successor to Sam T. Joyce, as Sheriff of Indian River County, W.W. Grainger, Inc., et al., Defendants. Bankruptcy No. 81-00146-BKC-TCB, Adv.No. 81-0050-BKC-TCB-A. United States Bankruptcy Court, S.D. Florida. May 26, 1981. *360 Eric C. Jones, Melbourne, Fla., for plaintiff. Joel H. Feldman, Boca Raton, Fla., for defendant/Gemaire Distributors, Inc. Frank J. Kruzich, Lake Park, Fla., for R.T. Dobeck. Norman Green, Vero Beach, Fla., for Earman Oil Co. Inc. Robert S. Levy, P.A., West Palm Beach, Fla., for East Coast Supply Corp. MEMORANDUM DECISION THOMAS C. BRITTON, Bankruptcy Judge. The debtor seeks to avoid four judicial liens as preferential transfers under 11 U.S.C. § 547(b) and thereby recover four motor vehicles which were the subject of a levy in execution on January 23, 1981. Alternatively, the debtor seeks to recover these vehicles under 11 U.S.C. § 542 by a turnover order. All of the defendants except one answered (C.P. Nos. 21a, 22, 22a, 30) and the matter was tried on May 13, 1981. This order incorporates findings and conclusions as authorized by B.R. 752(a). The facts are simple and undisputed. Each of the defendants independently received a judgment against the debtor and delivered a writ of execution to the Sheriff of Indian River County. The writs were docketed on four separate dates ranging from two weeks to six months before February 2, 1981, the date the bankruptcy petition was filed. Ten days before bankruptcy, the Sheriff levied in execution on two vans and two pick-up trucks owned by the debtor and used in its business. The debtor seeks to avoid as preferences the fixing of the four judicial liens against its property. The debtor established four of the five elements of a preference as to each of these liens and the only issue presented is as to the fifth element, whether the transfers were made ". . . within 90 days before the date of the filing of the petition." 11 U.S.C. § 547(b)(4)(a). The transfers are deemed to have been made when the judicial liens attached to the debtor's property, a question controlled by Florida law. Collier on Bankruptcy (15th ed.) ¶ 547.12[2]. As to personal property, Florida law provides that an execution on a judgment operates as a lien on the property of the judgment debtor from the time that a writ of execution is delivered to the sheriff. Flagship State Bank of Jacksonville v. Carantzas, Fla.App.1977, 352 So.2d 1259, 1261. As to three of the defendants, WGYL Radio Corporation, Earman Oil Company, Inc. and East Coast Supply Corp., the writs were delivered to the sheriff and, therefore, attached within the 90 day period preceding bankruptcy. Accordingly, the plaintiff may avoid as preferences the liens of these three creditors. In the case of Gemaire Distributors, Inc., the writ of execution was delivered to the sheriff on August 18, 1980, 168 days before the filing of the bankruptcy petition. As of that date, the lien of Gemaire attached to all personal property of the debtor subject to levy and sale. Since writs of execution are effective throughout the state, the lien attaches to personalty wherever located in the state. § 56.031, Florida Statutes; 19 Fla.Jur. Judgments *361 and Decrees, § 192. I find that Gemaire's lien attached to all four vehicles owned by the debtor as of August 18, 1980. Since this transfer occurred outside of the 90 day period, it does not constitute a preference and may not be avoided. I find, therefore, no basis in the present record before me to order a turnover of the vehicles to the debtor under the provisions of 11 U.S.C. § 542. If I have the authority and discretion to do so, which I doubt, I decline from exercising it under the present circumstances. The Sheriff has filed a motion for reimbursement of his costs and expenses. (C.P. No. 10). At the trial, the Sheriff stated that the statutory charges had not yet been computed. The vehicles remain in the Sheriff's custody and his lien for the recovery of his statutory fees and expenses is unaffected by this order. In accordance with the requirements of Bankruptcy Rule 921, separate judgments shall be entered avoiding the judicial liens of WGYL Radio Corporation, Earman Oil Company, Inc. and East Coast Supply Corp. as preferential transfers and dismissing the complaint as to Gemaire Distributors, Inc.