Datasets:

santoshtyss

/

us-court-cases

like 0

[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 09-12421 MARCH 11, 2010 ________________________ JOHN LEY CLERK D. C. Docket No. 08-02066-CV-T-24-MAP E. FRANK GRISWOLD, III, Plaintiff-Appellant, versus COUNTY OF HILLSBOROUGH, FLORIDA GOVERNMENT, HILLSBOROUGH COUNTY PUBLIC TRANSPORTATION COMMISSION, DAVID MICHAEL CARR, individually, et al., Defendants-Appellees. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (March 11, 2010) Before BLACK, MARCUS and HIGGINBOTHAM,* Circuit Judges. BLACK, Circuit Judge: * Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit, sitting by designation. Appellant E. Frank Griswold is the president and sole shareholder of two businesses, Med Evac, Inc. and Med Evac, LLC (the Companies), that provide emergency medical transportation services. Griswold, a disabled veteran, argues that Appellees violated his rights under the Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 36, 117 Stat. 2651, 2662 (codified at 15 U.S.C. § 657f (2003)) (the Veterans Act), by interfering with the Companies’ ability to obtain certain government contracts. The district court found that Griswold’s claims are barred under the doctrine of res judicata due to earlier litigation brought by the Companies arising from the same facts. We affirm the judgment of the district court. I. BACKGROUND The Veterans Act provides contract preferences for small businesses owned by veterans who were disabled due to military service. See 15 U.S.C. § 657f . According to Griswold, because he was the only service-disabled veteran in the State of Florida who was able to compete for emergency medical transportation contracts, he was entitled to such contracts under the quota system of the Veterans Act. Griswold advanced several claims against Appellees, County of Hillsborough, Hillsborough County Public Transportation Commission (HCPTC), and David Michael Carr,1 for allegedly interfering with his ability to obtain government contracts he was entitled to receive under the Veterans Act. Griswold contends Appellees prevented him from receiving the government contracts by inappropriately delaying the consideration and issuance of a certificate of public convenience and necessity (COPCN) needed to operate an ambulance service business in Hillsborough County. Specifically, Griswold advanced claims: (1) under 42 U.S.C. §§ 1981, 1983, and 1985 for violations of his rights under the Veterans Act; (2) for tortious interference with prospective business contracts; and (3) for punitive damages. In a previous suit, Griswold and the Companies sued Appellees and others for conspiring to monopolize the ambulance business. The complaint alleged Appellees and others had engaged in unlawful practices that restricted competition during the time in which the Companies filed their COPCN applications, including actions taken to delay the applications’ approval. Although Griswold was dismissed from the prior litigation because he personally suffered no injury and lacked standing to assert the Companies’ antitrust claims, judgment was entered against the Companies. Carr was the co-owner of a competing ambulance company. Appellees filed two motions to dismiss, arguing that Griswold’s claims were barred under the doctrine of res judicata. The district court granted Appellees’ motions in two separate orders.2 The district court held that Griswold was in privity with the Companies, and thus could be bound by the prior litigation even though he was not a party, “[b]ecause as the sole shareholder and President of the businesses, the [Companies] were ‘so closely aligned to [Griswold’s] interest as to be his virtual representative.’” The court also found both suits involved the same cause of action. The court held that both cases arose from a common nucleus of operative facts—the alleged delay of the Companies’ COPCN applications—and that the Companies could have raised Griswold’s claims in the prior proceeding since the Veteran’s Act confers rights on businesses owned by disabled veterans rather than on the individual veterans themselves. II. STANDARD OF REVIEW The district court’s application of res judicata is a question of law which is reviewed de novo. EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir. 2004). “However, whether a party is in privity with another for preclusion Appellee Michael Carr’s motion to dismiss was granted on December 16, 2008, and Hillsborough County’s motion to dismiss was granted on April 7, 2009. purposes is a question of fact that is reviewed for clear error.” Id.; see also Hart v. Yamaha-Parts Distributors, Inc., 787 F.2d 1468, 1472 (11th Cir. 1986). III. DISCUSSION Under the doctrine of res judicata, a claim is barred by prior litigation if: “(1) there is a final judgment on the merits; (2) the decision was rendered by a court of competent jurisdiction; (3) the parties, or those in privity with them, are identical in both suits; and (4) the same cause of action is involved in both cases.” Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999). The parties do not dispute that the prior suit involved a final judgment on the merits by a court of competent jurisdiction. Res judicata is thus appropriate if the district court did not err by finding: (a) Griswold was in privity with the Companies; and (b) the cases involved the same cause of action. A. Privity The Supreme Court recently clarified the use of nonparty preclusion in Taylor v. Sturgell, 128 S. Ct. 2161, 2172–73 (2008). As a general rule, “one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Id. at 2171 (quoting Hansberry v. Lee, 311 U.S. 32, 40, 61 S. Ct. 115, 117 (1940)). The rule against nonparty preclusion, however, is subject to six categories of exceptions. Id. at 2172. A court may apply nonparty preclusion if: (1) the nonparty agreed to be bound by the litigation of others; (2) a substantive legal relationship existed between the person to be bound and a party to the judgment; (3) the nonparty was adequately represented by someone who was a party to the suit; (4) the nonparty assumed control over the litigation in which the judgment was issued; (5) a party attempted to relitigate issues through a proxy; or (6) a statutory scheme foreclosed successive litigation by nonlitigants. See id. at 2172–73. While announcing the six categories of exceptions listed above, the Taylor Court also explicitly rejected the virtual representation exception previously used in this Circuit and elsewhere. See id. at 2178. In this Circuit, “[t]he doctrine of virtual representation provide[d] in essence that ‘a person may be bound by a judgment even though not a party if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative.’” Pemco Aeroplex, Inc., 383 F.3d at 1287 (quoting Aerojet-Gen. Corp. v. Askew, 511 F.2d 710, 717 (5th Cir. 1975)). The Court in Taylor found that the virtual representation exception’s “amorphous balancing test” threatened to bypass the limitations found in the Court’s enumerated exceptions and burdened district courts with “wide- ranging, time-consuming, and expensive discovery.” Taylor, 128 S. Ct. at 2175–76. The Taylor Court, however, recognized that “[m]any opinions use the term ‘virtual representation’ in reaching results at least arguably defensible on established grounds. In these cases, dropping the ‘virtual representation’ label would lead to clearer analysis with little, if any, change in outcomes.” Id. at 2178. (internal citations omitted). In Taylor, although the District of Columbia Circuit applied the virtual representation exception, the Supreme Court thus considered whether its decision could be upheld under one of the six established exceptions. Id. at 2178–79. This Court will therefore affirm the district court’s order despite its erroneous use of the virtual representation exception if its decision can be upheld under one of the six exceptions enumerated in Taylor. The district court held that Griswold was in privity with the Companies because, “as the sole shareholder and President” of the Companies, his interests were “closely aligned” with those of the Companies in the prior litigation. The district court’s analysis remains valid because, although a court may no longer find privity based solely on a similarity of interests, Griswold used his relationship with the Companies to control the prior litigation. The Supreme Court explained in Taylor that a “nonparty is bound by a judgment if she ‘assume[d] control’ over the litigation in which that judgment was rendered. Because such a person has had ‘the opportunity to present proofs and argument,’ he has already ‘had his day in court’ even though he was not a formal party to the litigation.” 128 S. Ct. 2173 (internal citations omitted). As Griswold’s counsel conceded at oral argument, Griswold had complete control over the prior litigation as the Companies’ president and sole shareholder.3 The district court therefore did not err by holding that Griswold was in privity with the Companies.4 B. Same Cause of Action “[I]f a case arises out of the same nucleus of operative facts, or is based upon the same factual predicate, as a former action, . . . the two cases are really the same ‘claim’ or ‘cause of action’ for purposes of res judicata.” Ragsdale, 193 F.3d at 1239 (quoting Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1503 (11th Cir.1990)). However, res judicata bars only those claims that could have been raised in the prior litigation. Id. at 1238. Griswold does not dispute that the claims asserted in the current litigation arose from the same nucleus of operative facts as those involved in the prior At oral argument, Griswold’s counsel also “agree[d] that [Griswold] would be barred from bringing claims that the Company should have brought” in the prior litigation. Although the adequate representation exception also likely applies, we need not reach that issue given our finding on the control exception. litigation. Both cases arose from the same allegedly unlawful delay in the Companies’ COPCN applications. Instead, Griswold argues res judicata should not apply because the Companies lacked standing to bring claims under the Veterans Act.5 The Companies had standing to bring Griswold’s claims, however, because he does not possess any rights under the Veterans Act that are distinguishable from those granted to the Companies. The Veterans Act establishes the Procurement Program for Small Business Concerns Owned and Controlled by Service Disabled Veterans (SDVOSBC), which permits a contracting officer to award contracts on the basis of competition restricted to “small business concerns owned and controlled by service-disabled veterans.” See 15 U.S.C. § 657f. While the SDVOSBC enabling legislation and associated administrative regulations repeatedly refer to contract preferences for small businesses owned by disabled veterans, they do not confer any rights directly on the veterans themselves. See 15 U.S.C. § 657f; 13 C.F.R. § 125.8(g); 13 C.F.R. § 125.14; 48 C.F.R. § 6.206; 48 C.F.R. § 18.116. The Companies therefore could have advanced Griswold’s claims in the prior litigation, making them subject to claim preclusion. Although Griswold’s complaint asserts multiple claims, each claim is based on alleged violations of the Veterans Act. C. Manifest Injustice Exception Griswold further argues the district court erred by failing to apply a manifest injustice exception. The Supreme Court, however, has cautioned against departing from accepted principles of res judicata. In Federated Department Stores, Inc. v. Moitie, the Court explained that “[t]he doctrine of res judicata serves vital public interests beyond any individual judge’s ad hoc determination of the equities in a particular case. There is simply ‘no principle of law or equity which sanctions the rejection by a federal court of the salutary principle of res judicata.’” 452 U.S. 394, 401, 101 S. Ct. 2424, 2429 (1981) (quoting Heiser v. Woodruff, 327 U.S. 726, 733, 66 S. Ct. 853, 856 (1946)). Even if a manifest injustice exception were to exist, the application of res judicata would not be unjust in this case. Griswold could have advanced claims under the Veterans Act during his control of the prior litigation and thus has already had his day in court. IV. CONCLUSION The district court did not err by holding that Griswold was in privity with the Companies in the prior litigation and that both suits involved the same cause of action. We therefore affirm the district court’s order granting Appellees’ motion to dismiss on the grounds of res judicata. AFFIRMED.

[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 11, 2010 No. 08-16654 JOHN LEY ________________________ CLERK D. C. Docket No. 07-00248-CR-W-N UNITED STATES OF AMERICA, Plaintiff-Appellee, versus WILLIE GENE DAVIS, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Alabama _________________________ (March 11, 2010) Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges. KRAVITCH, Circuit Judge: Police arrested Willie Gene Davis after a traffic stop and searched the car in which he was riding as permitted by our decision in United States v. Gonzalez, 71 F.3d 819, 825 (11th Cir. 1996). Based on evidence obtained from that search, Davis was convicted for the unlawful possession of a firearm. During the pendency of his appeal to this court, the Supreme Court overturned Gonzalez in Arizona v. Gant, 129 S. Ct. 1710 (2009). We now decide whether the Fourth Amendment’s exclusionary rule requires the suppression of evidence obtained during the search. I During a routine traffic stop in 2007, Sergeant Curtis Miller asked Willie Davis, the vehicle’s only passenger, for his name. After a pause, Davis identified himself as “Ernest Harris.” Miller could smell alcohol on Davis’s breath, and he noticed Davis fidgeting with his jacket pockets. When the driver of the vehicle failed her field sobriety tests, Miller asked Davis to step out of the car. As Davis exited the vehicle, he started to take off his jacket. Miller told him to leave it on, but Davis removed the jacket anyway and left it behind on the seat. Miller checked Davis for weapons and took him to the rear of the vehicle, where he asked a crowd of bystanders whether Davis’s name was really Ernest Harris. The bystanders gave Davis’s true name, which Miller verified with the police dispatcher, using Davis’s birth date. Miller arrested Davis for giving a false name and placed him, handcuffed, in the back of his patrol car. The driver of the vehicle was also arrested, handcuffed, and placed in a separate patrol car. Once the vehicle’s occupants had been secured, Miller searched it and found a revolver in one of Davis’s jacket pockets. After his indictment for possessing a firearm in violation of 18 U.S.C. § 922(g)(1), Davis filed a motion to suppress the gun. He conceded that our precedent required the court to deny his motion, but he moved to preserve the issue for appeal in light of the Supreme Court’s grant of certiorari in Arizona v. Gant, 128 S. Ct. 1443 (2008). The district court denied his motion on the ground that Sergeant Miller had found the gun during a valid search incident to arrest.1 Following a jury trial, Davis was convicted and sentenced to 220 months in prison. II In New York v. Belton, 453 U.S. 454, 460 (1981), the Supreme Court held “that when a policeman has made a lawful custodial arrest of the occupant of an The district court also concluded that police would inevitably have discovered the gun during an inventory search. Given our holding with respect to the exclusionary rule’s good-faith exception, we find it unnecessary to address the inventory-search issue. automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” In so holding, the Court purported to apply the limiting rationale of its decision in Chimel v. California, 395 U.S. 752 (1969), which had “established that a search incident to an arrest may not stray beyond the area within the immediate control of the arrestee.” Belton, 453 U.S. at 460. In its attempt to craft a “workable rule,” however, the Court assumed “that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon or evidentiary [item].’” Id. (alteration in original) (quoting Chimel, 395 U.S. at 763). We, like most other courts, had read Belton to mean that police could search a vehicle incident to a recent occupant’s arrest regardless of the occupant’s actual control over the passenger compartment. See, e.g., Gonzalez, 71 F.3d at 825. As the Supreme Court later explained, its opinion in Belton was “widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there [was] no possibility the arrestee could gain access to the vehicle at the time of the search.” Gant, 129 S. Ct. at 1718. In Arizona v. Gant, the Court rejected that prevailing reading of Belton: “We now know that articles inside the passenger compartment are rarely within the area into which an arrestee might reach, and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches.” 129 S. Ct. at 1723 (quotation marks and citation omitted). The Court replaced our interpretation of Belton with the following rule: “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. Davis now relies on Gant to argue that the search after his arrest violated the Fourth Amendment and, therefore, that the gun recovered from his jacket should have been suppressed. The government responds that we should not retroactively apply the exclusionary rule to searches conducted in good-faith reliance on our precedent. The retroactivity of a constitutional decision and the scope of the good-faith exception to the exclusionary rule are questions of law that we review de novo. Glock v. Singletary, 65 F.3d 878, 882 (11th Cir. 1995); United States v. Martin, 297 F.3d 1308, 1312 (11th Cir. 2002). III Although the Supreme Court’s retroactivity doctrine has a complicated history, see United States v. Johnson, 457 U.S. 537, 542–48 (1982), it is now settled that “a decision of [the Supreme] Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered,” id. at 562, “with no exception for cases in which the new rule constitutes a ‘clear break’ with the past,” Griffith v. Kentucky, 479 U.S. 314, 328 (1987).2 Accord Glazner v. Glazner, 347 F.3d 1212, 1217 (11th Cir. 2003) (“[F]or newly announced rules governing criminal prosecutions, the Supreme Court has completely rejected both pure prospectivity, which occurs where a court gives a newly announced rule no retroactive effect, and modified prospectivity, which occurs where a court applies a newly announced rule retroactively on a case by case basis.”). Because Davis’s case was pending on direct appeal when Gant was decided, the rule announced in that decision applies to his case. There can be no serious dispute that the search here violated Davis’s Fourth Amendment rights as defined in Gant. First, both he and the car’s driver had been handcuffed and secured in separate police cruisers before Sergeant Miller performed the search. Second, Davis was arrested for “an offense for which police could not expect to find evidence in the passenger compartment,” Gant, 129 S. Ct. “Final” in this context refers to any “case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.” Griffith, 479 U.S. at 321 n.6. at 1719, because Miller had already verified Davis’s identity when he arrested him for giving a false name. Gant makes clear that neither evidentiary nor officer- safety concerns justify a vehicle search under these circumstances. Our conclusion that the search violated Davis’s constitutional rights does not, however, dictate the outcome of this case. “Whether the exclusionary sanction is appropriately imposed in a particular case . . . is ‘an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.’” United States v. Leon, 468 U.S. 897, 906 (1984) (quoting Illinois v. Gates, 462 U.S. 213, 233 (1983)). Consequently, we must still decide whether the fruits of the illegal search should be suppressed. We are not the first court of appeals to consider this question, but the other circuits have split on the issue. In the aftermath of Gant, the Ninth and Tenth Circuits have reached opposite conclusions as to the exclusionary rule’s application in cases like this one. Compare United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009) (applying the exclusionary rule to a pre-Gant search), with United States v. McCane, 573 F.3d 1037 (10th Cir. 2009) (relying on the rule’s good-faith exception and refusing to require the suppression of evidence), cert. denied, No. 09-402 (Mar. 1, 2010). Similarly, before Gant, the Fifth Circuit refused to apply the exclusionary rule when police had relied in good faith on prior circuit precedent, United States v. Jackson, 825 F.2d 853, 866 (5th Cir. 1987) (en banc), but the Seventh Circuit expressed skepticism about applying the rule’s good-faith exception when police had relied solely on caselaw in conducting a search, United States v. 15324 County Highway E., 332 F.3d 1070, 1076 (7th Cir. 2003).3 We now enter the fray and hold that the exclusionary rule does not apply when the police conduct a search in objectively reasonable reliance on our well- settled precedent, even if that precedent is subsequently overturned. A. Retroactivity and the Exclusionary Rule In United States v. Gonzalez, 578 F.3d 1130, the Ninth Circuit reversed the denial of a motion to suppress evidence obtained in violation of Gant, even though the search at issue had occurred before Gant was decided. The basis for the court’s decision was that retroactivity doctrine required not only the application of Gant’s new substantive rule, but also the application of the same remedy.4 See also United States v. Brunette, 256 F.3d 14, 19–20 (1st Cir. 2001) (applying the good-faith exception to approve police reliance on a defective warrant that was issued when intercircuit caselaw governing the sufficiency of the warrant application was “unclear”). Justice Alito’s dissent in Gant appears to make a similar assumption. See 129 S. Ct at 1726 (Alito, J., dissenting) (“The Court’s decision will cause the suppression of evidence gathered in many searches carried out in good-faith reliance on well-settled case law . . . .”). But this assumption conflicts with the Court’s statement that “the doctrine of qualified immunity will shield officers from liability for searches conducted in reasonable reliance” on a broad reading of Belton. Id. at 1722 n.11 (Stevens, J.) (obiter dictum). Because the Court has explained that qualified-immunity doctrine employs “‘the same standard of objective reasonableness’” that defines the contours of the good-faith exception to the exclusionary rule, Groh v. Ramirez, 540 U.S. 551, 565 n.8 (2004) (quoting Malley v. Briggs, 475 U.S. 335, 344 (1986)), the majority’s Because the defendant in Gant had benefitted from the exclusionary rule, the court explained, “‘basic norms of constitutional adjudication’” required the suppression of evidence in all non-final cases involving similarly situated defendants. Id. at 1132 (quoting Griffith, 479 U.S. at 322–23). We do not find this reasoning persuasive. The Ninth Circuit’s decision turned, in large part, on its assumption that the Supreme Court’s affirmance in Gant endorsed the manner in which the state court had applied the exclusionary rule below. See Gonzalez, 578 F.3d at 1132–33. But the Court’s order granting Arizona’s petition for a writ of certiorari in Gant explicitly limited the scope of review to the constitutionality of the search. 128 S. Ct. 1443. The Court’s holdings are confined to the questions on which it grants certiorari, Sup. Ct. R. 14.1(a); Yee v. City of Escondido, 503 U.S. 519, 535–36 (1992), and in Gant neither the order granting certiorari nor the Court’s subsequent opinion discusses the exclusionary rule at all.5 In other words, the Court did not express approval of the exclusionary rule’s application below merely by affirming the state court’s statement fully supports our extension of the good-faith exception to cases involving reliance on well-settled precedent. In addition, the briefs and oral-argument transcript in Gant reveal that the State never argued for the application of the good-faith exception. judgment.6 Before the Supreme Court, Gant concerned the meaning of Belton, not the scope of the exclusionary rule. We also disagree with the Ninth Circuit’s contention that by declining to suppress evidence in cases like this we would fail to “fully appl[y]” Gant, thereby “violat[ing] ‘the integrity of judicial review’ by turning the court into . . . a legislative body announcing new rules but not applying them.” Gonzalez, 578 F.3d at 1132 (quoting Griffith, 479 U.S. at 314). Our conclusion that Sergeant Miller’s search violated Davis’s constitutional rights does fully apply Gant to the facts of this case. See United States v. Peoples, 2009 WL 3586564, at *4 (W.D. Mich. Oct. 29, 2009). We consider constitutional violations and remedies separately in the Fourth Amendment context, Leon, 468 U.S. at 906, and the Supreme Court has refused to tie the retroactivity of new Fourth Amendment rules to the suppression of evidence, see id. at 912 n.9. As the Tenth Circuit observed in McCane, “[t]he issue before us . . . is not whether the Court’s ruling in Gant applies to this case, it is instead a question of the proper remedy upon application of Gant to this case.” 573 F.3d at 1045 n.5. The language of affirmance in Gant reads only: “The Arizona Supreme Court correctly held that this case involved an unreasonable search. Accordingly, the judgment of the State Supreme Court is affirmed.” 129 S. Ct. at 1724. B. Good Faith and the Exclusionary Rule “[T]he exclusionary rule is not an individual right”; it “applies only where it ‘result[s] in appreciable deterrence,’” and “the benefits of deterrence must outweigh the costs.” Herring v. United States, 129 S. Ct. 695, 700 (2009) (quoting Leon, 468 U.S. at 909) (alteration in original).7 Whether to suppress evidence obtained from an unconstitutional search thus “turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.” Id. at 698. Because the exclusionary rule “cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity,” the Supreme Court has established an exception to the rule’s application for cases in which the officers who conducted an illegal search “acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment.” Leon, 468 U.S. at 919. The Court has gradually expanded this good-faith exception to accommodate objectively reasonable police reliance on: subsequently invalidated search warrants, Leon, 468 U.S. 897; subsequently invalidated statutes, Illinois v. Krull, 480 U.S. 430 (1987); inaccurate court records, Arizona v. Evans, 514 U.S. 1 (1995); and negligently maintained police records, Herring, 129 S. Ct. 695. In “The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free—something that ‘offends basic concepts of the criminal justice system.’” Herring, 129 S. Ct. at 701 (quoting Leon, 468 U.S. at 908). each of its decisions expanding the exception, the Court has concluded that the unlawful police conduct at issue was neither “sufficiently deliberate that exclusion [could] meaningfully deter it” nor “sufficiently culpable that such deterrence [would be] worth the price paid by the justice system.” Herring, 129 S. Ct. at 702. In this case, Sergeant Miller did not deliberately violate Davis’s constitutional rights. Nor can he be held responsible for the unlawfulness of the search he conducted. At the time of the search, we adhered to the broad reading of Belton that the Supreme Court later disavowed in Gant, and a search performed in accordance with our erroneous interpretation of Fourth Amendment law is not culpable police conduct. Law enforcement officers in this circuit are entitled to rely on our decisions, and “[p]enalizing the officer for the [court’s] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations,” Leon, 468 U.S. at 921. As the Tenth Circuit explained, the general “purpose of the exclusionary rule is to deter misconduct by law enforcement officers, not other entities,” and there would be little “significant deterrent effect in excluding evidence based upon the mistakes of those uninvolved in or attenuated from law enforcement.” McCane, 573 F.3d at 1044. Because the exclusionary rule is justified solely by its potential to deter police misconduct, suppressing evidence obtained from an unlawful search is inappropriate when the offending officer reasonably relied on well-settled precedent.8 This conclusion is consistent with the Supreme Court’s reasoning in Leon, in which it declined to require the suppression of evidence obtained in reliance on a facially sufficient warrant issued by a neutral magistrate judge: First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. Third, and most important, we discern no basis, and are offered none, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate. 468 U.S. at 916 (footnote omitted). We see no meaningful distinction between a magistrate judge’s error in applying Supreme Court precedent to a probable-cause determination and our error in applying that same precedent to the question of a warrantless search’s constitutionality. The exclusionary rule must be “restricted to those situations in which its remedial purpose is effectively advanced,” Krull, 480 U.S. at 347, and suppressing evidence obtained in reliance on well-settled precedent would be no more effective in deterring police misconduct than would We recognize that applying the good-faith exception under these circumstances may weaken criminal defendants’ incentive to urge “new” rules on the courts, but the exclusionary rule is designed to deter misconduct, not to foster the development of Fourth Amendment law. Cf. Herring, 129 S. Ct. at 700 n.2 (noting that the Court has rejected a conception of the rule that “would exclude evidence even where deterrence does not justify doing so”). suppressing evidence obtained pursuant to a judge’s probable-cause determination. C. Mistakes of Law and the Good-Faith Exception With this decision, we join the Fifth and Tenth Circuits in refusing to apply the exclusionary rule when the police have reasonably relied on clear and well- settled precedent. See McCane, 573 F.3d at 1045 (“[T]his court declines to apply the exclusionary rule when law enforcement officers act in objectively reasonable reliance upon the settled case law of a United States Court of Appeals.”); Jackson, 825 F.2d at 866 (“[T]he exclusionary rule should not be applied to searches which relied on Fifth Circuit law prior to the change of that law . . . .”). We stress, however, that our precedent on a given point must be unequivocal before we will suspend the exclusionary rule’s operation. We have not forgotten the importance of the “incentive to err on the side of constitutional behavior,” and we do not mean to encourage police to adopt a “‘let’s-wait-until-it’s-decided approach’” to “unsettled” questions of Fourth Amendment law. Johnson, 457 U.S. at 561 (quoting Desist v. United States, 394 U.S. 244, 277 (1969) (Fortas, J., dissenting)). The clarity of the Belton rule we followed before Gant is thus critical to our decision today. Although the Court in Gant insisted that Belton could have been interpreted in either of two ways, it also acknowledged that Belton was premised on a “faulty assumption” to which the doctrine of stare decisis did not require adherence. Gant, 129 S. Ct. at 1719, 1723. Indeed, we, like most of the other courts of appeals, treated the broader, permissive reading of Belton as well-settled. It is precisely in situations like this, when the permissibility of a search was clear under precedent that has since been overturned, that applying the good-faith exception makes sense. When the police conduct a search in reliance on a bright- line judicial rule, the courts have already effectively determined the search’s constitutionality, and applying the exclusionary rule on the basis of a judicial error cannot deter police misconduct. Cf. Krull, 480 U.S. at 360 n.17. (“[T]he question whether the exclusionary rule is applicable in a particular context depends significantly upon the actors who are making the relevant decision that the rule is designed to influence.”). Our decision here is therefore consistent with our holding in United States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir. 2003), that “the good faith exception to the exclusionary rule . . . should not be extended to excuse a vehicular search based on an officer’s mistake of law” (emphasis added). The justifications for the good-faith exception do not extend to situations in which police officers have interpreted ambiguous precedent or relied on their own extrapolations from existing caselaw. When the police rely on novel extensions of our precedent, they engage in the sort of legal analysis better reserved to judicial officers, whose “detached scrutiny . . . is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime,” United States v. Chadwick, 433 U.S. 1, 9 (1977) (quotation marks and citation omitted), quoted in Leon, 468 U.S. at 913–14.9 When law enforcement officers rely on precedent to resolve legal questions as to which “[r]easonable minds . . . may differ,” Leon, 468 U.S. at 914, the exclusionary rule is well-tailored to hold them accountable for their mistakes.10 Although an officer’s mistake of law cannot provide objectively reasonable grounds for a search, Chanthasouxat, 342 F.3d at 1279, the mistake of law here was not attributable to the police. On the contrary, the governing law in this circuit unambiguously allowed Sergeant Miller to search the car. Relying on a court of appeals’ well-settled and unequivocal precedent is analogous to relying on a statute, cf. Krull, 480 U.S. 340, or a facially sufficient warrant, cf. Leon, 468 U.S. 897—not to personally misinterpreting the law. Unlike police officers, “[j]udges and magistrates are not adjuncts to the law enforcement team.” Leon, 468 U.S. at 917. Because reasonable minds often differ when considering merely persuasive precedents, our extension of the good-faith exception is necessarily limited to situations in which the published decisions of this court clearly dictated the constitutionality of a search. In this case, Sergeant Miller performed a search that our contemporaneous interpretation of Belton clearly permitted. Had the Supreme Court not subsequently rejected that interpretation in Gant, we undoubtedly would have upheld the search as constitutional. Because the search was objectively reasonable under our then-binding precedent, suppressing the gun found in Davis’s jacket would serve no deterrent purpose. In accordance with our holding that the good- faith exception allows the use of evidence obtained in reasonable reliance on well- settled precedent, we refuse to apply the exclusionary rule here. Davis’s conviction is AFFIRMED.

[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT MAR 10, 2010 No. 08-15687 JOHN LEY Non-Argument Calendar CLERK ________________________ D. C. Docket No. 08-20586-CR-PAS UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BERNARD JEAN TERNUS, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (March 10, 2010) Before BIRCH, CARNES and KRAVITCH, Circuit Judges. CARNES, Circuit Judge: Ralph Waldo Emerson once said, “Though we travel the world over to find the beautiful, we must carry it with us or we find it not.”1 Someone took that advice too literally, carrying away four old masters’ paintings from the Musee des Beaux-Arts in Nice, France. Bernard Jean Ternus brokered a deal to sell the four stolen paintings to what he thought was an art dealer in the United States. He appeals his conviction, following a guilty plea, for conspiracy to transport in foreign commerce stolen goods valued at $5,000 or more, knowing the goods to have been stolen, in violation of 18 U.S.C. § 371 and 18 U.S.C. § 2314. I. On one Sunday afternoon in August 2007, five armed and masked robbers, who either had exquisite taste or were working for someone who did, walked into the Musee des Beaux-Arts and stole four paintings: Claude Monet’s “Cliffs Near Dieppe,” Alfred Sisley’s “Lane of Poplars at Moret,” and Jan Brueghel the Elder’s “Allegory of Water” and “Allegory of Earth.” The heist was executed with precision. One of the robbers subdued the museum’s staff, while the other four removed the paintings from the walls. The robbery lasted only five minutes, suggesting to police that the heist was what is known in the trade as “an order,” meaning that the robbery had been committed to get those four specific paintings. Ralph Waldo Emerson, Art, in Essays and Lectures 431, 435 (Joel Porte ed., 1983). This was not the first time the Monet and Sisley had been carried away from the museum. They were stolen in 1998 by the museum’s curator but were recovered only a few days later.2 Patrons of the Musee des Beaux-Arts would not be so fortunate this time; it would take longer to recover these stolen paintings. In September 2007 Bernard Jean Ternus met in Miami, Florida with two men he did not know were undercover FBI agents.3 During that meeting Ternus did not implicate himself in the robbery itself, but he told the agents that he knew the people who had stolen the paintings and he needed help finding a buyer for them. In mid-October, at a hotel in Miami, Ternus met with one of the same undercover agents and a person Ternus thought was an art dealer. The “art dealer,” of course, was another FBI agent working undercover. Ternus told him that the paintings were in southern France. A short time later, Ternus met with him again and discussed the asking price for the paintings. Negotiations continued throughout the fall of 2007, and by 2008 Ternus was ready to get down to specifics. In January he and a co-conspirator met with the two undercover agents in Barcelona, Spain where a two-part transaction was discussed. The plan was that two of the paintings would be delivered to the art See Maia de la Baume, Four Masterworks Stolen from a French Museum, N.Y. Times, Aug. 7, 2007, at E2. The facts stated in this part are from the proffer that Ternus signed as part of his plea agreement. dealer in Barcelona in exchange for 1.5 million Euros. The other two paintings would be held hostage. If anyone was arrested during the first sale, Ternus and his co-conspirator would threaten to destroy the two hostage paintings unless anyone who had been arrested was released. If the first sale went off without a hitch, the other two paintings would be delivered to the art dealer in Barcelona on another date for an additional 1.5 million Euros. Ternus would receive the purchase money in Miami, and the paintings would ultimately be brought to the United States where there supposedly were buyers waiting for them. In the spring of 2008 some of the plan’s details were changed. Transfer of the paintings would take place in France not Spain. Payment would occur in France not Miami. And other undercover FBI agents, or one of their France-based representatives, would take possession of the paintings instead of the agent who had posed as an art dealer doing it. The rest of the plan stayed the same. The paintings would be transferred on two separate dates, and then they would be brought to the United States. In May 2008 one of Ternus’ co-conspirators met an undercover officer with the French National Police in Carry le Rouet, France. The co-conspirator showed the officer the Sisley and one of the Brueghel paintings. The officer agreed to buy all four of the paintings in a single transaction and then deliver them to the art dealer in the United States. On the day the transfer was to take place, the French National Police arrested several of Ternus’ co-conspirators and recovered all four of the paintings from inside a van in Marseilles, France. II. Ternus challenges his conviction, arguing that the foreign commerce element in 18 U.S.C. § 2314 is “jurisdictional.” He contends that the district court lacked subject matter jurisdiction over his case because there was insufficient evidence in the record that he conspired to transport the stolen paintings in foreign commerce. Ternus’ guilty plea waived all non-jurisdictional defects in the proceedings against him. See United States v. Viscome, 144 F.3d 1365, 1370 (11th Cir. 1998). Although he argues otherwise, his sufficiency of the evidence challenge is non-jurisdictional and thus waived. See id. (concluding that the defendant waived his right to challenge the sufficiency of the government’s evidence regarding the interstate nexus element in 18 U.S.C. § 844(i) by pleading guilty); see also Alikhani v. United States, 200 F.3d 732, 734–35 (11th Cir. 2000) (noting that 18 U.S.C. § 3231 gives district courts subject matter jurisdiction over “all offenses against the laws of the United States” and that once a defendant pleads guilty, the defendant’s conviction cannot be challenged on the grounds that there was insufficient evidence of jurisdictional facts); United States v. Carr, 271 F.3d 172, 178 (4th Cir. 2001) (noting that “a claim of an insufficient connection to interstate commerce is a challenge to one of the elements of the government’s case and is therefore considered a claim about the sufficiency of the evidence”) (alteration and internal quotation marks omitted); Id. (stating that “[t]he interstate commerce element of [18 U.S.C.] § 844(i) implicates the power of Congress to regulate the conduct at issue, not the jurisdiction of the court to hear a particular case”). So, Ternus’ jurisdictional argument fails. III. Ternus contends that the district court erred by accepting his guilty plea because it was not supported by a sufficient factual basis. He also contends that the district court failed to adequately explain the nature of the charges against him during his plea colloquy because it failed to define “foreign commerce.” Because Ternus did not raise these arguments before the district court, we review the rulings he raises only for plain error. See United States v. Moriarty, 429 F.3d 1012, 1018–19 (11th Cir. 2005). To establish plain error, Ternus must show a clear error that prejudiced him by affecting his substantial rights. See United States v. Brown, 586 F.3d 1342, 1345 (11th Cir. 2009), petition for cert. filed, (Jan. 25, 2010) (No. 09-8833). “In the context of a Rule 11 error, prejudice to the defendant means a reasonable probability that, but for the error, [the defendant] would not have entered the plea.” Id. (internal quotation marks omitted). Even if a defendant carries his burden of establishing clear, prejudicial error, “we may not remedy that error unless it seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. at 1346 (internal quotation marks omitted). Ternus was charged with conspiracy to transport in foreign commerce paintings he knew to be stolen, in violation of 18 U.S.C. § 371 and 18 U.S.C. § 2314. As we explained in United States v. Sarro, 742 F.2d 1286 (11th Cir. 1984), “[a] conspiracy and the related substantive offense which is the object of the conspiracy are separate and distinct crimes.” Id. at 1293. To obtain a conspiracy conviction under § 371, “the Government must prove (1) that an agreement existed between two or more persons to commit a crime; (2) that the defendant knowingly and voluntarily joined or participated in the conspiracy; and (3) a conspirator performed an overt act in furtherance of the agreement.” United States v. Ndiaye, 434 F.3d 1270, 1294 (11th Cir. 2006). When a defendant is charged with conspiring to transport stolen goods in foreign commerce, the government is not required to prove that the stolen goods were actually transported in foreign commerce. See Sarro, 742 F.2d at 1293 (noting that “the fact that [the defendants] did not actually transport stolen paintings worth $5,000 or more in interstate or foreign commerce does not free them from the penalty of their illegal conspiracy to do so”). It is enough that the conspirators intended to transport them. Id. at 1295 (concluding that sufficient evidence supported defendants’ conspiracy conviction where the evidence showed that the defendants intended to transport stolen property in interstate commerce). Ternus contends that the district court erred in accepting his guilty plea because there was no evidence in the record that he intended the stolen paintings to be transported to the United States, but the factual proffer included sufficient facts to support the conspiracy conviction. It established that Ternus and his co- conspirators agreed to sell the stolen paintings to an art dealer in the United States. The paintings were to be transferred in France and then brought to the United States where the art dealer had buyers for them. The district court did not err in concluding that there was a factual basis for Ternus’ guilty plea. Ternus’ contention that the district court was required to define “foreign commerce” in order to adequately explain the nature of the charges against him is also without merit. The transcript of Ternus’ change of plea hearing makes it clear that he “understood what he was admitting and that what he was admitting constituted the crime charged.” See United States v. Lopez, 907 F.2d 1096, 1099 (11th Cir. 1990). At that hearing, Ternus testified that his counsel had explained to him what the government would be required to prove to support the conspiracy charge. The district court also went through the elements of the offense with him. After doing that, the district court asked Ternus whether he understood what the government would have to prove. He responded, “Absolutely, Your Honor.” Based on our review of the record, we conclude that absolutely no error occurred, plain or otherwise. AFFIRMED.

08-4815-cr United States v. Deandrade 1 UNITED STATES COURT OF APPEALS 3 FOR THE SECOND CIRCUIT 5 August Term, 2009 8 (Submitted: December 7, 2009 Decided: March 12, 2010) 10 Docket No. 08-4815-cr 12 - - - - - - - - - - - - - - - - - - - -x 14 UNITED STATES OF AMERICA, 16 Appellee, 18 - v.- 20 DANIEL DEANDRADE, 22 Defendant-Appellant. 24 - - - - - - - - - - - - - - - - - - - -x 26 Before: JACOBS, Chief Judge, HALL, Circuit Judge, 27 and MURTHA, District Judge.* 29 Appeal from a judgment of conviction, entered in the 30 United States District Court for the Southern District of 31 New York (Sand, J.), on the grounds (1) that the district 32 court improperly denied defendant’s two motions for a 33 mistrial after reference was made to his incarceration * J. Garvan Murtha, Senior Judge of the United States District Court for the District of Vermont, sitting by designation. 1 during trial and (2) that the sentence took account of a 2 non-jury juvenile conviction, in violation of Apprendi v. 3 New Jersey, 530 U.S. 466 (2000). We affirm both the 4 conviction and the sentence. 5 Arza Feldman, Feldman and 6 Feldman, Uniondale, New York, 7 for Appellant. 9 Preet Bharara, John T. Zach, 10 Julian J. Moore, and Iris Lan, 11 United States Attorney’s Office 12 of the Southern District of New 13 York, New York, New York, for 14 Appellee. 17 DENNIS JACOBS, Chief Judge: 19 Defendant-Appellant Daniel Deandrade appeals from a 20 judgment, entered following a 2008 jury trial in the United 21 States District Court for the Southern District of New York 22 (Sand, J.), convicting him of two felony narcotics offenses 23 and sentencing him to two concurrent terms of 300 months’ 24 imprisonment. He appeals principally on the grounds that 25 (1) references to his incarceration during trial, made by 26 two cooperating witnesses, impaired the presumption of 27 innocence, and that the district court should have granted 28 his motions for a mistrial premised on Estelle v. Williams, 29 425 U.S. 501 (1976); and (2) the sentence improperly took 1 account of a non-jury juvenile conviction in violation of 2 Apprendi v. New Jersey, 530 U.S. 466 (2000). Deandrade also 3 raises a variety of other challenges, including ineffective 4 assistance of counsel. We affirm the conviction and the 5 sentence. 7 I 8 On January 8, 2008, the government filed a two-count 9 indictment in connection with Deandrade’s involvement in two 10 drug distribution rings between 1999 and 2006, one in the 11 Bronx, the other in Utica, New York. Count One charged 12 conspiracy to distribute and to possess with intent to 13 distribute 50 grams or more of cocaine base (“crack”), in 14 violation of 21 U.S.C. § 846. Count Two charged 15 distribution and possession with intent to distribute 50 16 grams or more of crack, in violation of 21 U.S.C. 17 §§ 841(a)(1), (b)(1)(A). 18 Pre-trial, the government filed a prior felony 19 information specifying that in December 1990 Deandrade was 20 convicted in Bronx County Family Court of the felony offense 21 of attempted criminal sale of a controlled substance in the 22 fifth degree. The government introduced this juvenile drug 1 offense because, under federal law, a second felony drug 2 conviction triggers a mandatory minimum sentence of 20 years 3 (with a maximum of life imprisonment). See 21 U.S.C. 4 § 841(b)(1)(A). Deandrade’s competing characterization of 5 that proceeding is that he was “adjudicated a juvenile 6 delinquent.” 7 The government’s case consisted of Deandrade’s own 8 post-arrest statement and the testimony of three cooperating 9 witnesses. During the government’s examination of two of 10 these witnesses, testimony was elicited (perhaps 11 inadvertently) that Deandrade was incarcerated during the 12 trial. Both times, Deandrade objected and moved for a 13 mistrial, the court denied the motions, and the prosecutor 14 shifted the questioning to a different topic. The 15 government did not later reference this evidence during the 16 trial. 17 The jury convicted Deandrade of both counts on April 18 17, 2008. Before sentencing, the Probation Office submitted 19 a Pre-Sentence Report that calculated a Guideline Sentence 20 of 360 months to life imprisonment and recommended a 21 sentence of 360 months. On September 25, 2008, the district 22 court sentenced Deandrade to two concurrent terms of 300 1 months’ imprisonment. 2 On appeal, Deandrade submitted a counseled and a pro se 3 brief, each of which contests his conviction and his 4 sentence. As to his conviction, Deandrade argues that the 5 challenged testimony violated his right to be presumed 6 innocent, that the jury may have inferred that he was 7 incarcerated during trial because he was particularly 8 dangerous or a flight risk, that the district court 9 therefore abused its discretion in denying his motions for a 10 mistrial, and that the district court should have issued a 11 curative instruction--notwithstanding that he did not ask 12 for one. As to his sentence, Deandrade argues, first, that 13 his December 1990 juvenile adjudication is not a “prior 14 conviction” for purposes of 21 U.S.C. § 841(b)(1)(A); and 15 second, that, in any event, using his prior juvenile 16 adjudication to enhance his sentence violates Apprendi, 530 17 U.S. 466, because he had no right to a jury trial in that 18 adjudication. His pro se brief raises several other 19 arguments challenging both his conviction and sentence. 21 II 22 Deandrade cites two instances in which the government 1 elicited testimony from its cooperating witnesses that 2 Deandrade was incarcerated during trial. The first occurred 3 during the examination of Ian Martin: 4 AUSA: When was the last time you spoke with the 5 defendant? 7 Martin: On the bus yesterday. 9 . . . 11 AUSA: When you say on the bus yesterday, 12 explain that. 14 Martin: He just asked me what was going on. 16 AUSA: That’s the bus from where to where? 18 Martin: From MDC to the courthouse. 20 AUSA: Did you discuss your testimony today with 21 the defendant? 23 Martin: No. 25 AUSA: How would you describe your relationship 26 with the defendant at the time you were 27 dealing drugs with him? 29 Martin: We were good friends. 31 (emphasis added). In denying Deandrade’s motion for a 32 mistrial, the court acknowledged that it was “unfortunate 33 that it came out the way it did,” but concluded that it was 34 “appropriate for the government to seek to establish that 35 there had been some contact and some communication to negate 36 any suggestion of any greater contact and I think it’s a 1 relatively minor pleading matter and doesn’t warrant a 2 mistrial.” 3 The second instance came during the government’s 4 examination of Daniel Macias: 5 AUSA: Did you discuss the defendant’s case with 6 Mr. [Ian] Martin? 8 Macias: Daniel Deandrade? 10 AUSA: Right. 12 Macias: At the time I don’t believe Daniel was 13 in. 15 AUSA: Can you tell us how the Utica drug 16 business operated? 18 Macias: Utica was split into two sections. . . . 20 (emphasis added). Again, Deandrade moved for a mistrial, 21 and again the motion was denied. 23 B 24 We review the denial of a motion for a mistrial for 25 abuse of discretion. United States v. Carson, 52 F.3d 1173, 26 1188 (2d Cir. 1995). 27 “The presumption of innocence . . . is a basic 28 component of a fair trial under our system of criminal 29 justice.” Estelle, 425 U.S. at 503; see also Coffin v. 30 United States, 156 U.S. 432, 453 (1895). Accordingly, 1 “courts must be alert to factors that may undermine the 2 fairness of the fact-finding process.” Estelle, 425 U.S. at 3 503. We must consider “the likely effects [on the 4 presumption] of a particular procedure, based on reason, 5 principle, and common human experience.” Id. at 504. It 6 follows, for example, that a defendant typically cannot be 7 “compelled to go to trial in prison or jail clothing because 8 of the possible impairment of the presumption so basic to 9 the adversary system”; such clothing would provide the jury 10 a “constant reminder of the accused’s condition” and would 11 likely constitute “a continuing influence throughout the 12 trial. . . .” Id. at 504-05.2 13 This Court has applied Estelle and its principles in 14 several cases that are factually distinguishable from this 15 appeal. See, e.g., United States v. Gaines, 457 F.3d 238, 16 246 (2d Cir. 2006) (vacating a conviction because the jury 17 instructions allowed consideration of the defendant’s 18 interest in the outcome of the case and the resulting motive 19 to testify falsely); United States v. Oshatz, 912 F.2d 534, 20 539 (2d Cir. 1990) (prohibiting guilt-assuming Deandrade wore civilian clothes while in the courtroom during trial. 1 hypotheticals); United States v. Thomas, 757 F.2d 1359, 2 1363-65 (2d Cir. 1985) (holding that the practice of 3 impaneling an anonymous jury does not violate the 4 presumption of innocence). Several circuits, however, have 5 applied Estelle on facts that are more analogous to this 6 case; and the rule that emerges is that brief and fleeting 7 references are generally allowed, but extended comment is 8 impermissible. See, e.g., United States v. Washington, 462 9 F.3d 1124, 1136-39 (9th Cir. 2006) (finding no plain error 10 in failure to grant a mistrial in part because “referring to 11 a defendant’s incarceration is not constant as it is with 12 prison garb”); United States v. Atencio, 435 F.3d 1222, 1237 13 (10th Cir. 2006) (finding no violation in part because the 14 prosecutor made only an isolated comment that the defendant 15 was incarcerated pre-trial); United States v. Villabona- 16 Garnica, 63 F.3d 1051, 1058 (11th Cir. 1995) (same); United 17 States v. Jackson, 549 F.2d 517, 527 n.9 (8th Cir. 1977) 18 (finding no violation where a juror’s glimpse of the 19 defendant in prison clothes was fleeting); see also Estelle, 20 425 U.S. at 504-05 (expressing concern over practices that 21 impair the presumption of innocence by constituting a 22 “continuing influence throughout the trial” and a “constant 1 reminder of the accused’s condition”). 2 We adopt that approach, and hold that a brief and 3 fleeting comment on the defendant’s incarceration during 4 trial, without more, does not impair the presumption of 5 innocence to such an extent that a mistrial is required. 6 Accordingly, the district court did not abuse its discretion 7 in denying Deandrade’s motions for a mistrial. The two 8 instances in which the government witnesses commented on 9 Deandrade’s incarceration during trial were isolated, 10 apparently unintentional on the part of the prosecution,3 11 and incidental to legitimate areas of inquiry; moreover, 12 notwithstanding the several comments comprising the first 13 instance, the government never referenced them thereafter. 14 See United States v. Castano, 999 F.2d 615, 618 (2d Cir. 15 1993) (concluding that it was “extremely unlikely” that 16 improperly admitted evidence contributed to the guilty 17 verdict because “[t]he introduction of the evidence was 18 inadvertent [and] . . . the prosecution did nothing to 19 emphasize the statements at the time they were made, and The government argues that it did not seek to elicit the fact that Deandrade was incarcerated during trial. That is persuasive as to the second instance, and plausible as to the first. 1 never referred to them thereafter”). 3 C 4 Deandrade also contends that the district court erred 5 in failing to issue a curative instruction prohibiting 6 consideration of the challenged testimony. It is unclear 7 whether Deandrade intends this argument to stand alone as a 8 ground for vacatur, or whether it is part of his mistrial 9 claim. Either way, Deandrade never requested a curative 10 instruction, and we therefore review his claim for plain 11 error. See United States v. Perrone, 936 F.2d 1403, 1413 12 (2d Cir. 1991). Plain error review allows (but does not 13 require) vacatur if the defendant proves: (1) error; (2) 14 that is “clear or obvious, rather than subject to reasonable 15 dispute”; (3) that affected substantial rights, “which in 16 the ordinary case means . . . that it affected the outcome 17 of the district court proceedings”; and (4) that “seriously 18 affect[s] the fairness, integrity or public reputation of 19 judicial proceedings.” Puckett v. United States, 129 S. Ct. 20 1423, 1429 (2009) (internal quotation marks and citations 21 omitted). Plain error review is “strictly circumscribed” 22 and “[m]eeting all four prongs is difficult, as it should 1 be.” Id. at 1428, 1429 (internal quotation marks and 2 citations omitted). 3 “Defense counsel’s failure to request specific 4 instructions may be overlooked where the prosecutor’s 5 misconduct is so prejudicial that no instruction could 6 mitigate its effects”; but “in less egregious cases, the 7 failure to request specific instructions before the jury 8 retires will limit the defense’s ability to complain about 9 the relative lack of curative measures for the first time on 10 appeal.” United States v. Melendez, 57 F.3d 238, 242 (2d 11 Cir. 1995). This is one of those “less egregious cases.” 12 The government never relied upon the challenged testimony, 13 and a curative instruction could easily have done more harm 14 than good by focusing the jurors on two allusive references 15 that they otherwise might have missed or construed as 16 innocuous. 17 Deandrade cites only United States v. Nixon, 779 F.2d 18 126, 133 (2d Cir. 1985); but Nixon does not address whether 19 a court commits plain error in failing to issue a curative 20 instruction sua sponte, and it is therefore of limited 21 utility to Deandrade. Accordingly, we affirm the 22 convictions. 2 III 3 In imposing the sentence of two concurrent terms of 300 4 months’ imprisonment, the district court determined that 5 Deandrade’s drug-related juvenile adjudication constituted a 6 “prior conviction” that triggered the 20-year mandatory 7 minimum under 21 U.S.C. § 841(b)(1)(A), and that Apprendi, 8 530 U.S. 466, was satisfied notwithstanding that Deandrade 9 was not afforded the right to a jury trial in the juvenile 10 proceeding. On appeal, Deandrade challenges both 11 determinations. We do not consider the merits of these 12 arguments, however, because it is clear that the sentence 13 was unaffected by Deandrade’s juvenile drug offense. See 14 Williams v. United States, 503 U.S. 193, 203 (1992) (remand 15 is inappropriate where “the error did not affect the 16 district court’s selection of the sentence imposed”). 17 The Guidelines sentence, correctly calculated by the 18 court, was 360 months to life--independent of any 19 consideration of the contested juvenile adjudication. More 20 specifically, his base offense level was 38 (because 344 21 kilograms of crack were attributed to him), and he suffered 22 a four-level enhancement for being the leader of a drug 1 distribution operation. See U.S. Sentencing Guidelines 2 Manual §§ 2D1.1(c)(1), 3B1.1(a). The combined offense level 3 of 42 called for a recommended Guideline sentence of 360 4 months to life. See id. at the Sentencing Table. The 300- 5 month sentence actually imposed exceeded (by 60 months) the 6 20-year mandatory minimum prescribed by § 841(b)(1)(A). It 7 is hard to see how any consideration of the juvenile 8 adjudication--which mattered only as to that mandatory 9 minimum--contributed to the sentence imposed. The district 10 court made clear that it did not: 11 I find that defendant would be subject to a 20- 12 year mandatory minimum if that [juvenile drug 13 offense] became a basis for the sentence. . . . 14 The presentence report lists the guidelines as 15 being 20 years to life, puts the floor at 20 16 because it proceeds on the correct assumption that 17 there is a 20-year mandatory sentence here. I 18 note, however, that the sentence is greater than 19 20 years without regard to the mandatory minimum, 20 that all that I say on that subject, and I’ve said 21 in the opinion which I’ve handed out, may be 22 regarded as dictum. 24 (emphasis added). It cannot matter whether the court’s 25 dicta was sound, and we neither endorse nor reject it.4 We We note, without comment, that on similar facts the Third Circuit has reached a different conclusion. See United States v. Huggins, 467 F.3d 359, 361 (3d Cir. 2006) (holding that a prior adjudication of delinquency may not be counted as a conviction under 21 U.S.C. § 841(b)(1)(B) because, unlike the Armed Criminal Career Act, Congress did 1 are satisfied that this consideration had no influence on 2 the sentence that was imposed. 3 For these reasons, we affirm the sentence. 5 IV 6 Deandrade’s pro se supplemental brief raises the 7 following claims: (1) the government lacked probable cause 8 for his arrest; (2) his post-arrest statement upon which the 9 government relied at trial should have been suppressed as 10 fruit of the poisonous tree; (3) the government perpetrated 11 a fraud on the court by falsifying documents; (4) the 12 government offered insufficient evidence on which to sustain 13 a conviction on either count; (5) the government offered 14 insufficient evidence that he was a leader of the drug 15 organization (for sentence-enhancement purposes); and (6) 16 his lawyer provided him constitutionally ineffective 17 assistance. We dismiss the ineffective assistance claim 18 without prejudice to it being raised in a future habeas 19 corpus petition. See United States v. Morris, 350 F.3d 32, 20 39 (2d Cir. 2003). We reject the remaining assignments of not include a specific provision that a delinquency adjudication should be considered a criminal conviction). 1 error as conclusory and, in any event, without merit. 3 CONCLUSION 4 For the foregoing reasons, we affirm the judgment of 5 the district court.

07-3677-cv (L), 07-3900-cv (XAP) Alexander v. Cahill 3 UNITED STATES COURT OF APPEALS 5 FOR THE SECOND CIRCUIT 9 August Term, 2008 11 (Argued: January 22, 2009 Decided: March 12, 2010 ) 13 Docket Nos. 07-3677-cv (L), 07-3900-cv (XAP) 17 JAMES L. ALEXANDER, ALEXANDER & CATALANO LLC, and PUBLIC CITIZEN, INC., 19 Plaintiffs-Appellees-Cross-Appellants, 21 – v. – 23 THOMAS J. CAHILL, in his official capacity as Chief Counsel for the Departmental 24 Disciplinary Committee for the Appellate Division of the New York Court of Appeals, First 25 Department, DIANA MAXFIELD KEARSE, in her official capacity as Chief Counsel for the 26 Grievance Committee for the Second and Eleventh Judicial Districts, GARY L. CASELLA, in 27 his official capacity as Chief Counsel for the Grievance Committee for the Ninth Judicial 28 District, RITA E. ADLER, in her official capacity as Chief Counsel for the Grievance 29 Committee for the Tenth Judicial District, MARK S. OCHS, in his official capacity as Chief 30 Attorney for the Committee on Professional Standards for the Appellate Division of the New 31 York Court of Appeals, Third Department, ANTHONY J. GIGLIOTTI, in his official capacity as 32 acting Chief Counsel for the Grievance Committee for the Fifth Judicial District, DANIEL A. 33 DRAKE, in his official capacity as acting Chief Counsel for the Grievance Committee for the 34 Seventh Judicial District and VINCENT L. SCARSELLA, in his official capacity as acting Chief 35 Counsel for the Grievance Committee for the Eight Judicial District, 37 Defendants-Appellants-Cross-Appellees. 41 Before: WALKER and CALABRESI, Circuit Judges. 1 The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. 46(d); Local Rule 0.14(d); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998). 1 Defendants below, representing New York’s Appellate Division, appeal from the 2 decision of the United States District Court for the Northern District of New York (Scullin, J.), 3 granting summary judgment to Plaintiffs and invalidating content-based restrictions on attorney 4 advertising in New York State. Plaintiffs below cross-appeal from so much of the District 5 Court’s opinion as granted summary judgment to Defendants, upholding a thirty-day moratorium 6 on targeted solicitation following a specific incident. The District Court’s opinion is 7 AFFIRMED in part and REVERSED in part. 10 GREGORY A. BECK (Brian Wolfman, on the brief), 11 Public Citizen Litigation Group, Washington, D.C., for 12 Plaintiffs-Appellees-Cross-Appellants. 14 OWEN DEMUTH, Assistant Solicitor General (Barbara D. 15 Underwood, Solicitor General, Andrew D. Bing, Deputy 16 Solicitor General, and Peter H. Schiff, Senior Counsel, of 17 counsel), for Andrew M. Cuomo, Attorney General of the 18 State of New York, Albany, N.Y., for Defendants- 19 Appellants-Cross-Appellees. 21 David G. Keyko and Ryan G. Kriger, Pillsbury Winthrop 22 Shaw Pittman LLP, New York, N.Y., for amicus curiae 23 Bar of the City of New York in support of Plaintiffs- 24 Appellees-Cross-Appellants. 26 Kathryn Grant Madigan, New York State Bar Association, 27 Albany, N.Y., and Bernice K. Leber (Jennifer L. Bougher 28 and Ali M. Arain, on the brief), Arent Fox LLP, New York, 29 N.Y., for amicus curiae New York State Bar Association in 30 support of Defendants-Appellants-Cross-Appellees. 33 CALABRESI, Circuit Judge: 34 New York’s Appellate Division adopted new rules prohibiting certain types of attorney 35 advertising and solicitation, which were to take effect February 1, 2007. The new rules barred, 36 inter alia, testimonials from clients relating to pending matters, portrayals of judges or fictitious 37 law firms, attention-getting techniques unrelated to attorney competence, and trade names or 38 nicknames that imply an ability to get results. The amendments also established a thirty-day 39 moratorium for targeted solicitation following a specific incident, including targeted ads on 1 television or in other media. Plaintiffs, a New York attorney, along with his law firm and a not- 2 for-profit public interest organization, challenged these provisions as violating the First 3 Amendment. The District Court agreed in part—it declared most of the content-based rules 4 unconstitutional, while upholding the thirty-day moratorium. Both Plaintiffs and Defendants 5 timely appealed from portions of the District Court’s decision adverse to them. For the reasons 6 that follow, we conclude that the District Court properly granted summary judgment to Plaintiffs 7 with respect to the content-based advertising restrictions, with the exception of the prohibition on 8 portrayals of fictitious law firms. We likewise conclude that the District Court properly granted 9 summary judgment to Defendants with respect to the thirty-day moratorium. Accordingly, we 10 affirm the District Court’s opinion in large part, and reverse in part. 11 BACKGROUND 12 A. The Parties 13 The Plaintiffs-Appellees-Cross-Appellants (“Plaintiffs”) are an individual (James 14 Alexander), a law firm (Alexander & Catalano), and a not-for-profit consumer rights 15 organization (Public Citizen). Alexander is the managing partner of Alexander & Catalano, a 16 personal injury law firm with offices in Syracuse and Rochester. Alexander & Catalano use 17 various broadcast and print media to advertise. Prior to the adoption of New York’s new 18 attorney advertising rules, the firm’s commercials often contained jingles and special effects, 19 including wisps of smoke and blue electrical currents surrounding the firm’s name. Firm 20 advertisements also featured dramatizations, comical scenes, and special effects—for instance, 21 depicting Alexander and his partner as giants towering above local buildings, running to a 22 client’s house so quickly they appear as blurs, and providing legal assistance to space aliens. 23 Another advertisement depicted a judge in the courtroom and stated that the judge is there “to 1 make sure [the trial] is fair.” The firm’s ads also frequently included the firm’s slogan, “heavy 2 hitters,” and phrases like “think big” and “we’ll give you a big helping hand.” To date, no 3 disciplinary actions have been brought against the firm or its lawyers based on firm advertising. 4 The new rules, however, caused the firm to halt its advertisements for fear of such action. 5 Plaintiff Public Citizen is a D.C. not-for-profit corporation, with approximately 100,000 6 members nationwide, including roughly 10,000 in New York. Public Citizen Litigation Group is 7 a division of Public Citizen that conducts, inter alia, pro bono constitutional litigation in state 8 and federal courts on behalf of its clients. These organizations maintain a website and various 9 blogs, and participate in distributing educational materials on various legal issues to the public. 10 Defendants-Appellants-Cross-Appellees (“Defendants”) are the chief counsels or acting 11 chief counsels of the disciplinary committees whose jurisdiction lies within each of the four 12 Judicial Departments of the New York Supreme Court, Appellate Division. The Appellate 13 Division is authorized to discipline attorneys for professional misconduct. See N.Y. Judiciary 14 Law § 90(2) (McKinney 2009). Pursuant to this authority, the four presiding justices of each of 15 New York’s four departments are responsible for adopting disciplinary rules, which set the 16 parameters for professional conduct and provide for the discipline of attorneys violating the 17 rules. The departments have, in turn, appointed the disciplinary committees of which Defendants 18 are a part. These committees undertake investigations into complaints of attorney misbehavior. 19 Following an investigation, Defendants are empowered to take a number of actions with respect 20 to a complaint, including issuing a letter of caution or recommending that formal disciplinary 21 proceedings be started. When formal disciplinary proceedings are deemed warranted, 22 Defendants begin such proceedings in the Appellate Division. Accordingly, Defendants are 1 responsible for enforcing the New York Code of Professional Responsibility and the attorney 2 disciplinary rules promulgated thereunder. 4 B. The Appellate Division’s Adoption of the New Rules 5 In June 2006, the presiding justices of the four departments of the Appellate Division 6 approved for comment draft amendments to the then-existing rules. A press release explained 7 that the new rules were designed to protect consumers “against inappropriate solicitations or 8 potentially misleading ads, as well as overly aggressive marketing,” and to “benefit the bar by 9 ensuring that the image of the legal profession is maintained at the highest possible level.” 10 Following a comment period, the presiding justices issued final rules. These rules were set to 11 take effect on February 1, 2007. 12 We consider below a subset of these final rules, which we subdivide into two categories. 13 The first group of amendments imposes a series of content-based restrictions: 14 N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c): 15 (c) An advertisement shall not: 16 (1) include an endorsement of, or testimonial about, a lawyer or law firm 17 from a client with respect to a matter that is still pending . . . 18 (3) include the portrayal of a judge, the portrayal of a fictitious law firm, 19 the use of a fictitious name to refer to lawyers not associated together in a 20 law firm, or otherwise imply that lawyers are associated in a law firm if 21 that is not the case . . . 22 (5) rely on techniques to obtain attention that demonstrate a clear and 23 intentional lack of relevance to the selection of counsel, including the 24 portrayal of lawyers exhibiting characteristics clearly unrelated to legal 25 competence . . . 26 (7) utilize a nickname, moniker, motto or trade name that implies an ability to 27 obtain results in a matter. 2 At the time this action was argued, these provisions appeared at N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.6(c). They appear at their present location without change. An attorney “advertisement” is defined by N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.0(a) as “any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm’s services, the 2 The second group of amendments imposes a thirty-day moratorium on certain 3 communications following a personal injury or wrongful death event: 5 N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.52: Solicitation and 6 Recommendation of Professional Employment 7 (b) For purposes of this Rule, “solicitation” means any advertisement initiated 8 by or on behalf of a lawyer or law firm that is directed to, or targeted at, a 9 specific recipient or group of recipients, or their family members or legal 10 representatives, the primary purpose of which is the retention of the lawyer or 11 law firm, and a significant motive for which is pecuniary gain. It does not 12 include a proposal or other writing prepared and delivered in response to a 13 specific request of a prospective client. 14 (e) No solicitation relating to a specific incident involving potential claims for 15 personal injury or wrongful death shall be disseminated before the 30th day 16 after the date of the incident, unless a filing must be made within 30 days of 17 the incident as a legal prerequisite to the particular claim, in which case no 18 unsolicited communication shall be made before the 15th day after the date of 19 the incident. 22 N.Y. Comp. Codes R. & Regs., tit. 22 § 1200.36: Communication after Incidents 23 Involving Personal Injury or Wrongful Death 25 (a) In the event of a specific incident involving potential claims for personal 26 injury or wrongful death, no unsolicited communication shall be made to an 27 individual injured in the incident or to a family member or legal 28 representative of such an individual, by a lawyer or law firm, or by any 29 associate, agent, employee or other representative of a lawyer or law firm 30 representing actual or potential defendants or entities that may defend and/or 31 indemnify said defendants, before the 30th day after the date of the incident, 32 unless a filing must be made within 30 days of the incident as a legal 33 prerequisite to the particular claim, in which case no unsolicited 34 communication shall be made before the 15th day after the date of the 35 incident. 37 (b) An unsolicited communication by a lawyer or law firm, seeking to 38 represent an injured individual or the legal representative thereof under the 39 circumstance described in paragraph (a) shall comply with [§ 1200.52(e)]. 3 primary purpose of which is for the retention of the lawyer or law firm. It does not include communications to existing clients or other lawyers.” 3 At the time this action was argued, these provisions appeared at N.Y. Comp. Codes R. & Regs., tit. 22, §§ 1200.8 and 1200.41, respectively. Former § 1200.8 appears unchanged at § 1200.52. Former § 1200.41, which now 2 C. The Present Action and District Court Decision 3 Plaintiffs filed their complaint on February 1, 2007, the date on which the new rules were 4 to take effect. They sought declaratory and injunctive relief from several of the new rules, 5 including all those set forth above. Plaintiffs contended that these rules infringed their First 6 Amendment rights because the rules prohibited “truthful, non-misleading communications that 7 the state has no legitimate interest in regulating.” Plaintiffs moved for a preliminary injunction 8 against enforcement of the rules, and Defendants moved to dismiss the complaint for, inter alia, 9 lack of standing. The District Court (Scullin, J.) reserved decision on Plaintiffs’ motion and 10 denied Defendants’ cross-motion. Alexander v. Cahill, No. 5:07-cv-117, 2007 U.S. Dist. LEXIS 11 29823 (N.D.N.Y. Apr. 23, 2007). Thereafter, the parties stipulated to a set of facts and exhibits 12 that became the basis for competing motions for summary judgment. 13 On July 23, 2007, the District Court filed its Memorandum-Decision and Order granting 14 partial summary judgment to Plaintiffs and partial summary judgment to Defendants. Alexander 15 v. Cahill, 634 F.Supp.2d 239 (N.D.N.Y. 2007). Principally, the District Court found 16 unconstitutional the disputed provisions of § 1200.50(c) set forth above, while concluding that 17 the thirty-day moratorium provisions survived constitutional scrutiny. 4 18 Throughout its opinion, the District Court applied the test for commercial speech set forth 19 in Central Hudson, which considers whether (1) the speech is protected by the First Amendment; 20 (2) there is a substantial state interest to be achieved by the restriction; (3) the restriction 21 materially advances the state interest; and (4) the restriction is narrowly drawn. See Central appears at § 1200.36, has changed by shifting between subsections (a) and (b) the class of lawyers and law firms it addresses. The parties have not briefed the relevance, if any, of this change. We accordingly read the change to be immaterial to this appeal. 4 The District Court made several additional rulings that are not at issue in these appeals. Most importantly, the District Court accepted a narrowing construction of the amendments as inapplicable to non-commercial attorney communications. On this basis, the District Court granted Defendants’ summary judgment motion as to Plaintiffs’ claims regarding application of the rules to non-commercial speech. Alexander, 634 F.Supp.2d at 255-56. 1 Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 564-66 (1980). The 2 District Court rejected Defendants’ claim that “the State of New York could ban attorney 3 advertising that was ‘irrelevant, unverifiable, [and] non-informational’ without reference to the 4 Central Hudson test.” Alexander, 634 F.Supp.2d at 246 n.4. It concluded: “Defendants have 5 provided no legal support for this proposition, and the Court finds none. Although these 6 characteristics may be evidence that an advertisement is misleading, they do not by themselves 7 constitute a justification for banning commercial speech in the form of attorney advertising.” Id. 8 Turning to the amendments that restricted potentially misleading advertisements, 9 including the disputed provisions of § 1200.50(c), the District Court found that Defendants’ 10 stated interest in protecting consumers from misleading attorney advertisements was a 11 substantial one. Id. at 247-48. Under Central Hudson’s penultimate prong, which requires that 12 the regulation materially advance the state’s interest, however, the District Court concluded that 13 the record was “notably lacking.” Id. at 248. The District Court gave considerable weight to 14 Defendants’ reliance on the New York State Bar Association’s Task Force Report on Lawyer 15 Advertising, but concluded that the Report provided sufficient support only for two amendments: 16 the prohibition on the portrayal of judges in attorney advertisements, and the prohibition on the 17 use of trade names that imply an ability to get results. Id. at 248-49. As to the remaining 18 disputed portions of § 1200.50(c), the District Court emphasized that the Task Force Report had 19 recommended disclosure and invigorated enforcement of existing rules, rather than any new 20 content-based restrictions. Id. at 249. Finally, the District Court found that the two amendments 21 that materially advanced New York’s interest in preventing misleading advertising did not do so 22 in a sufficiently narrowly tailored fashion. The District Court criticized Defendants for failing 23 “to produce any evidence that measures short of categorical bans would not have sufficed to 1 remedy the perceived risks of such advertising being misleading.” Id. at 250. The District Court 2 therefore concluded that all of the disputed portions of § 1200.50(c) failed the Central Hudson 3 test. 4 With regard to the thirty-day moratorium on contacting victims, the District Court 5 reached the opposite conclusion. The District Court recognized that New York’s moratorium is 6 broader than the Florida moratorium sustained by the Supreme Court in Florida Bar v. Went For 7 It, Inc., 515 U.S. 618 (1995). Florida’s moratorium was limited to direct-mail solicitation, while 8 New York’s provisions “extend by their plain language to television, radio, newspaper, and 9 website solicitations that are directed to or targeted at a specific recipient or group of recipients.” 10 Alexander, 634 F.Supp.2d at 253. Nonetheless, the District Court concluded that New York’s 11 moratorium materially advanced state interests in protecting the privacy of citizens and guarding 12 against the indignity of being solicited for legal services immediately following a personal injury 13 or a wrongful death event, and did so in a reasonably proportionate manner. Id. at 253-55. The 14 District Court relied on “an emerging consensus among authorities, state and federal, regarding 15 the desirability of some form of moratorium,” citing the Task Force Report’s review of direct- 16 mail moratoria in Florida and eight other states, the federal airline disaster moratorium (which 17 prohibits not only direct-mail solicitation, but “unsolicited communications” generally for a 18 forty-five day period, 49 U.S.C. § 1136), and the Supreme Court’s opinion in Florida Bar. 19 Alexander, 634 F.Supp.2d at 254. The District Court also noted “the existence of ‘ample 20 alternative channels’ for the public to receive information concerning legal services during the 21 moratorium period—namely, general advertisements in any media, provided they do not 22 reference a specific tragedy.” Id. (quoting Florida Bar, 515 U.S. at 633-34). 23 DISCUSSION 1 This case calls on us once again to assess the scope of First Amendment protection 2 accorded to commercial speech, and the measure of evidence a state must present in regulating 3 such speech. Because this action was resolved on summary judgment, we review the District 4 Court’s decision de novo, drawing all factual inferences in favor of the non-moving party. Miller 5 v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). 6 The Supreme Court has established a four-part inquiry for determining whether 7 regulations of commercial speech are consistent with the First Amendment: 8 [1] whether the expression is protected by the First Amendment. For commercial 9 speech to come within that provision, it at least must concern lawful activity and 10 not be misleading. Next, we ask [2] whether the asserted governmental interest is 11 substantial. If both inquiries yield positive answers, we must determine [3] 12 whether the regulation directly advances the governmental interest asserted, and 13 [4] whether it is not more extensive than is necessary to serve that interest. 15 Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980). 5 17 A. The Disputed Provisions Regulate Commercial Speech Protected by the First Amendment 18 Defendants’ appeal challenges the District Court’s threshold conclusion as to the first 19 prong of this inquiry—that the First Amendment protects advertising that is irrelevant, 20 unverifiable, and non-informational. Although they do not dispute that New York’s thirty-day 21 moratorium provisions regulate protected commercial speech, Defendants argue strenuously to 22 us that New York’s content-based restrictions regulate speech that is not entitled to First 23 Amendment protection at all. The Supreme Court has variously described the Central Hudson test as having three or four prongs, depending on whether the preliminary inquiry into whether the content to be regulated is protected is counted as a prong. Compare 44 Liquormart, Inc. v. Rhode Island., 517 U.S. 484, 500 n.9 (1996) (describing the test as having four prongs), with Florida Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995) (describing the test as having three prongs). Defendants’ appeal focuses, among other things, on whether certain commercial speech is entitled to First Amendment protection at all. Because the three-part locution of the Central Hudson test assumes such an inquiry, we adopt the four-part locution throughout. 1 The Supreme Court first recognized attorney advertising as within the scope of protected 2 speech in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), in which the Court invalidated a 3 ban on price advertising for what the Court deemed “routine” legal services. In so doing, the 4 Court reserved the question of whether similar protection would extend to “advertising claims as 5 to the quality of services [that] are not susceptible of measurement or verification.” Id. at 383. 6 In the years since Bates, the Supreme Court has offered differing, and not always fully 7 consistent, descriptions as to what constitutes protected commercial speech, particularly with 8 respect to attorney advertising. Speaking generally, the Supreme Court has said that states may 9 impose regulations to ensure that “the stream of commercial information flow[s] cleanly as well 10 as freely.” Va. Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 772 (1976). 11 But this Court has nonetheless observed that there are “doctrinal uncertainties left in the wake of 12 Supreme Court decisions from which the modern commercial speech doctrine has evolved. In 13 particular, these decisions have created some uncertainty as to the degree of protection for 14 commercial advertising that lacks precise informational content.” Bad Frog Brewery, Inc. v. 15 N.Y. State Liquor Auth., 134 F.3d 87, 94 (2d Cir. 1998) 16 In the end, we agree with the District Court that, with one exception discussed below, the 17 content-based restrictions in the disputed provisions of § 1200.50(c) regulate commercial speech 18 protected by the First Amendment. In almost every instance, descriptions of the first prong of 19 the Central Hudson test are phrased in the negative, and the only categories that Central Hudson, 20 and its sequellae, clearly excludes from protection are speech that is false, deceptive, or 21 misleading, and speech that concerns unlawful activities. See, e.g., Florida Bar, 515 U.S. at 623- 22 24 (“[T]he government may freely regulate commercial speech that concerns unlawful activity or 23 is misleading. Commercial speech that falls into neither of those categories . . . may be regulated 1 if the government satisfies [Central Hudson’s remaining three prongs].” (citation omitted)); 2 Ibanez v. Fl. Dep’t of Bus. & Prof’l Regulation, Bd. of Accountancy, 512 U.S. 136, 142 (1994) 3 (“[O]nly false, deceptive, or misleading commercial speech may be banned.”). The Supreme 4 Court has also emphasized that “States may not place an absolute prohibition on certain types of 5 potentially misleading information . . . if the information also may be presented in a way that is 6 not deceptive.” In re R.M.J., 455 U.S. 191, 203 (1982); see also, e.g., Peel v. Attorney 7 Registration & Disciplinary Comm’n of Ill., 496 U.S. 91, 100-01 (1990); Shapero v. Ky. Bar 8 Ass’n, 486 U.S. 466, 479 (1988); Zauderer v. Office of Disciplinary Counsel of the Supreme 9 Court of Ohio, 471 U.S. 626, 644 (1985). We conclude from these precedents that the Central 10 Hudson analysis applies to regulations of commercial speech that is only potentially misleading. 6 11 The speech that Defendants’ content-based restrictions seeks to regulate—that which is 12 irrelevant, unverifiable, and non-informational—is not inherently false, deceptive, or misleading. 13 Defendants’ own press release described its proposed rules as protecting consumers against 14 “potentially misleading ads.” This is insufficient to place these restrictions beyond the scope of 15 First Amendment scrutiny. 7 16 There is one exception to this conclusion. Subsection 1200.50(c)(3) prohibits “the 17 portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated Moreover, in this Court’s lead opinion on the matter, we have stated generally, in the context of product advertising, that “minimal information, conveyed in the context of a proposal of a commercial transaction, suffices to invoke the protections for commercial speech, articulated in Central Hudson.” Bad Frog Brewery, 134 F.3d at 97. Defendants contend that their relevance and verifiability requirements were, in fact, adopted by the Supreme Court by way of summary dismissal. Comm. on Professional Ethics & Conduct of the Iowa State Bar Assoc. v. Humphrey, 355 N.W.2d 565 (Iowa 1984), vacated and remanded, 472 U.S. 1004 (1985), after remand, 377 N.W.2d 643 (Iowa 1985), appeal dismissed for want of a substantial federal question, 475 U.S. 1114 (1986). We do not find the Iowa Supreme Court’s analysis in Humphrey persuasive. And we comment on Humphrey also to draw attention to the well-established limits on the precedential value of summary dismissals of this kind. The Supreme Court has long recognized that the precedential value of a summary dismissal is limited to “the precise issues presented and necessarily decided by” the dismissal. Mandel v. Bradley, 432 U.S. 173, 176 (1977). Accordingly, we need not conclude that New York’s content-restrictions are permissible simply because the Iowa Supreme Court upheld Iowa’s regulations summarily following an earlier remand. 1 together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not 2 the case.” N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c)(3). The District Court 3 invalidated § 1200.50(c)(3) in its entirety. Alexander, 634 F.Supp.2d at 249. Plaintiffs 4 acknowledge, however, that they intended to challenge only the first clause of this subsection— 5 prohibiting portrayals of judges—and they do not oppose Defendants’ appeal seeking 6 reinstatement of the prohibition on fictitious firms. 7 The provision prohibiting advertisements including fictitious firms is susceptible to more 8 than one interpretation. But we need not decide whether it would be constitutional to prohibit 9 dramatizations in which an advertising law firm portrays itself arguing against a fictitious 10 opposing counsel. At oral argument, the Attorney General, representing the Defendants, 11 suggested a narrower interpretation of this regulation. He asked that we construe this language 12 as applying only to situations in which lawyers from different firms give the misleading 13 impression that they are from the same firm (i.e., “The Dream Team”). (Oral Arg. ~12:38:25) 14 We accept this interpretation. So read, this portion of § 1200.50(c)(3) addresses only attorney 15 advertising techniques that are actually misleading (as to the existence or membership of a firm), 16 and such advertising is not entitled to First Amendment protection. See Florida Bar, 515 U.S. at 17 623-24. Accordingly, and subject to the above-mentioned construction, we reverse the District 18 Court’s invalidation of that portion of § 1200.50(c)(3) that prohibits advertisements that include 19 fictitious firms. 20 Having concluded that the remainder of the disputed regulations falls within the zone of 21 protected commercial speech, we turn to the rest of the Central Hudson test. The Supreme Court 22 has explained that “[c]ommercial speech that is not false or deceptive and does not concern 23 unlawful activities may be restricted only in the service of a substantial governmental interest, 1 and only through means that directly advance that interest.” Shapero, 486 U.S. at 472 (quotation 2 marks and alteration omitted). “The party seeking to uphold a restriction on commercial speech 3 carries the burden of justifying it.” Edenfield v. Fane, 507 U.S. 761, 770 (1993) (quotation 4 marks and alteration omitted). We apply the three remaining prongs of Central Hudson, in turn, 5 to each of the two categories of regulations set forth above. 7 B. Central Hudson and the Content-Based Regulations 8 1. Substantial Interest 9 Under the second prong of Central Hudson, the State must identify “a substantial interest 10 in support of its regulation[s].” Florida Bar, 515 U.S. at 624. “[T]he Central Hudson standard 11 does not permit us to supplant the precise interests put forward by the State with other 12 suppositions.” Id. at 624 (quotation marks omitted). Before the District Court and again on 13 appeal, Defendants proffered a state interest in “prohibiting attorney advertisements from 14 containing deceptive or misleading content.” (Appellants’ Br. 32) The report by the New York 15 State Bar Association’s Task Force on Lawyer Advertising (hereinafter, the “Task Force Report” 16 or “Report”), which the State considered in formulating its new rules and which constitutes the 17 bulk of the record on appeal, indicates that this is a proper and genuinely asserted interest. The 18 Task Force Report identified protecting the public “by prohibiting advertising and solicitation 19 practices that disseminate false or misleading information” as one of its key concerns. (Task 20 Force Report 1-2) This state interest is substantial—indeed, states have a generally unfettered 21 right to prohibit inherently or actually misleading commercial speech. See, e.g., Edenfield, 507 22 U.S. at 769 (“[T]here is no question that [the State’s] interest in ensuring the accuracy of 23 commercial information in the marketplace is substantial.”); In re R.M.J., 455 U.S. at 207 1 (“States retain the authority to regulate advertising that is inherently misleading or that has 2 proved to be misleading in practice.”). The disputed regulations codified at § 1200.50(c) 3 therefore survive the second prong of the Central Hudson analysis. 8 4 Defendants also assert an interest in “protecting the legal profession’s image and 5 reputation.” (Appellants’ Reply 30) In Florida Bar, the Supreme Court recognized a substantial 6 interest “in preventing the erosion of confidence in the [legal] profession.” Florida Bar, 515 7 U.S. at 635. Defendants explain that their interest in preventing misleading attorney advertising 8 is “inextricably linked to its overarching interest” in maintaining attorney professionalism and 9 respect for the bar. (Appellants’ Reply 30) This interest also supports the disputed regulations. 9 10 2. Materially Advanced 11 “The penultimate prong of the Central Hudson test requires that a regulation impinging 12 upon commercial expression ‘directly advance the state interest involved; the regulation may not 13 be sustained if it provides only ineffective or remote support for the government’s purpose.’” 14 Edenfield, 507 U.S. at 770 (quoting Central Hudson, 447 U.S. at 564). The state’s burden with 15 respect to this prong “is not satisfied by mere speculation or conjecture; rather, a governmental 16 body seeking to sustain a restriction on commercial speech must demonstrate that the harms it 17 recites are real and that its restrictions will in fact alleviate them to a material degree.” Florida Defendants at times assert an interest in “ending attorney advertising that is potentially deceptive or misleading.” (Appellants’ Br. 36) It is not clear, however, that a state has a substantial interest in prohibiting potentially misleading advertising, as opposed to inherently or actually misleading advertising. “If the protections afforded commercial speech are to retain their force, we cannot allow rote invocation of the words ‘potentially misleading’ to supplant” the State’s burden. Ibanez, 512 U.S. at 146 (internal quotation marks and citation omitted). Moreover, it is unclear what harm potentially misleading advertising creates, and the state bears the burden of proving “that the harms it recites are real and that its restrictions will in fact alleviate them to a material degree.” Florida Bar, 515 U.S. at 626 (quotation marks omitted). We need not resolve this issue in order to decide this case, and so we leave it for a future case. In defending the restriction on testimonials by clients with pending matters, Defendants assert a state interest in preserving the integrity of the attorney-client relationship. (Appellants’ Br. 39-40) Defendants did not assert this interest before the District Court, however, and so we do not consider it on appeal. See Virgilio v. City of New York, 407 F.3d 105, 116 (2d Cir. 2005) (“In general we refrain from passing on issues not raised below.”) (quotation marks omitted). 1 Bar, 515 U.S. at 626 (quotation marks omitted). Moreover, “[i]f the protections afforded 2 commercial speech are to retain their force, we cannot allow rote invocation of the words 3 ‘potentially misleading’ to supplant” this burden. Ibanez, 512 U.S. at 146 (internal quotation 4 marks and citation omitted). 5 Invalidating a regulation of commercial speech for lack of sufficient evidence under this 6 prong of Central Hudson does not foreclose a similar regulation being enacted validly in the 7 future. Rather, such invalidation returns the matter to the applicable legislating body and “forces 8 [that body] to take a ‘second look’ with the eyes of the people on it.” Guido Calabresi, 9 Foreward: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan 10 Debate Ignores), 105 Harv. L. Rev. 80, 104 (1991); see also Benjamin v. Jacobson, 172 F.3d 11 144, 190 (2d Cir. 1999) (en banc) (Calabresi, J., concurring in the result). 12 In defending the disputed § 1200.50(c) provisions, Defendants rely on three sources of 13 evidence: (1) “history, consensus, and simple common sense,” Florida Bar, 515 U.S. at 628 14 (quotation marks omitted), including regulations of attorney advertising in other states; (2) 15 existing and unchallenged rules already in New York’s Code of Professional Responsibility 16 targeting advertising similar to that targeted by the new amendments; and (3) the New York 17 State Bar Association’s Task Force Report. Defendants have not submitted any statistical or 18 anecdotal evidence of consumer problems with or complaints of the sort they seek to prohibit. 19 Nor have they specifically identified any studies from other jurisdictions on which the state 20 relied in implementing the amendments. See Alexander, 634 F.Supp.2d at 248. Against this 21 background, we test each of the disputed § 1200.50(c) provisions. 22 a. Subsection 1200.50(c)(1): Client Testimonials 1 This subsection prohibits advertisements that include “an endorsement of, or testimonial 2 about, a lawyer or law firm from a client with respect to a matter that is still pending.” N.Y. 3 Comp. Codes R. & Regs., tit. 22, §1200.50(c)(1). The Task Force Report observed that 4 testimonials can be misleading because they may suggest that past results indicate future 5 performance. (Task Force Report 26-27) The Task Force Report, however, did not recommend 6 outright prohibitions of all testimonials on this basis. Instead, as the District Court observed, the 7 Task Force Report “recommended a different approach.” Alexander, 634 F.Supp.2d at 249. The 8 Report suggested “strengthening the rules governing testimonials to prohibit the use of an actor 9 or spokesperson who is not a member or employee of the advertising lawyer or law firm absent 10 disclosure thereof.” (Task Force Report 27) (emphasis added). The Task Force noted, 11 moreover, that “it would be an improper restriction on a client’s free speech rights to prohibit 12 client testimonials outright.” (Id.) The Task Force Report therefore does not support 13 Defendants’ assertion that prohibiting testimonials from current clients will materially advance 14 an interest in preventing misleading advertising. Indeed, the Report “contradicts, rather than 15 strengthens, the Board’s submissions.” Edenfield, 507 U.S. at 772. 16 Nor does consensus or common sense support the conclusion that client testimonials are 17 inherently misleading. Testimonials may, for example, mislead if they suggest that past results 18 indicate future performance—but not all testimonials will do so, especially if they include a 19 disclaimer. The District Court properly concluded that Defendants failed to satisfy this prong of 20 Central Hudson with respect to client testimonials. 21 b. Subsection 1200.50(c)(3): Portrayal of a Judge 1 This subsection prohibits “the portrayal of a judge.” N.Y. Comp. Codes R. & Regs., tit. 2 22, § 1200.50(c)(3). 10 The Task Force Report observes that “a communication that states or 3 implies that the lawyer has the ability to influence improperly a court” is “likely to be false, 4 deceptive, or misleading.” (Task Force Report, App. I, 11) The District Court found this 5 comment to be persuasive evidence that a ban on portrayals of judges would materially advance 6 the State’s interest in preventing misleading advertising. We disagree. Although it seems 7 plainly true that implying an ability to influence a court is likely to be misleading, Defendants 8 have failed to draw the requisite connection between that common sense observation and 9 portrayals of judges in advertisements generally. The advertisement in which Alexander & 10 Catalano use the portrayal of a judge, for instance, depicts a judge in the courtroom and states 11 that the judge is there “to make sure [the trial] is fair.” This sort of advertisement does not imply 12 an ability to influence a court improperly. It is not misleading; an advertisement of this sort may, 13 instead, be informative. We believe the Task Force Report fails to support Defendants’ 14 prohibition on portrayals of judges 11 and conclude that Defendants have not met their burden 15 with respect to the wholesale prohibition of portrayals of judges. This prohibition consequently 16 must fall. 17 c. Subsection 1200.50(c)(5): Irrelevant Techniques 18 This subsection prohibits advertisements that “rely on techniques to obtain attention that 19 demonstrate a clear and intentional lack of relevance to the selection of counsel, including the 20 portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence.” N.Y. 21 Comp. Codes R. & Regs., tit. 22, § 1200.50(c)(5). Defendants note that the New York Code of Subsection 1200.50(c)(3) also includes the prohibition on fictitious law firms discussed in section A above. New York’s existing rule prohibiting attorneys from stating or implying that they are able “to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official,” N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.58(e)(1), does not support the new rule. On the contrary, this rule mirrors the Task Force Report’s remarks, and does not suggest that any and all portrayals of judges imply the capacity to exercise improper influence over a court or other government body. 1 Professional Responsibility has long declared that the purpose of attorney advertising is to 2 “educate the public to an awareness of legal needs and to provide information relevant to the 3 selection of the most appropriate counsel.” (Appellants’ Br. 33-34) (quotation marks omitted) 4 Defendants contend that their rule excluding attention-getting techniques unrelated to attorney 5 competence reflects this principle and so materially advances “New York’s interest in factual, 6 relevant attorney advertisements.” (Appellants’ Br. 35) 7 A rule barring irrelevant advertising components certainly advances an interest in 8 keeping attorney advertising factual and relevant. But this interest is quite different from an 9 interest in preventing misleading advertising. Like Defendants’ claim that the First Amendment 10 does not protect irrelevant and unverifiable components in advertising, Defendants here appear 11 to conflate irrelevant components of advertising with misleading advertising. These are not one 12 and the same. Questions of taste or effectiveness in advertising are generally matters of 13 subjective judgment. Moreover, as the Task Force Report acknowledged, “Limiting the 14 information that may be advertised . . . assumes that the bar can accurately forecast the kind of 15 information that the public would regard as relevant.” (Task Force Report, App. I, 8) 16 Defendants have introduced no evidence that the sorts of irrelevant advertising 17 components proscribed by subsection 1200.50(c)(5) are, in fact, misleading and so subject to 18 proscription. Significantly, the Task Force Report expressly recognized that “communications 19 involving puffery and claims that cannot be measured or verified” were not specifically 20 addressed in its proposed rules, although such communications would already be prohibited “to 21 the extent that they are false, deceptive or misleading.” (Task Force Report, App. I, 9) Insofar 22 as the Task Force Report touched on style and advertising gimmicks designed to draw attention, 23 its recommendations were hortatory only. (See Task Force Report 70) (quoting the Monroe 1 County Bar Association Project exhorting—but not requiring—lawyers and firms to include only 2 “factually accurate and objectively verifiable” information in their advertisements, and to 3 minimize devices such as puffery in favor of information “relevant to the thoughtful selection of 4 counsel”). 5 Moreover, the sorts of gimmicks that this rule appears designed to reach—such as 6 Alexander & Catalano’s wisps of smoke, blue electrical currents, and special effects—do not 7 actually seem likely to mislead. It is true that Alexander and his partner are not giants towering 8 above local buildings; they cannot run to a client’s house so quickly that they appear as blurs; 9 and they do not actually provide legal assistance to space aliens. But given the prevalence of 10 these and other kinds of special effects in advertising and entertainment, we cannot seriously 11 believe—purely as a matter of “common sense”—that ordinary individuals are likely to be 12 misled into thinking that these advertisements depict true characteristics. Indeed, some of these 13 gimmicks, while seemingly irrelevant, may actually serve “important communicative functions: 14 [they] attract[] the attention of the audience to the advertiser’s message, and [they] may also 15 serve to impart information directly.” Zauderer, 471 U.S. at 647. Plaintiffs assert that they use 16 attention-getting techniques to “communicate ideas in an easy-to-understand form, to attract 17 viewer interest, to give emphasis, and to make information more memorable.” (Appellees’ Br. 18 36) Defendants provide no evidence to the contrary; nor do they provide evidence that 19 consumers have, in fact, been misled by these or similar advertisements. Absent such, or similar, 20 evidence, Defendants cannot meet their burden for sustaining subsection 1200.50(c)(5)’s 21 prohibition under Central Hudson. 22 d. Section 1200.50(c)(7): Nicknames, Mottos, and Trade Names 1 This subsection bars advertisements “utiliz[ing] a nickname, moniker, motto or trade 2 name that implies an ability to obtain results in a matter.” N.Y. Comp. Codes R. & Regs., tit. 22, 3 § 1200.50(c)(7). We conclude, once again, that the evidence on which Defendants rely fails to 4 support this regulation. 5 There is a compelling, commonsense argument that, given the uncertainties of litigation, 6 names that imply an ability to obtain results are usually misleading. The Task Force Report 7 made precisely this observation, stating in its recommendations that “the use of dollar signs, the 8 terms ‘most cash’ or ‘maximum dollars,’ or like terms that suggest the outcome of the legal 9 matter” is “likely to be false, deceptive or misleading.” (Task Force Report, App. I, 11-12) Like 10 its recommendations on irrelevant advertising techniques, however, the Task Force Report did 11 not recommend outright prohibition of all such trade names or mottos—it simply acknowledged 12 that such names are often misleading. Defendants’ rule, by contrast, goes further and prohibits 13 such descriptors—including, according to the Attorney General, Alexander & Catalano’s own 14 “Heavy Hitters” motto—even when they are not actually misleading. The Task Force Report 15 therefore fails to support Defendants’ considerably broader rule. 16 Nor are we persuaded as to this rule’s constitutionality by reference to Friedman v. 17 Rogers, 440 U.S. 1 (1979), in which the Supreme Court upheld a prohibition on optometrist trade 18 names. There is doubt as to Friedman’s continued vitality. Friedman preceded Central Hudson 19 by nine years and did not employ Central Hudson’s multi-factor First Amendment analysis. As 20 this Court previously observed in Bad Frog Brewery, subsequent Supreme Court precedent has 21 undermined Friedman and moved in the direction of greater First Amendment protection for “a 22 logo or a slogan that conveys no information, other than identifying the source of the product, 23 but that serves, to some degree, to ‘propose a commercial transaction.’” 134 F.3d at 96 (quoting 1 Posadas de Puerto Rico Assocs. v. Tourism Co. of P.R., 478 U.S. 328, 340 (1986)). 2 Accordingly, we decline to rely solely on Friedman to uphold § 1200.50(c)(7) given the 3 subsequent precedential developments establishing more specific and demanding burdens of 4 evidence on the state. 5 Moreover, in Friedman itself, the state marshaled substantially stronger and more 6 specific evidence supporting its prohibition on trade names than was done in this case. See, e.g., 7 Friedman, 440 U.S. at 13-15. There is a dearth of evidence in the present record supporting the 8 need for § 1200.50(c)(7)’s prohibition on names that imply an ability to get results when the 9 names are akin to, and no more than, the kind of puffery that is commonly seen, and indeed 10 expected, in commercial advertisements generally. Defendants have once again failed to provide 11 evidence that consumers have, in fact, been misled by the sorts of names and promotional 12 devices targeted by § 1200.50(c)(7), and so have failed to meet their burden for sustaining this 13 prohibition under Central Hudson. 14 3. Narrowly Tailored 15 The final prong of Central Hudson asks whether the “fit” between the goals identified 16 (the state’s interests) and the means chosen to advance these goals is reasonable; the fit need not 17 be perfect. Florida Bar, 515 U.S. at 632. As this Court has explained, “‘laws restricting 18 commercial speech . . . need only be tailored in a reasonable manner to serve a substantial state 19 interest in order to survive First Amendment scrutiny.’” N.Y. State Ass’n of Realtors v. Shaffer, 20 27 F.3d 834, 842 (2d Cir. 1994) (quoting Edenfield, 507 U.S. at 767). Nonetheless, “restrictions 21 upon [potentially deceptive speech] may be no broader than reasonably necessary to prevent the 22 deception.” In re R.M.J., 455 U.S. at 203. “[T]he existence of numerous and obvious less- 23 burdensome alternatives to the restriction on commercial speech is certainly a relevant 1 consideration in determining whether the ‘fit’ between ends and means is reasonable.” Florida 2 Bar, 515 U.S. at 632 (quotation marks and alteration omitted). More precisely, the Supreme 3 Court has emphasized that “States may not place an absolute prohibition on certain types of 4 potentially misleading information . . . if the information also may be presented in a way that is 5 not deceptive.” In re R.M.J., 455 U.S. at 203. And the Supreme Court has also affirmed that a 6 state may not impose a prophylactic ban on potentially misleading speech merely to spare itself 7 the trouble of “distinguishing the truthful from the false, the helpful from the misleading, and the 8 harmless from the harmful.” Zauderer, 471 U.S. at 646. 9 On this basis, even if we were to find that all of the disputed Section 1200.50(c) 10 restrictions 12 survived scrutiny under Central Hudson’s third prong, each would fail the final 11 inquiry because each wholly prohibits a category of advertising speech that is potentially 12 misleading, but is not inherently or actually misleading in all cases. Contrary to Defendants’ 13 assertions, the fact that New York’s rules do also permit substantial information in attorney 14 advertising does not render the disputed provisions any less categorical. Significantly, Zauderer 15 deemed a rule barring illustrations a “blanket ban.” Zauderer, 471 U.S. at 648. And New 16 York’s rules prohibiting, inter alia, all testimonials by current clients, all portrayals of judges, 17 and all depictions of lawyers exhibiting characteristics unrelated to legal competence are 18 similarly categorical. Because these advertising techniques are no more than potentially 19 misleading, the categorical nature of New York’s prohibitions would alone be enough to render 20 the prohibitions invalid. 21 Moreover, “nowhere does the State cite any evidence or authority of any kind for its 22 contention that the potential abuses associated with the [disputed provisions] cannot be combated Excepting, of course, the prohibition on fictitious firms, which, as explained in section A above, addresses inherently misleading advertising that need not be scrutinized under the remaining Central Hudson prongs. 1 by any means short of a blanket ban.” Zauderer, 471 U.S. at 648; see also Peel, 496 U.S. at 109 2 (noting that the mere potential for misleading “does not satisfy the State’s heavy burden of 3 justifying a categorical prohibition”). As the District Court observed, the State could have, for 4 example, required disclaimers similar to the one already required for fictional scenes. Alexander, 5 634 F.Supp.2d at 250; see N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c)(4) (fictional 6 scenes). Nothing in the record suggests that such disclaimers would have been ineffective. 7 The materials in the record show, instead, that disclaimers and other regulations short of 8 content-based bans were in fact suggested. The Task Force “agreed at the outset to deal in 9 practical solutions (i.e., generally strengthening existing disclaimers and requiring further 10 disclosures) without adding content-based restrictions.” (Task Force Report 2) Nearly all of the 11 Report’s recommendations followed this general rule. And in comments responding to New 12 York’s draft rules, the Federal Trade Commission, “which has a long history of reviewing claims 13 of deceptive advertising,” Peel, 496 U.S. at 105, similarly stated its belief that New York could 14 adequately protect consumers “using less restrictive means such as requiring clear and prominent 15 disclosure of certain information.” (Letter from the FTC’s Office of Policy Planning, Bureau of 16 Consumer Protection, and Bureau of Economics to Michael Colodner, Office of Court 17 Administration (Sept. 14, 2006)) 18 Defendants have failed to carry their burden with respect to Central Hudson’s final 19 prong. We therefore conclude, like the District Court, that the disputed portions of subsections 20 1200.50(c)(1), (3), (5), and (7) are unconstitutional. In so doing, we return this matter to the 21 Appellate Division, where that body may “take a ‘second look’ with the eyes of the people on it. 22 Calabresi, Foreward, supra, at 104. 1 C. Central Hudson and the Moratorium Provisions 2 Plaintiffs’ cross-appeal challenges the District Court’s decision upholding New York’s 3 time-limited moratorium on solicitation of accident victims or their families. “In cases where a 4 legal filing is required within thirty days, the moratorium is limited to a fifteen-day cooling off 5 period.” Alexander, 634 F.Supp.2d at 253. New York’s moratorium provisions apply to all 6 media through which an attorney might initiate communication “directed to, or targeted at, a 7 specific recipient or group of recipients.” N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.52(b). 8 Consistent with the regulations as written and with counsel’s concessions at oral 9 argument, we construe the moratorium provision as inapplicable to (a) broad, generalized 10 mailings (Oral Arg. ~12:06:18); (b) general advertisements conveying an attorney’s experience 11 in handling personal-injury suits, even when these advertisements appear near news stories in a 12 newspaper that the attorney knows will be filled with coverage of a particular accident (Oral Arg. 13 ~12:02:38-12:03:00) 13 ; or (c) advertisements informing readers of an attorney’s past experience 14 with a particular product where that product has caused repeated personal-injury problems (as 15 with the Dalkon Shield advertisement at issue in Zauderer). (Oral Arg. ~12:04:11) 16 We turn now to the remaining Central Hudson inquiries relevant to the moratorium 17 provision. 18 1. State Interest 19 In Florida Bar, the Supreme Court recognized as a substantial state interest “protecting 20 the privacy and tranquility of personal injury victims and their loved ones against intrusive, 21 unsolicited contact by lawyers.” Florida Bar, 515 U.S. at 624. That case considered a thirty-day 13 It is unclear whether the moratorium provisions apply to “meta tagging,” a process by which one can insert non- visible HTML code into a website or web advertisement. By use of a meta tag, for example, a lawyer can design a general advertisement that appears when one searches for information regarding a specific incident. The parties have not briefed whether the moratorium provisions prohibit meta tagging, or if they do prohibit meta tagging, whether the prohibition is constitutional. Accordingly, we express no opinion on either question. 1 moratorium on direct-mail solicitation of accident victims (or their families). This case similarly 2 involves a moratorium on contacting accident victims (and their families). The Task Force 3 Report, which Defendants considered, recommended a limited moratorium because “the cooling 4 off requirement would be beneficial in removing a source of annoyance and offense to those 5 already troubled by an accident or similar occurrence.” (Task Force Report 62-63) Florida Bar 6 makes clear that Defendants’ stated interest is substantial, and the Task Force Report indicates 7 that that interest is genuinely asserted. The moratorium provisions thus meet the requirements of 8 Central Hudson’s substantial interest prong. 9 2. Materially Advanced 10 Florida Bar upheld Florida’s moratorium rule, which is similar to the New York 11 provisions before us. Several other states have since adopted analogous regulations prohibiting 12 targeted solicitation of accident victims for specific periods of time. 14 The Task Force Report, 13 based in part on the practices of these states, recommended a fifteen-day “cooling-off period” 14 during which direct-mail solicitation of accident victims would be prohibited. (Task Force 15 Report, App. I, 4) New York’s moratorium provisions seek to address the same harms that the 16 Florida Bar Court recognized in upholding a thirty-day ban on direct-mail solicitations. And the 17 New York provisions seek to address those harms through similar means—a time-limited See, e.g., Ariz. Rules of Prof’l Conduct R. 7.3(b)(3) (prohibiting “written, recorded or electronic communication or by in-person, telephone or real-time electronic” solicitation where “the solicitation relates to a personal injury or wrongful death and is made within thirty (30) days of such occurrence”); Conn. Rules of Prof’l Conduct R. 7.3(b)(5) (imposing a forty-day moratorium on “written or electronic communication concern[ing] an action for personal injury or wrongful death”); Ga. Rules of Prof’l Conduct R. 7.3(a)(3) (imposing a thirty-day moratorium on “written communication concern[ing] an action for personal injury or wrongful death”); La. Rules of Prof’l Conduct R. 7.3(b)(iii)(C) (imposing a thirty-day moratorium on communication “concern[ing] an action for personal injury or wrongful death”); Mo. Rules of Prof’l Conduct 7.3(c)(4) (prohibiting written solicitation, including by e-mail, “concern[ing] an action for personal injury or wrongful death . . . if the accident or disaster occurred less than 30 days prior to the solicitation”); Tenn. Rules of Prof’l Conduct R. 7.3(b)(3) (prohibiting solicitation of “professional employment from a potential client by written, recorded, or electronic communication or by in-person, telephone, or real-time electronic contact” if “the communication concerns an action for personal injury, worker’s compensation, wrongful death, or otherwise relates to an accident or disaster involving the person to whom the communication is addressed . . . unless the accident or disaster occurred more than thirty (30) days prior to the mailing or transmission of the communication”). 1 moratorium on targeted solicitation of potential clients. Florida Bar makes clear that such 2 means materially advance the state’s interest. We conclude, therefore, that Defendants have met 3 their burden under this prong of Central Hudson. See Moore v. Morales, 63 F.3d 358, 361-62 4 (5th Cir. 1995) (relying largely on Florida Bar in upholding a rule prohibiting attorneys, 5 physicians, and other professionals from soliciting accident victims within thirty days following 6 the accident). 7 3. Narrowly Tailored 8 Were New York’s moratorium provisions limited to direct-mail solicitation, there would 9 be little question as to their constitutionality. See Falanga v. State Bar of Georgia, 150 F.3d 10 1333, 1340-41 (11th Cir. 1998). But New York’s moratorium is not so limited. As the District 11 Court recognized, “The moratorium provisions in this case extend by their plain language to 12 television, radio, newspaper, and website solicitations that are directed to or targeted at a specific 13 recipient or group of recipients.” Alexander, 634 F.Supp.2d at 253. 14 The Supreme Court has in some circumstances favored a technology-specific approach to 15 the First Amendment. See United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 16 (2000) (“Cable television, like broadcast media, presents unique problems, which inform our 17 assessment of the interests at stake, and which may justify restrictions that would be 18 unacceptable in other contexts.”); Reno v. ACLU, 521 U.S. 844, 868 (1997) (“[E]ach medium of 19 expression may present its own problems.” (quotation marks and alteration omitted)); FCC v. 20 League of Women Voters of Ca., 468 U.S. 367, 377 (1984) (“[W]e have recognized that 21 ‘differences in the characteristics of new media justify differences in the First Amendment 22 standards applied to them.’” (quoting Red Lion Broad. Co. v. FCC, 395 U.S. 367, 386 (1969))). 15 See also Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 74 (1983) (“[T]he special interest of the federal government in regulation of the broadcast media does not readily translate into a justification for regulation of other 1 Different media may present unique attributes that merit a tailored First Amendment analysis. 2 But see Jim Chen, Conduit-Based Regulation of Speech, 54 Duke L.J. 1359, 1360 (2005) (“[A] 3 constitutional jurisprudence that minimizes reliance on conduit-based distinctions best protects 4 free speech.”). 5 But the differences among media may or may not be relevant to the First Amendment 6 analysis depending on the challenged restrictions. Compare Sable Commc’ns of Ca., Inc. v. 7 FCC, 492 U.S. 115, 128 (1989) (“Unlike an unexpected outburst on a radio broadcast, the 8 message received by one who places a call to a dial-a-porn service is not so invasive or 9 surprising that it prevents an unwilling listener from avoiding exposure to it.”), with Reno, 521 10 U.S. at 875–76 (likening regulations seeking to protect minors from harmful material on the 11 Internet to regulations on obscene commercial telephone recordings), and Sable Commc’ns, 492 12 U.S. at 125 (likening obscene commercial telephone recordings to obscene commercial 13 mailings); cf. Shapero v. Ky. Bar Ass’n, 486 U.S. 466, 473 (1988) (“Our lawyer advertising cases 14 have never distinguished among various modes of written advertising to the general public.”). 15 In the context before us, we eschew a technology-specific approach to the First 16 Amendment and conclude that New York’s moratorium provisions—as we construe them— 17 survive constitutional scrutiny notwithstanding their applicability across the technological 18 spectrum. We focus first on the potential differences among media as to the degree of 19 affirmative action needed to be taken by the targeted recipient to receive the material Plaintiffs 20 seek to send. For many media forms, it is about the same. Thus, to us, the affirmative act of means of communication.”); FCC v. Pacifica Found., 438 U.S. 726, 748 (1978) (“We have long recognized that each medium of expression presents special First Amendment problems.”); S.E. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975) (“Each medium of expression . . . must be assessed for First Amendment purposes by standards suited to it . . . .”). 1 walking to one’s mailbox and tearing open a letter seems no greater than walking to one’s front 2 step and picking up the paper or turning on a knob on a television or radio. 3 It is true that the Internet may appear to require more affirmative acts on the part of the 4 user in order to recover content (and is therefore perhaps entitled to greater First Amendment 5 protection insofar as users are soliciting information, rather than being solicited). But regardless 6 of whether this characterization was once accurate, it no longer is so. E-mail has replaced letters; 7 newspapers are often read online; radio streams online; television programming is broadcast on 8 the Web; and the Internet can be connected to television. See Christopher S. Yoo, The Rise and 9 Demise of the Technology-Specific Approach to the First Amendment, 91 Geo. L.J. 245, 248 10 (2003) (“[T]he impending shift of all networks to packet switched technologies promises to 11 cause all of the distinctions based on the means of conveyance and the type of speech conveyed 12 to collapse entirely.”). Furthermore, Internet searches do not bring a user immediately to the 13 desired result without distractions. Advertisements may appear with the user’s search results; 14 pop-up ads appear on web pages; and Gmail (Google’s e-mail service) creates targeted 15 advertising based on the keywords used in one’s e-mail. In such a context, an accident victim 16 who describes her experience in an e-mail might very well find an attorney advertisement 17 targeting victims of the specific accident on her computer screen. 16 18 States are increasingly responding to these expanded and expanding roles of the Internet. 19 Several already apply existing attorney professional responsibility rules to electronic and Internet 20 advertisements and solicitations. See Amy Haywood & Melissa Jones, Navigating a Sea of 21 Uncertainty: How Existing Ethical Guidelines Pertain to the Marketing of Legal Services over At present, Gmail’s algorithm for placing targeted advertisements next to e-mail messages omits such ads where an e-mail message mentions a catastrophic event or tragedy. See More on Gmail and Privacy, Jan. 2007, http://mail.google.com/mail/help/about_privacy.html. It is by no means certain, however, (a) that Google will continue such a policy, (b) that the algorithm runs without flaws, or (c) that other e-mail providers will exercise similar good taste. 1 the Internet, 14 Geo. J. Legal Ethics, 1099, 1113 (2001) (“[I]t can be assumed that Internet use in 2 the context of legal marketing will generally invoke all ethics rules relating to advertising and 3 solicitation.”). 17 Texas and Florida have also added language to their disciplinary rules 4 specifically to address attorney solicitation via the Internet. 18 The New York Task Force Report 5 reached the same conclusion. The Report repeatedly stated that “on-line advertisements and 6 websites are not materially different than typical” printed advertisements, and that the rules 7 should be enforced equally across media. (Task Force Report 54-55) In so doing, the Report 8 “demonstrate[d] that the harms it recites are real and its restriction will in fact alleviate them to a 9 degree.” Florida Bar, 515 U.S. at 626 (quotation marks omitted). 10 Accordingly, we conclude that even acknowledging that differences among media may 11 be significant in some First Amendment analyses, they are not so in this case. Three aspects of 12 the Supreme Court’s analysis in Florida Bar are of particular relevance to our determination that 13 the harms identified in that case, and put forth by Defendants in this case, are just as compelling 14 with respect to targeted attorney advertisements on television, radio, newspapers, and the 15 Internet as they are in justifying a ban on targeted mailings of attorney advertisements. 16 a. Porcelain Hearts 17 The Supreme Court has recognized the particular sensitivity of people to targeted 18 (plaintiff’s) attorney advertisements during periods of trauma. To the extent that the attorney 19 advertisements, regardless of the media through which they are communicated, are directed 20 toward the same sensitive people, there is no reason to distinguish among the mode of See, e.g., S.C. Ethics Op. 99-04 (1999) (advertising); Mass. Ethics Op. 98-2 (1998) (advertising and solicitation); Iowa Ethics Op. 96-1 (1996) (advertising); Pa. Ethics Op. 96-17 (1996) (advertising). See Amendments to Rules Regulating the Florida Bar—Advertising Rules, 762 So.2d 392 (Fla. 1999); Tex. Disciplinary Rules of Prof’l Conduct, Interpretive Cmt. 17 (1996, rev. May 2003). 1 communication. Depending on the individual recipient, the printed word may be a likely to 2 offend as images on a screen or in newspapers. 3 In Florida Bar, the Court recognized the state’s “substantial interest . . . in protecting 4 injured Floridians from invasive conduct by lawyers.” 515 U.S. at 635. As the dissent in 5 Florida Bar pointed out, the primary distinction between the targeted letters at issue in Florida 6 Bar and the untargeted letters at issue in Shapero v. Kentucky Bar Association, 486 U.S. 466 7 (1988), was that “victims or their families will be offended by receiving a [targeted] solicitation 8 during their grief and trauma.” Florida Bar, 515 U.S. at 638. The dissent argued that the 9 majority should not “allow restrictions on speech to be justified on the ground that the expression 10 might offend the listener.” Id. 11 But the majority of the Supreme Court in Florida Bar held otherwise. It focused on a 12 subset of the public in analyzing the First Amendment: essentially, a First Amendment analogue 13 to tort law’s thin-skull plaintiffs, those who have a “porcelain heart.” Some accident victims and 14 their families might welcome targeted solicitations that inform them of their legal rights 15 immediately after the accident (particularly when insurance companies may already be knocking 16 on their doors). Other accident victims and their families might be perturbed—but not 17 outraged—by the targeted solicitations. The Supreme Court, however, tailored First Amendment 18 law, in the context of attorney solicitations, to the most sensitive members of the public. It is 19 with these porcelain hearts in mind that we must evaluate New York’s moratorium. 20 b. Wemmick’s Castle 19 21 In addition to a heightened concern for public sensitivity to potentially offensive attorney 22 communications, the Court in Florida Bar upheld the moratorium in part because of its belief In Charles Dickens’ “Great Expectations,” the character of Mr. Wemmick has a home that is literally his castle, complete with a drawbridge and moat that are used to separate his lives inside and outside the home. 1 that people should be given more of an option to avoid offensive speech in the privacy of their 2 homes. See Florida Bar, 515 U.S. at 625 (“[W]e have consistently recognized that the State’s 3 interest in protecting the well-being, tranquility, and privacy of the home is certainly of the 4 highest order in a free and civilized society.” (quotation marks and alterations omitted)). 5 In this respect, the Court was adhering to a long-held position: 6 One important aspect of residential privacy is protection of the unwilling listener. 7 Although in many locations, we expect individuals simply to avoid speech they 8 do not want to hear, the home is different. “That we are often ‘captives’ outside 9 the sanctuary of the home and subject to objectionable speech . . . does not mean 10 we must be captives everywhere.” Rowan v. U.S. Post Office Dep’t, 397 U.S. 11 728, 738, 90 S. Ct. 1484, 1491, 25 L.Ed.2d 736 (1970). Instead, a special benefit 12 of the privacy all citizens enjoy within their own walls, which the State may 13 legislate to protect, is an ability to avoid intrusions. Thus, we have repeatedly held 14 that individuals are not required to welcome unwanted speech into their own 15 homes and that the government may protect this freedom. 17 Frisby v. Schultz, 487 U.S. 474, 484–85 (1988) (some internal citations omitted); Rowan v. U.S. 18 Post Office Dep’t, 397 U.S. 728, 737 (“The ancient concept that ‘a man’s home is his castle’ into 19 which ‘not even the king may enter’ has lost none of its vitality, and none of the recognized 20 exceptions includes any right to communicate offensively with another.”). In Rowan, the 21 Supreme Court “categorically reject[ed] the argument that a vendor has a right under the 22 Constitution or otherwise to send unwanted material into the home of another,” and held that 23 “[t]he asserted right of a mailer . . . stops at the outer boundary of every person’s domain.” Id. at 24 738. 25 Yet, a letter in a mailbox is no more intrusive than the newspaper in the mailbox, the e- 26 mail in one’s inbox, the television in the living room, the radio in the kitchen, or the Internet in 27 the study. Arguably, mail is directly targeted at a residence, whereas television, radio, and the 28 Internet may be viewed outside the home. But the Court has seemingly not focused on this 1 distinction, and, instead, has held that the home should be protected from offensive language that 2 disturbs domestic tranquility through the airwaves: 3 Patently offensive, indecent material presented over the airwaves confronts the 4 citizen, not only in public, but also in the privacy of the home, where the 5 individual’s right to be left alone plainly outweighs the First Amendment rights of 6 an intruder. Because the broadcast audience is constantly tuning in and out, prior 7 warnings cannot completely protect the listener or viewer from unexpected 8 program content. To say that one may avoid further offense by turning off the 9 radio when he hears indecent language is like saying that the remedy for an 10 assault is to run away after the first blow. One may hang up on an indecent phone 11 call, but that option does not give the caller a constitutional immunity or avoid a 12 harm that has already taken place. 14 FCC v. Pacifica Found., 438 U.S. 726, 748–49 (1978) (internal citation omitted) (upholding the 15 FCC’s regulation of radio broadcast); cf. Rowan, 397 U.S. at 736–37 (“[A] mailer’s right to 16 communicate must stop at the mailbox of an unreceptive addressee.”). Once again, we find no 17 reason to distinguish among these media for our First Amendment analysis. 18 c. Lawyers’ Reputations 19 Finally, Florida Bar recognized the state’s “substantial interest . . . in preventing the 20 erosion of confidence in the [legal] profession that . . . repeated invasions [of privacy by lawyers] 21 have engendered.” 515 U.S. at 635. The Florida Bar court distinguished between two kinds of 22 direct-mail advertisements: (1) those that cause offense to the recipient and whose harm can “be 23 eliminated by a brief journey to the trash can,” id. at 631; see also Bolger, 463 U.S. 60 (rejecting 24 federal ban on direct-mail advertisements for contraceptives), and (2) those whose harmful 25 effects extend beyond the recipient by, for example, tarnishing the reputation of a professional 26 group. See Florida Bar, 515 U.S. at 631 (“The Bar is concerned not with citizens’ ‘offense’ in 27 the abstract, but with the demonstrable detrimental effects that such ‘offense’ has on the 28 profession it regulates. Moreover, the harm posited by the Bar is as much a function of simple 29 receipt of targeted solicitations within days of accidents as it is a function of the letters’ contents. 1 Throwing the letter away shortly after opening it may minimize the latter intrusion, but it does 2 little to combat the former.” (internal citations omitted)). A solicitation that offends is not likely 3 to be any less detrimental to the reputation of lawyers when spoken aloud, displayed on a 4 computer screen, or conveyed by television. 5 Accordingly, we conclude that ads targeting certain accident victims that are sent by 6 television, radio, newspapers, or the Internet are more similar to direct-mail solicitations, which 7 can properly be prohibited within a limited time frame, than to “an untargeted letter mailed to 8 society at large,” which “involves no willful or knowing affront to or invasion of the tranquility 9 of bereaved or injured individuals and simply does not cause the same kind of reputational harm 10 to the profession” as direct mail solicitations. Florida Bar, 515 U.S. at 630. 11 Moreover, we do not find constitutional fault with the 30-day time period during which 12 attorneys may not solicit potential clients in a targeted fashion. As with Florida Bar’s “short 13 temporal ban,” New York’s moratorium permits attorneys to advertise to the general public their 14 expertise with personal injury or wrongful death claims. It thereby fosters reaching the accident 15 victims, so long as these victims are not specifically targeted. It further allows accident victims 16 to initiate contact with attorneys even during the thirty days following an accident. See Florida 17 Bar, 515 U.S. at 633. In fact, as amici New York State Bar Association point out, New York’s 18 moratorium is more narrowly tailored than that of Florida Bar insofar as it incorporates the Task 19 Force Report’s fifteen-day black-out period, which shortens the moratorium period to fifteen 20 days where an attorney or law firm must make a filing within thirty days of an incident as a legal 21 prerequisite to a particular claim. N.Y. Comp. Codes R. & Regs., tit. 22, §§ 1200.52(e), 22 1200.36(a), 1200.36(b). No doubt the statute could have been more precisely drawn, but it need 1 not be “perfect” or “the least restrictive means” to pass constitutional muster. Bd. of Trustees of 2 State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989). 3 New York’s moratorium provisions prohibit targeted communications by lawyers to 4 victims, their families, or their representatives as to a specific personal injury or wrongful death 5 event, where such communications occur within thirty days of the incident in question. Where a 6 legal filing is required within thirty days, the moratorium is limited to fifteen days. These 7 provisions, although they reach a broader range of advertisements than those proscribed by the 8 moratorium in Florida Bar, do not impose barriers inconsistent with the First Amendment. We 9 conclude that the moratorium provisions, as construed, are sufficiently narrowly tailored to 10 survive constitutional scrutiny. 11 CONCLUSION 12 The thorough and well-reasoned opinion of the District Court is AFFIRMED, except as 13 to N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c)(3)’s ban on “the portrayal of a fictitious 14 law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or 15 otherwise imply[ing] that lawyers are associated in a law firm if that is not the case.” With 16 respect to this portion of § 1200.50(c)(3) only, the judgment of the District Court is REVERSED.

07-4483-cr (L) USA v. Muse (Hussein) 1 UNITED STATES COURT OF APPEALS 3 FOR THE SECOND CIRCUIT 7 August Term, 2010 9 (Argued: October 21, 2009 Decided: March 11, 2010) 11 Docket Nos. 07-4483-cr (L); 07-4539-cr 12 (Con); 07-5067-cr (Con); 07-5068-cr (XAP) 15 UNITED STATES OF AMERICA, 17 Appellee-Cross-Appellant, 19 –v.– 21 ALI AWAD, ABDI EMIL MOGE, ABDULAHI HUSSEIN, 23 Defendants-Appellants-Cross-Appellees, 25 BASHI MUSE, OSMAN OSMAN, ABDINUR AHMED 26 DAHIR, ALI DUALEH, OMER ALI ABDIRIZAH, 27 MOHAMED AHMED, SAEED BAJUUN, SOFIA ROBLES, 28 ISSE ALI SALAD, HASSAN SADIQ MOHAMED,LIBAN 29 HASHI, BASHIR AHMED, MOHAMED ALI, AHMED 30 ISMAIL, AHMED SHERIF HASHIM, MAXAMED 31 ABSHAR, ABSIR AHMED, LIBAN ABDULLE, 32 ISMACIIL GEELE, MOHAMED ABDILLAHI MOHAMED, 33 ISMAIL ALI MOHAMED, MOHAMED SHIREH, DEKO 34 OHERSI, ABDUL HERSI, WELI MOHAMED ABDI, 35 WARFA ABDI DIRIE, HASSAN YUSUF, MAHAMUD 36 AFDHUB, WARSAME GULED, ISSE ABDIWAAB, 37 YOUNAS HAJI, MOHAMED MOHAMED, ABDIAZIS 38 SALEH MOHAMED, OMAR OSMAN MOHAMED, 40 Defendants, 2 MOHAMED JAMA, AHMED M. EGAL, DAHIR 3 ABDULLE SHIRE, MUHIDIN MOHAMED, 5 Defendants-Appellants. 9 Before: WALKER, CALABRESI, and WESLEY, Circuit Judges. 11 Appellants Ali Awad and Abdi Emil Moge appeal from an 12 Opinion and Order of the District Court for the Southern 13 District of New York (Cote, J.), entered on October 24, 14 2007, ordering criminal forfeitures against them pursuant to 15 21 U.S.C. § 853. We hold, consistent with the other courts 16 of appeal that have considered this issue, that the 17 imposition of the forfeiture orders was proper. We 18 therefore affirm. 20 AFFIRMED. 24 MICHAEL HUESTON, New York, New York, for 25 Defendant-Appellant-Cross-Appellee Awad. 27 ROBERT J. BOYLE, New York, New York, for 28 Defendant-Appellant-Cross-Appellee Moge. 30 DANIEL L. STEIN, ANJAN SAHNI and JESSE M. FURMAN, 31 Assistant United States Attorneys, United 32 States Attorneys Office for the Southern 33 District of New York, for Preet Bharara, 34 United States Attorney, Southern District of 35 New York, for Appellee-Cross-Appellant United 36 States of America. 40 P ER C URIAM: 41 Appellants Ali Awad and Abdi Emil Moge were tried 1 before a jury as alleged participants in a criminal 2 conspiracy to distribute and possess with intent to 3 distribute a controlled substance, namely mixtures and 4 substances containing a detectable amount of cathinone, a 5 Schedule I controlled substance, in a form commonly known as 6 khat. Appellant Awad was convicted of conspiracy to 7 distribute and possess with intent to distribute cathinone, 8 in violation of 21 U.S.C. § 846, and conspiracy to import 9 cathinone, in violation of 21 U.S.C. § 963. Appellant Moge 10 was convicted of conspiracy to distribute and possess with 11 intent to distribute cathinone, in violation of 21 U.S.C. § 12 846, conspiracy to import cathinone, in violation of 21 13 U.S.C. § 963, and conspiracy to commit money laundering in 14 violation of 18 U.S.C. § 1956(h). 1 The district court also 15 entered forfeiture orders against appellants Awad and Moge In this opinion, we resolve only the propriety of the forfeiture orders entered by the district court pursuant to 21 U.S.C. § 853(a). On appeal, appellants raise a host of other challenges to their convictions and sentences. The government cross-appeals with respect to the sentences imposed on appellants Moge, Awad and Hussein. Except for our resolution of the propriety of the forfeiture orders, we resolve all of the challenges to appellants’ convictions and sentences in a separate summary order filed today. That summary order pertains to docket number 07-4483-cr (L) and all associated cases. 1 under 21 U.S.C. § 853(a). 2 We hold that the district court 2 properly imposed forfeiture money judgments as part of 3 appellants’ sentences and that the propriety of an order 4 imposed pursuant to 21 U.S.C. § 853(a) does not depend on a 5 defendant’s assets at the time of sentencing. 6 BACKGROUND 7 In the fall of 2005, law enforcement officers, led by 8 the Drug Enforcement Administration (the “DEA”), began an 9 investigation into a network of people involved in the 10 importation and distribution of khat plants in the United 11 States. The investigation resulted in dozens of seizures of 12 khat plants. Khat leaves are chewed for their stimulant 13 effect, but khat itself is not a controlled substance. 14 Rather, cathinone, a constituent of the khat plant, is a 15 Schedule I controlled substance. 3 United States v. Abdulle, Although he did not brief the issue before this Court, pursuant to Federal Rule of Appellate Procedure 28(I), appellant Moge has joined the arguments of his co- appellants that apply to him. The district court entered a forfeiture order against Moge. Therefore, to the extent that he appeals that order, this opinion also applies to him. As the district court acknowledged, when the khat plant is cut, the cathinone begins to degrade. See United States v. Awad, No. 06-CR-600 (DLC), 2007 WL 1988382, at *1- 2 (S.D.N.Y. July 3, 2007); see also United States v. Hassan, 1 564 F.3d 119, 125 (2d Cir. 2009). Cathinone is a central 2 nervous system stimulant, and Schedule I criminalizes its 3 possession in “any quantity.” 21 C.F.R. § 1308.11(f)(3). 4 Prior to sentencing, the district court conducted an 5 evidentiary hearing pursuant to United States v. Fatico, 579 6 F.2d 707 (2d Cir. 1978), to determine, among other things, 7 the amount of khat attributable to each defendant for 8 purposes of calculating his offense level under the United 9 States Sentencing Guidelines. United States v. Awad, No. 10 06-CR-600 (DLC), 2007 WL 3120907, at *1 (S.D.N.Y. Oct. 24, 11 2007). At this time, the government submitted a proposed 12 forfeiture order against appellant Awad in the amount of 13 $10,000,000 and a proposed order against appellant Moge in 14 the amount of $9,458,000. The government calculated the 15 proposed forfeiture orders “by multiplying the drug 16 quantities it had argued were attributable to each defendant 578 F.3d 108, 114 (2d Cir. 2008). In another case involving cathinone, expert testimony was offered to explain that “cathinone is present in khat for forty-eight hours after harvesting, at which point the chemical weakens and eventually dissipates entirely.” United States v. Abdulle, 564 F.3d 119, 124 (2d Cir. 2009). In this case, forensic chemists testified that all but one of the seized shipments of khat tested positive for cathinone. 1 by the street value of khat.” Id. At the October 5, 2007 2 sentencing hearing, the district court imposed a forfeiture 3 order in the amount of $10,000,000 as to Awad and $4,646,000 4 as to Moge. Id. at *2. 5 Awad and Moge challenged the imposition of the 6 forfeiture orders before the district court. Id. As 7 characterized by the district court, appellants argued that 8 a defendant “in a drug case [is] not subject to forfeiture 9 in the form of a money judgment, where the defendant does 10 not . . . have assets to satisfy the money judgment” at the 11 time of sentencing. Id. at *1. The district court rejected 12 this contention and held that “forfeiture orders can be 13 entered under 21 U.S.C. § 853 in drug cases regardless of 14 the defendant’s assets at the time of sentencing.” Id. The 15 court also rejected Awad’s challenge to the amount of the 16 forfeiture order, determining that it was “supported by the 17 preponderance of the evidence.” 4 Id. Focusing solely on the propriety of the imposition of the forfeiture order, appellant Awad does not appear to challenge the amount of the order before this Court. In a footnote to his brief, appellant Moge does contend that the district court erred in its determination of the amount of khat attributable to him and that, therefore, the order should be vacated. We find that the district court 1 DISCUSSION 2 The criminal forfeiture statute provides that an 3 individual convicted of a drug offense “punishable by 4 imprisonment for more than one year shall forfeit to the 5 United States . . . any property constituting, or derived 6 from, any proceeds the person obtained, directly or 7 indirectly, as the result of such violation.” 21 U.S.C. § 8 853(a)(1). We join our sister courts of appeal in holding 9 that § 853 permits imposition of a money judgment on a 10 defendant who possesses no assets at the time of sentencing. 11 See United States v. Vampire Nation, 451 F.3d 189, 201-02 12 (3d Cir. 2006); United States v. Casey, 444 F.3d 1071, 1077 13 (9th Cir. 2006); United States v. Hall, 434 F.3d 42, 59 (1st 14 Cir. 2006); United States v. Baker, 227 F.3d 955, 970 (7th 15 Cir. 2000). 16 This interpretation is in accord with the statute’s 17 language and with its purpose. See 21 U.S.C. § 853(o). 18 Indeed, the statutory text at issue makes it “clear that 19 Congress conceived of forfeiture as punishment for the committed no error in this regard. See United States v. Fruchter, 411 F.3d 377, 380 (2d Cir. 2005). 1 commission of various drug . . . crimes.” Casey, 444 F.3d 2 at 1073 (quoting Libretti v. United States, 516 U.S. 29, 39 3 (1995)); see also Hall, 434 F.3d at 59. 4 As the district court reasoned, when “a defendant lacks 5 the assets to satisfy the forfeiture order at the time of 6 sentencing, the money judgment . . . is effectively an in 7 personam judgment in the amount of the forfeiture order.” 8 2007 WL 3120907, at *2; accord Vampire Nation, 451 F.3d at 9 202. This is so because “[m]andatory forfeiture is 10 concerned not with how much an individual has but with how 11 much he received in connection with the commission of the 12 crime.” Casey, 444 F.3d at 1077. A contrary interpretation 13 could have the undesirable effect of creating an incentive 14 for an individual involved in a criminal enterprise to 15 “rid[] himself of his ill-gotten gains to avoid the 16 forfeiture sanction.” Hall, 434 at 59. 17 Notwithstanding appellants’ arguments to the contrary, 18 this Court’s decision in United States v. Robilotto, 828 19 F.2d 940 (2d Cir. 1987), supports our view. In Robilotto, 20 in the context of interpreting the RICO forfeiture 21 provision, 18 U.S.C. § 1963, we concluded that the statute 1 “imposes forfeiture directly on an individual as part of a 2 criminal prosecution rather than in a separate proceeding in 3 rem.” 828 F.2d at 948 (internal quotation marks omitted). 4 In other words, the forfeiture constitutes “a sanction 5 against the individual defendant rather than a judgment 6 against the property itself.” Id. Consequently, criminal 7 forfeiture need not be traced to identifiable assets in a 8 defendant’s possession. Id. at 949. The same is true in 9 this context. 5 In fact, this Court has previously noted 10 that the statutory provision governing forfeitures under 11 RICO and criminal forfeiture orders imposed pursuant to § 12 853 “are so similar in legislative history and plain 13 language as to warrant similar interpretation.” DSI Assoc. 14 LLC v. United States, 496 F.3d 175, 183 n.11 (2d Cir. 2007) 15 (quoting United States v. Ribadeneira, 105 F.3d 833, 835 n.2 16 (2d Cir. 1997)). 17 The statute at issue in this case instructs that we 18 interpret its terms “liberally.” 21 U.S.C. § 853(o). As We are aware of the thorough discussion and contrary interpretation advanced in United States v. Surgent, No. 04- CR-364 (JG) (SMG), 2009 WL 2525137 (E.D.N.Y. Aug. 17, 2009), upon which appellant Awad relies heavily. In the end, however, we find it unpersuasive. 1 the district court and other courts of appeal that have 2 addressed this issue have reasoned, section 853 “does not 3 contain any language limiting the amount of money available 4 in a forfeiture order to the value of the assets a defendant 5 possesses at the time the order is issued.” Vampire Nation, 6 451 F.3d at 201; accord Baker, 227 F.3d at 970. Thus, our 7 interpretation of the criminal forfeiture provision 8 “ensur[es] that all eligible criminal defendants receive the 9 mandatory forfeiture sanction Congress intended” and ensures 10 that there is a mechanism by which the government may 11 “disgorge their ill-gotten gains, even those already spent.” 12 Casey, 444 F.3d at 1074. 13 CONCLUSION 14 We have reviewed all of appellants’ arguments and find 15 them to be without merit. Accordingly, for the foregoing 16 reasons, the district court’s opinion and order of October 17 24, 2007, holding that a defendant who is convicted of a 18 violation under the Controlled Substances Act, 21 U.S.C. § 19 801 et seq., punishable by a term of imprisonment of more 20 than a year, is subject to the forfeiture provision of 21 21 U.S.C. § 853, irrespective of his assets at the time of 22 sentencing, is hereby AFFIRMED.

08-2203-cv Huth v. Haslun UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: June 17, 2009 Decided: March 11, 2010) Docket No. 08-2203-cv FLORENCE E. HUTH , Plaintiff-Appellee, v. DEBORAH HASLUN , CARLOS MILLAN , JOSEPH BLOOMER , RAMESH MEHTA , and JONATHAN BARR, Defendants-Appellants. Before: CABRANES and HALL, Circuit Judges, STEIN , District Judge.* Defendants-appellants appeal from an April 3, 2008 order of the United States District Court for the Southern District of New York (Charles L. Brieant, Jr., Judge) denying their motion for summary judgment raising the defense of qualified immunity. Plaintiff claims that defendants, who are employees of the New York State Thruway Authority, violated her rights under the First Amendment to the Constitution by initiating disciplinary proceedings against her resulting in her demotion. She also asserts that, in doing so, defendants violated the First Amendment rights of her coworker. We hold that the conduct that resulted in plaintiff’s demotion does not qualify as speech protected from retaliation by the First Amendment under the framework set forth by the Supreme Court in Garcetti v. * The Honorable Sidney H. Stein, of the United States District Court for the Southern District of New York, sitting by designation. Ceballos, 547 U.S. 410 (2006). We further hold that plaintiff cannot assert a claim on behalf of her coworker because that coworker suffered no infringement of her own constitutional rights. Accordingly, we reverse the order of the District Court. JONATHAN LOVETT (Drita Nicaj, on the brief), Lovett & Gould, LLP, White Plains, NY, for plaintiff-appellee. MONICA WAGNER, Assistant Solicitor General (Andrew M. Cuomo, Attorney General of the State of New York, on the brief, Barbara D. Underwood, Solicitor General, and Richard Dearing, Assistant Solicitor General, of counsel), Office of the Attorney General of the State of New York, New York, NY, for defendants-appellants. JOSÉ A. CABRANES, Circuit Judge: The principal questions presented in this appeal are: (1) whether a public employee engages in speech protected from retaliation by the First Amendment by relaying a subordinate’s concerns to her supervisor and by filing a lawsuit; and (2) whether a plaintiff can have third-party standing to assert claims on behalf of an individual who has suffered no injury. Defendants-appellants Deborah Haslun, Carlos Millan, Joseph Bloomer, Ramesh Mehta, and Jonathan Barr (collectively, “defendants”) appeal from an April 3, 2008 order of the United States District Court for the Southern District of New York (Charles L. Brieant, Jr., Judge) denying their motion for summary judgment raising the defense of qualified immunity. The underlying action was brought pursuant to 42 U.S.C. § 1983 by plaintiff-appellee Florence Huth (“plaintiff” or “Huth”), an employee of the New York State Thruway Authority (“Thruway Authority”). Plaintiff claims that defendants, who are also employees of the Thruway Authority, violated her rights under the First Amendment to the Constitution by initiating disciplinary proceedings against her, which resulted in her demotion. She also asserts that, in doing so, defendants violated the First Amendment rights of her coworker. We hold that the conduct that resulted in plaintiff’s demotion does not qualify as speech protected from retaliation by the First Amendment under the framework set forth by the Supreme Court in Garcetti v. Ceballos, 547 U.S. 410 (2006). We further hold that plaintiff cannot assert a claim on behalf of her coworker because the coworker’s own constitutional rights were not violated. Accordingly, we reverse the order of the District Court. BACKGROUND On April 26, 2005, Huth met with Dorothy Archer (“Archer”), one of Huth’s subordinates within the Thruway Authority. Archer told Huth that certain of her coworkers and supervisors were selling bootleg DVDs on Thruway Authority premises. Huth alleges that Archer also told her that a supervisor was giving “special duties” to an African-American coworker, which Huth understood to be a complaint by Archer about reverse discrimination. Huth conveyed these concerns to her supervisor, defendant Bloomer, during daily meetings with him. Bloomer responded that he was already aware of Archer’s concerns. At some point on April 26, 2005, Huth drove in a Thruway Authority vehicle to a Thruway Authority facility in Newburgh, New York. Archer accompanied Huth on this trip. Huth stopped at several toll plazas along the way. During those stops Archer left the car and solicited and obtained Thruway Authority employees’ signatures on petitions to nominate Archer for a union office. Huth maintains that Archer did not tell her that she was soliciting signatures during the stops. Huth alleges that on April 29, 2005, Bloomer advised Huth and Archer that they were both under investigation for their activities on April 26, 2005, as Thruway Authority policy prohibits management personnel, such as Huth, from being involved in union elections and prohibits the use of Thruway Authority vehicles in connection with union elections. After a hearing officer initially cleared Huth of any wrongdoing, defendant Barr, the Thruway Authority’s Director of Administrative Services, informed Huth by letter on April 11, 2007 that she had been found “guilty of misconduct and/or incompetence for violating Administrative Services Bulletin 2004-16” on Union Elections and that, as a result, Huth was being demoted to her last permanently-held, lower-level position. Huth v. Haslun, 628 F. Supp. 2d 425, 428 (S.D.N.Y. 2008). On January 9, 2007, after disciplinary proceedings had begun, but before the Thruway Authority had decided to demote her, Huth commenced the present action. Specifically, Huth sued defendants for compensatory and punitive damages pursuant to 42 U.S.C. § 1983, alleging, inter alia, that they (1) had violated her rights under the First Amendment by disciplining her in retaliation for reporting Archer’s concerns about other Thruway Authority employees; and (2) had violated, “on a third-party standing basis,” J.A. 232, her rights under the First Amendment by disciplining her in retaliation for Archer’s expression of her concerns and for Archer’s union-related activities.1 After Huth was demoted, she filed an amended complaint, which expanded her first claim by alleging not only that she was retaliated against for reporting Archer’s concerns, but also for filing the instant action. On January 11, 2008, defendants moved for summary judgment on the basis that they were entitled to qualified immunity because, based on undisputed facts, they did not violate Huth’s rights under the First Amendment. Defendants further argued that Huth lacked standing to bring third-party claims on behalf of Archer. In an Order dated April 3, 2008, the District Court denied defendants’ motion. Huth, 628 F. Supp. 2d at 432. Specifically, the District Court concluded that Huth’s report of Archer’s concerns, as well as the filing of this present action, qualified as protected speech under the Huth also alleged that defendants had violated her rights under the Equal Protection Clause by selectively “prosecuting” her, but not others, for violating the Thruway Authority’s policy regarding union elections. We note that she has withdrawn her equal protection claim in light of the Supreme Court’s decision in Engquist v. Oregon Department of Agriculture, 128 S. Ct. 2146, 2148-49 (2008), and this Court’s decision in Appel v. Spiridon, 531 F.3d 138, 139-40 (2d Cir. 2008) (finding that, in light of Engquist, “the Equal Protection Clause does not apply to a public employee asserting a violation of the Clause based on a ‘class of one’ theory of liability”). Appellee’s Br. 1 n.2. Accordingly, we do not address this claim. First Amendment. Id. at 429. The District Court further determined that Huth had third-party standing to raise First Amendment claims on behalf of Archer. Id. at 430. Defendants filed a timely notice of appeal. DISCUSSION At the outset we note that “[b]ecause the denial of a motion for summary judgment is not a final judgment, it is generally not immediately appealable.” Walczyk v. Rio, 496 F.3d 139, 153 (2d Cir. 2007). However, there is an exception to this general rule “when the denied motion was based on a claim of immunity, at least to the extent the immunity claim presents a ‘purely legal question.’” Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)); see also O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 38 (2d Cir. 2003) (observing that “[u]nder the collateral order doctrine . . . the denial of a qualified-immunity-based motion for summary judgment is immediately appealable to the extent that the district court has denied the motion as a matter of law, although not to the extent that the defense turns solely on the resolution of questions of fact”). Here, the District Court’s denial of defendants’ motion for summary judgment turned on questions of law, and accordingly we have jurisdiction to review the matter. We review de novo a district court’s denial of summary judgment based on a defense of qualified immunity, see Papineau v. Parmley, 465 F.3d 46, 55 (2d Cir. 2006), and, of course, summary judgment is appropriate only if “there is no genuine issue as to any material fact” and the moving party “is entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(c). To overcome the defense of qualified immunity, a plaintiff must show both (1) the violation of a constitutional right and (2) that that constitutional right was clearly established at the time of the alleged violation. See Pearson v. Callahan, 129 S. Ct. 808, 816 (2009) (“Qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right.”). The Supreme Court recently has clarified that courts retain discretion to decide which prong of this analysis should be addressed first in a given case, although it emphasized that it is “often beneficial” to first decide whether there has been a constitutional violation. Id. at 818 (holding that “while the sequence set forth [in Saucier v. Katz, 533 U.S. 194 (2001),] is often appropriate, it should no longer be regarded as mandatory”). We conclude upon a review of the record that Huth cannot show that she suffered a violation of a constitutional right and, therefore, we need not proceed beyond the first prong of this inquiry. I. Huth’s Speech Was Not Protected from Retaliation by the First Amendment We begin with Huth’s first claim—that defendants violated her rights under the First Amendment by disciplining her in retaliation for (1) reporting Archer’s concerns about other Thruway Authority employees and (2) initiating the present action. Whether speech by a public employee is protected from retaliation under the First Amendment begins with this question: “whether the employee spoke as a citizen on a matter of public concern.” Garcetti, 547 U.S. at 418. If a public employee speaks not as a citizen but instead pursuant to his or her “official duties,” an employer’s response to that speech does not violate the First Amendment. Id. at 421, 424. We recently held in Weintraub v. Board of Education that “speech can be ‘pursuant to’ a public employee’s official job duties even though it was not required by, or included in, the employee’s job description, or in response to a request by the employer.” 593 F.3d 196, 203 (2d Cir. 2010) (holding that a teacher’s union grievance about school administrators’ failure to discipline a disruptive student was speech made pursuant to an official duty). We also held that the public employee in that case spoke pursuant to his official duties because his speech was “part-and-parcel of his concerns about his ability to properly execute his duties as a public school teacher.” Id. (internal citation and quotation marks and omitted). Garcetti’s second requirement is that, to be protected from retaliation by the First Amendment, a public employee’s speech must be “on a matter of public concern.” 547 U.S. at 418. But see Connick v. Myers, 461 U.S. 138, 147 (1983) (explaining that, although a public employer’s retaliation for “speech on private matters” does not violate the First Amendment, speech “not touching upon a matter of public concern [is not] totally beyond the protection of the First Amendment”). We recently clarified that “[w]hether or not speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record, and while motive surely may be one factor in making this determination, it is not, standing alone, dispositive or conclusive.” Sousa v. Roque, 578 F.3d 164, 175 (2d Cir. 2009) (internal citation and quotation marks omitted). In doing so we rejected a categorical approach that places all speech aimed at redressing personal grievances in the employment context beyond the scope of the First Amendment. See id. Here the record shows that Huth passed along Archer’s concerns about the actions of certain Thruway Authority employees to the head of Huth’s division and that she did so at daily meetings when they discussed the employees in their division. See J.A. 330. We have no difficulty concluding that such speech was made not as a “citizen” but, rather, pursuant to Huth’s official duties as a Thruway Authority employee and supervisor. See Garcetti, 547 U.S. at 422 (holding that, by drafting a memorandum to his supervisors expressing concern about a particular case, a supervising district attorney acted pursuant to his official duties by “perform[ing] the tasks he was paid to perform”). We therefore hold that Huth’s conduct did not qualify as speech protected from retaliation by the First Amendment. As a result, Huth’s claim that defendants retaliated against her for voicing concerns about the conduct of coworkers is without merit. The record also makes plain that Huth’s present lawsuit, asserting claims for monetary and punitive damages, does not qualify as speech “on a matter of public concern.” See id. at 418. Huth’s original complaint, which she contends was protected speech and the basis for defendants’ further retaliation, alleged only that defendants retaliated against her for specific statements she made to her supervisor and for the union activities of Archer. Much like other public employee speech that we have held not to be protected from retaliation by the First Amendment, Huth’s lawsuit was “personal in nature and generally related to her own situation.” Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143 (2d Cir. 1993) (quoting Ezekwo v. NYC Health & Hosps. Corp., 940 F.2d 775, 776 (2d Cir. 1991)). Significantly, there is no suggestion in this record that she “wanted to debate issues of . . . discrimination, that her suit sought relief against pervasive or systemic misconduct by a public agency or public officials, or that her suit was part of an overall effort . . . to correct allegedly unlawful practices or bring them to public attention.” Id. (internal quotation marks omitted) (holding that an employee’s complaints about sex discrimination were not speech on a matter of public concern) (relying on Yatvin v. Madison Metro Sch. Dist., 840 F.2d 412, 420 (7th Cir. 1988)); cf. Cotarelo v. Vill. of Sleepy Hollow Police Dep’t, 460 F.3d 247, 252 (2d Cir. 2006) (finding that complaints did qualify as speech on a matter of public concern because they concerned “discrimination problems generally and were not limited to instances affecting only [plaintiff]”). Considering the record as a whole, we conclude that Huth’s original complaint was not speech on a matter of public concern and, therefore, was not protected from retaliation by the First Amendment. As a result, Huth’s claim that defendants retaliated against her for filing this lawsuit is without merit. II. Huth Lacks Third-Party Standing to Assert a Claim on Behalf of Archer Turning to Huth’s final claim—that defendants retaliated against her for Archer’s exercise of her First Amendment rights—we note that we have previously held that “[a] plaintiff may assert the constitutional claims of a third party if the plaintiff can demonstrate: (1) injury to the plaintiff, (2) a close relationship between the plaintiff and the third party that would cause plaintiff to be an effective advocate for the third party’s rights, and (3) some hindrance to the third party’s ability to protect his or her own interests.” Camacho v. Brandon, 317 F.3d 153, 159 (2d Cir. 2003) (internal citations and quotation marks omitted). Implicit in Camacho’s formulation is the requirement that the third party—here Archer—has a constitutional claim. See id. In this case, Huth does not allege that Archer suffered any retaliation for her activities, or more broadly, that Archer’s constitutional rights were violated in any way. Indeed, she concedes that Archer could not have brought a claim herself “because she did not suffer any injury.” Appellee’s Br. 19; cf. Camacho, 317 F.3d at 160 (noting that the third party “clearly suffered injury in fact”). Accordingly, Huth cannot raise a claim based on Archer’s First Amendment rights under the doctrine of third-party standing. We therefore conclude that Huth cannot show that she suffered a violation of a constitutional right, and we reverse the District Court’s denial of summary judgment on the issue of qualified immunity. CONCLUSION To summarize, we hold: (1) that plaintiff did not engage in speech protected from retaliation by the First Amendment by relaying the concerns of a subordinate to her supervisor or by filing this lawsuit; and (2) that plaintiff does not have standing to assert claims on behalf of a third party who has suffered no injury. For the foregoing reasons, the April 3, 2008 order of the District Court is REVERSED. Judgment shall enter for the defendants-appellants.

06-4315-pr Redd v. Wright UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2008 (Argued: April 6, 2009 Decided: March 9, 2010) Docket No. 06-4315-pr ----------------------------------------------------x Kevin Redd, Plaintiff-Appellant, -- v. -- Lester Wright, Chief Medical Director for the NYS Dept. of Correctional Service, Hans Walker, Superintendent, C. Coynel, Nurse Administrator, John W. Burge, Superintendent, Defendants-Appellees. -----------------------------------------------------x B e f o r e : WALKER, LEVAL, HALL, Circuit Judges. 1 Appeal from the summary judgment dismissal of plaintiff- 2 appellant’s claims against employees of the New York State 3 Department of Corrections, alleging violations of the First, 4 Eighth, and Fourteenth Amendments, as well as the Religious Land 5 Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 6 U.S.C. § 2000cc, based on his confinement in tuberculosis hold 7 following his refusal to submit to tuberculosis testing. We 8 AFFIRM on the basis of the doctrine of qualified immunity the 9 district court’s dismissal of plaintiff’s claims. We further 10 AFFIRM the district court’s denial of leave to amend to add an as 1 applied Eighth Amendment claim. 2 AFFIRMED. 3 MATTHEW J. FEDOR (David F. 4 Abernathy, Andrea L. D’Ambra, 5 on the brief), Drinker, Biddle 6 & Reath LLP, Philadelphia, PA, 7 for Appellant. 9 MARTIN A. HOTVET, Assistant 10 Solicitor General (Barbara D. 11 Underwood, Andrew D. Bing, 12 Julie S. Mereson, on the 13 brief), for Andrew M. Cuomo, 14 Attorney General of the State 15 of New York, Albany, N.Y., for 16 Defendants-Appellees. 18 JOHN M. WALKER, JR., Circuit Judge: 19 The plaintiff-appellant Kevin Redd appeals from a grant of 20 summary judgment to the defendants-appellees, employees of the 21 New York Department of Correctional Services (DOCS), by the 22 United States District Court for the Northern District of New 23 York (Magnuson, Judge). Pursuant to 42 U.S.C. § 1983, Redd 24 claimed violations of the First, Eighth, and Fourteenth 25 Amendments, as well as the Religious Land Use and 26 Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 27 2000cc, arising out of his confinement by DOCS under a 28 tuberculosis (“TB”) hold policy. The district court held that 29 his First Amendment and RLUIPA claims were precluded by the 30 qualified immunity doctrine and that his Eighth and Fourteenth 31 Amendment claims failed as a matter of law. This appeal 32 challenges all of those holdings and the denial of his motion to 1 amend the complaint to add an as applied Eighth Amendment claim. 3 BACKGROUND 4 DOCS administers "purified protein derivative" ("PPD") tests 5 routinely to all inmates to detect “latent” TB infections. Under 6 the policy that DOCS established in 1996 that is relevant to this 7 appeal, if an inmate refused the PPD test, the inmate first was 8 counseled about the importance of the test, and then, if the 9 inmate persisted in his refusal, he was placed in TB hold, 10 resulting in "keeplock status" in his cell. The inmate was then 11 offered the PPD test daily for one week, weekly for one month and 12 monthly thereafter. An inmate refusing these offers was kept in 13 TB hold for one year during which three chest x-rays were taken 14 at the beginning, middle, and end of the year. After one year 15 and three negative chest x-rays, the inmate could be released 16 into the general population, and thereafter would be evaluated 17 each year by physical examination. 18 Under the 1996 Policy, inmates in keeplock status under TB 19 hold were permitted one hour of exercise per day and three 20 showers per week. Although not allowed telephone use or personal 21 visits, they were permitted legal visits. Thus, the inmates’ 22 contact with other inmates and correctional personnel was 23 limited, which, according to DOCS, "reduce[d] the possibility of 24 the spread of [active TB]." Wright Decl. at 3, ¶ 7. Inmates in 1 TB hold were not placed in respiratory isolation, however; they 2 remained part of the general prison population, though confined 3 to their cells. Inmates who submitted to a PPD test were 4 immediately released from TB hold, and those who tested positive 5 for latent TB were neither required to undergo annual chest 6 x-rays nor subjected to repeat PPD testing. 7 On April 9, 2001, DOCS placed Redd, an inmate at the Auburn 8 Correctional Facility, in TB hold after he refused to undergo a 9 PPD test on religious grounds. The 1996 Policy, unlike the 10 current policy adopted in 2004, did not contain a religious 11 objector exception. 12 Prison officials rejected Redd’s offer to submit to sputum 13 testing and instead applied the 1996 Policy of TB hold and three 14 chest x-rays, performing the first chest x-ray on Redd one month 15 after he was placed in TB hold. His second and third chest 16 x-rays were performed on November 6, 2001 and May 6, 2002. 17 Because all three x-rays were negative, Redd was released from TB 18 hold in May of 2002, "approximately 5-10 days" after his third 19 chest x-ray and approximately thirteen months and one week after 20 his TB hold was initiated.1 21 On April 9, 2004, Redd filed this suit, pro se, pursuant to 22 42 U.S.C. § 1983, asserting constitutional and statutory claims Redd was subsequently placed in TB hold twice more for brief periods upon refusing PPD testing on religious grounds, but these subsequent holds are not the subject of Redd’s complaint. 1 arising from his placement in TB hold. The complaint named as 2 defendants: Dr. Lester Wright, Chief Medical Director for DOCS; 3 Hans Walker, Auburn’s Superintendent at the commencement of 4 Redd's confinement in TB hold; John Burge, Walker’s successor; 5 and Nurse Administrator C. Coynel. Redd sued each defendant in 6 his or her individual capacity, claiming that the defendants 7 violated: 1) the First Amendment and the Religious Freedom 8 Restoration Act of 1993 ("RFRA"), 42 U.S.C. §§ 2000bb-2000bb-4, 9 by requiring him to submit to a PPD test over his religious 10 objection; 2) the Eighth Amendment by implementing a policy that 11 authorized a potentially indefinite period of confinement in TB 12 hold; and 3) the Fourteenth Amendment by denying him release from 13 TB hold after one year. Redd’s complaint sought only monetary 14 damages. 15 I. District Court Proceedings 16 After taking Redd's deposition, the defendants moved for 17 summary judgment. The defendants argued that confining Redd in 18 TB hold under the 1996 Policy did not violate any rights that 19 were clearly established and thus, “[b]ased upon th[e] timeline 20 of relevant case law,” the defendants were entitled to qualified 21 immunity and summary judgment. Defs’ Mem. in Supp. of Mot. for 22 Summ. J. at 10. 23 The district court granted the defendants’ motion for 24 summary judgment in its entirety, applying the two-step analysis 1 for claims of qualified immunity as then required by Saucier v. 2 Katz, 533 U.S. 194 (2001). The district court first considered 3 whether, viewed in the light most favorable to Redd, the facts 4 alleged supported Redd's claim that his constitutional rights 5 were violated. With respect to Redd's First Amendment religion 6 claim, the district court determined that, following Selah v. 7 Goord, 255 F. Supp. 2d 42, 55 (N.D.N.Y. 2003), and Reynolds v. 8 Goord, 103 F. Supp. 2d 316, 339 (S.D.N.Y. 2000), confining Redd 9 to TB hold unreasonably burdened his right to free exercise of 10 religion and, therefore, that the 1996 Policy was 11 unconstitutional as applied to Redd. Redd v. Wright, No. 9:04- 12 CV-00401 (N.D.N.Y. filed Aug. 9, 2006). The district court also 13 concluded in a footnote that the 1996 Policy violated the RLUIPA, 14 which "imposes a standard of strict scrutiny upon burdens on the 15 free exercise of religion of incarcerated persons in state 16 prisons." Id. at 7 n.9.2 17 Having concluded that Redd’s First Amendment/RLUIPA claim Redd’s complaint identified RFRA as the statutory basis for his religious freedom claim. The district court construed the complaint to allege a violation of RLUIPA. Redd does not challenge this construction of his claim, and the differences between RFRA and RLUIPA are immaterial for purposes of this appeal. This court has previously applied case law decided under RFRA to issues that arise under RLUIPA. See Westchester Day Sch. v. Village of Mamaroneck, 504 F.3d 338, 353 (2d Cir. 2007); see also Koger v. Bryan, 523 F.3d 789, 802 (7th Cir. 2008) (“RLUIPA did not announce a new standard, but shored up protections Congress had been attempting to provide since 1993 by means of the RFRA, and which had seen frequent litigation in the prison context.”). 1 survived the first step of the Saucier test, the district court 2 then considered whether Redd's First Amendment and/or RLUIPA 3 rights were clearly established at the time of the alleged 4 violation. The district court found that, during the period that 5 Redd was in TB hold, because neither this court nor the Supreme 6 Court had held that application of the 1996 Policy to religious 7 objectors violated the Free Exercise Clause or RLUIPA, and 8 because there was a conflict among state and lower federal courts 9 on the issue, the rights at issue were not clearly established. 10 Therefore, the district court held that the defendants were 11 entitled to qualified immunity on the First Amendment/RLUIPA 12 claims. Id. at 18. 13 With regard to Redd's Eighth and Fourteenth Amendment 14 claims, the district court found no constitutional violation. 15 The district court held that the alleged deprivations were 16 insufficient to constitute cruel and unusual punishment under 17 applicable precedent and that Redd had not shown that the 18 defendants were “deliberately indifferent to his health or 19 safety” in applying the 1996 Policy to him. Id. at 8. The 20 district court also rejected Redd's argument that, by holding him 21 longer than twelve months, the defendants violated his Fourteenth 22 Amendment due process rights, reasoning that Redd had no 23 “protected interest in immediate release from TB hold after one 24 calendar year.” Id. at 12. The district court alternatively 1 applied the three-factor test in Mathews v. Eldridge, 424 U.S. 2 319 (1976), concluding that the “length and conditions” of Redd's 3 confinement did not violate due process because the 1996 Policy 4 “provide[d] adequate procedural protection for any state 5 infringement on [Redd's] liberty interest.” Redd, at 15. 6 Finally, the district court rejected an additional claim first 7 raised in Redd’s opposition to summary judgment that he had been 8 unconstitutionally denied regular showers or exercise, despite 9 their requirement under the 1996 Policy. The district court 10 denied this claim because it was not included in the complaint. 11 The district court also refused Redd leave to amend, stating that 12 “[t]o permit [Redd] to amend his Complaint at this stage, over 13 two years after instituting the action, would be unfairly 14 prejudicial to Defendants.” Id. at 9-10. 15 This appeal followed. 16 DISCUSSION 17 I. Standard of Review 18 This court reviews a grant of summary judgment de novo, 19 Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 20 2004), “constru[ing] the facts in the light most favorable to the 21 non-moving party and . . . resolv[ing] all ambiguities and 22 draw[ing] all reasonable inferences against the movant.” Id. 23 (internal quotation marks omitted). Summary judgment may not be 24 granted if any genuine issue exists with respect to material 1 facts. Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999). 2 “A dispute regarding a material fact is genuine if the evidence 3 is such that a reasonable jury could return a verdict for the 4 nonmoving party.” Stuart v. Am. Cyanamid Co., 158 F.3d 622, 626 5 (2d Cir. 1998) (internal quotation marks omitted). 6 II. Redd’s RLUIPA and First Amendment Claims 7 Redd’s religious-liberty claims derive from two independent 8 sources: § 3 of RLUIPA, 42 U.S.C. § 2000cc-1, and the Free 9 Exercise Clause of the First Amendment. Under RLUIPA, a 10 plaintiff must demonstrate that the state has imposed a 11 substantial burden on the exercise of his religion; however, the 12 state may overcome a RLUIPA claim by demonstrating that the 13 challenged policy or action furthered a compelling governmental 14 interest and was the least restrictive means of furthering that 15 interest. 42 U.S.C. § 2000cc-1(a). Under the First Amendment, 16 the law is less generous to plaintiff prisoners; a generally 17 applicable policy will not be held to violate a plaintiff’s right 18 to free exercise of religion if that policy “is reasonably 19 related to legitimate penological interests.” O’Lone v. Estate 20 of Shabazz, 482 U.S. 342, 349 (1987) (internal quotation marks 21 omitted). 22 As a result of the Supreme Court’s decision in Pearson v. 23 Callahan, 129 S. Ct. 808 (2009), overruling Saucier v. Katz, 533 24 U.S. 194 (2001), we are no longer required to determine whether 1 Redd’s rights were violated under the First Amendment and RLUIPA 2 if we determine that the rights claimed by Redd were not “clearly 3 established” at the time of the alleged violation. Id. at 818. 4 The task of framing the right at issue with some precision is 5 critical in determining whether that particular right was clearly 6 established at the time of the defendants’ alleged violation. 7 Redd claims that the right at issue here should be 8 characterized as the right “not to be subjected to punishment or 9 more burdensome confinement as a consequence of his religious 10 beliefs,” Redd Br. 26. As the defendants note, however, the 11 Supreme Court has expressly cautioned against framing the 12 constitutional right at too broad a level of generality. Wilson 13 v. Layne, 526 U.S. 603, 615 (1999). And we have interposed a 14 “reasonable specificity” requirement on defining the contours of 15 a constitutional right for qualified immunity purposes. Dean v. 16 Blumenthal, 577 F.3d 60, 67-68 (2d Cir. 2009). Redd’s 17 characterization of his right is not “reasonably specific” 18 because it fails to account for the 1996 Policy in particular. 19 We agree with the defendants that the right at issue here is 20 Redd’s right under the First Amendment and RLUIPA to a religious 21 exemption from the 1996 Policy. 22 At the time Redd was confined in TB hold, it had not been 23 clearly established by either the Supreme Court or this court 24 that the 1996 Policy, or a substantially equivalent policy, was 1 nor reasonably related to a legitimate penological interest nor 2 that such terms are not the least restrictive means of furthering 3 a compelling governmental interest. For those reasons, the 4 defendants are entitled to qualified immunity with respect to 5 Redd’s First Amendment and RLUIPA claims. Redd can point to no 6 relevant case law declaring the 1996 Policy, or any substantially 7 similar policy, invalid under either the First Amendment or 8 RLUIPA. Redd cites other prisoners’ rights cases in which we 9 have held generally that prisoners are guaranteed “freedom from 10 discriminatory punishment inflicted solely because of his 11 beliefs, whether religious or secular.” See Sostre v. McGinnis, 12 442 F.2d 178, 189 (2d Cir. 1971) (en banc), abrogated on other 13 grounds by Procunier v. Martinez, 416 U.S. 396 (1974), and 14 Wolfish v. Levi, 573 F.2d 118, 130 (2d Cir. 1978), as recognized 15 by Davidson v. Scully, 694 F.2d 50 (2d Cir. 1982); see also 16 Salahuddin v. Goord, 467 F.3d 263, 275-76 (2d Cir. 2006) (holding 17 it “clearly established . . . that prison officials may not 18 substantially burden inmates’ right to religious exercise without 19 some justification”). But this case, unlike the cases cited by 20 Redd, does not involve punishment that targets an inmate for 21 engaging in a religious practice or “solely because of his 22 beliefs.” The deprivation in this case was motivated not by 23 animus but by a legitimate “public health concern[].” Wright Br. 24 22-23. 1 A right may be clearly established, even in the absence of 2 directly applicable Supreme Court or circuit case law, if this 3 case law has foreshadowed a particular ruling on the issue, 4 Tellier v. Fields, 280 F.3d 69, 84 (2d Cir. 2000). Redd argues 5 that Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996), and the 6 testimony of Dr. Wright provided in Reynolds v. Goord, 103 F. 7 Supp. 2d 316, foreshadowed a ruling that his right was “clearly 8 established.” In particular, Redd argues that the defendants 9 should have known that they were violating his rights because (1) 10 Jolly rejected the defendants’ argument that the PPD test was a 11 legitimate method of protecting inmates from tuberculosis, and 12 (2) Dr. Wright testified in Reynolds that the PPD test was not a 13 legitimate way of preventing the spread of TB infection. 14 Redd’s reliance on Jolly and Dr. Wright’s testimony is 15 misplaced. Although Redd is correct that Jolly rejected the 16 state’s contention that the mandatory PPD test is a reasonable 17 way of preventing the spread of TB in prisons, that court 18 nevertheless recognized that administering an effective TB 19 screening program might be a compelling state interest and that 20 this interest might justify a TB hold policy. Jolly, 76 F.3d at 21 477-78.3 Thus, Jolly did not foreshadow a ruling that the 1996 Jolly did not involve a First Amendment claim, but a claim under RFRA. Id. at 471. RFRA, like RLUIPA, imposed a “compelling interest” test distinct from and more rigorous than the “reasonableness” test applied to First Amendment claims. For purposes of this case, we may assume that a ruling as to the 1 Policy would be facially invalid under either the First Amendment 2 or RLUIPA. Moreover, the factual predicate that led the court to 3 grant a preliminary injunction in Jolly – Jolly’s confinement for 4 three and a half years, id. at 478 – significantly differs from 5 the facts in this case, in which Redd was in TB hold for less 6 than one year and two months. Although Jolly did not foreclose 7 the possibility that a one year confinement in TB hold could 8 violate an inmate’s free exercise rights, Jolly specifically 9 declined to draw a line as to the length of confinement beyond 10 which a constitutional violation would occur. See id. at 478 n.5 11 (leaving open the question whether “a shorter period of 12 confinement” would violate an inmate’s free exercise rights). 13 Nor did Dr. Wright’s testimony in Reynolds foreshadow a 14 ruling that DOCS lacked a compelling state interest in 15 implementing a TB hold policy, putting aside for the moment 16 whether expert testimony alone can perform the foreshadowing role 17 we envisioned in Tellier. Dr. Wright’s testimony focused on the 18 rationality of a TB hold policy as a means of containing the 19 spread of TB; nowhere did he address the compelling interest in 20 administering an effective TB program or compiling health 21 information on inmates. See Reynolds, 103 F. Supp. 2d at 340. 22 Accordingly, neither Jolly nor Dr. Wright’s testimony “clearly validity or invalidity of the 1996 Policy under RFRA would also establish the policy’s validity or invalidity under RLUIPA. See supra note 2. 1 foreshadow[ed]” a holding by this court that the 1996 Policy, as 2 applied in this case, violated Redd’s free exercise rights under 3 RLUIPA’s “compelling interest” standard, much less under the 4 First Amendment’s reasonableness test. The district court, 5 therefore, did not err in granting qualified immunity to the 6 defendants on Redd’s claims under the First Amendment and RLUIPA. 7 III. Redd’s Eighth Amendment Claim 8 Redd challenges the district court’s conclusion that the 9 1996 Policy did not violate his Eighth Amendment rights. Redd’s 10 Eighth Amendment claim is comprised of two distinct challenges. 11 First, Redd argues that the 1996 Policy continued to facially 12 violate the Eighth Amendment, even though DOCS had amended the 13 policy as a result of the court’s holding in Jolly. Second, Redd 14 argues that, even assuming the 1996 Policy did not facially 15 violate the Eighth Amendment, the defendants violated the Eighth 16 Amendment in its application to him because they failed to 17 provide him with regular showers and exercise as required by the 18 policy. We hold that the facial challenge is barred by the 19 doctrine of qualified immunity and that the as applied challenge 20 was insufficiently pleaded. 21 A. Redd’s Facial Challenge 22 Redd first claims that, despite DOCS revision of the TB hold 23 policy in an attempt to cure the constitutional infirmities 24 acknowledged by the Jolly court, the 1996 Policy continued to be 1 facially in violation of the Eighth Amendment. Specifically, 2 Redd argues that the Jolly court found the previous 1991 Policy 3 to violate the Eighth Amendment both because “[(1)] it resulted 4 in the denial of all meaningful opportunity for exercise[,] and 5 [(2) it resulted in] an indefinite period of restrictive 6 confinement.” Redd Br. 38. In issuing a stay of the preliminary 7 injunction, the district court in Jolly imposed two requirements 8 on Jolly’s continued confinement – “one hour of exercise per day 9 and three showers per week.” 76 F.3d at 473. In considering 10 Jolly’s appeal, we noted that DOCS had subsequently implemented 11 these requirements in the 1996 Policy, and further observed that 12 whether the revised policy continued to violate the Eighth 13 Amendment was an “interesting constitutional question.” Id. at 14 480. By leaving this question open, we did not clearly establish 15 that the revised policy continued to violate inmates’ Eighth 16 Amendment rights by denying them “all meaningful opportunity for 17 exercise.” Id. at 480-81. 18 Redd further argues that the 1996 Policy continued to 19 violate the Eighth Amendment despite its revisions because, 20 “[g]iven its permissive language, and the absence of any 21 requirement for timely scheduling of the three x-rays that must 22 be taken six months apart[,] . . . this Policy improperly 23 allow[ed] limitless confinement, in violation of Jolly.” Redd 24 Br. 39. Wholly apart from the failure of this argument to state 1 a facial challenge to the 1996 Policy, Jolly does not clearly 2 establish or foreshadow that the policy would violate the Eighth 3 Amendment, whether facially or as applied. Instead, the Jolly 4 court left open exactly what conditions of confinement, including 5 the length of confinement, might satisfy the Eighth Amendment 6 under the 1996 Policy. See 76 F.3d at 480-81 (finding that the 7 conditions applied to Redd under the amended policy did not 8 preclude a claim for prospective relief under the Eighth 9 Amendment when those conditions followed “on the heels of . . . 10 extreme and prolonged confinement”). Thus, it cannot reasonably 11 be said that the defendants acted in violation of clearly 12 established Eighth Amendment law by implementing the 1996 Policy, 13 even if the permissive nature of the policy continued to raise 14 “interesting constitutional question[s].” Id. at 480. 15 B. Redd’s As Applied Challenge 17 Redd attempts to raise an as applied challenge, independent 18 of the policy itself, under the Eighth Amendment on the ground 19 that he was denied the regular showers and exercise required by 20 the policy. This claim, however, was not properly before the 21 district court. Nowhere in the complaint does Redd expressly or 22 even implicitly allege that the defendants violated his Eighth 23 Amendment rights by not following the 1996 Policy. The district 24 court did not abuse its discretion in denying Redd permission to 1 introduce a new claim after two years of litigation. See 2 Peterson v. Ins. Co. of N. Am., 40 F.3d 26, 31 (2d Cir. 1994). 3 V. Redd’s Due Process Claim 4 Finally, Redd argues that the defendants violated his right 5 to due process by confining him in TB hold “without sufficient 6 procedural safeguards.” Redd’s alleged due process right was not 7 clearly established at the time of the violation, and therefore 8 the defendants are entitled to qualified immunity on this claim. 9 First, as previously discussed, it was not clearly established 10 that Redd had a right to be released from TB hold after one year. 11 Insofar as any other Second Circuit decision addresses a due 12 process claim in the context of a prisoner’s heightened level of 13 confinement, see, e.g., Colon v. Howard, 215 F.3d 227 (2d Cir. 14 2000) (holding that confinement in normal special housing unit 15 for 305 days is a sufficient departure from ordinary incidents of 16 prison life to require procedural due process protections), no 17 such case is sufficiently similar to have put the defendants on 18 notice that their application of the 1996 Policy violated any 19 clearly established due process right. Thus, the defendants are 20 entitled to qualified immunity with respect to Redd’s claim based 21 on the procedures for curtailing the duration of confinement. 22 Nor was it clearly established that Redd was entitled to 23 some kind of notice that religious objectors could be exempt from 24 the 1996 Policy or that the defendants’ failure to advise Redd of 1 a potential exemption from the PPD test was a violation of his 2 due process rights. Finally, Redd’s claim that the 1996 Policy 3 was not justified by a compelling interest in maintaining a 4 successful TB control program, though labeled as a due process 5 argument, is redundant of Redd’s properly rejected First and 6 Eighth Amendment challenges. 7 CONCLUSION 8 For the foregoing reasons, we AFFIRM the district court’s 9 grant of summary judgment on Redd’s First, Eighth and Fourteenth 10 Amendment, and his RLUIPA claims, as well as the district court’s 11 denial of leave to amend.

08-0612-cv In re: Omnicom Group, Inc. Securities Litigation 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2008 4 (Argued: May 5, 2009 Decided: March 9, 2010) 5 Docket No. 08-0612-cv 6 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 7 IN RE: OMNICOM GROUP, INC. SECURITIES LITIGATION 9 NEW ORLEANS EMPLOYEES’ RETIREMENT SYSTEM, 11 Plaintiff-Appellant, 13 PHILIP SZANTO, DR. JOSEPH S. FISHER, M.D. PROFIT SHARING PLAN, on 14 behalf of itself and all others similarly situated, DIANEE GLYNN, 15 on behalf of herself and all others similarly situated, RICHARD 16 LEHAN, PETER “PETER KIM”, EDWARD KAIMINSKI, SUSAN BLACK, MATT 17 BRODY, AMY HOFFMAN, ROBERT E. GARREN, and ALAN MIRKEN, 19 Consolidated-Plaintiffs, 21 v. 23 OMNICOM GROUP, INC., JOHN WREN and RANDALL J. WEISENBURGER, BRUCE 24 CRAWFORD and PHILIP J. ANGELASTRO, 26 Consolidated-Defendants-Appellees. 28 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 30 B e f o r e: FEINBERG, WINTER, and CABRANES, Circuit Judges. 32 Appeal from an order of the United States District Court for 33 the Southern District of New York (William H. Pauley III, Judge) 34 granting defendants’ motion for summary judgment. The district 35 court held that defendants were entitled to summary judgment on 36 plaintiffs’ claims under Section 10(b) of the Securities Exchange 37 Act of 1934 and Rule 10b-5 because plaintiffs failed to show loss 1 causation. We affirm. 2 JOHN P. COFFEY, Bernstein Litowitz 3 Berger & Grossmann LLP, New York, 4 New York, for Plaintiff-Appellant 5 and the Certified Class. 7 PETER A. WALD (Jeff G. Hammel, 8 Latham & Watkins LLP, New York, New 9 York; Janey Mallow Link, Latham & 10 Watkins LLP, Chicago, Illinois, of 11 counsel; Abid R. Qureshi, Latham & 12 Watkins LLP, Washington, D.C., of 13 counsel, on the brief) Latham & 14 Watkins LLP, New York, New York, 15 for Defendants-Appellees. 18 WINTER, Circuit Judge: 20 The New Orleans Employees’ Retirement System, the lead 21 plaintiff in this class action, appeals from Judge Pauley’s grant 22 of summary judgment dismissing its complaint alleging securities 23 fraud in violation of Section 10(b), 15 U.S.C. § 78j(b), against 24 Omnicom Group, Inc. and its managers. The district court held 25 that appellant proffered no evidence sufficient to support a 26 finding of loss causation. 27 For the reasons set forth below, we affirm. 28 BACKGROUND 29 Given the procedural posture of this matter, an appeal from 30 a grant of summary judgment dismissing a complaint, “we construe 31 the evidence in the light most favorable to the plaintiff, 32 drawing all reasonable inferences and resolving all ambiguities 33 in [its] favor.” Colavito v. N.Y. Organ Donor Network, Inc., 438 34 F.3d 214, 217 (2d Cir. 2006). 35 a) The Seneca Transaction 1 Omnicom is a large global marketing and advertising holding 2 company. Around 1996, Omnicom began using its subsidiary, 3 Communicade, to invest in internet marketing and advertising 4 companies. The value of the internet companies began to decline 5 in 2000. Omnicom determined that these losses were not “other- 6 than-temporary impairment[s],” and thus non-reportable, a 7 position that was reviewed without exception by Arthur Andersen. 8 During the first quarter of 2001, Omnicom entered into a 9 transaction with Pegasus Partners II, L.P., a Delaware private 10 equity firm, that created a new company, Seneca, owned by both 11 Omnicom and Pegasus. In a press release, Omnicom and Pegasus 12 stated that the objective of the Seneca transaction was to 13 “maximize consolidation and other strategic opportunities among 14 companies in the currently depressed e-services consulting and 15 professional services marketplace.” The Seneca transaction 16 involved Omnicom’s transfer to Seneca of $47.5 million in cash 17 and its Communicade subsidiary, whose sole assets were the 18 internet companies, and Pegasus’s promise to transfer a total of 19 $25 million in cash, $12.5 million up front and $12.5 million 20 when Seneca requested it. Omnicom received $325 million in 21 Seneca’s non-voting preferred stock, while Pegasus received all 22 of Seneca’s common stock. Omnicom reported that it would incur 23 no gain or loss from this transaction because it was exchanging 24 the internet companies, purported to be worth $277.5 million, and 25 $47.5 million in cash for preferred stock of equivalent value. 26 Appellant alleges that the accounting for the Seneca 1 transaction was fraudulent, a claim we assume to be true, albeit 2 one that is disputed. While Omnicom’s auditors, it is claimed, 3 viewed Pegasus’s willingness to invest $25 million in Seneca as 4 support for Omnicom’s valuation of the internet companies at 5 $277.5 million, there is evidence that, despite the 6 representations that Pegasus would immediately transfer $12.5 7 million to Seneca, it instead transferred only $100 to Seneca, 8 while transferring the $12.5 million to a Pegasus holding 9 company. Appellant argues that this fact, which was not 10 disclosed to the market in any of the news articles that 11 appellant relies on, raises doubts about Omnicom’s valuation of 12 the assets transferred to Seneca. 13 Appellant also claims that Omnicom misrepresented the value 14 of its Seneca stock to its auditors at the end of 2001. To 15 conceal the decline in the value of Seneca’s assets, Omnicom is 16 said to have arranged for Seneca, rather than Omnicom, to buy a 17 technology license from Live Technology Holdings, Inc., one of 18 Seneca’s investee companies. Seneca would then sell the license 19 to Omnicom for $75 million. The $75 million would nearly offset 20 Seneca’s yearly losses. 21 b) Publicly Available Information About the Seneca Transaction 22 Several news articles at or near the time reported the 23 Seneca transaction and suggested that it was an attempt to move 24 the internet companies, whose value was deteriorating, off 1 Omnicom’s books.1 Indeed, observers expressed these views well 2 into 2002.2 However, Omnicom’s stock never experienced any 3 statistically significant drop in value at or near the time of 4 these news reports. 5 On June 5, 2002, Omnicom filed a Form 8-K disclosing that 6 Robert Callander, an outside director and Chair of Omnicom’s 7 Audit Committee, had resigned from its board of directors on May 8 22, 2002. Although the Form 8-K did not disclose the reason for 9 Callander’s resignation, appellant argues that it was because of 10 Callander’s concern over the accounting of the Seneca 11 transaction. Appellant relies on Callander’s request for a 12 review of the Seneca transaction by a separate accounting firm, 13 his handwritten notes on a copy of Omnicom’s 2001 Form 10-K, his 14 request for Seneca’s financial statements, questions he asked On May 7, 2001, Advertising Age published an article stating that the Seneca transaction “was seen by some as a way for Omnicom to get struggling stocks off of its books.” Debra Aho Williamson, The Fairy Tale Ends; Interactive 100 Stumbles After Dot-Com Business Blows Away, Advertising Age, May 7, 2001, at S1. InternetNews.com featured an article about the Seneca transaction on June 26, 2001, in which it stated that “[t]he merger comes out of a complicated effort by ad agency group Omnicom to lessen its losses in the interactive sector, by sharing its stakes in Agency.com and other I-shops with a private equity firm, Pegasus Partners.” Christopher Saunders, Seneca to Absorb Agency.com, InternetNews.com, June 26, 2001. Later, on September 17, 2001, an article in Fortune stated that “[Omnicom’s CEO John] Wren is just cleaning up the mess from his last big foray into untapped market terrain: the Internet,” and that “Wren is now getting all the Net assets off Omnicom’s books by shoveling them into a private holding company called Seneca.” Patricia Sellers, Rocking Through the Ad Recession: Omnicom Is Defying the Madison Avenue Slump Thanks to Its CEO’s Aggressive, Contrarian Strategy, Fortune, Sept. 17, 2001, at 145. In May 2002, New Media Agencies reported that if Omnicom hadn’t entered into the Seneca transaction, it “might have faced the prospect of having to accept sizeable write-offs in the value of its [internet] investments and, in the case of Agency.com, it would have had to deduct its share of the increasing losses from the profit that Omnicom would hope to report for 2001.” How Omnicom Detached its Internet Ventures But Still Kept its Options Open, New Media Agencies Financial Intelligence, May 2002, at 2-1. 1 during audit committee meetings, and his request for advice 2 regarding his responsibilities from a Columbia Business School 3 professor. Appellant also relies on the fact that Callander 4 resigned the same day that the board rejected his suggestion that 5 the audit committee review Omnicom’s proposal to reacquire two of 6 the internet companies recently transferred to Seneca. 7 On June 6, 2002, Omnicom’s stock price declined as rumors 8 circulated that The Wall Street Journal would be publishing a 9 negative article about accounting issues at Omnicom. That same 10 day, Salomon Smith Barney issued a report noting “an article 11 circulated on Briefing.com which speculated that The Wall Street 12 Journal was set to break a potentially negative story about 13 accounting issues at Omnicom.” Joint App. at 1566. However, the 14 report also expressed the belief that Callander resigned because 15 his “relationship with other board members had become 16 increasingly strained and counter-productive,” noting that “[h]ad 17 Mr. Callander complained about or disagreed with something in 18 particular, Omnicom would have had to disclose it.” Id. The 19 next day, June 7, 2002, UBS Warburg published a report stating 20 that “[w]e believe that [Callander’s] resignation has more to do 21 with ‘fit’ than actual auditing improprieties, but note that the 22 director who headed the audit committee has given fuel to 23 concerns with auditing irregularity.” Id. at 1570. 24 On June 10, 2002, The Wall Street Journal published a short 25 article in which it stated that Callander “quit the board after 26 expressing concerns about the creation of an entity that houses 1 Omnicom’s Internet assets,” and, in particular, his 2 “unhapp[iness] with Omnicom management’s limited disclosure to 3 the audit committee about the entity that holds many of Omnicom’s 4 former Internet assets.” Vanessa O’Connell & Jesse Eisinger, 5 Leading the News: Omnicom Director Quits Due to Entity Concerns, 6 Wall St. J., June 10, 2002, at B4. The article further suggested 7 that Callander left due to “some broader corporate governance 8 concerns,” but quoted Omnicom’s Chairman as reassuring investors 9 that “‘there is no issue’ with Seneca.” Id. 10 Late on June 11, 2002, the Financial Times published an 11 article describing Omnicom’s investors’ “post-Enron concerns 12 about disclosure.” Richard Tomkins & Christopher Grimes, Omnicom 13 Shares Wobble Amid Disclosure Fears, Fin. Times, June 11, 2002. 14 It acknowledged that “there is no suggestion of impropriety, 15 still less any breaking of the rules,” but noted that, 16 nonetheless, industry executives and analysts were still 17 concerned with Omnicom’s methods of calculating organic growth. 18 Id. The article also stated that investors were concerned with 19 the Seneca transaction, which the article stated had been 20 described as “a clever ploy” and “very skillful financial 21 engineering,” but the article stated that “there is no suggestion 22 of impropriety or rule-breaking.” Id. 23 On June 12, 2002, The Wall Street Journal published the 24 rumored article on Omnicom that discussed Callander’s resignation 25 and the Seneca transaction. Vanessa O’Connell & Jesse Eisinger, 26 Unadvertised Deals: At an Ad Giant, Nimble Financing Fuels Rapid 1 Growth -- But Omnicom’s Web Stakes Spark Board Controversy; A 2 Question of Disclosure -- The Impact of Acquisitions, Wall St. 3 J., June 12, 2002, at A1. The article stated that Callander had 4 “resigned amid questions about how the company handled a series 5 of soured Internet investments,” that “[h]e questioned whether 6 something wasn’t being disclosed to the board about the initial 7 off-loading of the problematic investments and the proposal to 8 buy two Internet firms,” that “he had voiced doubts about 9 Seneca’s purpose for months,” and that he had concerns that 10 management “had engaged in transactions without running it 11 through the board.” Id. (internal quotation marks omitted). In 12 further discussing the Seneca transaction, the article stated 13 that it “allowed the company to avoid the possibility of writing 14 down the value of its investments in some of the online firms.” 15 Id. It quoted Omnicom’s CEO as saying that “Seneca was smart 16 because instead of just walking away from these [Internet 17 investments] and taking a write-off, we said we believe that 18 Pegasus, through Seneca, could restructure the assets and make 19 them valuable again.” Id. (internal quotation marks omitted) 20 (alteration in original). 21 The article also quoted Omnicom’s general counsel, who 22 stated that he had told Callander that the board had not approved 23 Seneca. Id. This information was mistaken because “the still- 24 unnamed venture wasn’t called Seneca then, so the word hadn’t 25 shown up in automated searches of board minutes,” even though the 26 transaction had been approved. Id. (internal quotation marks 1 omitted). Furthermore, the June 12 article referred to 2 statements by two accounting professors, one who thought that 3 Seneca “raises a red flag,” and one who said, “[y]ou really have 4 to wonder where this fair value is coming from in this 5 environment, in this area.” Id. (internal quotation marks 6 omitted). 7 The June 12 article also raised questions about Omnicom’s 8 general accounting practices. For example, the article stated 9 that “[i]n the wake of the collapse of Enron Corp., investors are 10 demanding clearer and simpler financial statements from big 11 companies, putting particular pressure on serial acquirers with 12 tangled webs of deals.” Id. It noted that Omnicom “uses a more 13 aggressive means than its competitors to calculate the critical 14 statistic of how much of its growth it generates from existing 15 operations.” Id. The article also claimed that “[t]he clash 16 over Seneca [between Callander and management] signals new 17 concern about the financial side of the Omnicom juggernaut.” Id. 18 In addition, it suggested that Omnicom may have a cash flow 19 problem because “if cash spent on acquisitions is subtracted, the 20 company has a negative cash flow,” further noting that “Omnicom 21 has sharply increased its borrowing lately.” Id. Finally, the 22 June 12 article discussed Omnicom’s use of earn-out payments in 23 its deal structures, stating that “[w]ith such a high volume of 24 acquisitions, Omnicom’s obligations to make future earn-out 25 payments amount to a substantial potential liability . . . . 1 [that Omnicom does not] carry . . . on its balance sheet.” Id. 2 Later that day, Omnicom held a telephone conference to 3 reassure investors. During the conference, Omnicom’s CEO stated 4 that there was no dissent among the board members, but 5 acknowledged that “Mr. Callander’s reasons [for resigning from 6 the board] were presented accurately as in ‘The Journal’ this 7 morning.” 8 A number of articles and analyst reports also responded to 9 the June 12 article, some of which suggested that the article 10 raised questions about Omnicom’s accounting practices. For 11 example, a Reuters article that day stated that Omnicom “was 12 forced to play defense on Wednesday amid questions about its 13 accounting,” and suggested that Omnicom’s management’s 14 credibility was harmed by the June 12 article. Adam Pasick, 15 UPDATE 1-Omnicom Defends Accounting as Stock Plunges, Reuters, 16 June 12, 2002. Nonetheless, the article also noted that “Omnicom 17 said Callander’s resignation was the result of a 18 misunderstanding: that he was told, erroneously, that the board 19 had not approved the creation of Seneca when it [sic] fact it 20 had.” Id. A New York Times article on June 13 also suggested 21 that Omnicom “scrambled yesterday to repair damage caused by a 22 newspaper article critical of its accounting practices.” Stuart 23 Elliott, Omnicom Shares Tumble 20%, N.Y. Times, June 13, 2002, at 24 C11. Similarly, an analyst report from Lehman Brothers on June 25 13, 2002, stated that “[i]nvestors’ concerns focus on whether or 1 not the assets should have been written down either at the time 2 of the transaction or at the end of last year,” yet it noted that 3 “yesterday’s Wall Street Journal article did not bring up any 4 substantial ‘new’ issues.” On June 21, 2002, a Campaign article 5 stated that “[t]he questions now being asked are about whether 6 the [Seneca] deal was entirely at arm’s length, whether it was 7 adequately disclosed and whether there might still be some 8 lingering potential liabilities that might come back to haunt 9 Omnicom in the future.” Bob Willott, Omnicom Could Stand Test of 10 WSJ Allegations, Campaign, June 21, 2002. 11 However, some analyst reports and news articles also 12 indicated that the June 12 article did not raise any new factual 13 issues and suggested that the market’s negative reaction was due 14 to the article’s negative tone and innuendo in the post-Enron 15 market. See, e.g., Merrill Lynch, FlashNote, Omnicom Group Inc.: 16 Good News: No New News in WSJ Article, June 12, 2002; Richard 17 Morgan, Hatchet Job, TheDeal.com, June 14, 2002; Bear Stearns, 18 Omnicom Group (OMC-62.30) - Buy: Follow Up On WSJ Article, June 19 13, 2002; SalomonSmithBarney, Omnicom Group Inc. (OMC): Comments 20 on Management Meeting, June 13, 2002; SalomonSmithBarney, Omnicom 21 Group Inc. (OMC): Comments on WSJ Article, June 12, 2002; Richard 22 Tomkins, Omnicom Slides on S&P’s Move to Cut Outlook, Fin. Times, 23 June 13, 2002; UBS Warburg, Global Equity Research: Omnicom Group 24 (OMC), June 13, 2002. 25 In the two days following the June 12 article, Omnicom’s 1 stock dropped over twenty-five percent relative to trading prices 2 and activity in the market and the industry. However, after 3 Omnicom announced that its new auditor, KPMG, reviewed the 4 accounting for the Seneca transaction and had not recommended any 5 changes, Omnicom’s stock increased substantially relative to the 6 industry and the market. 7 c) The Present Action 8 On June 13, 2002, as Omnicom’s closing price fell, appellant 9 and other plaintiffs filed this action. On May 19, 2003, 10 appellant filed an amended complaint, which appellees moved to 11 dismiss. The district court granted appellees’ motion in part, 12 dismissing claims involving Omnicom’s organic growth calculations 13 and its earn-out and put-out liabilities, but denied the motion 14 with regard to the Seneca transaction. 15 The complaint made three allegations of fraud concerning the 16 Seneca transaction. First, it alleged that Omnicom should have 17 written down the value of the internet companies before engaging 18 in the Seneca transaction. Second, it alleged that the 19 accounting of the Seneca transaction was fraudulent because 20 Omnicom failed to appropriately value the internet companies. 21 Third, it alleged that Omnicom should have accounted for Seneca’s 22 losses after the Seneca transaction occurred because Omnicom 23 controlled Seneca. Each allegation, therefore, focused on the 24 loss in value of the internet companies and the failure to 25 reflect that loss on Omnicom’s books. 1 The class action complaint invoked the rebutable presumption 2 of shareholder reliance established in Basic, Inc. v. Levinson, 3 485 U.S. 224, 241-42 (1988). It alleged that Omnicom was an 4 actively traded company and that the market for its shares 5 promptly reflected public information about the company. 6 In July 2005, appellant moved to certify a class “consisting 7 of all persons and entities who purchased or otherwise acquired 8 the securities of Omnicom from February 20, 2001 through June 11, 9 2002 and who were damaged thereby.” Appellant’s Br. at 24. The 10 district court certified the class on April 30, 2007. 11 After extensive discovery and in response to appellees’ 12 motion for summary judgment, appellant proffered, inter alia, a 13 report of its expert witness, Dr. Scott D. Hakala. Dr. Hakala 14 prepared an event study analysis and was prepared to testify that 15 “the investing public’s initial reactions to the partially 16 corrective disclosures in June 2002 were tied to the news of 17 Omnicom’s inappropriate accounting for investments in Internet- 18 related entities and not to other news during that time period.” 19 Joint App. at 1221. He claimed that “[i]nvestors legitimately 20 feared that Omnicom’s transfers of its Internet investments 21 created the potential for losses and hidden liabilities and/or 22 had allowed Omnicom to hide losses in the past.” Joint App. at 23 803. Dr. Hakala also stated that: 24 [T]he declines from June 5 to June 13, 2002, 25 would not have occurred on those dates had 26 Defendants not previously engaged in the 27 fraudulent scheme alleged by Plaintiffs. The 1 information revealed in that time period 2 constituted a partial revelation of 3 information about this scheme. 5 Id. at 793-94 (internal citation omitted). 6 On January 29, 2008, the district court granted appellees’ 7 motion for summary judgment. See In re Omnicom Group, Inc. Sec. 8 Litig., 541 F. Supp. 2d 546 (S.D.N.Y. 2008). The district court, 9 in a thorough and well-reasoned opinion, held that appellant had 10 failed to proffer sufficient evidence that the fraud alleged -- 11 the Seneca transaction -- caused the drop in stock price that 12 damaged the class. We agree. 13 DISCUSSION 14 a) Standard of Review 15 “We review the grant of summary judgment de novo.” Lawrence 16 v. Cohn, 325 F.3d 141, 147 (2d Cir. 2003). Summary judgment is 17 only appropriate if the record shows “that there is no genuine 18 issue as to any material fact and that the movant is entitled to 19 judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also 20 Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). An issue 21 of fact is genuine “if the evidence is such that a reasonable 22 jury could return a verdict for the nonmoving party.” Anderson 23 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In looking at 24 the record, we “constru[e] the evidence in the light most 25 favorable to the nonmoving party and draw[] all inferences and 26 resolv[e] all ambiguities in favor of the nonmoving party.” Doro 27 v. Sheet Metal Workers’ Int’l Ass’n, 498 F.3d 152, 155 (2d Cir. 1 2007). Nonetheless, summary judgment is appropriate where a 2 defendant: 3 has moved for summary judgment on the ground 4 that undisputed facts reveal that the 5 plaintiff cannot establish an essential 6 element of the claim, on which element the 7 plaintiff has the burden of proof, and the 8 plaintiff has failed to come forth with 9 evidence sufficient to permit a reasonable 10 juror to return a verdict in his or her favor 11 on that element . . . . 13 Burke v. Jacoby, 981 F.2d 1372, 1379 (2d Cir. 1992); see also 14 Anderson, 477 U.S. at 248-49. 15 b) The Section 10(b) Claims 16 To sustain a claim under Section 10(b), appellant must show 17 (i) a material misrepresentation or omission; (ii) scienter; 18 (iii) “a connection with the purchase or sale of a security[;]” 19 (iv) reliance by the plaintiff(s); (v) economic loss; and (vi) 20 loss causation. Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 341- 21 42 (2005). The district court granted summary judgment on the 22 ground that appellant failed to proffer sufficient evidence to 23 show loss causation. 24 Use of the term “loss causation” is occasionally confusing 25 because it is often used to refer to three overlapping but 26 somewhat different concepts. It may be used to refer to whether 27 the particular plaintiff or plaintiff class relied upon -- or is 28 refutably presumed to have relied upon -- the misrepresentation. 29 ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 107 (2d 1 Cir. 2007). Generally, however, courts use the term “transaction 2 causation” to refer to this element. See, e.g., Dura Pharms., 3 544 U.S. at 341-42; Emergent Capital Inv. Mgmt., LLC v. Stonepath 4 Group, Inc., 343 F.3d 189, 197 (2d Cir. 2003) (“Like reliance, 5 transaction causation refers to the causal link between the 6 defendant’s misconduct and the plaintiff’s decision to buy or 7 sell securities.”). 8 “Loss causation” may also refer to the requirement that the 9 wrong for which the action was brought is a but-for cause or 10 cause-in-fact of the losses suffered, also a requirement for an 11 actionable Section 10(b) claim. Dura Pharms., 544 U.S. at 342; 12 see also 15 U.S.C. § 78u-4(b)(4) (“In any private action arising 13 under this chapter, the plaintiff shall have the burden of 14 proving that the act or omission of the defendant alleged to 15 violate this chapter caused the loss for which the plaintiff 16 seeks to recover damages.”). In short, plaintiffs must show “a 17 sufficient connection between [the fraudulent conduct] and the 18 losses suffered . . . .” Lattanzio v. Deloitte & Touche LLP, 476 19 F.3d 147, 157 (2d Cir. 2007).3 This requirement exists because Appellant argues that: It is not Lead Plaintiff’s burden, on this motion, to show that the entire relative price drop in June 2002 was due to the fraud. Rather, summary judgment may be granted only if Defendants can prove as a matter of undisputed fact that none of the price drop could have resulted from the fraud. Appellant’s Br. at 42 (emphasis omitted). In doing so, it misstates the parties’ burdens on summary judgment. Although “a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying [the evidence] which it 1 private securities fraud actions are “available, not to provide 2 investors with broad insurance against market losses, but to 3 protect them against those economic losses that 4 misrepresentations actually cause.” Dura Pharms., 544 U.S. at 5 345. 6 A third concept sometimes referred to as “loss causation” 7 relates to the question whether events that are a cause-in-fact 8 of investor losses fall within the class of events from which 9 Section 10(b) was intended to protect the particular plaintiffs 10 and which the securities laws were intended to prevent. This 11 issue, one of proximate cause, was the subject of extended (to 12 say the least) discussion in three opinions in AUSA Life Ins. Co. 13 v. Ernst & Young, 206 F.3d 202 (2d Cir. 2000). Subsequently, we 14 adopted the “zone of risk” test outlined in the dissenting 15 opinion in AUSA. See Lentell v. Merrill Lynch & Co., 396 F.3d 16 161, 172-75 (citing AUSA, 206 F.3d at 235, 238 (Winter, J., 17 dissenting)). 18 To one degree or another, all three of these overlapping but 19 somewhat differing issues are involved in the present matter. 20 With regard to reliance, appellant’s complaint invokes the 21 presumption of reliance based on the fraud-on-the-market theory believes demonstrate the absence of a genuine issue of material fact,” this does not relieve appellant of its burden of making “a showing sufficient to establish the existence of an element essential to [appellant’s] case, and on which [appellant] will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. As a result, summary judgment is appropriate if appellant cannot show that at least some of the price drop was due to the fraud. 1 adopted in Basic. 485 U.S. at 241-42 (reliance of investors on 2 misrepresentations is presumed where market for securities is 3 open and developed). The complaint alleges active trading by 4 Omnicom in a “highly efficient and automated market,” Omnicom’s 5 provision of information to the public through SEC filings and 6 other means of disclosure, and scrutiny of available information 7 by professional analysts who themselves communicate with the 8 public. Joint App. at 152. It further alleges that “[a]s a 9 result . . . the market for Omnicom’s securities promptly 10 digested current information regarding Omnicom from all publicly 11 available sources and reflected such information in Omnicom’s 12 stock price.” Id. at 153. 13 Having sought to establish investor reliance by the fraud- 14 on-the-market theory, appellant faces a difficult task. The 15 fraud alleged -- the Seneca transaction and failure to write down 16 the value of the internet companies -- was the subject of 17 continuing media reports beginning in May 2001. See supra notes 18 1 & 2. The stock price decline, which is the basis for the 19 damages claim, occurred in June 2002. In short, appellant must 20 concede that the numerous public reports on the Seneca 21 transaction were “promptly digested” by the market and “reflected 22 . . . in Omnicom’s stock price” in 2001 while seeking to recover 23 for a stock price decline a year later in 2002. 24 Appellant seeks to do so through two means: first, by 25 claiming the existence of cause-in-fact on the ground that the 1 market reacted negatively to a corrective disclosure of the 2 fraud, Lentell, 396 F.3d at 175; and, second, by arguing the 3 existence of proximate cause on the ground that negative investor 4 inferences drawn from Callander’s resignation and from the news 5 stories in June 2002 caused the loss and were a foreseeable 6 materialization of the risk concealed by the fraudulent 7 statement. ATSI, 493 F.3d at 107 (2d Cir. 2007) (citing Lentell, 8 396 F.3d at 173). Establishing either theory as applicable would 9 suffice to show loss causation. 10 1) Corrective Disclosure 11 A fraud regarding a company’s financial condition in May 12 2001, if concealed, may cause investors’ losses in June 2002 when 13 disclosure of the fraud is made and the available public 14 information regarding the company’s financial condition is 15 corrected. See Lentell, 396 F.3d at 175 n.4 (acknowledging that 16 loss causation can be established by a “corrective disclosure to 17 the market” that “reveal[s] . . . the falsity of prior 18 recommendations”). Appellant argues that information disclosed 19 to the market in June 2002, particularly by the June 12 article, 20 constituted a partial corrective disclosure of the fraud and that 21 the disclosure caused the market to respond negatively. 22 To reiterate, the June 12 article reported that Callander, a 23 director and Chair of Omnicom’s Audit Committee, had resigned 24 amid questions he had raised for months regarding the purpose of 25 the Seneca transaction. Callander was also reported to have 1 questioned whether the board had received full information about 2 the initial Seneca transaction and about the new proposal to buy 3 back two of the internet companies. The article also noted 4 concerns, including those of accounting professors, about 5 Omnicom’s aggressive accounting strategy and about Omnicom’s cash 6 flow and increased borrowing. In opposing the motion for summary 7 judgment, appellant offered the expert testimony of Dr. Hakala 8 regarding causation issues. 9 However, none of these matters even purported to reveal some 10 then-undisclosed fact with regard to the specific 11 misrepresentations alleged in the complaint concerning the Seneca 12 transaction. See In re Flag Telecom Holdings, Ltd. Sec. Litig., 13 574 F.3d 29, 40-41 (2d Cir. 2009) (holding that plaintiffs’ 14 evidence of news events and the expert’s event study did not 15 provide sufficient evidence of causation). The use of the Seneca 16 transaction as an accounting method to remove losses from 17 Omnicom’s books was known to the market a year before Callander’s 18 resignation. See supra notes 1 & 2. There was no ambiguity in 19 that regard in these articles. 20 All that the June 12 article stated was that Callander’s 21 resignation was due to general concerns over an aggressive 22 accounting strategy, including perhaps Omnicom’s year-old failure 23 to write-down the value of the internet companies, and other 24 matters concerning governance, in particular management’s keeping 25 the board informed. At best, from appellant’s viewpoint, it has 1 shown that the market may have reacted as it did because of 2 concerns that Callander’s resignation and the negative tone of 3 the June 12 article implied accounting or other problems in 4 addition to the known Seneca transaction. 5 Appellant also relies on comments in the June 12 article by 6 the two accounting professors to support a nexus between the 7 fraud alleged and the June 2002 decline in share price. They 8 argue that “a reasonable jury could conclude that the professor 9 found Omnicom’s accounting suspicious in light of Callander’s 10 resignation and Omnicom’s decision to unwind Seneca, which were 11 newly disclosed facts.” Appellant’s Br. at 55. However, the 12 conclusory suspicions of the accounting professors and the 13 unwinding of the Seneca transaction added nothing to the public’s 14 knowledge that the Seneca transaction was designed to remove 15 losses from Omnicom’s books.4 16 What appellant has shown is a negative characterization of 17 already-public information. See Teacher’s Ret. Sys. of La. v. 18 Hunter, 477 F.3d 162, 187-88 (4th Cir. 2007) (negative 19 characterization of previously known information cannot 20 constitute a corrective disclosure); In re Merck & Co. Sec. 21 Litig., 432 F.3d 261, 269-70 (3d Cir. 2005) (same). A negative Appellant also relies on the fact that Omnicom’s stock price recovered after Omnicom announced that KPMG had reviewed its accounting of the Seneca transaction and did not recommend any changes. Appellant’s Br. at 52-53. However, KPMG’s conclusion that there was no fraud in the Seneca transaction hardly supports a finding that fraud in the Seneca transaction caused a loss. 1 journalistic characterization of previously disclosed facts does 2 not constitute a corrective disclosure of anything but the 3 journalists’ opinions. After all, no hard fact in the June 12 4 article suggested that the avoidance of the write-down was 5 improper. 6 Dr. Hakala’s study does not alter our conclusion. It is 7 true that “[w]here, as here, there are conflicting expert reports 8 presented, courts are wary of granting summary judgment.” Harris 9 v. Provident Life & Accident Ins. Co., 310 F.3d 73, 79 (2d Cir. 10 2002) (internal quotation marks omitted). However, summary 11 judgment is not per se precluded because there are conflicting 12 experts. See Raskin v. Wyatt Co., 125 F.3d 55, 65 (2d Cir. 1997) 13 (“As we read the opinion, [the district court] concluded that the 14 [expert’s] report was probative of no material fact, from which 15 we deduce that it was, in [the district court’s] view, irrelevant 16 and inadmissible. We therefore can review this ruling as 17 evidentiary in character . . . .”) (citations omitted). Although 18 the reports must be construed in the non-moving party’s favor, 19 “if the admissible evidence is insufficient to permit a rational 20 juror to find in favor of the plaintiff, the court remains free 21 to direct a verdict or grant summary judgment for defendant.” 22 Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 267 (2d 23 Cir. 2002); see also Raskin, 125 F.3d at 66 (“[A]n expert’s 24 report is not a talisman against summary judgment.”). 25 Summary judgment is appropriate here because Dr. Hakala’s 1 testimony does not suffice to draw the requisite causal 2 connection between the information in the June 12 article and the 3 fraud alleged in the complaint. His event study merely “links 4 the decline in the value of [the company’s] stock to various 5 events.” Flag Telecom, 574 F.3d at 41. 6 If Dr. Hakala is opining that Omnicom’s stock dropped 7 because investors first became aware in June 2002 of the fraud 8 alleged in the complaint, that opinion is, as a matter of law, 9 unsustainable on this record. It runs squarely into the 10 undisputed fact that the internet company losses and the failure 11 to write them down was known in May 2001 and into appellant’s 12 allegation that the market for Omnicom’s securities at all times 13 promptly digested and reflected in its share price all public 14 information.5 If he is opining that Omnicom’s stock dropped 15 because the fraud in May 2001 caused the negative press of June 16 2002 attending Callander’s resignation, then his testimony is 17 irrelevant because these events were not proximately caused by 18 the fraud alleged, for reasons discussed immediately below. The Appellant is mistaken to compare this to our cases in Suez Equity Investors, L.P. v. Toronto-Dominion Bank, 250 F.3d 87 (2d Cir. 2001), Rothman v. Gregor, 220 F.3d 81 (2d Cir. 2000), and Mfrs. Hanover Trust v. Drysdale Sec. Corp., 801 F.2d 13 (2d Cir. 1986). Those cases are factually distinguishable because in each case the plaintiffs demonstrated a specific causal connection between the loss and the alleged fraud. See Suez Equity, 250 F.3d at 96-97 (facts omitted from executive’s background report would have indicated executive’s inability to run company and forecast company’s eventual liquidity problems); Rothman, 220 F.3d at 87, 89, 95 (company’s misleading accounting of royalty expenses caused later losses when market became aware that a massive write-down was imminent); Mfrs. Hanover, 801 F.2d at 16-17, 19, 21-22 (defendant accounting firm’s misrepresentations as to company’s solvency induced plaintiff to do business with the company which ultimately led to the plaintiff’s loss). 1 remainder of his report establishes only that, as previously 2 noted, the June 12 article raised questions about potential 3 accounting concerns, including the Seneca transaction. 4 Because appellant failed to demonstrate any new information 5 in the June 12 article regarding Omnicom’s alleged fraud, 6 appellant has failed to show a price decline due to a corrective 7 disclosure. 8 2) The Materialization of the Risk Theory 9 Appellant argues that, even if no new financial facts were 10 revealed in June 2002, Callander’s resignation and the ensuing 11 negative media attention were foreseeable risks of the fraudulent 12 Seneca transaction and caused the temporary share price decline 13 in June 2002. The losses suffered by the class are, the argument 14 goes, due to the materialization of that risk. 15 As noted, plaintiffs can prove loss causation by showing 16 “that the loss was foreseeable and caused by the materialization 17 of the risk concealed by the fraudulent statement.” ATSI, 493 18 F.3d at 107. A misrepresentation is “the ‘proximate cause’ of an 19 investment loss if the risk that caused the loss was within the 20 zone of risk concealed by the misrepresentations . . . .” 21 Lentell, 396 F.3d at 173. Because Omnicom’s internet company 22 losses were publicly known, the matter concealed must be the 23 invalidity of Omnicom’s accounting for those losses in the Seneca 24 transaction. 1 The zone of risk is determined by the purposes of the 2 securities laws, i.e., “to make sure that buyers of securities 3 get what they think they are getting.” Chem. Bank v. Arthur 4 Andersen & Co., 726 F.2d 930, 943 (2d Cir. 1984). In this 5 context, therefore, recovery is limited to only the foreseeable 6 losses “for which the intent of the laws is served by recovery.” 7 AUSA, 206 F.3d at 234 (Winter, J., dissenting). 8 Fraud may lead to a director’s resignation -- to escape 9 personal liability, if for no other reason, see, e.g., 15 U.S.C. 10 § 77k(b)(1) (providing exemption from civil liability for 11 director who resigns before effective date of fraudulent 12 registration statement) -- and to negative stories by the media. 13 In such circumstances, it is generally the facts underlying the 14 fraud and resignation that causes a compensable investor’s loss. 15 In the present case, as noted, the facts were known a year before 16 the resignation, and the resignation did not add to the public 17 knowledge any new material fact about the Seneca transaction. 18 The essence of the claim is that Callander’s resignation 19 concerned the Seneca transaction and that the resultant negative 20 publicity suggesting possible accounting malfeasance may lead to 21 recovery for a temporary drop in share price. 22 To be sure, the record shows that Callander was concerned 23 over general accounting practices and governance problems. In 24 that regard, he was concerned about the Seneca transaction, but 25 he had also been mistakenly informed that the Board had never 1 approved it. On the present record, appellant has at best shown 2 that Callander’s resignation and resulting negative press stirred 3 investors’ concerns that other unknown problems were lurking in 4 Omnicom’s past. Indeed, there is no allegation that investors 5 were ever told that improper accounting had in fact occurred with 6 regard to the Seneca transaction, either in the June 2002 stories 7 or later. 8 The generalized investor reaction of concern causing a 9 temporary share price decline in June 2002, is far too tenuously 10 connected -- indeed, by a metaphoric thread -- to the Seneca 11 transaction to support liability. The securities laws require 12 disclosure that is adequate to allow investors to make judgments 13 about a company’s intrinsic value. Firms are not required by the 14 securities laws to speculate about distant, ambiguous, and 15 perhaps idiosyncratic reactions by the press or even by 16 directors. To hold otherwise would expose companies and their 17 shareholders to potentially expansive liabilities for events 18 later alleged to be frauds, the facts of which were known to the 19 investing public at the time but did not affect share price, and 20 thus did no damage at that time to investors. A rule of 21 liability leading to such losses would undermine the very 22 investor confidence that the securities laws were intended to 23 support. 24 CONCLUSION 25 Appellant has failed to raise a material issue of fact that 1 would support a finding of loss causation, and, as a result, the 2 district court properly granted defendants’ summary judgment 3 motion.6 For the foregoing reasons, we affirm. Plaintiffs also rely on Section 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78t. However, in order to establish control person liability, appellant must first establish a primary violation. See ATSI, 493 F.3d at 108. Because appellant fails to establish a primary violation, the district court properly granted defendants’ summary judgment motion on the Section 20(a) claims.

08-4793-cr(L), 08-5268(con) United States v. Gardner/Gladden UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________ August Term, 2009 (Argued: January 6, 2010 Decided: March 10, 2010) Docket Nos. 08-4793-cr(L), 08-5268(con) _______________ UNITED STATES OF AMERICA , Appellee, —v.— EDWARD GARDNER , also known as Alex and KENROY GLADDEN , also known as Kenroy Flowers, also known as Michael Richardson. Defendants-Appellants. _______________ Before: FEINBERG and KATZMANN , Circuit Judges, CASTEL, District Judge.* _______________ Appeal from Judgments of the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge), dated September 25, 2008 (Gardner) and November 14, 2008 (Gladden), following a jury trial, convicting defendants of conspiracy, drug and firearm offenses * The Honorable P. Kevin Castel, of the United States District Court for the Southern District of New York, sitting by designation. and sentencing Gardner to 180 months’ imprisonment and Gladden to 300 months’ imprisonment. We hold that when a defendant acquires a firearm using drugs as payment he possesses the firearm in furtherance of a drug trafficking crime. We accordingly affirm the judgment of the district court. _______________ JENNIFER E. BURNS, Assistant United States Attorney (Michael D. Maimin, Assistant United States Attorney, of counsel), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee. BEVERLY VAN NESS (Curtis J. Farber, of counsel), New York, NY, for Defendant-Appellant Edward Gardner. DEVIN MCLAUGHLIN , Langrock, Sperry & Wool, LLP, Middlebury, VT, for Defendant-Appellant Kenroy Gladden. _______________ KATZMANN , Circuit Judge: The threshold issue presented on appeal is whether acquiring a firearm using drugs as payment constitutes possessing that firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). Defendant-Appellant Edward Gardner appeals from the September 25, 2008 judgment of the United States District Court for the Southern District of New York (Rakoff, J.). Defendant-Appellant Kenroy Gladden appeals from the November 14, 2008 judgment of the United States District Court for the Southern District of New York (Rakoff, J.). Gardner and Gladden were convicted, following a jury trial, of conspiracy, drug and firearm offenses, including a violation of 18 U.S.C. § 924(c)(1)(A), which prohibits the possession of a firearm in furtherance of a drug trafficking crime. At trial, the district court instructed the jury that it could find a violation of this provision if it unanimously concluded beyond a reasonable doubt that the defendants “acquired the firearm by paying for it with drugs involved in the conspiracy.” On appeal, Gardner and Gladden contend that acquiring a firearm using drugs as payment does not constitute possession of that firearm in furtherance of a drug trafficking crime, and therefore the district court erroneously instructed the jury and there was insufficient evidence to support their convictions under 18 U.S.C. §(c)(1)(A). We hold that acquiring a firearm using drugs as payment constitutes possessing that firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). We therefore conclude that the district court properly instructed the jury and that there was sufficient evidence to support defendants’ convictions.1 I This case began with an undercover investigation into crack cocaine sales in the Bronx. Undercover agents purchased crack cocaine from Najir Williams, who became a cooperating witness in the case against Gardner and Gladden. At trial, Williams testified to the relationship between Gardner and Gladden and their drug trafficking activities, and the jury concluded beyond a reasonable doubt that Gardner and Gladden were involved in a drug trafficking conspiracy. Relevant to this appeal, Williams testified about an occasion when Gardner and Gladden acquired two firearms with drugs. On that occasion, Williams testified that he, Gardner and In this opinion, we address only Gardner and Gladden’s challenges to their convictions under 18 U.S.C. § 924(c)(1)(A). In a companion summary order, we address and reject Gardner and Gladden’s remaining challenges to their convictions, but in light of intervening precedent, we vacate their sentences and remand their cases for resentencing. Gladden were sitting in Gladden’s SUV when a Pontiac car pulled up next to them and parked. A few minutes later, a man entered the passenger seat of Gladden’s SUV with a black backpack. The man asked for $600 for two guns that were in the backpack. Gladden stated that he did not want to pay cash for the guns, but instead wanted to give the man “some work,” meaning some crack cocaine, for the guns. The man responded that he “[didn’t] know about that” and that he wanted some cash, at which point he put the guns back inside the backpack, told them to give him a minute and exited the vehicle. Williams then saw the man enter the Pontiac and noticed that there was another occupant in the driver’s seat of that vehicle. When the man returned to Gladden’s SUV with his backpack, he stated “all right, we will take work for the guns,” meaning that he would take the drugs for the guns. The man then pulled out the guns and handed them to Gladden. Gladden stated that he would give the man an onion, meaning an ounce of crack cocaine, for the guns, and the man agreed. The man then exited Gladden’s SUV and got back inside the Pontiac. After the man exited the SUV, Gladden turned to Gardner and instructed him to get an onion, and Gardner went inside the house and returned with the drugs. The man then entered Gladden’s SUV again and Gladden handed him the drugs. Presumably because an ounce of crack cocaine was worth more than $600, Gladden told the man that, after they finished selling the drugs, they should give him back $200. The man then pocketed the drugs and exited Gladden’s SUV, and Gladden handed the firearms to Gardner and asked him to “put these things up for me.” Before Gardner and Williams left, Gladden got a call on his phone. Williams noticed that the driver of the Pontiac was also on the phone. Williams testified that the man on the phone told Gladden that he did not want crack cocaine and that he wanted powder cocaine instead. Gladden responded “that that will take a minute” and that he had to “go around the block to deal with that.” Gardner and Williams then exited the vehicle and went inside their house where they inspected the guns. There is no evidence in the record regarding whether Gladden actually swapped the crack cocaine for power cocaine. Gardner and Gladden were charged with violating 18 U.S.C. § 924(c)(1)(A), which provides that “[a]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm,” shall be subject to a penalty in addition to that for the underlying crime. At the conclusion of their trial, the district court instructed the jury as follows: [T]he government must prove that the defendant you are considering possessed this firearm for the purpose of furthering the conspiracy charged in Count 1, that is, to help in carrying out the conspiracy. In this regard, the firearm does not have to have been actually used. The defendant must be shown to have possessed the gun for the purpose of playing some role, even if small, in the furtherance of the conspiracy. Also you may [find] that a given defendant possessed the firearm in furtherance of the conspiracy if you unanimously conclude beyond a reasonable doubt that he acquired the firearm by paying for it with drugs involved in the conspiracy. The jury convicted Gardner and Gladden of possessing firearms in furtherance of a drug trafficking crime. II 18 U.S.C. § 924(c)(1) has not always contained the “possession in furtherance” prong. Until 1998, this provision applied only to a person who “uses or carries a firearm” “during and in relation to any . . . drug trafficking crime.” 18 U.S.C. § 924(c)(1) (1998); see Pub. L. No. 105- 386, 112 Stat. 3469 (1998). The Supreme Court interpreted this provision as it related to a barter transaction in Smith v. United States, 508 U.S. 223 (1993), and Watson v. United States, 552 U.S. 74, 79 (2007). In Smith, the Court concluded that a defendant who received drugs in exchange for a firearm “used” the firearm “during and in relation to . . . [a] drug trafficking crime.” 508 U.S. at 228-30. Watson regarded the reverse transaction, whether a defendant who receives a gun in exchange for drugs “uses” the gun “during and in relation to . . . [a] drug trafficking crime.” 552 U.S. at 76. The Court concluded that the defendant did not. The Court noted that “[w]ith no statutory definition or definitive clue, the meaning of the verb ‘uses’ has to turn on the language as we normally speak it.” Id. at 79. Examining the statutory provision in that light, the Court stated that while “[t]he Government may say that a person ‘uses’ a firearm simply by receiving it in a barter transaction, . . . no one else would.” Id. Distinguishing Smith, the Court analogized to a boy who trades an apple to get a granola bar, and concluded that it is sensible to say that the boy “uses” the apple in the transaction, but not that he “uses” the granola bar. Id.; see also id. at 81 (citing “common speech’s understanding that the first possessor is the one who ‘uses’ the gun in the trade”). In 1998, Congress amended section 924(c)(1) to add the “possession in furtherance” prong after the Supreme Court concluded in Bailey v. United States that possessing a firearm near the scene of drug trafficking did not constitute “use” of a firearm during and in relation to a drug trafficking crime because mere possession does not amount to active employment of a firearm. See 516 U.S. 137, 143 (1995). Following the amendment, a defendant violates section 924(c)(1)(A) if he “possesses a firearm” “in furtherance of . . . [a] drug trafficking crime.” See Pub. L. No. 105-386, 112 Stat. 3469 (1998); Watson, 552 U.S. at 77 n.3 (2007). Congress did not remark upon, and the Supreme Court has not addressed, whether a barter transaction in which a defendant acquires a firearm using drugs as payment falls under this possession prong.2 III On appeal, Gardner and Gladden challenge both the district court’s jury instruction and the sufficiency of the evidence supporting their conviction for possessing a firearm in furtherance of a drug trafficking crime. The same legal question underlies both challenges: Whether acquiring a firearm using drugs as payment constitutes possessing that firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). “Where, as here, the defendant[s] timely challenge[] the district court’s jury instructions on a legal issue in proceedings below, this Court reviews the validity of the district court’s jury instructions de novo.” United States v. Tureseo, 566 F.3d 77, 83 (2d Cir. 2009). Likewise, we review a claim of insufficient evidence de novo. United States v. Yannotti, 541 F.3d 112, 120 (2d Cir. 2008). This Court has not squarely addressed whether acquiring a firearm with drugs constitutes possession of a firearm in furtherance of a drug trafficking crime. We have, however, addressed this question in dicta in United States v. Cox, 324 F.3d 77 (2d Cir. 2003). The transaction at issue in Cox preceded the 1998 amendment adding the possession prong to section 924(c)(1). In Cox, the question presented was whether a defendant’s acceptance of a gun as collateral for the purchase price of drugs constituted “use” of a firearm during or in relation to a drug trafficking crime. Id. at 78-79. We held that it did because the defendant “took the gun as collateral for the cash price of drugs, not in barter of one commodity for another.” Id. at 84. The decision then Watson acknowledged that the statute had been amended to include the possession prong after the case had been initiated. 552 U.S. at 83. went on to describe the then-pending split among the Courts of Appeals regarding whether the simple receipt of guns for drugs would constitute “use,” concluding that this split might dissipate in light of Congress’s amendment to add the possession prong. Id. at 84 n.2. We stated, “[f]or defendants charged under § 924(c) after this amendment, trading drugs for a gun will probably result in such possession.” Id.3 This conclusion has been squarely reached by several other Courts of Appeals. See United States v. Mahan, 586 F.3d 1185, 1189 (9th Cir. 2009) (“When a defendant accepts a gun as payment for his drugs, his sale—and thus his crime—is incomplete until he receives possession of the firearm. We fail to see how possession that completes a drug trafficking offense is not possession ‘in furtherance of’ a drug trafficking offense.”); United States v. Luke- Sanchez, 483 F.3d 703, 706 (10th Cir. 2007) (holding that trading drugs for guns constitutes possession in furtherance of a drug trafficking crime under subsection 924(c)(1)); United States v. Boyd, 209 F. App’x 285, 290 (4th Cir. 2006) (per curiam) (“We conclude that accepting possession of firearms as payment for crack cocaine is possession in furtherance of a drug trafficking crime.”); United States v. Frederick, 406 F.3d 754, 764 (6th Cir. 2005) (“As a matter of logic, a defendant’s willingness to accept possession of a gun as consideration for some drugs he wishes to sell does promote or facilitate that illegal sale.” (internal quotation marks omitted)); see also United States v. Dolliver, 228 F. App’x 2, 3 (1st Cir. 2007) (recognizing the “growing consensus” that trading drugs for weapons constitutes possession in furtherance of a drug trafficking crime under section 924(c)(1)(A)); cf. United States v. Bobb, 471 F.3d 491, 496 (3d In referring to this dicta, Watson stated, “[t]his view may or may not prevail, and we do not speak to it today . . . .” 552 U.S. at 83. Cir. 2006) (“In this Circuit, bartering crack cocaine for a gun is not a violation of 18 U.S.C. § 924(c)(1)(A) if the defendant did not actively solicit the barter of drugs for a gun.”). Against our suggestion in Cox and this large body of persuasive precedent, Gardner and Gladden raise two challenges. First, they argue that the act of acquiring the gun with drugs (the drug trafficking crime in this case) precedes possession and therefore cannot establish the crime of possession “in furtherance of” a drug trafficking crime. They emphasize the Supreme Court’s admonition in Watson that we need to give statutory language its commonly used meaning—“as we normally speak it,” see 552 U.S. at 79, and contend that when one does so, it is clear that whether a defendant possesses a firearm in furtherance of a drug trafficking crime cannot depend on whether he acquired the firearm with drugs or cash. A plain language reading, however, leads to the opposite conclusion. First, Gardner and Gladden did possess the guns. Not only is this conclusion obvious, but we have held that “receipt of guns for drugs . . . involves the ‘possession’ of a firearm” for the purposes of section 2D1.1(b)(1) of the Sentencing Guidelines. See United States v. Smythe, 363 F.3d 127, 129 n.1 (2d Cir. 2004). Second, Gardner and Gladden’s possession of the guns furthered a drug trafficking crime. But for their possession of the guns, they would not have sold the crack cocaine to the gun seller. See Mahan, 586 F.3d at 1188 (citing “the common sense proposition that when one accepts a gun in exchange for drugs, the gun is an integral part of the drug sale because without the gun— the ‘currency’ for the purchase— the drug sale would not take place.”); Frederick, 406 F.3d at 764 (“As a matter of logic, a defendant’s willingness to accept possession of a gun as consideration for some drugs he wishes to sell does promote or facilitate that illegal sale.” (internal quotation marks omitted)). This case is readily distinguishable from Watson, because while it is not natural to say that a person who trades drugs for guns “uses” the guns in the transaction, it is natural to say that a person who trades drugs for guns “possesses” the guns “in furtherance of” the transaction. Moreover, the nexus is particularly close in this case because Gardner and Gladden acquired the guns for one ounce of crack cocaine, and, presumably because this quantity of crack cocaine was worth more than the guns, instructed the seller of the guns to pay them $200 after raising the money by selling the crack cocaine. Thus, their possession of the guns promoted further drug trafficking in addition to the transaction itself. Gardner and Gladden also argue that their case is distinguishable from Luke-Sanchez, Frederick, and Boyd because the focus of the transaction here was on acquiring guns, not selling drugs. The facts show that the gun seller preferred cash, but eventually agreed to accept drugs; thus, according to Gardner and Gladden, that the drugs became a part of the deal was a mere fortuity and any relation the transaction had to drugs was incidental and not furthered by possession of the guns. They urge this Court to adopt a test based on the “focus of the transaction” and contend that Watson provides support for their argument that the purpose and direction of the transaction matter. As an initial matter, we do not agree with Gardner and Gladden that in Luke-Sanchez and Frederick, the focus of the transaction was the selling of drugs and not the acquisition of guns. In Luke-Sanchez, the transaction originated when the defendant “asked . . . about the possibility of obtaining firearms.” 483 F.3d at 704. Likewise, in Frederick, the gun seller desired cash for the transaction and the defendant “dickered with [the gun seller] and convinced him to take marijuana in partial trade for the gun.” 406 F.3d at 764. Mahan also regarded a transaction which began when a person “offered to sell several stolen firearms” to the defendant. 586 F.3d at 1186. More importantly, the statutory language does not support the distinction Gardner and Gladden urge. Whether a person who acquires a gun with drugs does so in order to obtain the gun (as Gardner and Gladden did) or to sell drugs, that person furthers the sale of the drugs by possessing the gun because, in either case, but for the possession of the gun, the sale of drugs would not have occurred. We decline to adopt a “focus of the transaction” test. We join our sister circuits in concluding that when a defendant acquires a firearm using drugs as payment, he possesses that firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). We therefore conclude that the district court appropriately instructed the jury that they could find that a given defendant possessed a firearm in furtherance of the drug conspiracy if the jury unanimously concluded beyond a reasonable doubt that the defendant acquired a firearm with drugs involved in the conspiracy. We also conclude that there was sufficient evidence to support Gardner and Gladden’s convictions under this statute because a rational trier of fact could have found that they acquired firearms using drugs as payment. See United States v. Aguilar, 585 F.3d 652, 656 (2d Cir. 2009). IV For the foregoing reasons and the reasons stated in the companion summary order, we AFFIRM the district court’s judgment of conviction.

09-0485-cr USA v. Santana (Culbertson) 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term 2009 4 (Submitted: October 7, 2009 Decided: March 10, 2010) 5 Docket No. 09-0485-cr 6 UNITED STATES OF AMERICA, 7 Appellee, 8 - v. - 9 TROY CULBERTSON, 10 Defendant-Appellant.* 11 Before: MINER, CABRANES, Circuit Judges, and RAKOFF,** District Judge. 12 Charged in a superseding indictment with various narcotics offenses, defendant-appellant 13 moves this Court pro se for leave to proceed in forma pauperis and for appointment of counsel to 14 pursue his interlocutory appeal from an order of the United States District Court for the Eastern 15 District of New York (Johnson, J.) denying his motions: to dismiss the indictment for 16 violation of the right to a speedy trial; for appointment of new counsel; and for a psychiatric 17 evaluation. The appealability of an order denying defendant’s motion seeking appointment of 18 new counsel and of an order denying a psychiatric examination are questions of first impression 19 in our Court. 20 Appeal dismissed, nostra sponte, for lack of appellate jurisdiction, and the motions 21 addressed to this Court are denied as moot. * The Clerk of the Court is directed to amend the official caption in this case to conform to the listing of the parties above. ** The Honorable Jed Rakoff, District Judge, United States District Court for the Southern District of New York, sitting by designation. 1 Troy Culbertson, pro se, Brooklyn, New York. 2 Stephen J. Meyer, Assistant United States Attorney (Benton 3 J. Campbell, United States Attorney), United States 4 Attorney’s Office, Eastern District of New York, Brooklyn, 5 New York, for Appellee. 6 MINER, Circuit Judge: 7 Defendant-appellant Troy Culbertson (“Culbertson” or “defendant-appellant”), charged in 8 a superseding indictment with various narcotics offenses, moves this Court pro se for leave to 9 proceed in forma pauperis and for appointment of counsel to pursue his interlocutory appeal from 10 an order of the United States District Court for the Eastern District of New York (Johnson, J.). 11 By that order, the district court denied Culbertson’s motions: for dismissal of the indictment for 12 violation of the right to a speedy trial under the Speedy Trial Act of 1974, as amended, 18 U.S.C. 13 § 3161 et seq (“Speedy Trial Act”); for appointment of new counsel; and for a psychiatric 14 evaluation. The appealability of an order denying defendant’s motion seeking appointment of 15 new counsel and of an order denying a psychiatric examination are questions of first impression 16 in our Court. For the reasons given below, we dismiss the appeal nostra sponte for lack of 17 appellate jurisdiction and deny the motions addressed to this Court as moot. 18 BACKGROUND 19 Culbertson was arrested by agents of the United States Bureau of Immigration and 20 Customs Enforcement (“ICE”) on January 10, 2008, at approximately 1:30 p.m. in the lobby of 21 Terminal 4 of the JFK Airport in New York City. The occasion of his arrest was his meeting 22 with Patricia Lancaster (“Lancaster”), who was then known to be carrying controlled substances 23 consisting of heroin and cocaine in her various items of luggage. In a complaint filed later that 1 day by ICE Special Agent John Lattuca, Lancaster and Culbertson were charged with conspiracy 2 to import into the United States 100 grams or more of a substance containing heroin and five 3 kilograms or more of a substance containing cocaine, all in violation of 21 U.S.C. § 952(a). 4 According to the complaint, Culbertson was advised of his Miranda rights following his arrest 5 and thereafter “stated, in sum and substance, that he was aware that LANCASTER had traveled 6 from Trinidad to the United States transporting narcotics, and that he had introduced 7 LANCASTER to the two individuals with whom LANCASTER agreed to transport narcotics 8 into the United States.” The complaint included the following statement by Agent Lattuca: 9 “Because the purpose of this Complaint is to state only probable cause to arrest, I have not 10 described all the relevant facts and circumstances of which I am aware.” 11 On the day of his arrest, an order of detention was issued for Culbertson by Magistrate 12 Judge Marilyn D. Go, and, on January 18, 2008, Culbertson appeared before Magistrate Judge 13 Ramon E. Reyes, Jr. for further proceedings. At that time, Judge Reyes relieved Federal 14 Defender Mildred Whalen as counsel for Culbertson and appointed CJA panel member John F. 15 Kaley to represent Culbertson. At a status conference hearing held before then-Magistrate Judge 16 Kiyo A. Matsumoto on February 6, 2008, Mr. Kaley was relieved as counsel at Culbertson’s 17 request, and CJA panel member Julie Clark was appointed to represent Culbertson. The 18 occasion for the substitution was Mr. Kaley’s statement to the court that Culbertson had “a 19 different plan and strategy [from that proposed by Kaley] and said he would like a new lawyer.” 20 On the same day, with new counsel Ms. Clark present, Culbertson applied to exclude the period 21 from February 6, 2008, until March 7, 2008, from the Speedy Trial Act computation to allow for 22 the conduct of plea negotiations. Judge Matsumoto granted the application, ordered the 1 exclusion and directed that an indictment be filed at the end of the excluded period. 2 A superseding indictment was filed as directed on March 7, 2008, and named Culbertson 3 and four others as defendants. Culbertson was charged in four of the seven counts of the 4 indictment. In Count One, he was charged, along with David Simpson, Sheldon Holder and 5 Patricia Lancaster, with conspiracy to import heroin and cocaine, in violation of 21 U.S.C. § 6 952(a). In Count Two, he was charged, along with Holder and Lancaster, with conspiracy to 7 possess with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 846. Together 8 with Holder and Lancaster, Culbertson was charged in Count Five with importation of heroin and 9 cocaine, in violation of 21 U.S.C. § 952(a), and in Count Seven, which also named Holder as a 10 defendant, with attempt to possess heroin and cocaine, in violation of 21 U.S.C. § 846. 11 On March 20, 2008, Culbertson was arraigned on the superseding indictment before 12 Magistrate Judge Reyes, and a plea of not guilty was entered on his behalf. At that time, a status 13 conference was set for March 29, 2008, before United States District Judge Sterling Johnson, Jr. 14 On March 28, the district court set a date for the making of motions by defendants and for 15 responses by the government, excluded the period of March 28, 2008, through May 15, 2008, for 16 speedy trial computation purposes, and continued the case for a further status conference to May 17 15, 2008, as to various defendants including Culbertson. By letter dated March 31, 2008, 18 Attorney Clark notified Culbertson that she would not file a motion he had prepared “because it 19 is frivolous” and that she would be seeking removal as his counsel for “abusive behavior during 20 several of our attorney-client meetings.” 21 Culbertson filed a motion pro se to dismiss the indictment on April 3, 2008. The 22 gravamen of his motion was that the government failed to properly and timely indict him. His 1 claim was that he was not named in the original indictment and that his superseding indictment 2 was therefore not appropriate. However, as the government noted, and as the district court 3 explained in its Memorandum and Order filed on May 23, 2008, the superseding indictment was 4 the initial indictment as to him, because it was the first and only indictment in which he was 5 named. As far as timeliness, Culbertson was in fact indicted within the thirty-day period after 6 arrest as required by the Speedy Trial Act. See 18 U.S.C. § 3161(b). He was arrested on January 7 10, 2008, and on February 6, 2008, the magistrate judge ordered the exclusion of time until 8 March 7, 2008, the date the indictment was in fact filed. Accordingly, for Speedy Trial Act 9 purposes, only twenty-eight days passed between arrest and indictment. In view of the foregoing, 10 the court also rejected Culbertson’s claim that the absence of an original indictment caused him 11 to have insufficient notice of the crimes charged. 12 At a conference hearing held before Judge Johnson on April 4, 2008, the court granted the 13 application of Attorney Clark to be relieved as counsel, appointed CJA panel member Allen 14 Lashley as counsel for Culbertson, directed Attorney Clark to remain as counsel until new 15 counsel was in place, and adjourned the proceedings until April 10, 2008. On that date, 16 Culbertson appeared before Judge Johnson with attorneys Lashley and Clark. Clark reported that 17 all materials had been turned over to Lashley, and the court finally relieved her as counsel. The 18 court recognized that new counsel needed adequate time to review the case and scheduled a 19 status conference for all defendants for May 15, 2008. The court’s minutes for May 15, 2008, 20 take note of the denial of Culbertson’s pro se motion and include the following: 21 2nd call for Defendant Troy Culbertson. . . . Defense counsel [Lashley] indicates 22 defendant has fired counsel because . . . he will not file a motion to dismiss 23 indictment. . . . Court will not relieve counsel. Defendant will proceed pro se if he 1 so wishes. Counsel will remain as standby to assist and advise. . . . Govt’s request 2 for competency evaluation of defendant is DENIED. 3 A further status conference was scheduled for June 27, 2008. 4 By motions filed on June 12, 2008, Culbertson sought “dismissal of indictment, . . . 5 appointment of counsel [and] determination of medical competency to stand trial.” With respect 6 to his motion to dismiss the indictment, Culbertson once again advanced the argument that he 7 was not indicted within thirty days of his arrest, contending, inter alia, that he was “tricked into 8 waiving constitutional rights.” In support of his Speedy Trial Act violation argument, Culbertson 9 cited to Zedner v. United States, 547 U.S. 489 (2006), and United States v. Ramirez-Cortez, 213 10 F.3d 1149 (9th Cir. 2000). In seeking appointment of new counsel, Culbertson alleged that he 11 “does not want to proceed pro se and never did.” As to his previous counsel, Culbertson asserted 12 that “Mrs. Walen (sic) had to resign for a conflict of interest, Mr. Kaley wanted me to waive my 13 indictment and he was dismissed and Ms. Clark would not file a motion.” The moving papers 14 included no allegations regarding Mr. Lashley. In support of his motion for psychiatric 15 evaluation, Culbertson asserted that he “was receiving a disability check for the past 7 yrs. 16 approx.” and “does not know what his mental disease or defect is.” In this regard, he noted that 17 he “spent 18 yrs. in state prison from 18 yrs. old.” 18 In a letter dated July 11, 2008, responding to Culbertson’s motion, the government 19 observed that the district court had previously ruled on the same Speedy Trial Act claim. The 20 government again pointed out that Culbertson was properly indicted within thirty days of his 21 arrest, taking into account the time excluded by the Speedy Trial Act pursuant to his agreement 22 for the exclusion of time in an effort to enable the parties to resolve the charges against 1 Culbertson by a plea bargain. The government argued that Zedner, cited by Culbertson, was 2 inapposite because the Supreme Court there held that a “waiver ‘for all time’ was ineffective” 3 under the provisions of the Speedy Trial Act and no such waiver occurred in the case at bar. 4 Ramirez-Cortez, also cited by Culbertson, was also characterized as inapposite by the 5 government because there the Court concluded that the magistrate judge failed to make the 6 findings necessary to exclude delay while, here, the magistrate judge determined that the interests 7 of justice would be served by excluding time and would outweigh the best interests of both the 8 public and Culbertson. That determination was based on the magistrate judge’s understanding 9 that plea negotiations were ongoing and that the parties would need time to prepare for trial if the 10 negotiations were not successful. The government’s letter stated that it “takes no position as to 11 appointment of counsel or as to the defendant’s request for a psychiatric evaluation.” 12 In a Memorandum and Order filed on September 29, 2008, the district court denied all 13 three of Culbertson’s pro se motions. The court reiterated its determination that the claim of 14 speedy trial violation was without merit in light of Culbertson’s consent to a thirty-day exclusion 15 of time to allow for plea negotiations and a finding that the interests of justice would be served 16 thereby. Because Culbertson was arrested on January 10, 2008, and the agreed upon exclusion 17 commenced on February 6, 2008, twenty-seven days after the arrest, the thirty-day period did not 18 expire until March 7, 2008, the date on which Culbertson was indicted. With regard to 19 appointment of new counsel, the court observed that an indigent person facing criminal charges 20 cannot be afforded counsel of his choice solely because he is dissatisfied with court-appointed 21 counsel. Referring to its “broad discretion” in such matters, the court determined that Culbertson 22 would proceed pro se with Mr. Lashley to serve in an advisory capacity. In rejecting the motion 1 for a psychiatric evaluation, the court found that Culbertson “appears lucid, rational, and able to 2 comprehend the events of each proceeding.” Because there was no factual showing of probable 3 cause for a psychiatric examination of Culbertson, the court concluded that such an examination 4 was not warranted. 5 In an undated letter received in this Court on January 22, 2009, Culbertson stated that he 6 was “writing in regards to my Interlocutory Appeal I filed in this court about or around 7 November or Dec. of 08.” In the letter, Culbertson requested “a copy of the Docket Entries” and 8 states that he had “filed an Interlocutory [Appeal] on the denial of my motion to dismiss the 9 indictment . . . in the district court.” By letter dated January 30, 2009, the Clerk of this Court 10 transmitted Culbertson’s letter to the district court, designating it as a Notice of Appeal 11 “mistakenly sent to the Court of Appeals.” The district court received Culbertson’s letter on 12 February 5, 2009, and deemed it filed as an Interlocutory Notice of Appeal on January 22, 2009. 13 ANALYSIS 14 I. Timeliness of the Notice of Appeal 15 A defendant’s notice of appeal in a criminal case must be filed within ten days after the 16 entry of the order being appealed. Fed. R. App. P. 4(b)(1)(A)(i) (effective through Dec. 1, 2009). 17 However, the district court, upon a showing of excusable neglect or good cause, may extend the 18 time for filing a notice of appeal for a period not to exceed thirty days “from the expiration of the 19 time otherwise prescribed by this Rule 4(b).” Fed. R. App. P. 4(b)(4). In addition, this Court has 20 directed district courts to treat a notice of appeal filed after the ten-day deadline as a request for 21 an extension if it was filed within the additional thirty-day period for requesting an extension. 22 See United States v. Batista, 22 F.3d 492, 493 (2d Cir. 1994) (per curiam). It is unclear in the 1 present case when Culbertson filed his notice of appeal, given the indication in his January 2009 2 letter that he filed it in November or December of 2008. However, we have held that Rule 4(b) is 3 not jurisdictional, see United States v. Frias, 521 F.3d 229, 234 (2d Cir. 2008), and, given that 4 Culbertson’s appeal must be dismissed in any event, we decline to inquire further into the 5 timeliness of the notice of appeal. 6 II. The Rule of Finality 7 The rule of finality is embodied in 28 U.S.C. § 1291, which provides that “[t]he courts of 8 appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the 9 United States.” (emphasis supplied). A final order is said to “end[] the litigation on the merits 10 and leave[] nothing for the court to do but execute the judgment.” Coopers & Lybrand v. 11 Livesay, 437 U.S. 463, 467 (1978) (internal quotation marks omitted). There are limited 12 exceptions to the rule of finality. Pursuant to 28 U.S.C. § 1292(a), courts of appeals are afforded 13 jurisdiction over certain interlocutory orders pertaining to injunctions, receivers and admiralty 14 matters. Discretionary jurisdiction is conferred upon courts of appeals, pursuant to 28 U.S.C. § 15 1292(b), to consider interlocutory orders where the district judge is “of the opinion that such 16 order involves a controlling question of law as to which there is substantial ground for difference 17 of opinion and that an immediate appeal from the order may materially advance the ultimate 18 termination of the litigation.” In multi-claim or multi-party actions, Federal Rule of Civil 19 Procedure 54(b) permits appeals from partial final judgments where the district court has 20 “direct[ed] entry of a final judgment as to one or more, but fewer than all, claims or parties” upon 21 the “express[] determin[ation] that there is no just reason for delay.” See, e.g., United States v. 22 Stanley, 483 U.S. 669, 673 (1987). 1 A judicially created exception to the rule of finality was put forth in Cohen v. Beneficial 2 Industrial Loan Corp., 337 U.S. 541 (1949). There, the “collateral order doctrine” was 3 established to permit appeals from a limited class of orders “which finally determine claims of 4 right separable from, and collateral to, rights asserted in the action,” and “too important” and 5 “too independent” of the cause of action to require entry of final judgment as a pre-condition. Id. 6 at 546. The Supreme Court later elucidated the collateral order doctrine by setting forth the three 7 separate conditions required for its application: the order from which the appeal is sought must 8 (1) “conclusively determine the disputed question,” (2) “resolve an important issue completely 9 separate from the merits of the action,” and (3) “be effectively unreviewable on appeal from a 10 final judgment.” Coopers & Lybrand, 437 U.S. at 468; see also Mohawk Indus., Inc. v. 11 Carpenter, 130 S. Ct. 599, 605 (2009) (reviewing these three conditions in holding that disclosure 12 orders adverse to the attorney-client privilege do not qualify for immediate appeal under the 13 collateral order doctrine). 14 The “[Supreme] Court has long held that the policy of Congress embodied in [28 U.S.C. 15 § 1291] is inimical to piecemeal appellate review of trial court decisions which do not terminate 16 the litigation, and that this policy is at its strongest in the field of criminal law.” United States v. 17 Hollywood Motor Car Co., 458 U.S. 263, 265 (1982) (per curiam). This is so because “undue 18 litigiousness and leaden-footed administration of justice,” the common consequences of 19 piecemeal appellate review, are “particularly damaging to the conduct of criminal cases.” Di 20 Bella v. United States, 369 U.S. 121, 124 (1962). In this regard, the Court has noted that 21 “[p]romptness in bringing a criminal case to trial has become increasingly important as crime has 22 increased, court dockets have swelled, and detention facilities have become overcrowded.” 1 Flanagan v. United States, 465 U.S. 259, 264 (1984). 2 Accordingly, the Supreme Court has applied the collateral order doctrine to permit 3 interlocutory appeals in criminal cases “only when observance of [the rule of finality] would 4 practically defeat the right to any review at all.” Cobbledick v. United States, 309 U.S. 323, 324- 5 25 (1940). To date, the Court has identified only three categories of cases that meet that 6 standard. First, in Stack v. Boyle, 342 U.S. 1 (1951), an order denying a motion to reduce bail 7 pending trial was allowed interlocutory review under the collateral order doctrine — the issue 8 there was finally resolved, was independent of the issue of guilt or innocence and would be 9 mooted if resolution were to await a judgment of conviction and sentence or acquittal. Also 10 meeting the requirements of the collateral order doctrine exception and therefore justifying 11 immediate appeal in a criminal case is an order resolving the issue of double jeopardy — the 12 assertion of the right not to be tried at all. See Abney v. United States, 431 U.S. 651 (1977). As 13 in all such immediately appealable orders, those resolving issues of double jeopardy “finally 14 resolve issues that are separate from guilt or innocence, and appellate review must occur before 15 trial to be fully effective.” Flanagan, 465 U.S. at 266. 16 The third category of criminal cases in which immediate appeal has been allowed are 17 those cases in which the Speech or Debate Clause right is raised and resolved before trial. 18 Orders resolving the right “not to be questioned” regarding legislative activities, like orders in the 19 other two categories of cases, “are truly final and collateral, and the asserted rights in all three 20 cases would be irretrievably lost if review were postponed until trial is completed.” Id. 21 More common are the criminal cases in which interlocutory appeals have been rejected. 22 For example, an order denying a motion to dismiss for prosecutorial vindictiveness was held not 1 appealable before trial. See Hollywood Motor Car Co., 458 U.S. at 270. That holding was said 2 to “reflect[] the crucial distinction between a right not to be tried and a right whose remedy 3 requires the dismissal of charges.” Id. at 269. The right not to be tried was not implicated in 4 Hollywood Motor, and the Supreme Court observed: “It is only a narrow group of claims which 5 meet the test of being ‘effectively unreviewable on appeal from a final judgment,’ and the claim 6 of prosecutorial vindictiveness is, we hold, not one of them.” Id. at 270. Similarly, in Flanagan, 7 the Court held that an order denying a motion to disqualify a law firm from multiple 8 representation of individual defendants was not appealable because “the asserted right not to 9 have joint counsel disqualified is, like virtually all rights of criminal defendants, merely a right 10 not to be convicted in certain circumstances.” 465 U.S. at 267. The collateral order exception 11 does not apply because 12 a disqualification order, though final, is not independent of the issues to be tried. 13 Its validity cannot be adequately reviewed until trial is complete. The effect of the 14 disqualification on the defense, and hence whether the asserted right has been 15 violated, cannot be fairly assessed until the substance of the prosecution’s and the 16 defendant’s cases is known. 17 Id. at 268–69. 18 Also held to be unappealable are orders denying dismissal of an indictment where the 19 dismissal is sought for failure to keep secret the identity of grand jury witnesses and persons 20 under investigation, as required by Federal Rule of Criminal Procedure 6(e). See Midland 21 Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989). The “right not to be tried” test was 22 amplified: “Only a defect so fundamental that it causes the grand jury no longer to be a grand 23 jury, or the indictment no longer to be an indictment, gives rise to the constitutional right not to 24 be tried. An isolated breach of the traditional secrecy requirements does not do so.” Id. at 802 1 (emphasis supplied). Our interpretation of Midland Asphalt led us to hold unappealable an order 2 denying a motion to dismiss an indictment and thereby to preclude a trial where the motion was 3 based on an agreement alleged to confer transactional immunity. See United States v. Macchia, 4 41 F.3d 35, 36 (2d Cir. 1994). Although a successful motion would indeed preclude trial, we 5 opined 6 that an interlocutory appeal will lie in the criminal context only where the 7 constitutional or statutory protection relied upon confers a right not to be tried, as 8 distinguished from a right to be free of some adverse action for which the remedy 9 is dismissal of the indictment. 10 Id. at 39. 11 With the foregoing in mind, we turn to the applicability of the rule of finality in the case 12 at hand. 13 III. Applicability of the Rule of Finality 14 A. To the Order Denying Dismissal for Violation of the Right to a Speedy Trial 15 Culbertson’s motion to dismiss the indictment for violation of the right to a speedy trial is 16 based on his claim of an excessive lapse of time between his arrest and his indictment. The 17 Speedy Trial Act allows a period of thirty days between arrest and indictment, see 18 U.S.C. § 18 3161(b), except for certain periods of delay permitted by statute, see id. § 3161(h). Among the 19 excluded periods of delay are those granted by the court sua sponte or at the request of a party, 20 but only upon findings “that the ends of justice served by the granting of such continuance 21 outweigh the best interests of the public and the defendant in a speedy trial.” Id. 22 § 3161(h)(7)(A). A prospective waiver of all rights under the Speedy Trial Act is not acceptable, 23 nor is a defendant’s acquiescence to a continuance sufficient compliance with the Act for an 1 ends-of-justice exclusion in the absence of specific findings. See Zedner, 547 U.S. at 501–03. 2 The harmless error rule can never be applied where the requirement for an ends-of-justice 3 continuance are not met. Despite the district court’s findings, Culbertson continues to argue that 4 his speedy trial rights have been violated. 5 The rule of finality has been applied to bar interlocutory review of orders denying 6 dismissal of indictments on speedy trial grounds. See United States v. MacDonald, 435 U.S. 7 850, 857 (1978). Reviewing its strict adherence to the rule in criminal cases, the Supreme Court 8 “decline[d] to exacerbate pretrial delay by intruding upon accepted principles of finality to allow 9 a defendant whose speedy trial motion has been denied before trial to obtain interlocutory 10 appellate review.” Id. at 863. Noting that “[f]ulfillment of this [speedy trial] guarantee would be 11 impossible if every pretrial order were appealable,” id. at 861, the Court concluded that 12 “[a]llowing an exception to the rule against pretrial appeals in criminal cases for speedy trial 13 claims would threaten precisely the values manifested in the Speedy Trial Clause,” id. at 862. 14 Addressing the “right not to be tried” argument, the Court opined that 15 the Speedy Trial Clause does not, either on its face or according to the decisions 16 of this Court, encompass a “right not to be tried” which must be upheld prior to 17 trial if it is to be enjoyed at all. It is the delay before trial, not the trial itself, that 18 offends against the constitutional guarantee of a speedy trial. 19 Id. at 861. Also entering into the Court’s reasoning was the notion that the passage of time may 20 give rise to a claim of prejudice by the defendant and “[n]ormally, it is only after trial that that 21 claim may fairly be assessed.” Id. at 860. 22 The same reasons for disallowing interlocutory appeals on Speedy Trial Clause claims 23 applies to claims under the Speedy Trial Act. As with Speedy Trial Clause claims, fulfillment of 1 the mandate of the Speedy Trial Act would be rendered impossible if every pretrial order were 2 appealable. Just as in Speedy Trial Clause cases, the Speedy Trial Act does not encompass a 3 “right not to be tried” that needs to be upheld prior to trial. And just as in Speedy Trial Clause 4 cases, any violation of the Speedy Trial Act is reviewable on appeal from a final judgment. The 5 expansion of the exceptions to the rule of finality simply is not warranted in the case of Speedy 6 Trial Act claims. Accordingly, we hold that a district court’s order denying dismissal for an 7 alleged violation of a defendant’s right to a speedy trial is not reviewable on interlocutory appeal. 8 We therefore decline to review Culbertson’s claim seeking review of such an order. 9 B. To the Order Denying Appointment of New Counsel 10 After having the services of a public defender and three other attorneys appointed by the 11 district court from the CJA panel, Culbertson once again moved for appointment of new counsel 12 in the district court. His dissatisfaction with the last three attorneys apparently stemmed from 13 their failure to conduct his defense in a manner that he thought proper. In this connection, we 14 note that “decisions concerning which legal issues will be urged on appeal are uniquely within 15 the lawyer’s skill and competence, and their resolution is ultimately left to his judgment,” Ennis 16 v. LeFevre, 560 F.2d 1072, 1075 (2d Cir. 1977), and the same is true at the trial level. In any 17 event, the district court ultimately directed that Culbertson proceed pro se with the last appointed 18 attorney, Mr. Lashley, to act as standby counsel. In his motion for appointment of a new attorney 19 that is the subject of this appeal, Culbertson asserts that he “does not want to proceed pro se and 20 never did.” In its order denying the motion, the district court relied on a rule enunciated in a 21 number of cases: “the right to counsel of choice does not extend to defendants who require 22 counsel to be appointed for them.” United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006). 1 The appealability of such an order is an open question in this Circuit. 2 Its seems to us that an order denying the appointment of counsel does not fit within the 3 collateral order doctrine so as to permit an interlocutory appeal. While the order (1) does 4 conclusively determine a disputed question and (2) resolves an issue completely separate from 5 the merits of the prosecution, it is not (3) effectively unreviewable on appeal from a final 6 judgment. See Coopers & Lybrand, 437 U.S. at 468. The order denying the appointment of 7 replacement counsel can be effectively reviewed after trial, and the claimed right to counsel here 8 does not implicate a “right not to be tried.” It certainly does not implicate a right not to be tried 9 on account of a violation of a constitutional or statutory protection. See Macchia, 41 F.3d at 39. 10 Although we have permitted interlocutory appeals of orders denying motions for 11 attorneys to withdraw as counsel, such orders meet the requirements of the collateral order 12 doctrine while orders denying the appointment of new free counsel do not. In Whiting v. Lacara, 13 187 F.3d 317 (2d Cir. 1999) (per curiam), a civil case, we found jurisdiction to resolve the appeal 14 of an attorney whose motion to withdraw was denied by the district court in the face of a showing 15 that the client “desire[d] both to dictate legal strategies to his counsel and to sue counsel if those 16 strategies [were] not followed.” Id. at 322. In finding jurisdiction, we held that “[t]he injury to a 17 counsel forced to represent a client against his will . . . is irreparable, and the district court’s 18 decision would be effectively unreviewable upon final judgment.” Id. at 320; see also id. 19 (“[O]nce a final judgment has been entered, the harm to [counsel] will be complete, and no relief 20 can be obtained on appeal.”); accord United States v. Oberoi, 331 F.3d 44, 47 (2d Cir. 2003) 21 (“Because the district court’s order conclusively determined the issue of the [Public] Defender’s 22 continued representation of [defendant] and cannot be effectively reviewed on final appeal, we 1 have jurisdiction over this interlocutory appeal [from the denial of the Public Defender’s motion 2 to withdraw for conflict of interest].”). The situation is, of course, much different where, as in 3 the instant case, a defendant-appellant has the opportunity to vindicate his claim after final 4 judgment. As such, we hold that Culbertson’s claim regarding the district court’s order denying 5 appointment of new counsel is not reviewable on this interlocutory appeal. 6 C. To the Order Denying a Psychiatric Examination 7 Finding “no factual showing of probable cause” to justify a psychiatric examination, see 8 18 U.S.C. § 4244; United States v. Oliver, 626 F.2d 254, 258 n.6 (2d Cir. 1980), the district court 9 denied Culbertson’s request for an order directing such an examination. We never have directly 10 determined that such an order denying a psychiatric examination is immediately appealable, 11 although we have alluded to that question in dictum. In United States v. Gold, 790 F.2d 235 (2d 12 Cir. 1986), we were confronted with the appeal of a pretrial order finding the defendant mentally 13 incompetent to stand trial and committing him to the custody of the Attorney General for a four- 14 month period of hospitalization pursuant to 18 U.S.C. § 4241, to determine whether it was 15 probable that the defendant would attain the capacity for trial to proceed in the foreseeable future. 16 In allowing interlocutory appeal in that case, we found sufficient finality for immediate appellate 17 review because the commitment order provided for an additional period of commitment until a 18 determination be made that the defendant was competent to stand trial or the charges were 19 disposed of. The order in Gold therefore was effectively unreviewable on appeal from a final 20 judgment since (1) there might never be a criminal trial if the defendant never were found 21 competent, resulting in no appellate review; (2) if the defendant were found competent and 22 acquitted, there would be no appellate review; and (3) if the defendant were found competent and 1 convicted, there could be appellate review “but the matter of the relief to be granted if the order 2 were found to have been erroneous would be moot.” Id. at 239. 3 The ruling appealed from in Gold was said to be “[u]nlike a ruling that the defendant is 4 competent and must proceed to trial, which could be effectively reviewed and remedied, if 5 erroneous, on appeal from any final judgment against him.” Id.; see also United States v. No 6 Runner, 590 F.3d 962, 964 (9th Cir. 2009) (“A pretrial competency order does not conclusively 7 determine the question of competency and it can be effectively reviewed following the final 8 judgment.”). We now apply the dictum in Gold to the case before us and hold that the denial of a 9 psychiatric examination, which is in effect a holding that Culbertson is competent to stand trial 10 and must proceed to trial, is not immediately appealable.1 11 IV. Conclusion 12 The appeal is dismissed for lack of jurisdiction, and Culbertson’s motion to proceed in 13 forma pauperis and for appointment of counsel in this court are denied as moot. It is so ordered. We note that the Gold dictum was followed in United States v. Barth, 28 F.3d 253 (2d Cir. 1994), which held that a “first-step” order committing a defendant for psychiatric evaluation following conviction was not appealable.

08-6090-cv Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2009 (Argued: November 24, 2009 Decided: March 10, 2010) Docket No. 08-6090-cv ----------------------------------------------------x Citigroup Global Markets, Inc., Plaintiff-Appellee, -- v. -- VCG Special Opportunities Master Fund Limited, f/k/a CDO Plus Master Fund Limited, Defendant-Appellant. -----------------------------------------------------x B e f o r e : FEINBERG, WALKER, KATZMANN, Circuit Judges. 1 VCG Special Opportunities Master Fund Limited (“VCG”) 2 appeals from an order of the United States District Court for the 3 Southern District of New York (Barbara S. Jones, Judge) granting 4 plaintiff-appellee Citigroup Global Markets, Inc.’s (“CGMI”) 5 motion for a preliminary injunction and enjoining VCG from 6 proceeding with an arbitration initiated against CGMI before the 7 Financial Industry Regulatory Authority. VCG also appeals the 8 district court’s order denying its motion for reconsideration. 9 We hold that this circuit’s “serious questions” standard for the 10 consideration of a motion for a preliminary injunction remains 11 valid in the wake of recent Supreme Court opinions clarifying the 1 requirements and burdens placed on a party seeking a preliminary 2 injunction. We further hold that, in applying that standard to 3 CGMI’s motion, the district court did not abuse its discretion in 4 granting the requested injunction. We therefore AFFIRM the 5 district court’s orders granting the preliminary injunction and 6 denying VCG’s motion for reconsideration. 7 AFFIRMED. 8 STEVEN G. MINTZ (Terence W. 9 McCormick and Joshua H. 10 Epstein, on the brief), Mintz 11 & Gold LLP, New York, NY, for 12 Defendant-Appellant. 14 ALLAN J. ARFFA (Karen R. King, 15 on the brief), Paul, Weiss, 16 Rifkind, Wharton & Garrison 17 LLP, New York, NY, for 18 Plaintiff-Appellee. 20 JOHN M. WALKER, JR., Circuit Judge: 21 VCG Special Opportunities Master Fund Limited (“VCG”) 22 appeals from the November 12, 2008 order of the United States 23 District Court for the Southern District of New York (Barbara S. 24 Jones, Judge) granting the plaintiff-appellee Citigroup Global 25 Markets, Inc.’s (“CGMI”) motion for a preliminary injunction and 26 enjoining VCG from proceeding with an arbitration initiated 27 against CGMI before the Financial Industry Regulatory Authority 28 (“FINRA”). VCG also appeals from the district court’s May 29, 29 2009 order denying its motion for reconsideration of the 30 preliminary injunction. Because we conclude that the “serious 1 questions” standard for assessing a movant’s likelihood of 2 success on the merits remains valid in the wake of recent Supreme 3 Court cases, and because neither the district court’s assessment 4 of the facts nor its application of the law supports a finding of 5 abuse of discretion, we AFFIRM as to both orders. 6 BACKGROUND 7 On July 17, 2006, VCG, a hedge fund based on the Isle of 8 Jersey, entered into a brokerage services agreement with CGMI. 9 Under the agreement, CGMI was obligated to provide prime 10 brokerage services by clearing and settling trades in fixed 11 income securities for VCG. VCG then entered into a credit 12 default swap agreement with Citibank, N.A. (Citibank) (a sister- 13 affiliate of appellee CGMI under the corporate umbrella of 14 Citigroup, Inc.). VCG alleges that it was a “customer” of CGMI, 15 which allegedly acted as the middleman with respect to the series 16 of transactions culminating in the credit default swap agreement 17 with Citibank. After entering into the swap, Citibank eventually 18 declared a writedown of the assets covered in its credit default 19 swap agreement with VCG, triggering VCG’s obligation to pay 20 Citibank a total of $10,000,000. 21 VCG sued Citibank, seeking a declaration that, by declaring 22 the writedown, Citibank had violated the terms of the parties’ 23 credit default swap agreement. The district court found in 24 Citibank’s favor and also found that VCG was in breach of the 1 agreement by failing to fulfill its payment obligation. VCG 2 Special Opportunities Master Fund Ltd. v. Citibank, N.A., 594 F. 3 Supp. 2d 334 (S.D.N.Y. 2008), aff’d, No. 08-5707, 2009 WL 4576542 4 (2d Cir. Dec. 8, 2009). 5 In addition to litigating its claims against Citibank, VCG 6 began arbitration proceedings against CGMI before the FINRA 7 pursuant to FINRA Rule 12200.1 In response, CGMI filed a 8 complaint in the district court to permanently enjoin the 9 arbitration and for a declaration that CGMI had no obligation to 10 arbitrate with VCG regarding the claims submitted to the FINRA 11 arbitrators. On June 20, 2008, CGMI moved for a temporary 12 restraining order and preliminary injunction against the FINRA 13 arbitration pending a final resolution of CGMI’s claims. CGMI 14 asserted that it was not a party to, and did not broker, the VCG- 15 Citibank credit default swap. Compl. ¶ 3. Specifically, CGMI 16 argued that VCG was not a “customer” of CGMI for purposes of 17 those transactions and, therefore, CGMI was under no obligation 18 to arbitrate VCG’s claims under the FINRA rules. 19 In opposition to the preliminary injunction motion, VCG 20 submitted a declaration stating that “CGMI recommended and set In relevant part, FINRA Rule 12200 requires members of the FINRA to arbitrate the disputes pursuant to the FINRA Code of Arbitration Procedure if arbitration is “requested by [a] customer,” “[t]he dispute is between a customer and a member or associated person of a member,” and “[t]he dispute arises in connection with the business activities of the member.” 1 the terms for” the credit default swap and that VCG’s employees 2 had “dealt with several CGMI representatives in connection with 3 the transaction, but most often with Jeff Gapusan, Donald 4 Qu[i]ntin, and Jaime Aldama.” Wong Decl. ¶ 7.2 The declaration 5 further stated that “[t]he terms of the contract were negotiated 6 directly with [a] CGMI employee, Jeff Gapusan, who acted as 7 liaison for the trading desk at CGMI.” Id. at ¶ 19; see also 8 Gruber Decl., Ex. B (FINRA records listing the three men 9 identified by Wong as the go-betweens on the Citibank deal as 10 employees of CGMI). 11 In arguing that it had not acted as a middleman for the VCG- 12 Citibank credit default swap and that VCG was not its “customer,” 13 CGMI contended that the people identified by VCG as its CGMI 14 contacts were acting as agents of Citibank rather than CGMI, 15 though they were formally employed by CGMI at the time of the 16 VCG-Citibank negotiations. Vogeli Decl. ¶ 6. CGMI also 17 submitted a copy of VCG’s initial disclosures, from VCG’s action The declaration stated that “the fee to be paid to CGMI was 5.5% per annum, calculated on the ‘notional amount’ of $10,000,000 of the collateralized debt obligation, Millstone. . . . In return, VCG agreed to pay CGMI only upon the occurrence of a credit event.” Wong Decl. ¶ 19. The declaration misstates the parties to, and obligations provided in, the credit default swap agreement. As each of the documents underlying the swap agreement demonstrates, and contrary to the statements in Wong’s declaration, Citibank, not CGMI, was the party with whom VCG contracted, and VCG, not CGMI, was to be paid 5.5% per annum. See Arffa Decl., Exs. 1-5. 1 against Citibank, in which VCG had listed Jeff Gapusan and Donald 2 Quintin as trading personnel employed by Citibank, not CGMI. 3 Arffa Decl., Ex. 6.3 4 On November 12, 2008, the district court granted CGMI’s 5 motion for a preliminary injunction. In granting the injunction, 6 the district court applied this circuit’s long-established 7 standard for the entry of a preliminary injunction, under which 8 the movant is required to show “‘irreparable harm absent 9 injunctive relief, and either a likelihood of success on the 10 merits, or a serious question going to the merits to make them a 11 fair ground for trial, with a balance of hardships tipping 12 decidedly in plaintiff’s favor.’” Citigroup Global Mkts. Inc. v. 13 VCG Special Opportunities Master Fund Ltd., No. 08-cv-5520, 2008 14 WL 4891229, at *2 (S.D.N.Y. Nov. 12, 2008) (quoting Almontaser v. 15 N.Y. City Dep’t of Educ., 519 F.3d 505, 508 (2d Cir. 2008)). 16 The district court held that CGMI had demonstrated a likelihood 17 of irreparable harm, but had failed to make a showing of Following oral argument on CGMI’s motion for a preliminary injunction, VCG filed a supplemental initial disclosure in its case against Citibank and submitted the new disclosure to the district court in this case. The supplemental disclosure lists Gapusan and Quintin as employees of CGMI. VCG Sur-Reply in Opp’n to Mot. for Prelim. Inj., Ex. A. The district court noted that the original disclosures were “not judicial admissions demonstrating that VCG knew that it was dealing with Citibank [and not CGMI],” but also that the disclosures gave the court reason to pause when considering VCG’s understanding of the three relevant employees’ roles at the time VCG interacted with them. Citigroup Global Mkts. Inc. v. VCG Special Opportunities Master Fund Ltd., No. 08-cv-5520, 2008 WL 4891229, at *5 (S.D.N.Y. Nov. 12, 2008). 1 “probable success” on the merits based on its claim that there 2 was no customer relationship between CGMI and VCG with respect to 3 the credit default swap transactions. Id. at *2, *4. The 4 district court found, however, that CGMI had provided evidence 5 that raised “serious questions” as to whether VCG was in fact a 6 customer of CGMI with respect to the swap transaction and granted 7 the preliminary injunction on that basis. Id. at *5-*6. 8 The district court further noted that, while some prior 9 cases have required arbitration under the FINRA rules for claims 10 involving non-securities, those cases “dealt in large part with 11 individual brokers’ fraudulent conveyances or investments, where 12 there is a strong policy argument favoring arbitration.” Id. 13 The district court concluded that, “in light of the undefined 14 scope of Rule [12200's ‘business activities’ prerequisite and its 15 application to cases not involving securities transactions,] and 16 the unique set of facts before the Court,” CGMI had presented 17 legal and factual issues that made its assertions a “fair ground 18 for litigation.” Id. at *6. Finally, the district court found 19 that the balance of hardships tipped decidedly in CGMI’s favor 20 given that an injunction would simply freeze the arbitration 21 without destroying VCG’s ability to continue that arbitration in 22 the event that the district court determined that the dispute 23 fell within the scope of the FINRA rules. Id. 24 On May 29, 2009, the district court denied VCG’s motion for 1 reconsideration, rejecting VCG’s argument that Winter v. Natural 2 Resources Defense Council, Inc., 129 S. Ct. 365 (2008), had 3 eliminated the “serious questions” prong of this circuit’s 4 preliminary injunction standard. 5 This appeal followed. 6 DISCUSSION 7 This Court reviews the grant of a preliminary injunction for 8 abuse of discretion. See Almontaser, 519 F.3d at 508; Grand 9 River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 10 2007). “A district court abuses its discretion when it rests its 11 decision on a clearly erroneous finding of fact or makes an error 12 of law.” Almontaser, 519 F.3d at 508. 13 VCG first contends that the district court abused its 14 discretion by applying the wrong legal standard to CGMI’s request 15 for a preliminary injunction. VCG argues that three recent 16 decisions of the Supreme Court–Munaf v. Geren, 128 S. Ct. 2207 17 (2008); Winter, 129 S. Ct. 365; and Nken v. Holder, 129 S. Ct. 18 1749 (2009)–have eliminated this circuit’s “serious questions” 19 standard for the entry of a preliminary injunction, and that, in 20 light of the district court’s finding that CGMI failed to 21 demonstrate its likelihood of success on the merits, the entry of 22 a preliminary injunction in this case must be reversed. In the 23 alternative, VCG argues that even if this circuit’s standard for 24 a preliminary injunction remains intact, the district court 1 committed several legal errors in determining that CGMI had 2 presented “serious questions” as to the arbitrability of VCG’s 3 claims. 4 Winter articulates the following standard for issuing a 5 preliminary injunction: 6 A plaintiff seeking a preliminary injunction must establish 7 that he is likely to succeed on the merits, that he is 8 likely to suffer irreparable harm in the absence of 9 preliminary relief, that the balance of equities tips in his 10 favor, and that an injunction is in the public interest. 12 Winter, 129 S. Ct. at 374; see also Munaf, 128 S. Ct. at 2219; 13 Nken, 129 S. Ct. at 1761. Although not stated explicitly in its 14 briefs, we take VCG’s position to be that the standard 15 articulated by these three Supreme Court cases requires a 16 preliminary injunction movant to demonstrate that it is more 17 likely than not to succeed on its underlying claims, or in other 18 words, that a movant must show a greater than fifty percent 19 probability of success on the merits. Thus, according to VCG, a 20 showing of “serious questions” that are a fair ground for 21 litigation will not suffice. See VCG Br. 23-25 (describing the 22 required showing as a “probability” of success, as opposed to a 23 “possibility”). 24 I. The Continued Viability of the “Serious Questions” Standard 25 For the last five decades, this circuit has required a party 26 seeking a preliminary injunction to show “(a) irreparable harm 27 and (b) either (1) likelihood of success on the merits or (2) 1 sufficiently serious questions going to the merits to make them a 2 fair ground for litigation and a balance of hardships tipping 3 decidedly toward the party requesting the preliminary relief.” 4 Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 5 (2d Cir. 1979); accord Almontaser, 519 F.3d at 508; Checker 6 Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2d Cir. 1969); 7 Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d 8 Cir. 1953).4 The “serious questions” standard permits a district We have recognized three limited exceptions to this general standard, none of which is relevant here. First, [W]here the moving party seeks to stay government action taken in the public interest pursuant to a statutory or regulatory scheme, the district court should not apply the less rigorous [“serious questions”] standard and should not grant the injunction unless the moving party establishes, along with irreparable injury, a likelihood that he will succeed on the merits of his claim. Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995) (first alteration in original) (quoting Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989)). Second, “[a] heightened ‘substantial likelihood’ standard may also be required when the requested injunction (1) would provide the plaintiff with ‘all the relief that is sought’ and (2) could not be undone by a judgment favorable to defendants on the merits at trial.” Mastrovincenzo v. City of New York, 435 F.3d 78, 90 (2d Cir. 2006) (quoting Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 34-35 (2d Cir. 1995)). Third, a “mandatory” preliminary injunction that “alter[s] the status quo by commanding some positive act,” as opposed to a “prohibitory” injunction seeking only to maintain the status quo, “should issue ‘only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief.’” Tom Doherty Assocs., 60 F.3d at 34 (quoting Abdul Wali v. 1 court to grant a preliminary injunction in situations where it 2 cannot determine with certainty that the moving party is more 3 likely than not to prevail on the merits of the underlying 4 claims, but where the costs outweigh the benefits of not granting 5 the injunction. See, e.g., F.& M. Shaefer Corp. v. C. Schmidt & 6 Sons, Inc., 597 F.2d 814, 815-19 (2d Cir. 1979). Because the 7 moving party must not only show that there are “serious 8 questions” going to the merits, but must additionally establish 9 that “the balance of hardships tips decidedly” in its favor, 10 Jackson Dairy, 596 F.2d at 72 (emphasis added), its overall 11 burden is no lighter than the one it bears under the “likelihood 12 of success” standard. 13 The value of this circuit’s approach to assessing the merits 14 of a claim at the preliminary injunction stage lies in its 15 flexibility in the face of varying factual scenarios and the 16 greater uncertainties inherent at the outset of particularly 17 complex litigation. Preliminary injunctions should not be 18 mechanically confined to cases that are simple or easy. 19 Requiring in every case a showing that ultimate success on the 20 merits is more likely than not “is unacceptable as a general 21 rule. The very purpose of an injunction . . . is to give 22 temporary relief based on a preliminary estimate of the strength Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985)). 1 of plaintiff's suit, prior to the resolution at trial of the 2 factual disputes and difficulties presented by the case. 3 Limiting the preliminary injunction to cases that do not present 4 significant difficulties would deprive the remedy of much of its 5 utility.” 11A Charles Alan Wright, Arthur R. Miller & Mary Kay 6 Kane, Federal Practice and Procedure § 2948.3 (2d ed. 2009); see 7 also Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 113 8 (8th Cir. 1981) (en banc) (“The very nature of the inquiry on 9 petition for preliminary relief militates against a wooden 10 application of the probability test. . . . The equitable nature 11 of the proceeding mandates that the court's approach be flexible 12 enough to encompass the particular circumstances of each case. 13 Thus, an effort to apply the probability language to all cases 14 with mathematical precision is misplaced.”).5 We note that, prior to Winter, seven of the twelve regional Courts of Appeals, including this circuit and the Eighth Circuit in Dataphase, applied a preliminary injunction standard that permitted flexibility when confronting some probability of success on the merits that falls short of a strict fifty-one percent. See Lands Council v. Martin, 479 F.3d 636, 639 (9th Cir. 2007), overruled in part by Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 & n.10 (9th Cir. 2009) (recognizing that the Ninth Circuit’s previous standard as articulated in Lands Council was overruled at least with respect to the formerly permissible showing of a “possibility” of irreparable harm); Oklahoma ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 1112-13 (10th Cir. 2006); Mich. Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir. 2001); Davenport v. Int’l Broth. of Teamsters, AFL-CIO, 166 F.3d 356, 361 (D.C. Cir. 1999); Duct-O-Wire Co. v. U.S. Crane, Inc., 31 F.3d 506, 509 (7th Cir. 1994); Gen. Mills, Inc. v. Kellogg Co., 824 F.2d 622, 624-25 (8th Cir. 1987); Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co., 550 F.2d 189, 195 (4th Cir. 1 Indeed, the Supreme Court, prior to the trilogy of cases 2 cited by VCG, has counseled in favor of a preliminary injunction 3 standard that permits the entry of an injunction in cases where a 4 factual dispute renders a fully reliable assessment of the merits 5 impossible. In Ohio Oil Co. v. Conway, 279 U.S. 813 (1929), the 6 Court dealt with a factual dispute, relating to the effect on the 7 plaintiff of a state tax on oil revenues, which had to “be 8 resolved before the constitutional validity of [a] statute 1977), overruled by Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346-47 (4th Cir. 2009). On the other hand, three of our sister circuits have traditionally limited their preliminary injunction standards to the four factors cited in Winter, without reference to the possibility of obtaining an injunction based on a showing of serious questions going to the merits. See Snook v. Trust Co. of Ga. Bank of Savannah, N.A., 909 F.2d 480, 483 n.3 (11th Cir. 1990) (noting that the “serious questions” standard had not been recognized in the Eleventh Circuit); Concerned Women for Am., Inc. v. Lafayette County, 883 F.2d 32, 34 (5th Cir. 1989); In re Arthur Treacher’s Franchisee Litig., 689 F.2d 1137, 1147 n.14 (3d Cir. 1982) (rejecting the Second Circuit’s “serious questions” standard as articulated in Hamilton Watch). The First Circuit does not generally provide for the possibility of a flexible showing as to the merits, see Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir. 1993) (“In the ordinary course, plaintiffs who are unable to convince the trial court that they will probably succeed on the merits will not obtain interim injunctive relief.”), but has in the past recognized a potentially more flexible approach, see Tuxworth v. Froehlke, 449 F.2d 763, 764 (1st Cir. 1971) (“No preliminary injunction should be granted in any case unless there appears to be a reasonable possibility of success on the merits. Granted that the necessary degree of likelihood of success depends upon various considerations, we must perceive at least some substantial possibility.” (internal citation omitted)). 1 [could] be determined.” Id. at 814. Faced with this situation, 2 the Court instructed that “[w]here the questions presented by an 3 application for an interlocutory injunction are grave, and the 4 injury to the moving party [in the absence of such an injunction] 5 will be certain and irreparable . . . the injunction usually will 6 be granted.” Id.; see also Mazurek v. Armstrong, 520 U.S. 968, 7 975-76 (1997) (reversing the Ninth Circuit’s finding that movants 8 had shown a “fair chance of success on the merits,” while 9 recognizing the “fair chance” standard and its potential 10 application in future cases). 11 The Supreme Court’s recent opinions in Munaf, Winter, and 12 Nken have not undermined its approval of the more flexible 13 approach signaled in Ohio Oil. None of the three cases comments 14 at all, much less negatively, upon the application of a 15 preliminary injunction standard that softens a strict 16 “likelihood” requirement in cases that warrant it. Munaf 17 involved a preliminary injunction barring the transfer to Iraqi 18 custody of an individual captured in Iraq by the Multinational 19 Force-Iraq. Munaf, 128 S. Ct. at 2214-15. That injunction was 20 premised on “jurisdictional issues . . . so serious, substantial, 21 difficult and doubtful, as to make them fair ground for 22 litigation and thus for more deliberative investigation.” Id. at 23 2219 (emphasis and internal quotation marks omitted). The 24 Supreme Court vacated that injunction on the grounds that a 1 “likelihood of jurisdiction” was irrelevant to the preliminary 2 injunction consideration and could not substitute for a 3 consideration of the merits. The Court in Munaf simply stated 4 that a question as to a court’s jurisdiction over a claim “says 5 nothing about the ‘likelihood of success on the merits,’” id., 6 but provided nothing in the way of a definition of the phrase “a 7 likelihood of success.” See id. 8 Nor does Winter address the requisite probability of success 9 of the movant’s underlying claims. While Winter rejected the 10 Ninth Circuit’s conceptually separate “possibility of irreparable 11 harm” standard, 129 S. Ct. at 375-76, it expressly withheld any 12 consideration of the merits of the parties’ underlying claims, 13 id. at 376, 381. Rather, the Court decided the case upon the 14 balance of the equities and the public interest. 129 S. Ct. at 15 375-76, 381.6 To this extent, Winter reiterates the majority position of the circuits, including this one, that a showing of irreparable harm is fundamental to any grant of injunctive relief. See, e.g., Almontaser, 519 F.3d at 508 (“A party seeking a preliminary injunction must show irreparable harm absent injunctive relief. . . .” (internal quotation marks omitted and emphasis added)); Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 360 (4th Cir. 1991) (“The ‘balance of hardship’ test does not negate the requirement that the [plaintiff] show some irreparable harm.”), overruled on other grounds by Real Truth About Obama, 575 F.3d 342; Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982) (“Thus, the alternate test does not remove the irreparable harm requirement.”); Dataphase Sys., Inc., 640 F.2d at 114 n.9 (“This court previously noted that under any test the movant is required to show the threat of irreparable harm.”); Canal Auth. of Fla. v. Callaway, 489 F.2d 567, 574 (5th Cir. 1974) (“[W]here no 1 Finally, Nken likewise did not address the issue of a moving 2 party’s likelihood of success on the merits. Nken provides a 3 four factor standard for granting a stay pending appeal, which 4 the Court recognized as overlapping substantially with the 5 preliminary injunction standard. 129 S. Ct. at 1761. Although 6 the Court repeated the “likely to succeed on the merits” 7 phrasing, it did not suggest that this factor requires a showing 8 that the movant is “more likely than not” to succeed on the 9 merits.7 10 If the Supreme Court had meant for Munaf, Winter, or Nken to 11 abrogate the more flexible standard for a preliminary injunction, 12 one would expect some reference to the considerable history of 13 the flexible standards applied in this circuit, seven of our 14 sister circuits, and in the Supreme Court itself.8 We have irreparable injury is alleged and proved, denial of a preliminary injunction is appropriate.”). The Supreme Court implies just the opposite in Nken, which contrasts a showing of a likelihood of success with a chance of success that is only “better than negligible.” 129 S. Ct. at 1761. Because a “serious questions” showing necessarily requires more than that the chances for success are only “better than negligible,” this circuit’s “serious questions” standard does not conflict with the Supreme Court’s decision in Nken. As the Supreme Court noted in Nken, “[t]here is substantial overlap between [the factors governing a motion to stay] and the factors governing preliminary injunctions; not because the two are one and the same, but because similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined.” 129 S. Ct. at 1761 (internal citation omitted). In that light, we note that the Supreme Court followed 1 recognized this flexible standard since at least 1953, see 2 Hamilton Watch, 206 F.2d at 740, and our standard has survived 3 earlier instances in which the Supreme Court described the merits 4 prerequisite to a preliminary injunction as a “likelihood of 5 success” without specifically addressing the content of such a 6 “likelihood,” see, e.g., Doran v. Salem Inn, Inc., 422 U.S. 922, 7 932 (1975) (“The other inquiry relevant to preliminary relief is 8 whether respondents made a sufficient showing of the likelihood 9 of ultimate success on the merits.”). We have found no command 10 from the Supreme Court that would foreclose the application of 11 our established “serious questions” standard as a means of 12 assessing a movant’s likelihood of success on the merits. Our 13 standard accommodates the needs of the district courts in 14 confronting motions for preliminary injunctions in factual 15 situations that vary widely in difficulty and complexity. Thus, 16 we hold that our venerable standard for assessing a movant’s 17 probability of success on the merits remains valid and that the a flexible approach when, in recently addressing the standard for issuing a stay pending the disposition of a petition for a writ of certiorari, it stated that the grant of such a motion required a likelihood of irreparable harm, but required only a “reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari” and a “fair prospect that a majority of the Court will vote to reverse the judgment below.” Hollingsworth v. Perry, 130 S. Ct. 705, 710 (2010) (per curiam). Acknowledging the use of a sliding scale in certain situations, the Court further stated that “[i]n close cases the Circuit Justice or the Court will balance the equities and weigh the relative harms to the applicant and to the respondent.” Id. 1 district court did not err in applying the “serious questions” 2 standard to CGMI’s motion.9 3 II. The District Court’s Analysis 5 Having determined that the district court did not err by 6 applying the “serious questions” standard to CGMI’s motion for a 7 preliminary injunction, we turn to VCG’s contentions that the 8 district court misapplied that standard. VCG argues that the 9 district court erred in assessing the issue of arbitrability when 10 it (1) failed to construe the FINRA arbitration rules in favor of 11 arbitration absent “positive assurance” that VCG’s claims in fact 12 fell outside the scope of the arbitration agreement; (2) failed 13 to recognize that VCG was a “customer” of CGMI as a matter of 14 law; (3) found “serious questions” regarding whether a party 15 requesting FINRA arbitration over a non-securities transaction 16 must provide a strong policy argument in favor of arbitration; 17 and (4) inappropriately weighed the balance of hardships.10 We note that two of our sister circuits have retreated from a flexible approach in assessing the merits of a movant’s case in light of Winter. See Real Truth About Obama, 575 F.3d at 346-47; Am. Trucking Ass’ns, 559 F.3d at 1052. We think the Fourth and Ninth Circuits have misread Winter’s import. Neither party contests that arbitrability itself was an issue for the district court to decide. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (“The question whether the parties have submitted a particular dispute to arbitration, i.e., the question of arbitrability, is an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise.” (internal quotation marks omitted) (alteration in original)). 1 A. “Positive Assurance” as to Non-Arbitrability and the 2 Definition of “Customer” 4 VCG contends that our decision in John Hancock Life 5 Insurance v. Wilson, 254 F.3d 48 (2d Cir. 2001), requires the 6 district court to order the parties to arbitrate, even in the 7 face of doubts as to the scope of the arbitration provision, 8 "unless it may be said with positive assurance that the 9 arbitration clause is not susceptible of an interpretation that 10 covers the asserted dispute." Id. at 58. VCG misapplies the 11 holding of John Hancock in attacking the district court’s 12 decision. 13 John Hancock required a "positive assurance" of 14 non-arbitrability in the face of an ambiguity in the scope of the 15 arbitration provision of the NASD rules. Id. at 59-60 (finding 16 that the term “customer” in the NASD rules includes the clients 17 of an “associated person” of the firm against whom arbitration is 18 sought). In this case, however, there is no ambiguity as to the 19 scope of the FINRA rules defining the term “customer”; the only 20 unresolved question is whether, as a factual matter, VCG was 21 CGMI’s “customer” under any definition of that term. If VCG’s 22 credit default swap arrangements were never handled by an agent 23 of CGMI, acting for that purpose, then VCG was not the “customer” 24 of CGMI under any reasonable construction of that term. VCG’s 25 argument based on John Hancock is inapposite given the nature of 26 the dispute. Because the relevant question, in light of the 1 contradictions in the record, is whether VCG was a “customer” of 2 CGMI in even the broadest sense of the word, and because this 3 issue is in sharp dispute, the district court committed no error 4 of law or fact in holding that this uncertainty poses a serious 5 question going to the merits of CGMI’s claims. 6 B. Arbitrability of Disputes Involving Non-Securities 7 VCG next argues that the preliminary injunction was based in 8 part on too narrow a view of the types of disputes that are 9 arbitrable under FINRA Rule 12200. The district court held that 10 FINRA arbitration was not limited solely to disputes involving 11 “business activities” related to securities, but stated that non- 12 securities cases “have dealt in large part with individual 13 brokers’ fraudulent conveyances or investments, where there is a 14 strong policy argument favoring arbitration.” Citigroup Global 15 Mkts., Inc., 2008 WL 4891229, at *6. The district court 16 continued by stating, “[i]n light of the undefined scope of Rule 17 12200 and the unique set of facts before the Court, the Court 18 concludes that CGMI has presented legal and factual issues that 19 make its assertions a fair ground for litigation.” Id. 20 Were the application of the FINRA rules to non-securities 21 cases the sole ground on which the district court granted CGMI’s 22 motion for preliminary relief, we would be forced to confront the 23 district court’s suggested limitation of the definition of the 24 term “business activities” in non-securities cases. However, 1 because the district court correctly ruled that VCG’s customer 2 status was a serious question going to the merits, we affirm the 3 entry of the preliminary injunction even assuming an error of law 4 as to the district court’s understanding of the term “business 5 activity.” 6 C. Weighing the Balance of Hardships 8 VCG next argues that the district court failed to consider 9 that VCG would be “deprived of its right to a speedy resolution 10 of its grievance with a broker-dealer” and would have “to incur 11 the cost and expend the energy involved in litigating the 12 threshold arbitrability question.” VCG Br. 45. The district 13 court did not neglect these concerns: it expressly considered the 14 impact of delay on VCG and weighed that hardship against those 15 that would be imposed on CGMI in the absence of a preliminary 16 injunction. The district court’s balancing of those hardships 17 did not constitute an abuse of discretion. 18 CONCLUSION 19 For the foregoing reasons, we AFFIRM the district court’s 20 orders granting CGMI’s motion for a preliminary injunction and 21 denying VCG’s motion for reconsideration.

08-5937-cv Cameron v. City of New York 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ____________________________________ 4 August Term, 2009 5 (Argued: September 1, 2009 Decided: March 10, 2010) 6 Docket No. 08-5937-cv 7 ____________________________________ 8 KAREN CAMERON, SYLVIA HIGGENBOTTOM, 9 Plaintiffs-Appellants, 10 – v. – 11 THE CITY OF NEW YORK, CARMEN RAMOS, ANGEL RIVERA, SERGEANT 12 PETERSON, JOHN DOES, JANE DOES, 13 Defendants-Appellees. 14 ____________________________________ 15 Before: CALABRESI, CABRANES, and HALL, Circuit Judges. 16 ____________________________________ 17 Plaintiffs-Appellants Karen Cameron and Sylvia Higgenbottom appeal from an order granting 18 judgment to Defendants-Appellees Carmen Ramos, Angel Rivera, and the City of New York 19 following a jury verdict in Appellees’ favor, in Appellants’ suit for false arrest and malicious 20 prosecution. The United States District Court for the Southern District of New York (Paul A. 21 Crotty, Judge) denied Appellants’ post-trial motions for judgment as a matter of law or for a new 22 trial. Although we AFFIRM the denial of the motion for judgment as a matter of law, we 23 VACATE and REMAND the case for a new trial in light of improper opinion testimony as to 24 Appellees’ credibility, as to whether Appellees possessed probable cause, and as to how various 25 evidence should be interpreted. 26 _________________________ 2 SCOTT A. KORENBAUM (Michael L. Spiegel, of 3 counsel), New York, N.Y., for Plaintiffs-Appellants. 5 JANE L. GORDON, Senior Counsel (Edward F.X. Hart, of 6 counsel), for Michael A. Cardozo, Corporation Counsel of 7 the City of New York, New York, N.Y., for Defendants- 8 Appellees. 9 _____________________________________ 10 CALABRESI, Circuit Judge: 11 On July 2, 2005, Officers Carmen Ramos and Angel Rivera (along with the City of New 12 York, “Appellees”) arrested Karen Cameron and her mother, Sylvia Higgenbottom (together, 13 “Appellants”), and charged Cameron with a variety of state law misdemeanors. According to 14 Appellees, they did so because Cameron reached into their squad car, grabbed Ramos’s shirt, and 15 was otherwise disorderly, and because Higgenbottom interfered with their arrest of Cameron and 16 was also disorderly. Appellants claim that they did no such things, and that Ramos and Rivera 17 knowingly and maliciously fabricated a story to support the arrests of Cameron and 18 Higgenbottom and the prosecution of Cameron. No criminal charges were filed against 19 Higgenbottom, and, after a criminal trial in state court, Cameron was acquitted in full. Appellants 20 subsequently sued in the District Court for the Southern District of New York (Crotty, J.), stating 21 claims of false arrest, and in Cameron’s case of malicious prosecution as well, against Ramos and 22 Rivera, under both state law and 42 U.S.C. § 1983. Appellants also brought claims of respondeat 23 superior liability and supervisory liability under Monell v. Department of Social Services, 436 24 U.S. 658 (1978), against the City of New York. 25 After a week-long trial, a jury found for Appellees on all counts. That verdict cannot 26 stand, however, because the jury was exposed to a significant amount of erroneously admitted and 1 highly prejudicial testimony. Two Assistant District Attorneys (“ADAs”) and a police lieutenant 2 were allowed to give their opinions on Ramos’s and Rivera’s credibility, on whether probable 3 cause existed to arrest or charge the Appellants, and on whether certain evidence strengthened or 4 weakened Appellants’ case. The admission of these statements violated bedrock principles of 5 evidence law that prohibit witnesses (a) from vouching for other witnesses, (b) from testifying in 6 the form of legal conclusions, and (c) from interpreting evidence that jurors can equally well 7 analyze on their own. These errors were not harmless, not least because they allowed ostensibly 8 neutral government agents to speak directly to the two most hotly contested issues in this case: 9 Ramos’s and Rivera’s credibility, and whether Ramos and Rivera had probable cause for their 10 actions. Accordingly, we vacate the jury verdict and remand for a new trial. 11 Appellants raise three other issues, as well. 12 First, they argue that Appellees’ account of events was squarely contradicted by a series of 13 photographs taken by a security camera at the scene. Appellants claim that these unimpeached 14 pictures so “blatantly contradict[]” Appellees’ story that Appellees’ version of facts could not be 15 accepted by a reasonable jury, and that Appellants are therefore entitled to judgment as a matter 16 of law. Appellants’ Br. 31. We disagree. The photographs do not definitively rule out either 17 side’s version of events, and hence the District Court correctly denied Appellants’ motion for 18 judgment as a matter of law. 19 Appellants’ other two claims concern the instructions given to the jury. They argue (a) 20 that the District Court should have instructed the jury that, under New York law, the offense of 21 “obstructing governmental administration,” for which Higgenbottom was arrested, requires that 22 the obstructed officers be engaged in a lawful arrest, and (b) that Appellants’ version of events 1 would have allowed a jury to infer that Ramos and Rivera acted with malice, entitling them to a 2 punitive damages instruction. Given that we are remanding for a new trial, we consider these 3 arguments in the interest of judicial economy, and conclude that Appellants are correct on both 4 counts. To the extent these issues recur at trial on remand, instructions similar to those that 5 Appellants requested should therefore be given. 6 BACKGROUND 7 I. Factual Allegations 8 Because Appellants’ evidentiary challenge requires us to review “everything . . . the jury 9 considered on the issue in question,” Hynes v. Coughlin, 79 F.3d 285, 291 (2d Cir. 1996) 10 (internal quotation marks omitted), it is useful to lay out each side’s case in some detail. 11 A. Appellants’ Account of the Incident 12 Cameron and Higgenbottom both testified at trial. According to them, on the morning of July 13 2, 2005, Higgenbottom, Cameron’s mother, noticed that the right front wheel of Cameron’s car was up 14 on the sidewalk outside their apartment complex. She called Cameron to tell her this, then drove away 15 to get her own car washed. Cameron left her apartment to see the car, then called 911 at 10:12 a.m. to 16 request a police incident report. At 10:23 a.m., she called 911 again to find out when the police would 17 arrive. When she saw Ramos and Rivera drive by and stop a block away at 10:25 a.m., she called 911 18 a third time, to tell the officers where she was. The officers then made a U-turn and parked behind 19 Cameron’s car. 20 Rivera left the police car and inspected Cameron’s car. Cameron requested an incident report, 21 and discussed what had happened to her vehicle. Rivera said he would find out if he could prepare an 22 incident report, and went back to his police car. At this point, Higgenbottom returned, parked in front 1 of Cameron’s car, and walked over to Cameron. The police car moved forward a few feet and Rivera 2 rolled down the passenger-side window. Ramos was sitting in the passenger seat. Cameron walked 3 over to the passenger-side window and leaned forward to discuss the possibility of getting an incident 4 report. Her left hand was behind her back, holding two white shopping bags; she was gesturing with 5 her right hand, but, Cameron alleges, her hand never entered the car or touched Ramos. 6 Ramos then yelled “get your hands off the car” twice and told Cameron that she was under 7 arrest. Cameron responded by tossing her bags to the ground and putting her hands behind her back. 8 She argued with the officers about the grounds for her arrest before submitting to handcuffing, and was 9 placed in the police car. Rivera grabbed at her legs, so Cameron tried to “pull his hands off” her; she 10 was then taken out of the police car for the handcuffs to be adjusted. Other than arguing about the 11 grounds for arrest and trying to take Rivera’s hands off her at that time, Cameron denies in any way 12 resisting arrest. 13 Higgenbottom said that she heard Ramos say “get your hands off of the car” and saw Ramos 14 and Rivera arrest Cameron. Higgenbottom then walked around the police car, and Rivera pushed her 15 back; other than this, Higgenbottom denies any physical contact with either officer. Higgenbottom 16 turned away from the arrest to go to her own car, get her cell phone, and call 911. When 17 Higgenbottom returned with her cell phone, Ramos said “call your lawyer if you want to, call your 18 lawyer” and “do you want to go with your girlfriend?” She then arrested Higgenbottom. 19 B. Appellees’ Account of the Incident 20 Ramos and Rivera also testified. They claimed that, when they arrived at the scene, Cameron 21 was “upset” and “loud,” “looked like a homeless person,” and had “white stuff” or “dry saliva” around 22 her lips. J.A. 202, 281-82. She did not request an incident report, but rather wanted to know what 23 towing agency had put her car on the curb. When Cameron approached the window, Rivera told her 1 that he could fill out an incident report and asked for her license and registration, at which point “she 2 lost it.” J.A. 206. Rivera and Ramos testified that Cameron was gesturing with one or both hands 3 inside the vehicle.1 Ramos told Cameron twice to get her hands out of the car, at which point Cameron 4 said “What, are you going to arrest me?” and grabbed Ramos’s shirt. J.A. 325. Ramos and Rivera left 5 the car to arrest Cameron, who was “struggling,” “flailing her arms,” and refusing to be handcuffed. 6 J.A. 225. Cameron then opened the back door of the police car and jumped in; Ramos and Rivera did 7 not at first notice this because they were distracted by Higgenbottom screaming “leave her alone, she is 8 a DEA agent.”2 When they checked to see if Cameron was securely handcuffed, Cameron kicked, 9 punched, and spat at the officers, who removed her from the car and re-handcuffed her. 10 According to Ramos and Rivera, Higgenbottom was yelling and screaming behind them during 11 this time; Rivera “had to turn back to Ms. Higgenbottom over and over again to tell her to stand back,” 12 telling her this “about ten times.” J.A. 233-35, 250-51. Otherwise, Ramos and Rivera testified, 13 Higgenbottom made no contact with the officers and they did not have any verbal exchange with her 14 before they arrested her. 15 C. Photographic Evidence 16 A security camera recorded the incident from some distance, taking photographs at two-second 17 intervals. In the photographs, Cameron can be seen leaning toward the window of the police car, with 18 her left hand behind her back, holding two shopping bags. Her right hand cannot be seen. After six to 19 ten seconds in this position, Cameron stands up, turns her body away from the police car, throws her 20 bags on the sidewalk, and puts her hands behind her back. Ramos and Rivera get out of the vehicle In the online arrest form Rivera filled out, the subsequent complaint he signed, and at Cameron’s criminal trial, Rivera testified that Cameron stuck both hands in the police car. At trial, however, he stated that she only put one hand in the vehicle. Ramos testified that Cameron rested her forearms on the car door, with both hands in the car. Cameron works as an investigative assistant for the DEA. 1 and approach Cameron. From this point on, it appears as though the officers are interacting with 2 Cameron in some manner. Beyond this, it is difficult, if not impossible, to decipher from the 3 photographic footage exactly what is happening. Higgenbottom appears to be standing near the 4 officers until Cameron has entered the police car for the first time. At some point thereafter, 5 Higgenbottom walks away from the police car, in the direction of her own car, and returns 6 approximately twenty seconds later. She remains near the police car and can be seen standing near the 7 officers for roughly thirty seconds after Cameron has apparently been put in the police car for a second 8 time, after which the officers arrest Higgenbottom. 9 D. Post-Arrest Events 10 Lieutenant Norman Peterson arrived on the scene after the arrests. He spoke with Ramos and 11 Rivera, who told him what had occurred. Based on their information, he determined that Cameron and 12 Higgenbottom were not eligible for summonses or desk appearance tickets, but would instead need full 13 arrest processing. He spoke with Cameron, and found her to be “coherent” and “calm and polite.” 14 J.A. 341. He then took Cameron to the stationhouse, and another officer brought Higgenbottom. 15 Rivera also went to the stationhouse, where he completed the online booking process for 16 Cameron and Higgenbottom. In his online arrest form, he charged Cameron with harrassment, N.Y. 17 Penal Law § 240.26, disorderly conduct, id. § 240.20, and resisting arrest, id. § 205.30. He charged 18 Higgenbottom with obstructing governmental administration, id. § 195.05, and disorderly conduct. 19 Later that day, he met with ADA Elizabeth Brandon of the Bronx District Attorney’s Office, who 20 prepared a Criminal Court Complaint charging Cameron with those offenses as well as attempted 21 assault in the third degree, N.Y. Penal Law §§ 110, 120.00. Based on Rivera’s information, Brandon 22 decided not to prosecute Higgenbottom because she did not think the State would be able to prove a 23 case against her. 1 According to Brandon, all of the information in the criminal complaint that was filed came from 2 Rivera. Brandon’s name appears nowhere on the complaint; rather, it says that “PO ANGEL RIVERA 3 . . . states that . . . THE DEFENDANT COMMITTED THE OFFENSES” charged. J.A. 617. It is 4 only signed by Rivera. The complaint states that any false statements made therein are punishable as 5 misdemeanors. The complaint also states that Rivera was “informed by PO RAMOS, CARMEN . . . 6 that, as a result of [Cameron’s] actions, PO Ramos experienced annoyance and alarm and fear for her 7 physical safety.” Id. Ramos subsequently signed a supporting deposition stating that this information 8 was true. 9 The charges against Cameron were adjudicated in a bench trial prosecuted by then-ADA Irene 10 Pangilinan. At the close of this criminal trial, the judge acquitted Cameron on all counts. 11 II. Testimony as to Existence of Probable Cause and Credibility of Ramos and Rivera 12 At the trial of Appellants’ subsequent civil suit, Appellees elicited testimony as to the 13 credibility of Ramos and Rivera, as to whether they had probable cause to arrest and prosecute 14 Cameron and Higgenbottom, and as to whether certain evidence strengthened or weakened Appellants’ 15 case. This testimony came through three witnesses: ADA Pangilinan, who was the trial prosecutor for 16 Cameron’s criminal trial; ADA Brandon, who prepared the complaint for Rivera; and Lieutenant 17 Peterson, the superior officer who arrived at the scene of the incident after the arrests. 18 A. Pangilinan’s Testimony 19 Appellees called Pangilinan, who was an ADA from September 2004 until April 2008. She 20 testified to the content and tone of Cameron’s tape-recorded 911 calls, and to Cameron’s appearance in 21 her arrest booking photo, as neither the tape-recordings nor the photo were any longer available. She 22 also testified that the 911 calls, the booking photo, and the time-lapse security camera photos all 23 “corroborated” Ramos and Rivera’s account, and that nothing on them led her to consider dropping the 1 prosecution. J.A. 504-05. Furthermore, she said, the surveillance photos “actually strengthened 2 [Cameron’s] prosecution.” J.A. 504. Pangilinan also testified extensively about her communications 3 with Rivera and Ramos. She testified that nothing Rivera or Ramos said led her to consider dropping 4 the case; that she had no reason to believe anything they said was inaccurate; that they did not 5 encourage her to continue the prosecution or have any role in trial strategy; and that she and her 6 supervisors, rather than Rivera or Ramos, decided whether or not to continue Cameron’s prosecution. 7 Appellants objected to nearly every question in the relevant portions of Pangilinan’s testimony. 8 B. Brandon’s Testimony 9 Appellants called Brandon, primarily to inquire about the procedure for filing a criminal 10 complaint and to confirm certain ways that Rivera’s and Ramos’s accounts had changed since the day 11 of the arrests. On cross examination, Brandon testified over objection that she decided whether or not 12 to initiate proceedings against Cameron, and that she would not “have decided to prosecute Ms. 13 Cameron if [she] did not believe there was probable cause to believe that [Cameron] had committed a 14 crime.”3 J.A. 272. 15 C. Peterson’s Testimony 16 Appellants also called Peterson, primarily “to refute Ramos and Rivera’s testimony concerning 17 Ms. Cameron’s allegedly disheveled appearance and strange behavior.” Appellants’ Br. 42. On cross, 18 Appellees elicited testimony that, after speaking with Ramos and Rivera, Peterson thought that 19 probable cause existed to arrest Cameron and had no “reason to doubt the officers’ account of the facts 20 that day.” J.A. 353. (Appellants did not object to this testimony.) He also testified that he saw the 21 security camera photos “[a] long time after” the arrest, and said over objection that they did not change While Appellants objected to Brandon’s statement that she decided to initiate proceedings against Cameron, they did not object again a moment later when she stated that she would not have prosecuted without probable cause. Appellees do not, however, argue that Appellants waived any objection to that latter comment. 1 his opinion about the arrests. J.A. 359. Appellees also asked Peterson a second time if there was 2 probable cause to arrest Cameron for the crimes she was charged with, but the District Court sustained 3 Appellants’ objection and the question went unanswered. 4 III. Jury Verdict and Appeal 5 On September 29, 2008, the jury returned a verdict in favor of Appellees on all counts. The 6 District Court subsequently denied Appellants’ motions for judgment as a matter of law under Fed. R. 7 Civ. P. 50 or for a new trial under Fed. R. Civ. P. 59, and entered judgment in favor of Appellees. 8 Appellants filed a timely appeal. 9 On appeal, Appellants make four arguments. First, they argue that the security camera photos 10 definitively establish that the events did not happen as Appellees describe them. Even though the 11 photos were only taken every two seconds, Appellants contend that they still “blatantly contradicted” 12 Ramos and Rivera’s version of the incident, for the photos allegedly show that Cameron never put a 13 hand through the police car’s window. Because summary judgment is appropriate where 14 “[i]ncontrovertible evidence . . . so utterly discredits the opposing party’s version [of events] that no 15 reasonable juror could fail to believe the version advanced by the moving party,” Zellner v. Summerlin, 16 494 F.3d 344, 371 (2d Cir. 2007), Appellants argue, the District Court erred in denying their Rule 50 17 motion. 18 Second, they claim that the District Court abused its discretion in allowing Pangilinan, 19 Brandon, and Peterson to testify (a) to Ramos’s and Rivera’s credibility, (b) to the declarants’ belief 20 that there was probable cause for the arrests and prosecution, and (c) to the consistency of 21 documentary evidence with the parties’ allegations. They argue that this testimony was irrelevant, 22 improperly stated a legal conclusion, vouched for the officers’ credibility, and improperly opined on the 23 evidence before the jury. See Fed. R. Evid. 401, 403, 701. Additionally, they contend, Pangilinan 1 should not have been permitted to describe the contents of the arrest photographs and 911 calls, which 2 were no longer available at the time of trial. See Fed. R. Evid. 403, 1002. Appellants also maintain 3 that these errors were not harmless, as the Appellees’ case was weak and the improper testimony went 4 to the central issues of the case: probable cause and the credibility of Ramos and Rivera. In response, 5 Appellees assert primarily that this testimony was relevant to Cameron’s malicious prosecution claim, 6 because it showed that the prosecutors “made independent decisions based on additional, corroborating 7 evidence,” Appellees’ Br. 38; they also claim that all of the testimony was relevant to damages and, 8 furthermore, that Peterson’s testimony was relevant to Appellants’ Monell claims. 9 Third, Appellants argue that the District Court erred in declining their request for an 10 instruction that Higgenbottom’s arrest for obstructing governmental administration could not 11 have been lawful if Cameron’s arrest was not lawful. Specifically, Appellants asked the District 12 Court to instruct the jury that “[i]f . . . probable cause was lacking for Ms. Cameron’s arrest, then 13 defendants’ actions were not authorized by law and [the jury’s] verdict must be for Ms. 14 Higgenbottom.” J.A. 53. Instead, the District Court instructed the jury that the offense of 15 obstructing governmental administration was committed by interfering with “an official function,” 16 without defining that term. J.A. 661. 17 Fourth, Appellants claim that the District Court erred in declining their request for a 18 punitive damages instruction. During the charging conference, Appellants argued that their 19 evidence supported a finding that Ramos and Rivera had intentionally lied, which Appellants 20 claimed could constitute “intentional and malicious” or “wanton and reckless” conduct. J.A. 476- 21 77. The District Court denied the request, stating that “while [Appellants] raise genuine issues of 1 material fact as to whether Officer Ramos and Rivera committed false arrest and initiated a malicious 2 prosecution[, t]here is no evidence that their actions were wanton, malicious or reckless.” J.A. 497. 3 DISCUSSION 4 I. Motion for Judgment as a Matter of Law 5 We review the denial of a motion for judgment as a matter of law de novo, and will grant 6 the motion only if “a reasonable jury would not have a legally sufficient evidentiary basis to find 7 for the [non-movant] on that issue.” Fed. R. Civ. P. 50(a)(1); see also Olivier v. Robert L. 8 Yeager Mental Health Ctr., 398 F.3d 183, 188 (2d Cir. 2005). We “must draw all reasonable 9 inferences in favor of the nonmoving party, and . . . may not make credibility determinations or 10 weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). 11 But “[o]ur obligation to draw all reasonable inferences in favor of [the non-movant] does not 12 mean we must credit a version of the facts that is belied by the record.” Tabbaa v. Chertoff, 509 13 F.3d 89, 93 n.1 (2d Cir. 2007). Accordingly, we “give credence to . . . that evidence supporting 14 the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence 15 comes from disinterested witnesses.” Reeves, 530 U.S. at 151 (internal quotation marks omitted). 16 When a movant presents “[i]ncontrovertible evidence . . . such as a relevant videotape whose 17 accuracy is unchallenged,” we will grant the movant’s motion for judgment as a matter of law if 18 that evidence “so utterly discredits the opposing party’s version that no reasonable juror could fail 19 to believe the version advanced by the moving party.” Zellner, 494 F.3d at 371; see also Scott v. 20 Harris, 550 U.S. 372, 380 (2007). 21 Appellants do not claim that anything in the trial testimony itself required a verdict in their 22 favor. Instead, they argue that the security camera photos were “unimpeached evidence . . . 1 which a jury is ‘required to believe,’” and that those photos “conclusively prove that Ms. 2 Cameron did not reach into the police car at all.” Appellants’ Br. 28-29. In three consecutive 3 photographs, Cameron is in an almost identical position, leaning forward at the passenger-side 4 window of the police car. This is precisely the period of time during which Cameron allegedly 5 reached into the police car, according to Ramos’s and Rivera’s testimony at trial. Ramos testified 6 that Cameron reached into the car at the moment of the second picture in this series, while Rivera 7 stated that he “guess[ed]” that Cameron reached in “more or less” in the four-second window 8 comprised by the three pictures. J.A. 210, 327.4 Because “Ms. Cameron’s overall body position 9 does not change from one photo to the next,” Appellants contend, Appellees’ version of events 10 “defies reality and relies on sheer surmise and speculation concerning the brief time-lapse between 11 each photo.” Appellants’ Br. 29-30. Indeed, they maintain, Appellees’ version (which the jury 12 accepted) “calls for suspension of belief in the laws of the physical universe.” Appellants’ Br. 30. 13 We disagree. The photographs are not nearly so conclusive as to render the jury’s verdict 14 unreasonable as a matter of law. The photographs are blurry and taken at some distance; it is 15 impossible when viewing the photographs in sequence to tell definitively whether Cameron’s right 16 arm is visible between her body and the police car, or is instead at her side and blocked from view 17 by her body. We cannot rule out the possibility that the photographs actually depicted Cameron 18 with her hand inside the police car, let alone the possibility that she might have put her hands in 19 the police car in between pictures. Certainly it seems unlikely that she did so, given the 20 similarities in posture in the three pictures at issue, but the pictures do not rule out Appellees’ After stating twice that Cameron reached in “more or less” during one of the two-second lapses between photographs in that four-second interval, Rivera stated more precisely that the reaching occurred in that time period. J.A. 210. 1 interpretation, as they would need to do to justify granting Appellants’ motion. Moreover, the 2 jury reasonably could have found that Cameron reached into the police car at the very end of the 3 sequence, particularly given Rivera’s testimony that the reaching occurred only “more or less” 4 within the four-second interval. Cameron’s posture changes dramatically between the third 5 photograph that depicts her leaning toward the police car and the following photograph in which 6 she has straightened up. It would therefore be a reasonable interpretation that Cameron might 7 have reached into the police squad car at that time. 8 This is not to say that still photographs can never belie a party’s interpretation of events so 9 definitively that judgment as a matter of law is warranted. We hold only that these photographs, 10 especially when viewed in light of the testimony and the record in this case, do not provide the 11 level of certainty requisite to negate the jury’s verdict. 12 II. Testimony of the Prosecutors and Lieutenant Peterson 13 A. Standard of Review 14 “We review a district court’s evidentiary rulings for abuse of discretion, and will reverse 15 only for manifest error.” Manley v. AmBase Corp., 337 F.3d 237, 247 (2d Cir. 2003) (citations 16 omitted). We afford district courts “wide latitude . . . in determining whether evidence is 17 admissible, and in controlling the mode and order of its presentation to promote the effective 18 ascertainment of the truth.” SR Int’l Bus. Ins. Co. v. World Trade Ctr. Props., LLC, 467 F.3d 19 107, 119 (2d Cir. 2006) (citations and internal quotation marks omitted). 20 Even if we do find that evidentiary rulings were manifestly erroneous, we will not grant a 21 new trial if we find that the improperly admitted evidence was “harmless—i.e., [that] the evidence 22 was unimportant in relation to everything else the jury considered on the issue in question.” 1 United States v. Germosen, 139 F.3d 120, 127 (2d Cir. 1998). An error is harmless if we “can 2 conclude with fair assurance that the evidence did not substantially influence the jury.” United 3 States v. Rea, 958 F.2d 1206, 1220 (2d Cir. 1992). We consider several factors in determining 4 whether evidentiary error warrants a new trial: 5 In assessing the wrongly admitted testimony’s importance, we consider such factors as whether 6 the testimony bore on an issue that is plainly critical to the jury’s decision, whether that 7 testimony was material to the establishment of the critical fact or whether it was instead 8 corroborated and cumulative, and whether the wrongly admitted evidence was emphasized in 9 arguments to the jury. 10 Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000) (citations and internal quotation marks 11 omitted). We also consider “the overall strength of the [appellees’] case.” United States v. Al- 12 Moayad, 545 F.3d 139, 164 (2d Cir. 2008) (quotation marks omitted); see also Wray, 202 F.3d at 13 526 (“[T]he principal factors to be considered are the importance of the witness’s wrongly 14 admitted testimony, and the overall strength of the [appellees’] case.”). 15 B. Applicable Rules of Evidence 16 Under the Federal Rules of Evidence, relevant evidence—that is, evidence that has “any 17 tendency to make the existence of any fact that is of consequence to the determination of the 18 action more probable or less probable” is “generally admissible.” Fed. R. Evid. 401, 402. This 19 presumption of admissibility is subject to many exceptions, several of which are implicated in this 20 case. 21 First, “[a]s a matter of law, the credibility of witnesses is exclusively for the determination 22 by the jury, and witnesses may not opine as to the credibility of the testimony of other witnesses 23 at the trial.” United States v. Forrester, 60 F.3d 52, 63 (2d Cir. 1995) (internal quotation marks 24 and brackets omitted); see also United States v. Johnson, 529 F.3d 493, 499 (2d Cir. 2008) (“It is 1 . . . impermissible for a government agent to vouch for a government witness or generally to 2 opine on the credibility of witnesses.” (citations omitted)). For example, it is typically improper 3 for an investigating agent to “communicat[e] that he had skeptically and scrupulously checked out 4 all the information furnished by the witnesses before accepting it.” Johnson, 529 F.3d at 498. 5 Similarly, we have found error where an expert witness “stated that he ‘rejected’ the possibility 6 that [witnesses] had lied.” Nimely v. City of New York, 414 F.3d 381, 398 (2d Cir. 2005). 7 Second, witnesses may not “present testimony in the form of legal conclusions.” United 8 States v. Articles of Banned Hazardous Substances Consisting of an Undetermined Number of 9 Cans of Rainbow Foam Paint, 34 F.3d 91, 96 (2d Cir. 1994); accord Densberger v. United 10 Techs. Corp., 297 F.3d 66, 74 (2d Cir. 2002).5 Such testimony “undertakes to tell the jury what 11 result to reach, and thus attempts to substitute the [witness’s] judgment for the jury’s.” Nimely, 12 414 F.3d at 397 (internal quotation marks omitted). Hence, “the issue of whether or not probable 13 cause to arrest exists is a legal determination that is not properly the subject of expert opinion 14 testimony.” Rizzo v. Edison Inc., 419 F. Supp. 2d 338, 348 (W.D.N.Y. 2005), aff’d No. 05- 15 3707, 172 Fed. App’x 391 (2d Cir. Mar. 24, 2006) (summary order). On the other hand, if a 16 witness’s own belief as to probable cause is relevant to the outcome of a case (for example, where 17 a police officer is sued for false arrest, and claims that she believed she possessed probable cause 18 to arrest), that witness’s testimony about her own subjective belief may be admissible. 19 Third, a lay witness may testify in the form of an opinion, even one that goes to “an The cases laying out this rule have focused on expert witnesses. But the impropriety of allowing a lay witness to testify in the form of a legal conclusion is all the clearer. In any event, as the Advisory Committee stated in amending Rule 701 in 2000, “a [lay] witness’ testimony must be scrutinized under the rules regulating expert opinion to the extent that the witness is providing testimony based on scientific, technical, or other specialized knowledge.” Fed. R. Evid. 701 Advisory Committee’s Note (2000). 1 ultimate issue to be decided by the trier of fact,” but may do so only so long as that testimony is 2 “helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” 3 Fed. R. Evid. 701(b), 704(a). This “helpfulness requirement is designed to provide assurance[] 4 against the admission of opinions which would merely tell the jury what result to reach” or would 5 constitute an attempt “to introduce meaningless assertions which amount to little more than 6 choosing up sides.” Rea, 958 F.2d at 1215-16 (internal quotation marks omitted); see also Fed. 7 R. Evid. 701 Advisory Committee’s Note (1972). For example, when jurors can see with their 8 own eyes both a defendant and a photograph that allegedly depicts that defendant, there is usually 9 no need for a witness to testify to a resemblance between the two; but if a party alleges that a 10 photograph depicts a person the jury has not seen, that testimony may be helpful in establishing 11 the similarity. See United States v. Robinson, 544 F.2d 110, 113 (2d Cir. 1976). 12 Finally, all such testimony is subject to the general balancing rule of Rule 403, which 13 provides that “evidence may be excluded if its probative value is substantially outweighed by the 14 danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of 15 undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403; 16 see generally, e.g., United States v. Salameh, 152 F.3d 88, 110 (2d Cir. 1998) (per curiam). 17 C. Application to the Instant Case 18 Under these well-settled rules of evidence, much of the challenged testimony would quite 19 obviously be inadmissible in the ordinary case. Appellees argue, however, that this case is 20 different, because the elements of malicious prosecution claims render the challenged testimony 21 admissible. In particular, Appellees claim that Pangilinan’s and Brandon’s testimony showed that 22 prosecutors “made independent decisions based on additional, corroborating evidence,” and that 1 Ramos and Rivera might therefore not “be considered to have ‘caused’ or ‘procured’ the 2 prosecution, thus defeating grounds for liability.” Appellees’ Br. 38 (quoting White v. Frank, 855 3 F.2d 956, 962 (2d Cir. 1988)).6 4 This argument misunderstands the nature of the tort of malicious prosecution. Malicious 5 prosecution occurs when “(1) the defendant initiated a prosecution against plaintiff, (2) without 6 probable cause to believe the proceeding can succeed, (3) the proceeding was begun with malice and, 7 (4) the matter terminated in plaintiff’s favor.” Ricciuti v. N.Y. City Transit Auth., 124 F.3d 123, 130 8 (2d Cir. 1997). Under New York law, police officers can “initiate” prosecution by filing charges or 9 other accusatory instruments. Id.; see also, e.g., Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir. 1997) 10 (“Under New York law, if there has been no indictment, a criminal action is commenced by the filing 11 of an accusatory instrument, to wit, a ‘felony complaint’ for a felony charge, or a ‘misdemeanor 12 complaint’ or an ‘information’ for a misdemeanor charge.” (citations omitted)); Lowth v. Town of 13 Cheektowaga, 82 F.3d 563, 568, 571 (2d Cir. 1996) (finding “no dispute as to the first . . . element[]” 14 where the plaintiff “was immediately taken to the police station and was charged” by the defendant 15 officer). 16 As the District Court correctly instructed the jury, there was no dispute in this case as to 17 the existence of the first and fourth prongs of Cameron’s malicious prosecution claim. As a 18 matter of law, Ramos and Rivera’s filing of the Criminal Court Complaint “initiated” the 19 prosecution against Cameron. See Ricciuti, 124 F.3d at 130. And, of course, Cameron’s Appellees defend Peterson’s testimony on a different ground, arguing that his role as Ramos’s supervisor rendered his opinions as to probable cause and Ramos’ credibility relevant to Appellants’ Monell claim, because Peterson was Ramos and Rivera’s supervisor. But Appellants’ Monell claim does not concern how the City of New York responded to the incident in this case; it focuses instead on how the City had supervised and disciplined Ramos in the past. As a result, as discussed infra ___, while some of Peterson’s testimony may have been relevant to the Monell claim, much of it was not. 1 acquittal in the criminal prosecution constituted a termination in her favor. Hence, the only 2 questions that the jury had to decide with respect to the malicious prosecution claim were (a) 3 whether Ramos and Rivera had probable cause to initiate the prosecution; (b) whether Ramos and 4 Rivera initiated the proceeding with malice; and (c) what damages, if any, Cameron was entitled 5 to. 6 Appellees suggest that the jury had another question to answer, on which the challenged 7 testimony was relevant: whether the prosecutors’ opinions and actions attenuated the officers’ 8 causal responsibility for the prosecution. But generally in malicious prosecution actions alleging 9 that a police officer provided false information to a prosecutor, what prosecutors do subsequently 10 has no effect whatsoever on the police officer’s initial, potentially tortious behavior. See Higazy v. 11 Templeton, 505 F.3d 161, 177 (2d Cir. 2007) (“[T]he chain of causation need not be considered 12 broken if [a defendant government agent] deceived the subsequent decision maker or could reasonably 13 foresee that his misconduct [would] contribute to an independent decision that results in a deprivation 14 of liberty.” (alteration in original) (citation and internal quotation marks omitted)); Zahrey v. Coffey, 15 221 F.3d 342, 352 (2d Cir. 2000) (“Even if the intervening decision-maker (such as a prosecutor, 16 grand jury, or judge) is not misled or coerced, it is not readily apparent why the chain of causation 17 should be considered broken where the initial wrongdoer can reasonably foresee that his misconduct 18 will contribute to an ‘independent’ decision that results in a deprivation of liberty.”). 19 Appellees rely on dicta suggesting that the “independent judgment” of a grand jury or 20 public prosecutor might, in some circumstances, attenuate a complaining witness’s role in 21 “causing” or “procuring” a prosecution. See White, 855 F.2d at 962. This dicta merely 22 acknowledges that a complaining layperson might not be responsible for a prosecution if 1 prosecutors go forward based on independent, untainted evidence. As a result, it would not 2 appear that it has any application where a police officer is alleged to have maliciously misled a 3 prosecutor. See Higazy, 505 F.3d at 177; Zahrey, 221 F.3d at 354 n.10 (“[A] police officer who 4 fabricated evidence and forwarded that evidence to a prosecutor (who used it against a defendant) 5 would [be] liable for the consequences of his misconduct . . . .”); Llerando-Phipps v. City of New York, 6 390 F. Supp. 2d 372, 383 (S.D.N.Y. 2005) (“[A]pplying the layperson standard to the police would 7 mean that law enforcement officers would never be liable for malicious prosecution. . . . Although there 8 is a presumption that a prosecutor exercises independent judgment in deciding whether to initiate and 9 continue a criminal proceeding, an arresting officer may be held liable for malicious prosecution when 10 a police officer creates false information likely to influence a jury’s decision and forwards that 11 information to prosecutors.” (internal quotation marks omitted)). 12 Moreover, the dicta has no application here, where the “independent judgment” consisted 13 of no more than verifying some of the allegedly false information provided by the officers. The 14 evidence about which Pangilinan testified—the security camera footage, the 911 calls, and the 15 booking photos—could not on its own justify a prosecution, absent the information provided by 16 Ramos and Rivera. Accordingly, the prosecutors’ belief that the officers were credible, and that 17 the photographs and 911 calls were consistent with the officers’ version of events, could not have 18 relieved the officers of causal responsibility. It follows that testimony as to that belief was not 19 relevant to any element that Appellants needed to prove. 20 Additionally, to the extent that a prosecutor’s decision to continue a prosecution does 21 represent an acceptance of a police officer’s version of events, the character of that implicit 22 vouching is far different from that of the testimony admitted in this case. It is one thing for a jury 1 to infer that a prosecutor took a case to trial because she thought there was a basis for the case. 2 It is another thing entirely for a prosecutor to state that she believed that photographs in evidence 3 “corroborated the events . . . recounted by the police officers, and . . . actually strengthened [the] 4 prosecution,” J.A. 504, a belief, significantly, that the prosecutor would not be permitted to state 5 at the underlying criminal trial. And it is another thing again for a prosecutor to state that she had 6 no “reason to believe that anything [the complaining officers told her] was not accurate,” J.A. 7 505. Such a statement goes well beyond the details of the officers’ account and necessarily 8 represents support for their general character for honesty. 9 Furthermore, Appellees’ theory misunderstands the function of a screening prosecutor in 10 relation to a malicious prosecution claim. The prosecutor’s actions do not supersede the 11 complaining officer’s actions; they only determine whether the officer’s actions come to 12 fruition—that is, whether the officer committed the tort of malicious prosecution, or merely 13 attempted to prosecute maliciously. Notably, in this case, Brandon decided not to prosecute 14 Higgenbottom; that decision is not relevant to the question of whether the complaining officers 15 were telling the truth regarding Higgenbottom’s conduct. Similarly, a prosecutor’s decision to 16 pursue a prosecution has no more relevance to the complaining officer’s credibility than the 17 implicit relevance shared by all decisions to prosecute. 18 Importantly, the rule that Appellees urge us to adopt would place inappropriate pressures 19 on both prosecutors and plaintiffs. If all cases of malicious prosecution were taken to trial, and 20 prosecutors were called to testify about why they had originally pursued certain charges, then 21 prosecutors might be subjected to great, though perhaps tacit, pressure from cities and police 22 officers to maintain even a weak prosecution in order to undercut any subsequent malicious 1 prosecution claim. Similarly, plaintiffs who have legitimate claims of both malicious prosecution 2 and other torts, such as false arrest (which almost always travels in malicious prosecution’s 3 sidecar), effectively would be forced to forgo their malicious prosecution claims. Otherwise, such 4 plaintiffs would risk exposing all of their claims to highly prejudicial testimony from seemingly 5 reputable sources—testimony a district judge would not consider admitting in the absence of the 6 malicious prosecution claim. 7 For all these reasons, we hold that prosecutors’ opinions as to probable cause and 8 complaining officers’ credibility are irrelevant in virtually all cases involving claims of malicious 9 prosecution. In such cases, district courts remain bound by the rules of evidence that normally 10 govern opinion testimony, and accordingly the District Court erred in allowing Peterson and the 11 prosecutors to testify to the officers’ credibility and to the existence of probable cause. 12 D. Harmless Error Analysis 13 In this case, every factor that the Court considers in determining whether an evidentiary ruling 14 was harmless counsels in favor of a new trial. First, the testimony bore on the two most important 15 issues in the case: whether or not Ramos and Rivera were credible, and whether or not they had 16 probable cause (a) to arrest Cameron and Higgenbottom and (b) to prosecute Cameron. Indeed, 17 according to the jury charge, the only contested element of the false arrest claims was “whether Officer 18 Rivera and Officer Ramos had probable cause,” while the only issues in the malicious prosecution 19 claim were (a) whether Ramos and Rivera had probable cause and (b) whether they acted with malice 20 (which, the charge stated, could be inferred if the officers “acted without probable cause”). J.A. 658, 21 664. Similarly, Pangilinan’s and Peterson’s testimony that the security camera photos were consistent 22 with the officers’ accounts unmistakably bore on the same set of crucial questions. 1 Second, the improper testimony was not simply cumulative or corroborative. Rather, it 2 provided strong external validation for propositions that otherwise would have come in only from the 3 Appellees’ mouths. Indeed, it told the jury what conclusions two prosecutors and a police lieutenant 4 had drawn on the primary issues of the case, testimony that could hardly be considered duplicative of 5 the other testimony the jury heard. The testimony is particularly significant because it came from 6 ostensibly neutral government actors, whose opinions, understandably, will often greatly influence 7 jurors. See United States v. Grinage, 390 F.3d 746, 752 (2d Cir. 2004). 8 Third, Appellees made use of the testimony in their opening statement and in summation. To 9 be sure, as Appellees argue, these were only “brief references.” Appellees’ Br. 40. Nevertheless, 10 counsel’s arguments did drive home the incorrect idea that Brandon, rather than Ramos and Rivera, 11 had “initiated” the proceeding, and emphasized Pangilinan’s inadmissible and irrelevant belief “that it 12 was appropriate to continue the prosecution against Ms. Cameron.” J.A. 144. 13 Fourth, Appellees’ case was not particularly strong. It essentially boiled down to a credibility 14 contest between the officers and the Appellants. Appellees’ statements had changed over time, and 15 disagreed with each other in some material respects.7 In such a case, testimony from three “impartial” 16 law enforcement agents that the officers were to be believed is surely highly prejudicial. 17 For all these reasons, we cannot say with confidence that the erroneously admitted 18 testimony was harmless. Accordingly, we must vacate the verdict and remand to the District 19 Court for a new trial. 20 E. Testimony on Retrial 21 While much of the challenged testimony was inadmissible, not everything that these For example, Rivera had said in his original complaints and at the criminal trial that Cameron had both her hands in the window; at the civil trial, he said that only her right hand was in the car. Ramos, by contrast, testified at the civil trial that both of Cameron’s hands were in the window. 1 witnesses said should be prohibited upon retrial. It is therefore worth noting, in the interest of 2 judicial economy, which particular pieces of testimony are inadmissible, and which the District 3 Court has discretion to admit. 4 Most obviously, testimony that a third party (such as a prosecutor or a police supervisor) 5 found the defendants to be credible should be excluded. Similarly, there is no justification for 6 testimony that anybody but the defendants themselves believed that probable cause existed to 7 arrest or prosecute Cameron and Higgenbottom. 8 As to Lieutenant Peterson, he testified about his personal observations when he arrived at 9 the scene of the incident; such testimony seems entirely appropriate.8 He also testified that, 10 during the seven months preceding the incident, in which he supervised Officers Ramos and 11 Rivera, he did not “see [Ramos] engage in any type of inappropriate behavior.” J.A. 351. This 12 seems relevant to Appellants’ Monell claim, as it goes to the question of whether Ramos’s 13 supervisors were “faced with a pattern of misconduct and [did] nothing.” Reynolds v. Giuliani, 14 506 F.3d 183, 192 (2d Cir. 2007). Peterson’s testimony that he “thought that [the police] had 15 probable cause to effect the arrest” and that he had no “reason to doubt the officers’ account of 16 the facts that day,” J.A. 353, on the other hand, should not be permitted upon retrial. The first 17 comment bears on neither the Monell issue nor the false arrest and malicious prosecution claims. 18 The second comment, while it does in some ways relate to the Monell issue, extends far beyond 19 Peterson’s personal observations of Ramos’s behavior and discusses directly Peterson’s opinion The question of whether the exclusion of any testimony given during this trial would have been an abuse of discretion is not before us. In stating that some testimony “seems” appropriate, we do not mean to express any opinion on whether that testimony could or should be precluded (under Rule 403 or otherwise), but only suggest that such decisions likely fall within the District Court’s discretion. 1 of her credibility.9 Nor can we see any reason for allowing Peterson to testify regarding the 2 security camera photos, which he saw “[a] long time after this incident happened.” J.A. 359. His 3 opinion of how the pictures should be interpreted is entirely irrelevant, and his testimony on the 4 subject added nothing that the jury could not see for itself by looking at the photos. 5 As to ADA Brandon, her testimony regarding the substance of her interactions with 6 Officer Rivera seems entirely proper. Her comments as to whether she had any reason not to 7 believe Officer Rivera’s account, and whether she believed that probable cause existed to arrest or 8 charge Appellants, however, should be avoided on retrial. Regarding Brandon’s testimony that it 9 was her decision to prosecute Cameron, and that Rivera had no “say in whether or not a criminal 10 prosecution was initiated” and that Rivera did not “urge [her], encourage [her], or press [her] to 11 proceed with the criminal prosecution,” J.A. 271-72, we do not think that this testimony needs to 12 be precluded—if, that is, it is accompanied by the District Court’s clear and correct instruction 13 that Ramos’s and Rivera’s conduct sufficed as a matter of law to “initiate” prosecution. Whether 14 the police officers aggressively sought prosecution, or only allowed the District Attorney’s 15 handling of the case to run its own course, seems probative on the important question of whether 16 the officers acted with malice, and so the District Court would be within its discretion to permit 17 the same testimony on retrial. 18 Finally, as to ADA Pangilinan, she should not be permitted to testify to her legal 19 conclusions about the case, or to her opinions of the officers’ credibility. As with ADA Brandon, We have no occasion to decide whether comments such as these, or any other specific statements made during the course of the trial, would have been sufficient on their own to require vacatur; we mention them here merely to guide the District Court on retrial. Similarly, because Appellants did object to the vast majority of the problematic testimony, we need not determine whether those statements to which they did not object would have constituted reversible error under plain error review. 1 we see nothing improper in her testifying about her interactions with Ramos and Rivera insofar as 2 they allow the jury to draw appropriate inferences one way or another as to the officers’ malice. 3 It also would appear to be permissible for Pangilinan to testify as to the content of the 911 calls 4 and the booking photo—Cameron’s demeanor and statements in the former, and her appearance 5 in the latter—as the photo and the tapes of the calls are no longer in existence and Pangilinan 6 personally observed them. See Fed. R. Evid. 1004; Glew v. Cigna Group Ins., 590 F. Supp. 2d 7 395, 413 (E.D.N.Y. 2008) (“Oral testimony has been admitted as secondary evidence, if the 8 original is lost or destroyed.”).10 But she should not be allowed to state conclusions such as her 9 opinions that the 911 calls “corroborated” the officers’ version of events, that the security camera 10 photos “actually strengthened [the] prosecution,” and that the booking photo “supported to some 11 extent continued prosecution of the case.” J.A. 504-05. 12 III. Obstructing Governmental Administration Instruction 13 We review challenges to a district court’s jury instructions de novo. Gordon v. N.Y. City 14 Bd. of Educ., 232 F.3d 111, 115 (2d Cir. 2000). “A jury instruction is erroneous if it misleads the 15 jury as to the correct legal standard or does not adequately inform the jury on the law.” LNC 16 Investments, Inc. v. First Fidelity Bank, N.A., 173 F.3d 454, 460 (2d Cir. 1999) (internal 17 quotation marks omitted). 18 During the jury charge, the District Court instructed the jury that the offense of 19 obstructing governmental administration was committed by interfering with “an official function,” 20 without defining that term. Appellants contend now, as they did below, that an arrest is only an 21 “official function” under New York law if it is lawful—that is, if it is made with probable cause. Although they cite Rule 1004, Appellants do not argue that Appellees “lost or destroyed [the originals] in bad faith,” as would be necessary to exclude the testimony on “best evidence” grounds. See Fed. R. Evid. 1004(1). 1 Accordingly, they argue, the District Court should have instructed the jury, regarding 2 Higgenbottom’s false arrest claim, that “[i]f . . . probable cause was lacking for Ms. Cameron’s 3 arrest, then defendants’ actions were not authorized by law and [the jury’s] verdict must be for 4 Ms. Higgenbottom.” J.A. 53. Although the District Court was right to reject the precise 5 formulation that Appellants requested, Appellants’ understanding of New York law is correct. 6 Therefore, if on retrial Appellees argue that Higgenbottom’s arrest was justified on the basis of a 7 charge of obstruction of governmental administration, then the jury should be instructed that that 8 basis for arrest could only be lawful if Cameron’s arrest was itself lawful.11 9 Under New York law, obstructing governmental administration has four elements: “(1) 10 prevention or attempt to prevent (2) a public servant from performing (3) an official function (4) 11 by means of intimidation, force or interference.” Lennon v. Miller, 66 F.3d 416, 424 (2d Cir. 12 1995); see also N.Y. Penal Law § 195.05. In New York, however, for an arrest to be “an official 13 function,” it must be lawful. See, e.g., People v. Perez, 47 A.D.3d 1192, 1193-94, 851 N.Y.S.2d 14 747, 749 (App. Div. 4th Dep’t 2008); People v. Greene, 221 A.D.2d 559, 560, 623 N.Y.S.2d 15 144, 145 (App. Div. 2d Dep’t 1995); cf. People v. Stevenson, 286 N.E.2d 445, 448, 31 N.Y.2d 16 108, 111 (1972) (“[T]he crime of resisting arrest does not occur if the arrest is illegal or 17 unlawful.”). Appellees essentially argue that any arrest, lawful or otherwise, by a police officer is 18 an “official function.” But this proposition finds no support in New York case law. 19 Accordingly, if Ramos and Rivera’s arrest of Cameron was not lawful—e.g., if they knew 20 that they did not possess probable cause to arrest her for any crime—then they could not have 21 probable cause to arrest Higgenbottom for obstructing governmental administration. On retrial, Appellants do not argue that either error in the jury charge would have warranted reversal, and we do not so hold; we only address the jury charge because both issues may arise if the case proceeds to retrial. 1 an instruction explaining this legal nuance to the jury would be appropriate. That said, the 2 specific instruction that Appellants requested at trial was not quite correct. Ramos and Rivera 3 legitimately could have arrested Higgenbottom for disorderly conduct even if they did not have 4 probable cause to arrest her for the separate offense of obstructing governmental administration. 5 See N.Y. Penal Law § 240.20. As a result, a more appropriate instruction with respect to an 6 arrest based on obstruction of government administration might read along the following lines: 7 “For an arrest to be an official function, it must be lawful and supported by probable cause. 8 Therefore, if the Officers did not have probable cause to arrest Ms. Cameron, they could not have 9 had probable cause to arrest Ms. Higgenbottom for obstructing their efforts to effect Ms. 10 Cameron’s arrest.” Nothing we have said here with respect to the jury charge is intended thereby 11 to limit what Appellees may present as bases for the arrest of Higgenbottom, and the District 12 Court is obviously free on retrial to accommodate its charge to whatever theories of liability and 13 defense the parties may present. 14 IV. Punitive Damages Instruction 15 Appellants’ final claim challenges the District Court’s decision not to instruct the jury that 16 it could consider awarding punitive damages if it found for Appellants. We agree that this was 17 error. To warrant an instruction, “[a]ll that a party needs to show is that there is some evidence 18 supporting the theory behind the instruction so that a question of fact may be presented to the jury.” 19 Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). A punitive damages instruction is appropriate 20 when the plaintiffs have produced evidence that “the defendant’s conduct is . . . motivated by evil 21 motive or intent, or when it involves reckless or callous indifference to the federally protected rights of 22 others,” or, in other words, when the plaintiffs have produced evidence of “a positive element of 1 conscious wrongdoing” or “malice.” New Windsor Volunteer Ambulance Corps., Inc. v. Meyers, 442 2 F.3d 101, 121-22 (2d Cir. 2006) (internal quotation marks omitted). The plaintiffs’ evidence need only 3 be enough “to permit the factfinder to infer that the responsible official was motivated by malice or evil 4 intent or that he acted with reckless or callous indifference.” Id. at 122 (emphasis added). 5 In denying Appellants’ request for the instruction, the District Court concluded that there was 6 “no evidence that [Ramos and Rivera’s] actions were wanton, malicious or reckless.” J.A. 497. But it 7 is long-settled that “the lack of probable cause may give rise to an inference of malice.” Morrissey v. 8 Nat’l Maritime Union, 544 F.2d 19, 29 (2d Cir. 1976) (quoting Prosser on Torts § 119 at 848-49 9 (1971 ed.)); see also N. Oil Co. v. Socony Mobil Oil Co., 347 F.2d 81, 84 (2d Cir. 1965); Reisterer v. 10 Lee Sum, 94 F. 343, 346 (2d Cir. 1899). In this case, Appellants alleged that Ramos and Rivera 11 knew that they lacked probable cause to suspect Cameron or Higgenbottom of any crime but 12 arrested them anyway, and then proceeded to provide false information to the Bronx District 13 Attorney’s Office that led to Cameron’s prosecution. While a jury was free to reject this version of 14 events, the evidence at trial was at least minimally sufficient to support it. Had the jury accepted 15 Appellants’ account, it could have readily inferred that Ramos and Rivera were conscious of their 16 alleged wrongdoing and hence acted maliciously. Accordingly, a question of fact as to malice was 17 presented to the jury. And this made a punitive damages instruction appropriate. See Anderson, 18 17 F.3d at 557. 19 CONCLUSION 20 We AFFIRM the District Court’s denial of Appellants’ Rule 50 motion, but VACATE the 21 judgment and REMAND for a new trial on Appellants’ Rule 59 motion.

08-2789-cv TJS of New York, Inc. v. Town of Smithtown 2 UNITED STATES COURT OF APPEALS 4 FOR THE SECOND CIRCUIT 6 ____________________________________ 8 August Term, 2008 10 (Argued: June 4, 2009 Decided: March 10, 2010) 12 Docket No. 08-2789-cv 13 ____________________________________ 15 TJS OF NEW YORK, INC., a New York Corporation, 17 Plaintiff-Appellant, 19 – v. – 21 TOWN OF SMITHTOWN, a New York Municipal Corporation, 23 Defendant-Appellee. 25 ____________________________________ 27 Before: WINTER, CALABRESI, and SACK, Circuit Judges. 29 ____________________________________ 31 Appeal from a judgment of the United States District Court for the Eastern District of 32 New York (Feuerstein, J.), denying Plaintiff-Appellant’s request for a declaratory judgment and 33 permanent injunction barring enforcement of Defendant-Appellant’s zoning ordinance. Plaintiff- 34 Appellant argued that the ordinance failed to preserve adequate alternative sites for adult 35 entertainment uses. The District Court evaluated the constitutionality of the ordinance according 36 to the adequacy of alternative sites available at the time the ordinance was enacted. While we 37 find no flaw in the legal standards employed by the District Court to assess whether alternative 38 sites are available, we hold that when evaluating First Amendment challenges to a zoning 39 ordinance, a court must consider the adequacy of alternatives at the time the ordinance is 40 challenged. We therefore VACATE the District Court’s decision and REMAND for further 41 proceedings. 42 _________________________ 1 RICHARD L. WILSON (Howard E. Greenberg, on the brief) 2 Smithtown, N.Y., for Plaintiff-Appellant. 4 KENNETH M. SEIDELL, Smithtown, N.Y., for Defendant- 5 Appellee. 6 _____________________________________ 7 CALABRESI, Circuit Judge: 9 This case requires us to resolve an interesting and surprisingly unanswered question of 10 First Amendment law: whether the constitutionality of a zoning ordinance should only be 11 evaluated with regard to the “alternative avenues of communication” it leaves open at the time it 12 is passed, or also those it leaves open at the time it is challenged. Plaintiff-Appellant TJS of 13 New York, Inc. (“TJS”) brought a First Amendment challenge to a zoning ordinance enacted by 14 Defendant-Appellee Town of Smithtown, seeking an injunction and declaratory judgment to the 15 effect that the ordinance did not give TJS adequate alternative sites on which to locate its adult 16 entertainment business. The United States District Court for the Eastern District of New York 17 (Feuerstein, J.) denied the request for declaratory judgment and a permanent injunction, 18 upholding the ordinance on the ground that adequate alternative sites existed at the time the 19 ordinance was passed. See TJS of New York, Inc. v. Town of Smithtown, No. 03-CV-4407, 2008 20 WL 2079044 (E.D.N.Y. May 13, 2008) (“TJS”). We hold that the First Amendment requires 21 courts to consider the adequacy of alternative sites available when the ordinance is challenged. 22 We therefore vacate and remand for further proceedings. We reject, however, TJS’s argument 23 that the District Court applied legally erroneous standards in determining whether a site was 24 available for adult entertainment establishments, and we emphasize that nothing in our decision 1 alters the fact that municipalities have broad constitutional power to limit adult entertainment 2 uses. 3 I. Facts 4 In 1994, Smithtown enacted a zoning ordinance limiting any new “adult entertainment” 5 uses 1 to three kinds of zoning districts: shopping center business (“SCB”), light industry (“LI”) 6 and heavy industrial (“HI”). The same ordinance created an amortization schedule providing 7 that any existing adult entertainment uses located in zones other than SCB, LI, and HI would 8 become nonconforming uses after January 1, 1998. In addition to these general zoning 9 restrictions, the ordinance also required that adult entertainment uses be located at least 500 feet 10 from each other and from any “residence district, park, playground, school, church or similar 11 place of public assembly.” Chapter 322-30.2. 12 490 West Jericho Turnpike in Smithtown has been in use as an adult entertainment site 13 since 1979, under various owners. It is located less than 500 feet from three different parks, and 14 it is also located in a neighborhood business (“NB”) zone. Accordingly, it became a 15 nonconforming use under the 1994 ordinance. 16 At the time the ordinance was passed, the adult entertainment site at 490 West Jericho 17 Turnpike was owned by 490 Habitat, Inc. (“Habitat”). In July 1999, Habitat filed a lawsuit Chapter 322-3 of the Town’s zoning code identifies “adult entertainment” as: A public or private establishment which presents topless dancers, strippers, male or female impersonators, exotic dancers or other similar entertainments and which establishment is customarily not open to the public generally and excludes any minor by reason of age. This includes adult massage parlors, peep shows and adult theaters and similar types of businesses. 1 challenging the Town’s zoning ordinance, arguing, inter alia, that the ordinance violated the 2 First Amendment because it did not provide a reasonable number of locations for new adult 3 entertainment businesses to open and operate in Smithtown. As the case proceeded to trial, the 4 District Court ordered the Town to compile a list of alternative locations at which an adult 5 entertainment use could to be located. The Town did so, coming up with 35 sites. 6 On May 30, 2000, while Habitat’s challenge was pending, Smithtown amended the 7 relevant code by requiring the 500-foot minimum spacing to be measured building-to-building 8 rather than property line-to-property line, and by removing a special exception requirement that 9 Habitat had argued was an unconstitutional prior restraint. Soon afterward, Habitat and the 10 Town ended their litigation pursuant to a stipulation in which Habitat agreed to make a “diligent 11 good faith effort” to relocate, but was permitted to continue operating at 490 West Jericho 12 Turnpike until September 1, 2003. 13 In 2002, however, Habitat sold the site to TJS, which used it as an adult entertainment 14 establishment called “The Oasis.” In June 2003, the Town moved for an order of closure, and 15 TJS responded by seeking a declaratory judgment and permanent injunction against enforcement 16 of the ordinance. The case proceeded to a six-day bench trial before Judge Feuerstein in the 17 United States District Court for the Eastern District of New York. At trial, experts testified for 18 both the Town and TJS as to whether the ordinance preserved adequate alternative locations for 19 adult entertainment uses, as required by the First Amendment. 20 In addition to disputing whether certain sites were in fact “available,” the parties 21 disagreed strongly about what time period was relevant to the inquiry. The Town argued that the 22 only relevant question was whether adequate alternative locations existed at the time the 1 ordinance was passed. TJS, however, argued that the constitutionality of the ordinance should be 2 evaluated with regard to the adequacy of alternative sites available at the time the complaint was 3 filed. 2 The District Court concluded that TJS was “incorrect. It is a municipality’s burden to 4 pass a constitutional ordinance which, in order to be constitutional, must provide sufficient 5 alternative avenues of expression on the date of enactment.” TJS, 2008 WL 2079044, at *6 6 (emphasis added). The court then proceeded to evaluate the sites available on that date, found 7 them to be adequate, 3 and denied TJS’s request for a declaratory judgment and permanent 8 injunction. Id. at *20. TJS timely appealed. 9 II. Adult Entertainment, Zoning, and the First Amendment 10 Over the past few decades, adult entertainment establishments have played a 11 disproportionately prominent role in First Amendment doctrine. Adult entertainment, unlike 12 obscenity, see generally Roth v. United States, 354 U.S. 476 (1957), has been held by the 13 Supreme Court to be protected by the First Amendment. And yet the High Court has often The Town notes that TJS stated before the District Court that “there is only one issue in this case and that is on the day you enter judgment are there sufficient alternative sites for TJS to locate.” [T 122] (emphasis added). The Town argues that TJS should not now be permitted to disregard that argument in favor of a time-of-the-complaint analysis. We are not convinced that the two are inconsistent. Under either phrasing, the proposed test is simply whether the law is violating TJS’s rights. Thus if the Town were to revise the ordinance between the date the complaint was filed and the date judgment is entered—as it did during the Habitat litigation— then the case might very well become moot. Similarly, if—as is true here—a case is remanded after a successful appeal and significant time has passed since the complaint was initially filed, the court must determine whether the law violates the First Amendment rights of the plaintiff at the time of the renewed proceeding. See infra page [8-9] (explaining that the court must evaluate adequacy as close to the time of judgment as is practicable). The District Court actually found that sufficient sites were available both in 1994, when the ordinance was adopted, and in 1999, when the earlier dispute was settled. 2008 WL 207044, at *20. 1 treated adult entertainment establishments and the activities they support as different from “core” 2 First Amendment speech. Most notably, the Court has upheld adult entertainment zoning 3 restrictions that would almost certainly be unconstitutional if applied to pure political speech. 4 See Stone et al., The First Amendment 243 (3d ed. 2008) (“Presumably, the Court would not 5 uphold a law restricting the location of theaters that show racist or anti-war films.”). 6 The differential treatment of adult entertainment establishments goes back at least as far 7 as Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), in which the Supreme Court 8 upheld zoning ordinances providing that adult theaters could not be located within 1,000 feet of 9 any two other “regulated uses,” nor within 500 feet of a residential area. The Court concluded 10 that “[t]he city’s interest in planning and regulating the use of property for commercial purposes 11 is clearly adequate to support that kind of [minimum spacing] restriction applicable to all theaters 12 within the city limits.” Id. at 62-63. The Court therefore held that “apart from the fact that the 13 ordinances treat adult theaters differently from other theaters and the fact that the classification is 14 predicated on the content of material shown in the respective theaters, the regulation of the place 15 where such films may be exhibited does not offend the First Amendment.” Id. at 63. 16 A decade later, in a case whose resolution the Court said was “largely dictated by” 17 Young, the Court held that the First Amendment permits municipal governments to use zoning 18 laws as a means of addressing the “secondary effects” of adult establishments. City of Renton v. 19 Playtime Theatres, Inc., 475 U.S. 41, 46, 47–48 (1986). Under Renton, local governments may 20 limit the location of adult entertainment establishments in order “to prevent crime, protect the 21 city’s retail trade, maintain property values, and generally protect and preserve the quality of the 22 city’s neighborhoods, commercial districts, and the quality of urban life, [but] not to suppress the 1 expression of unpopular views.” Id. at 48 (alterations and internal quotation marks omitted). 2 Thus, if a zoning ordinance serves “a substantial governmental interest and allows for 3 reasonable alternative avenues of communication,” the First Amendment is satisfied. Id. at 50 4 (emphasis added). It is the latter prong of this test with which we are concerned here. 5 The over-arching legal question in the present case, as in many First Amendment zoning 6 challenges, is whether the challenged zoning ordinance preserves “reasonable alternative 7 avenues of communication” for adult-oriented businesses. See Buzzetti v. City of New York, 140 8 F.3d 134, 140-41 (2d Cir. 1998) (citing Renton, 475 U.S. at 53-54). In the context of adult 9 entertainment cases, we have held that the reasonableness inquiry requires an assessment of 10 available other locations, Hickerson v. City of New York, 146 F.3d 99, 107-08 (2d Cir. 1998), and 11 whether these alternatives afford a reasonable opportunity to locate and operate such a business, 12 Buzzetti, 140 F.3d at 140-41. See also Isbell v. City of San Diego, 258 F.3d 1108, 1112 (9th Cir. 13 2001) (“To decide whether constitutionally sufficient alternatives exist, [a court should] first . . . 14 determine how many sites are available and then determine whether that number is sufficient to 15 afford adult establishments a reasonable opportunity to locate.” (internal citations omitted)). 4 In 16 approaching these inquiries, we look also to the time, place, and manner cases, from which the 17 adult zoning cases descend, and to which they bear a strong family resemblance. See Young, 427 18 U.S. at 63 & n.18 (holding that regulating the location of adult films does not violate the First This does not mean that a municipality must identify the exact locations to which adult establishments may locate, “as opposed to identifying the general areas that remain available and proving that such areas contain enough potential relocation sites that are physically and legally available to accommodate the adult establishments.” Hickerson, 146 F.3d at 107 (internal quotation marks omitted). 1 Amendment, and citing as support the proposition that “[r]easonable regulations of the time, 2 place, and manner of protected speech, where those regulations are necessary to further 3 significant governmental interests, are permitted by the First Amendment”). Although the two 4 inquiries are not equivalent—most importantly, it is by no means clear whether or how the 5 content-neutrality requirement that is central in time, place, and manner cases applies in adult 6 entertainment zoning cases 5 —there are important similarities. This is so because, as with time, 7 place, and manner restrictions, the underlying question in adult zoning cases is whether the 8 challenged restriction leaves open adequate alternative avenues of communication. 9 III. The Proper Time-Frame for Evaluating Adequacy The Court’s assertion of the time, place, and manner test in Young notably omitted that test’s traditional content-neutrality requirement. See, e.g., Clark v. Community for Creative Non- Violence, 468 U.S. 288, 293 (1984) (holding that “content-neutral” time, place, and manner regulations are acceptable so long as they are narrowly tailored to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication). Even if such a requirement applies to zoning ordinances that target adult uses, determining whether such ordinances are in fact content-neutral is a tricky question. Writing for the majority in Renton, Chief Justice Rehnquist concluded that because “the Renton ordinance is aimed not at the content of the films . . . , but rather at the secondary effects of such theaters on the surrounding community,” it was as “completely consistent with our definition of content-neutral speech regulations as those that are justified without reference to the content of the regulated speech.” 475 U.S. at 47-48 (internal quotation marks omitted); see also City of Erie v. Pap’s A. M., 529 U.S. 277, 283 (2000) (concluding that law banning public nude dancing was content- neutral and constitutional). Justice Brennan, in his dissenting opinion in Renton, labeled this conclusion “misguided.” He observed that any “secondary effects” may be relevant to the strength of the governmental interest behind a zoning ordinance, but that it did not change the fact that the ordinance was content based. 475 U.S. at 56-57 (Brennan, J., dissenting). Various other Justices have since endorsed Brennan’s view. See e.g., City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 448 (2002) (Kennedy, J., concurring in the judgment) (describing zoning ordinance as “content based” and concluding that Renton’s statement of content neutrality was of “something of a fiction”); id. at 457 (Souter, J., dissenting) (describing ordinance as “content correlated”). Nevertheless, for the purposes of our analysis here, we assume that Smithtown has not violated whatever content-neutrality requirement may apply to adult entertainment zoning ordinances. 1 The primary question we face here is which set of alternatives must we evaluate: those 2 available at the time an ordinance is passed, or those available at the time it is challenged? We 3 hold that, in assessing the adequacy of alternative sites left open by a zoning ordinance, courts 4 must consider the adequacy of alternatives available at the time the ordinance is challenged. 5 This evaluation should account for circumstances as they exist at the time the court issues its 6 judgment, or as close as is practicable to that time in light of the need for discovery and the 7 presentation of evidence, as managed by the district court. 8 We reach this conclusion because we believe that the First Amendment does not allow 9 courts to ignore post-enactment, extralegal changes and the impact they have on the sufficiency 10 of alternative avenues of communication. The alternatives available when a statute is passed can 11 disappear, thus decreasing the adequacy of alternative sites actually available to would-be 12 speakers. See Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524,1532 (9th Cir. 1993) 13 (“Land under the ocean, airstrips of international airports, [etc.] . . . are not relocation sites likely 14 to ever become available to the Adult Businesses, or indeed to any commercial business.”). 15 Conversely, if a municipality opens up new land to development, the availability of alternative 16 sites might very well increase, and thereby expand speakers’ options, thus rendering 17 constitutional zoning ordinances previously enacted. And even something as simple as growth in 18 a community’s population may be relevant to the adequacy of available sites. See David 19 Vincent, Inc. v. Broward County, Fla., 200 F.3d 1325, 1336 (11th Cir. 2000) (suggesting that a 20 “community’s population and size” be considered among the factors relevant to the inquiry). 1 Our holding requires no more than that the First Amendment inquiry be attuned to these 2 realities. 6 3 While our holding is not specifically established by existing caselaw addressing either 4 adult entertainment zoning or time, place, and manner restrictions, we conclude that it is fully 5 grounded in the approaches taken by the Supreme Court in Young, Renton, and their progeny. 6 These cases focus on the practical and continuing impact of zoning regulations on adult 7 entertainment uses as applied, rather than on their facial constitutionality when passed. In 8 Renton, for example, the Supreme Court specifically noted that no adult uses existed in the city 9 at the time the ordinance was passed. 475 U.S. at 44. A year later, however, the plaintiffs 10 acquired two theaters and intended to use them to show adult films. Id. at 45. If the only 11 question had been whether the challenged ordinance permitted adequate alternatives at the time it 12 was passed, Renton would have virtually been a “non-case”—because there were no adult 13 establishments in existence when the ordinance was passed, the ordinance could not have 14 unconstitutionally limited them as of that time. The Court, of course, did not take this easy 15 route, but rather evaluated the availability of alternatives at some date subsequent to enactment 16 (precisely which date is unclear from the opinion). In doing so, the Court explained that “the 17 First Amendment requires only that Renton refrain from effectively denying respondents a 18 reasonable opportunity to open and operate an adult theater within the city.” Id. at 54 (emphasis 19 added); see also Boss Capital, Inc. v. City of Casselberry, 187 F.3d 1251, 1254 (11th Cir. 1999) This approach, of course, in no way relies on any kind of “evolving” First Amendment jurisprudence. The principal question—whether a law provides adequate alternatives—is the same no matter when it is considered. 1 (holding that, in evaluating adequacy, courts may consider the community’s population and size, 2 the acreage available to adult businesses as a percentage of the overall size, the location of 3 available sites, the number of adult businesses already in existence, and “the number of adult 4 entertainment establishments wanting to operate in [the community]” in the future), abrogated 5 on other grounds by City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004). Such 6 an inquiry would not make sense unless “future” impact—in so far as it required courts to 7 consider the effect of the ordinance on adult businesses that have opened or might open after the 8 ordinance was enacted—is constitutionally relevant. Moreover, the Renton Court repeatedly 9 phrased its inquiry in the present tense, thereby suggesting that it considered the significant time 10 to be that of the challenge, not of the law’s passage: “The appropriate inquiry in this case, then, 11 is whether the Renton ordinance is designed to serve a substantial governmental interest and 12 allows for reasonable alternative avenues of communication.” Id. at 50 (emphasis added); see 13 also id. at 53 (same); id. at 54 (“[W]e have cautioned against the enactment of zoning regulations 14 that have the effect of suppressing, or greatly restricting access to, lawful speech, . . . .” (internal 15 quotation marks omitted)). 16 We recognize, however, that not all courts have read Renton in this way, and that our 17 holding appears to conflict with that of at least one other court—the United States District Court 18 for the District of Maryland, on whose decision the District Court in this case relied. In Bigg 19 Wolf Discount Video Movie Sales, Inc. v. Montgomery County, Md., 256 F.Supp.2d 385 (D. Md. 20 2003), the Maryland court concluded that “[a]lthough many courts have not explicitly said so, 21 most have logically analyzed the number of available sites in relation to the number of adult 22 businesses that would need to relocate at the time the ordinance was passed.” Id. at 397. And 1 language in a case from the United States Court of Appeals for the Eleventh Circuit suggests a 2 similar approach. In Daytona Grand, Inc. v. City of Daytona Beach, Fla., 490 F.3d 860 (11th 3 Cir. 2007), the court stated that “[a] new zoning regime must leave adult businesses with a 4 ‘reasonable opportunity to relocate,’ and ‘the number of sites available for adult businesses under 5 the new zoning regime must be greater than or equal to the number of adult businesses in 6 existence at the time the new zoning regime takes effect.’” Id. at 870 (quoting Fly Fish, Inc. v. 7 City of Cocoa Beach, 337 F.3d 1301, 1310-11 (11th Cir. 2003)). 8 We believe that these cases hold no more than that courts should in the ordinary course 9 consider the adequacy of alternative sites available when an ordinance was passed. To the extent 10 that these cases suggest that courts should only consider the adequacy of alternatives existing at 11 the time of an ordinance’s passage, we disagree. The adequacy of sites left available by an 12 ordinance at the time of its passage may be relevant to its constitutionality, and nothing in our 13 opinion today should be read as holding to the contrary. (That issue is not before us.) But 14 whether or not it is constitutionally necessary in some circumstances for an ordinance to preserve 15 adequate alternatives at the time of passage, it is not constitutionally sufficient. 16 In addition to relying on the above-mentioned Maryland and Eleventh Circuit cases, the 17 District Court stated that our Circuit “has implicitly found that the appropriate date for 18 assessment of proposed alternative avenues of communication is the date of enactment.” TJS, 19 2008 WL 2079044, at *7. We disagree. The District Court based its conclusion on our favorable 20 citation, in Hickerson, 146 F.3d 99, to (a) Town of Islip v. Caviglia, 540 N.E.2d 215 (N.Y. 1989), 21 which in turn noted that there was ample space available for adult uses after the rezoning and 22 that there was no evidence that the number or accessibility of adult bookstores would be 1 diminished, and to (b) Stringfellow’s of New York, Ltd. v. City of New York, 694 N.E.2d 407 2 (N.Y. 1998), in which the City was required to show sufficient “alternative receptor sites” to 3 which existing adult uses could relocate. The lower court also pointed out that in Buzzetti, 140 4 F.3d 134, we “upheld an adult entertainment zoning ordinance, which permitted the existing 5 adult entertainment establishments to continue operations but did not require that future adult 6 entertainment establishments would be entitled to open at new locations.” TJS, 2008 WL 7 2079044, at *8. 8 All that is so. But, of course, none of these cases limits us to considering only the 9 adequacy of alternative sites available at the time an ordinance is passed. The statement in 10 Caviglia (which we approvingly cited in Hickerson) that the rezoning preserved ample space for 11 adult bookstores and did not lessen their number or accessibility does not imply, much less hold, 12 that a statute must only provide ample alternatives at the time it is passed. Moreover, Hickerson 13 specifically did not address the merits of the petitioners’ First Amendment claims. Hickerson, 14 146 F.3d at 103 (“The only question before us is whether the New York courts’ rejection of 15 plaintiffs’ state constitutional claims forecloses plaintiffs from relitigating, in the form of a First 16 Amendment claim in federal court, the same issues that were resolved against them in state 17 court.”) (emphasis added). But even if we were to read the cited language as being a holding, it 18 would not support the District Court’s time-of-enactment approach. Indeed, the most natural 19 reading of the phrase “after the rezoning” would encompass all time periods after the rezoning, 20 not just the date of passage itself. 21 Similarly, in Buzzetti we stated that “there can be no doubt on this record that the Zoning 22 Amendment allows for reasonable alternative avenues of communication.” 140 F.3d at 140 1 (internal quotation marks omitted). In support of this conclusion, we cited the district court’s 2 finding that “[e]leven percent of New York City’s total land area remains as permissible 3 locations for adult establishments to operate” and concluded: 4 [T]he Zoning Amendment allows for the operation of approximately 500 adult 5 establishments in New York City in comparison to the approximately 177 adult 6 establishments currently operating in the city; accordingly, the Amendment 7 permits all of the City’s existing adult establishments to continue to operate in the 8 City, either at their current sites or at new locations. 10 140 F.3d at 141 (alterations and internal quotation marks omitted). Thus, if anything, the present 11 tense language of Buzzetti—“currently operating”; “existing”; “continue to operate”; “new 12 locations”—like that of Renton, suggests a focus on the present application of the ordinance, not 13 its constitutionality at the time of passage. 7 14 The District Court also cited the Ninth Circuit’s opinion in Topanga Press Inc. v. City of 15 Los Angeles, 989 F.2d 1524 (9th Cir. 1993), which the District Court described as holding that 16 “the number of sites available must merely be greater than or equal to the number of adult 17 entertainment businesses in existence at the effective date of the ordinance.” TJS, 2008 WL 18 2079044, at * 7. We do not so read that opinion. To be sure, the Ninth Circuit affirmed the 19 district court’s issuance of a preliminary injunction against the ordinance in part on the basis that 20 the number of sites available under the ordinance would not likely accommodate all of the then- 21 operating adult entertainment businesses. Topanga, 989 F.2d at 1532-33. But the language of 22 Topanga—which considered the alternatives available to adult businesses that are “now in In Buzzetti, the difference between these two periods was not so great as it is here. The ordinance in that case was passed in 1995, 140 F.3d. at 136, and the complaint was filed in 1996. Id. at 137. 1 operation”—is fully consistent with the approach we take here, which, as we have emphasized, 2 may well permit courts also to consider an ordinance’s constitutionally at the time it is passed. 3 Because Topanga found that the challenged ordinance did not provide adequate alternatives at 4 the time it was passed, the court did not find it necessary to consider whether it also failed to 5 provide adequate alternatives at some later date. The fact that the Topanga court chose not to 6 make the latter inquiry, however, in no way means that its decision precluded such an inquiry. 7 In arguing that adequacy should be measured exclusively at the time of the ordinance’s 8 enactment, the Town’s primary concern seems to be that the rule we endorse here will permit 9 adult entertainment businesses repeatedly to challenge the constitutionality of the same 10 ordinance. In this regard, the Town emphasizes, and the District Court noted, that “the Town of 11 Smithtown passed the original ordinance in 1994 and amended it in 2000, and presented a list of 12 alternative sites in 1999 to [TJS’s] predecessor.” TJS, 2008 WL 2079044, at *8. TJS, however, 13 “did not commence this suit until 2004, upon commencement by the Town of a closure action in 14 State court,” and in any event TJS “was aware of the nature of the restrictions upon an adult 15 entertainment establishment when he purchased and opened the business.” Id. And, the District 16 Court concluded, “to ignore the history of the site between the 1994 enactment of the original 17 ordinance and 2003 would reward recalcitrance on [TJS’s] part” because it “would still fail to 18 explain [TJS’s] failure to raise specific legitimate objections to the proposed sites over the past 19 five (5) years.” Id. We, of course, have no problem with the proposition that the history of 490 20 West Jericho Turnpike should not be “ignore[d].” Giving due regard to that history, however, 21 does not alter the basic inquiry as to whether the challenged ordinance provides adequate 22 alternative sites. 1 Moreover, although the rule we endorse today might in some circumstances open 2 ordinances up to more than one attack, it would only do so if there were significant changes in 3 the surrounding community. And the burden of pleading and proving such charges with 4 particularity could well be put on the plaintiff. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 5 (2007). Furthermore, the implications of the reverse rule would be constitutionally troubling. If 6 the only relevant question were whether an ordinance provided adequate alternatives on the day 7 of its passage, any law that did so would thereafter be immune from First Amendment challenge. 8 And speech that the Supreme Court has held to be protected by that Amendment would be 9 silenced. Conversely, a strict time-of-passage rule might arguably make it impossible for a city 10 to save a constitutionally deficient ordinance: post-enactment remedial measures taken by a city 11 to make alternative sites more available (such as opening new land to development) would, in 12 theory, seem to be just as constitutionally irrelevant as developments limiting the availability of 13 such alternatives. Our holding avoids these perverse results. 14 IV. Relevant Considerations for Evaluating Availability 15 In addition to challenging the date of inquiry used by the District Court, TJS objects to 16 the legal standards employed by the District Court to evaluate the adequacy of potential 17 alternative sites. Specifically, TJS contends that the District Court applied legally erroneous 18 standards in deciding whether sites identified by the Town of Smithtown were “available,” and 19 that the Court improperly prohibited testimony by TJS’s expert witness intended to address the 20 question of availability. 21 We will not review particular evidentiary rulings that were made by the District Court in 22 the course of a trial whose result we are vacating. We also express no opinion as to the ultimate 1 merits of this case and the question of whether adequate alternative locations for adult businesses 2 exist in Smithtown. This question turns on a fact-specific inquiry that the District Court will 3 undertake on remand. We do, however, deem it appropriate to address TJS’s more general 4 challenge to the standards employed by the District Court to determine whether certain sites are 5 available. This issue has already been briefed by both parties and argued to this Court, and it is 6 almost certain to recur in this case. Our review of the District Court’s legal conclusions is de 7 novo. See Am. Booksellers Found. v. Dean, 342 F.3d 96, 100 (2d Cir. 2003); see also David 8 Vincent, 200 F.3d at 1333 (explaining that while a district court’s calculation of the number of 9 sites available for adult business under a zoning law is a factual finding reviewed for clear error, 10 a court’s “methodology in making that calculation” is a question of law). 11 The Supreme Court has not precisely delineated the relevant factors for determining 12 whether potential relocation sites are reasonably available, but it has identified certain factors as 13 categorically irrelevant. In Renton, the Court concluded that the 520 acres that the city left open 14 for use by adult theater sites constituted reasonable alternative avenues of communication. 475 15 U.S. at 53. Those 520 acres consisted of “ample, accessible real estate, including acreage in all 16 stages of development from raw land to developed, industrial, warehouse, office, and shopping 17 space that is criss-crossed by freeways, highways, and roads.” Id. (alterations and internal 18 quotation marks omitted). Reversing the Court of Appeals, the Supreme Court rejected the 19 argument that much of this land was not “truly available” because sites were “already occupied 20 by existing businesses,” not “currently for sale or lease” or otherwise not “commercially viable.” 21 Id. at 53-54 (internal quotation marks omitted). In doing so, the Court made it clear that whether 22 the acquisition and use of land might be unprofitable or commercially impracticable was not 1 relevant to its concept of availability. See id. at 54 (“[W]e have never suggested that the First 2 Amendment compels the Government to ensure that adult theaters, or any other kinds of speech- 3 related businesses for that matter, will be able to obtain sites at bargain prices.”). 4 Following Renton, federal courts have based the availability inquiry on whether proposed 5 sites are physically and legally available, and whether they are part of an actual commercial real 6 estate market in the municipality. See Hickerson, 146 F.3d at 106-07 (quoting Stringfellow’s, 7 694 N.E.2d at 417). Several factual considerations underlie the question of whether sites are part 8 of an actual real estate market. One factor is the “the pragmatic likelihood of [sites] ever actually 9 becoming available,” id. at 106, to a generic commercial enterprise. Though Renton does not 10 require relocation sites to be actually— as opposed to potentially—available, “the requirement of 11 potentiality connotes genuine possibility.” Topanga, 989 F.2d at 1531. Other significant factors 12 relating to sites’ physical characteristics include their “accessibility to the general public, the 13 surrounding infrastructure, . . . and . . . whether the sites are suitable for some generic 14 commercial enterprise.” Hickerson, 146 F.3d at 106 (internal quotations omitted). 15 Sites that meet these criteria can qualify as available, even if they are in industrial or 16 manufacturing zones. See Tollis, Inc. v. County of San Diego, 505 F.3d 935, 941 (9th Cir. 2007). 17 Additionally, the need for a site to be developed before an adult entertainment business can 18 relocate does not render the site unsuitable. See David Vincent, 200 F.3d at 1334. This does not 19 mean that any site that is legally available under a municipality’s zoning laws is necessarily 20 suitable simply because the possibility of development or alteration theoretically exists. Where 21 the physical features of a site or the manner in which it has been developed are “totally 22 incompatible with any average commercial business,” Topanga, 989 F.2d at 1532, or the site 1 lacks the basic infrastructure that is a precondition to private development, it should not be 2 considered part of the relevant real estate market for purposes of determining availability. See 3 Woodall v. City of El Paso, 49 F.3d 1120, 1124 (5th Cir. 1995) (“[I]n determining whether there 4 are sufficient sites available, the finder of fact may exclude land under the ocean, airstrips of 5 international airports, sports stadiums, areas not readily accessible to the public, areas developed 6 in a manner unsuitable for any generic commercial business, areas lacking in proper 7 infrastructure, and so on.”). On the other hand, it is clear under Renton that whether or not sites 8 fit the specific needs of adult businesses—or any other precise type of commercial enterprise—is 9 constitutionally irrelevant. See Renton, 475 U.S. at 54; Topanga, 989 F.2d at 1531 (“[W]hen a 10 relocation site suits some generic commercial enterprise, although not every particular enterprise, 11 it . . . may be said to be part of the real estate market.”). If sites are part of the commercial 12 market generally, they are available even if they are not commercially viable for adult business 13 specifically. See Isbell, 258 F.3d at 1113. 14 TJS does not object to this formulation for determining availability, but rather argues that 15 the category “some generic commercial enterprise” includes only classes of businesses similar in 16 physical characteristics to an adult entertainment business, such as “CVS Pharmacy, Wendy’s 17 and Blockbuster Video.” Appellant’s Br. at 16-17. Therefore, TJS contends, a fact-finder must 18 exclude from consideration any site that is best suited for a “big box” enterprise, such as sites 19 that are part of a large or expensive tract of land or sites zoned for industrial or warehouse usage 20 as well as for general commercial enterprises. For example, TJS argued to the District Court that 21 a six and three-tenths acre site (Site 17) occupied by an automobile dealership was not available 22 because it was “too large . . . too expensive . . . and not pragmatic” for TJS. TJS, 2008 WL 1 2079044, at *15. TJS advanced similar objections to other sites. 8 The District Court rejected 2 TJS’s argument, reasoning that a site is not unsuitable simply because it is better suited for some 3 other commercial or industrial use. See id. at *3 & n.1. The District Court therefore considered 4 these sites available for the purpose of assessing adequacy. 5 We find that the District Court articulated and applied the correct standard for 6 availability. TJS’s objections to the physical size of sites and to the nature of the businesses 7 currently operating at certain sites ultimately reduce to complaints about economic impact and 8 commercial viability. Even if we granted that certain identified sites were better suited to large 9 businesses, like automobile dealerships, than they were to small retail stores, it would not 10 follow that these sites would not be part of a general commercial real estate market. It would 11 mean only, and quite unremarkably, that there are sites that would be more profitable locations 12 for some commercial businesses than for others. As we have explained, the possibility that sites 13 will be unprofitable or commercially unviable for adult businesses like TJS—or even for non- 14 adult businesses that are similar in size—is not relevant to the availability inquiry. “The ideal 15 lot [for a particular type of business] is often not to be found.” David Vincent, 200 F.3d at 16 1334. An adult entertainment establishment must compete for commercial real estate like any In addition, TJS objected to the availability of other sites (either in whole or in part) on different grounds. For instance, its expert witness, Steven Cataldo, claimed that some sites were environmentally sensitive because they supposedly had slopes in excess of fifteen percent and that other sites were environmentally sensitive because they were allegedly subject to methane gas contamination or were located near landfills. See TJS, 2008 WL 2079044, at *9. The District Court discounted Mr. Cataldo’s testimony as to these issues because he failed to conduct the appropriate examinations and tests to substantiate his concerns, and because of inconsistencies in his testimony. See id. at *10-11. In its brief, TJS calls attention to the District Court’s findings regarding these environmental sensitivity concerns, see App. Br. at 5, but TJS does not appear to challenge these findings as part of its appeal. 1 other market participant. And, like for other market participants, the physical size or nature of 2 the business may affect the availability of commercially viable sites or the willingness of 3 property owners to sell or lease to them. There are, in short, inevitable impediments to a 4 business’s relocation. But obstacles such as the possibility of “making due with less space than 5 one desired,” or “having to purchase a larger lot than one needs,” do not render property 6 unavailable for the purpose of constitutional analysis. Id. at 1335. Alternative sites need only 7 be available, not attractive. 8 Essentially, TJS attempts to avoid the logic of Renton and the “prohibition against 9 consideration of economic impact,” Topanga, 989 F.2d at 1529, by asking us to subdivide the 10 real estate market. TJS does not dispute that sites that are not viable for adult entertainment 11 businesses may still be available. Rather, as outlined above, it argues that the test for whether a 12 site is part of an actual market depends on whether the site is suitable for businesses that share 13 similar characteristics to adult entertainment businesses. We find no support for such an 14 approach, and we decline to adopt it. Indeed, courts have repeatedly insisted that sites are part 15 of an actual real estate market if they are potentially suitable for commercial enterprises 16 generally, not for a particular subset of commercial enterprises. See, e.g., Z.J. Gifts D-4, L.L.C. 17 v. City of Littleton, 311 F.3d 1220, 1240 (10th Cir. 2002) (refusing to exclude categorically 18 warehouses and other large-scale manufacturing uses from the availability calculation because, 19 under Renton, “industrial, warehouse, office, and shopping space[s]” were included in the list of 20 “divers[e]” properties available for adult businesses) (emphasis omitted), rev’d on other 21 grounds, 541 U.S. 774 (2004); Isbell, 258 F.3d at 1113 (rejecting argument by adult business 22 that parcels occupied by car dealerships or plumbing supply outlets were not part of the relevant 1 business real estate market because the parcels were not economically suitable, and indicating 2 that “‘it is not relevant whether a . . . site will result in lost profits, higher overhead costs, or 3 even prove to be commercially infeasible for an adult business’” (quoting Topanga, 989 F.2d at 4 1531)). That some sites are simply bigger than TJS desires and more expensive than it wishes 5 does not render them unsuitable for some generic purpose or remove them from the general real 6 estate market. 7 We are unconvinced by TJS’s admonition that adult entertainment businesses “will cease 8 to exist” if local governments are allowed to recognize large lot sizes as available alternatives 9 for relocation. See App. Br. at 16. Even leaving aside the legal irrelevance of commercial 10 viability concerns under Renton, TJS’s contention that smaller commercial enterprises cannot 11 possibly locate on larger lots is speculative. TJS ignores, for instance, the District Court’s 12 findings that certain large sites could be subdivided, and that current property owners could 13 sublet portions of their property to smaller businesses. See TJS, 2008 WL 2079044, at * 15, 17- 14 18; see also MJ Entm’t Enters., Inc. v. City of Mount Vernon, N.Y., 328 F. Supp. 2d 480, 484 15 (S.D.N.Y. 2004) (recognizing that sites that are currently in use are available despite the fact 16 that the sites “would have to be acquired or leased, and even subdivided”). Of course, it is 17 possible that other businesses may not wish to locate next to an adult entertainment business 18 like TJS or to sublease to one. But “the First Amendment is not concerned with restraints that 19 are not imposed by the government itself . . . . It is of no import under Renton that the real 20 estate market may be tight . . . or that property owners may be reluctant to sell to an adult 21 venue.” David Vincent, 200 F.3d at 1335. 1 In endorsing the District Court’s legal standards for the evaluation of availability, we do 2 not ourselves now find that particular sites are or are not available. Because the District Court 3 did not measure adequacy at the time the ordinance was challenged, we decline to speculate as 4 to whether sites potentially available at that time provided sufficient alternatives. On remand, 5 the District Court will determine whether there are currently adequate alternatives for relocation 6 in Smithtown. See supra page [5 n.2, 9]. We hold only that TJS’s challenge to the District 7 Court’s legal standard for determining availability—and more specifically its challenge to the 8 District Court’s definition of “generic commercial enterprise”—lacks merit. 9 V. Conclusion 10 While we find no flaw in the standards employed by the District Court to determine 11 whether alternative sites proffered by a municipality are available, we conclude that the 12 constitutionality of a zoning ordinance must be evaluated according to the alternative sites it 13 leaves open at the time it is challenged, and not only at the time it is passed. We therefore 14 VACATE the District Court’s decision and REMAND for further proceedings consistent with 15 this opinion.

09-1144-cr United States v. Navas 1 UNITED STATES COURT OF APPEALS 2 F OR THE S ECOND C IRCUIT 4 August Term, 2009 5 (Argued: January 27, 2010 Decided: March 8, 2010) 6 Docket No. 09-1144-cr 8 U NITED S TATES OF A MERICA, 9 Appellant, 10 - v.- 11 J OSE N AVAS, J OSE A LVAREZ, and A RTURO M OREL, 12 Defendants-Appellees, 13 F AUSTO V ELEZ, F ERNANDO D ELGADO, P EDRO V ENTURA, A NTONIO M OREL, and E URIS 14 V ELEZ, 15 Defendants. * * The Clerk of the Court is respectfully directed to amend the official caption of this action to conform to the caption listed above. 1 Before: 2 L EVAL and W ESLEY, Circuit Judges, and G LEESON, District Judge. ** 3 Interlocutory appeal from a March 19, 2009 order of the 4 United States District Court for the Southern District of 5 New York (Pauley, J.), which granted in part and denied in 6 part motions to suppress evidence and post-arrest statements 7 collected during the course of a narcotics investigation. 8 The government seeks review of the portion of the district 9 court’s order that suppressed narcotics seized by law 10 enforcement officers during a warrantless search of a 11 trailer. We hold that the search was lawful under the 12 “automobile exception” to the Fourth Amendment’s warrant 13 requirement. 15 R EVERSED and R EMANDED. 17 T ELEMACHUS P. K ASULIS, Assistant United States 18 Attorney (Katherine Polk Failla, Assistant 19 United States Attorney, on the brief), for 20 Preet Bharara, United States Attorney for the 21 Southern District of New York, New York, New 22 York, for Appellant. 24 P ATRICK J. J OYCE, New York, New York, for Appellee 25 Jose Navas. 26 L AWRENCE D. G ERZOG, New York, New York, for Appellee 27 Jose Alvarez. 28 S USAN G. K ELLMAN, Brooklyn, New York, for Appellee 29 Arturo Morel. ** The Honorable John Gleeson, United States District Court for the Eastern District of New York, sitting by designation. 1 W ESLEY, Circuit Judge: 2 This appeal concerns a trailer, unhitched from its cab 3 and parked in a warehouse. The district court held that a 4 warrantless search of the trailer ran afoul of the Fourth 5 Amendment. On appeal, defendants liken the trailer to a 6 fixed structure, and argue that the district court properly 7 suppressed the fruits of the search. The government argues 8 that, whether or not attached to a cab, the trailer is 9 subject to a warrantless search pursuant to the “automobile 10 exception” to the Fourth Amendment’s warrant requirement. 11 As the trailer was readily mobile and commanded only a 12 diminished expectation of privacy, we hold that the 13 automobile exception applies. Therefore, we reverse. 14 I. BACKGROUND 15 A. Facts 16 The information leading to defendants’ arrests was 17 provided to the Drug Enforcement Administration (“DEA”) by a 18 cooperating witness who himself had been arrested for a 19 narcotics-related offense. The witness informed the DEA 20 that he was a member of a narcotics distribution enterprise 21 that shuttled large quantities of narcotics and illicit 22 proceeds between California and New York City. The modus 1 operandi of the group, according to the cooperating witness, 2 was to transport the contraband in hidden “traps” located 3 within trailers that contained more mundane freight. 1 In 4 addition to providing information about the nature of the 5 narcotics trafficking scheme, the cooperating witness also 6 implicated defendant-appellee Jose Navas and provided the 7 number of a cellular telephone that was subsequently linked 8 to Navas following further investigation. 9 On October 27 2008, the government obtained an order 10 from a magistrate judge in the Southern District of New York At the suppression hearing conducted by the district court, one of the agents who participated in the challenged search testified that he was “not really a truck guy.” Perhaps as a result, there is a dearth of evidence in the record regarding the nature of the vehicle at issue and some confusion in the district court’s terminology. The district court used the word “cab” to describe what we understand to be “[t]he noncargo carrying power unit that operates in combination with a semitrailer or trailer.” 23 C.F.R. § 658.5 (Department of Transportation regulation defining the terms “tractor” and “truck tractor”). In some parts of its decision, the court used the term “tractor trailer” to describe what we understand to be a “nonautomotive highway . . . vehicle designed to be hauled” by a “cab.” Webster’s Third New International Dictionary of the English Language 2424 (2002). At other times, the court referred to the object of the search simply as a “trailer.” The testimony from the hearing suggests that it was in fact only the trailer portion of a tractor trailer. Thus, for purposes of clarity, we adopt the district court’s use of the term “cab” and refer to the vehicle searched as a “trailer.” We only use the phrase “tractor trailer” to denote times at which the cab and the trailer were connected. 1 that authorized law enforcement officers to track the 2 location of the phone. 2 On November 4, 2008, agents 3 assigned to the Drug Enforcement Task Force observed that 4 the phone was approaching the Bronx. Based on that 5 observation, agents were dispatched to the Hunts Point 6 Terminal Market to conduct surveillance. 3 During the 7 afternoon, one of the agents identified Navas at the Market. 8 He was seen unloading a tractor trailer with out-of-state 9 license plates, aided by an individual later identified as 10 defendant-appellee Jose Alvarez. Later that night, Navas The order was issued pursuant to 18 U.S.C. §§ 3121-26, 2703(d), which were enacted in Titles II and III of the Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986). See United States v. Navas, 640 F. Supp. 2d 256, 262 (S.D.N.Y. 2009). The surveillance authorized by the order allowed the agents to approximate the phone’s geographic position by monitoring the “cell site” information transmitted between the phone and the antenna towers in its vicinity. See In re Application of the U.S. for an Order for Prospective Cell Site Location Info. on a Certain Cellular Telephone, 460 F. Supp. 2d 448, 450-52 (S.D.N.Y. 2006) (describing the mechanics and investigative uses of cell site information). The district court denied defendants’ motions to suppress evidence collected pursuant to this order, and those holdings are not at issue in this appeal. See Navas, 640 F. Supp. 2d. at 262-63. The Hunts Point Terminal Market is located on Halleck and Spofford Streets in the Bronx. It is one of the largest wholesale produce and meat processing centers in the world. See United States v. Alfisi, 308 F.3d 144, 147 (2d Cir. 2002). Products are shipped there via air, rail, and road. 1 and Alvarez drove the tractor trailer to a private warehouse 2 on Drake Street in the Bronx, approximately one half mile 3 from the Hunts Point Market. At the warehouse, the agents 4 watched Navas open the garage door, park the tractor trailer 5 in the warehouse, unhitch the cab, and lower the legs in the 6 front of the trailer to stabilize it. Navas and Alvarez 7 then drove the cab out of the warehouse, closed its garage 8 door, and drove away. Some of the surveilling agents 9 pursued Navas and Alvarez, and others remained at the 10 warehouse. 11 Navas and Alvarez proceeded to a nearby McDonald’s 12 restaurant, where they parked the cab on the street. A male 13 later identified as defendant Fernando Delgado approached 14 the cab and engaged in a discussion with Navas and Alvarez. 15 After the conversation, Delgado entered a black Lincoln Town 16 Car with Ohio license plates, which then parked in the 17 McDonald’s parking lot. Delgado exited that vehicle, spoke 18 again with Navas and Alvarez, and then entered a silver 19 Honda Odyssey parked adjacent to the Lincoln. Thereafter, 20 approximately five individuals exited the Honda with black 21 duffel bags. 22 The agents at the scene then arrested Navas, Alvarez, 23 Delgado, and the remaining occupants of the Lincoln and the 1 Honda. Searches incident to those arrests revealed that the 2 duffel bags removed from the Honda were empty, but that 3 additional bags within that vehicle contained gloves, 4 drills, and drill bits. The agents patted down the 5 arrestees and transported them back to the warehouse, where 6 they were issued Miranda warnings in Spanish and patted down 7 a second time. After receiving Miranda warnings, Navas 8 “admitted that he was a driver for drug traffickers, that 9 the trailer was being delivered to a member of the 10 trafficking organization, and that narcotics were stowed in 11 a secret rooftop compartment of the trailer.” Navas, 640 F. 12 Supp. 2d at 261. 13 During the pat-down of an arrestee later identified as 14 defendant-appellee Arturo Morel, an agent noticed a “large 15 box-like object” in Morel’s right front pants pocket. The 16 agent testified at the suppression hearing that Morel stated 17 that the object was “the garage door opener to [his] house,” 18 but the garage door of the warehouse opened when the agent 19 “inadvertently” “touch[ed]” it. 4 Id. at 261. After further 20 discussion, Morel verbally consented to a search “inside The district court specifically credited this aspect of the agent’s testimony, and its credibility determination is unchallenged. See Navas, 640 F. Supp. 2d at 261 & n.2. 1 [the warehouse at] 528 Drake Street and anything that was in 2 there.” Id. Morel also executed a written Consent Form, 3 but neither the agents nor Morel completed the portion of 4 the form calling for a description of the area to be 5 searched. 6 Following Morel’s consent, the agents entered the 7 warehouse and conducted the search at issue in this appeal. 8 Acting on information from Navas’s post-arrest statement and 9 the cooperating witness, they examined the top of the 10 trailer and observed physical indicia of a secret 11 compartment. The agents then “ripped off the sheet metal 12 roof” of the trailer, discovered 230 kilograms of cocaine, 13 and promptly seized the contraband. Id. at 262. 14 B. Procedural History 15 Following the November 4, 2008 arrests, eight 16 defendants were indicted on November 19, 2008. The 17 indictment charges a single count of conspiracy to possess 18 and distribute more than five kilograms of cocaine, in 19 violation of 21 U.S.C. § 846. In early 2009, defendants- 20 appelees Navas, Alvarez, and Morel filed separate motions to 21 suppress. The central issues raised by their motions 22 related to the government’s cell site surveillance, the 1 searches incident to the arrests, and the search of the 2 trailer. The district court conducted a suppression hearing 3 on February 24, 2009, at which the government offered 4 testimony from three of the agents who participated in the 5 investigation. Navas and Alvarez also submitted evidence in 6 affidavit form. 7 On March 19, 2009, the district court issued a decision 8 granting in part and denying in part the motions. The 9 district court rejected the challenges to the cell site 10 surveillance. See Navas, 640 F. Supp. 2d at 263-64. It 11 also held that defendants’ arrests were supported by 12 probable cause, and that the searches of their persons, the 13 Honda, the Lincoln, and the cab were all lawful searches 14 incident to those arrests. See id. at 265-66. 15 Finally, the district court held that the search of the 16 trailer in the warehouse violated the Fourth Amendment. It 17 began by rejecting the government’s argument that Morel’s 18 consent was sufficient to permit the search. The district 19 court found it “undisputed that Morel verbally consented to 20 a general search of the warehouse,” but concluded that his 21 consent did not extend to a physically invasive search of 1 the trailer. Id. at 267. 5 Therefore, the court held, the 2 warrantless search of the trailer was not justified by the 3 consent doctrine. Id. 4 Turning to the application of the automobile exception, 5 the district court took the view that the doctrine 6 “generally relates to some type of vehicle that is capable 7 of moving on its own.” Id. at 267. Framed as such, the 8 court held that the exception was inapplicable because “[a] 9 stationary trailer, detached from a tractor cab with its 10 legs dropped, and stored inside a warehouse, is not a 11 vehicle that is readily mobile or in use for 12 transportation.” Id. Based on its holdings that Morel’s 13 consent did not extend to a search of the trailer and that 14 the automobile exception was inapplicable, the district 15 court ordered that the narcotics evidence be suppressed. 16 Id. at 268. 17 II. DISCUSSION 18 We review de novo the district court’s legal conclusion In addition to defendants-appellees’ arguments relating to the automobile exception, Alvarez separately argues that we may affirm the district court based on the alternative ground that “the search of the warehouse was performed . . . without consent.” Because this assertion ignores the district court’s ruling that Morel consented to a general search of the warehouse, we reject it. 1 regarding the constitutionality of the search. E.g., United 2 States v. Plugh, 576 F.3d 135, 140 n.5 (2d Cir. 2009). The 3 district court’s findings of fact, as well as its probable 4 cause determination, are undisputed. Furthermore, in light 5 of the district court’s finding that “Morel verbally 6 consented to a general search of the warehouse,” the agents 7 were lawfully within that structure. Navas, 640 F. Supp. 2d 8 at 267. To justify the search of the trailer, the 9 government relies exclusively on the automobile exception. 10 Consequently, we are left with a straightforward legal 11 question: Is the warrantless search of a trailer that is 12 unhitched from its cab permissible under the automobile 13 exception to the Fourth Amendment’s warrant requirement? We 14 hold that the exception applies. 15 A. The Automobile Exception 16 We begin our inquiry on well-tread ground. “[S]earches 17 conducted outside the judicial process, without prior 18 approval by judge or magistrate, are per se unreasonable 19 under the Fourth Amendment — subject only to a few 20 specifically established and well-delineated exceptions.” 21 Katz v. United States, 389 U.S. 347, 357 (1967) (footnote 22 omitted). One such exception is the “automobile exception.” 1 It permits law enforcement to conduct a warrantless search 2 of a readily mobile vehicle where there is probable cause to 3 believe that the vehicle contains contraband. E.g., 4 Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per 5 curiam). Where the probable cause upon which the search is 6 based “extends to the entire vehicle,” the permissible scope 7 of a search pursuant to this exception includes “‘every part 8 of the vehicle and its contents [including all containers 9 and packages] that may conceal the object of the search.’” 10 United States v. Harwood, 998 F.2d 91, 96 (2d Cir. 1993) 11 (alteration in original) (quoting United States v. Ross, 456 12 U.S. 798, 825 (1982)); see also California v. Acevedo, 500 13 U.S. 565, 580 (1991). 14 The Supreme Court has relied on two rationales to 15 explain the reasonableness of a warrantless search pursuant 16 to the automobile exception: vehicles’ inherent mobility 17 and citizens’ reduced expectations of privacy in their 18 contents. See, e.g., California v. Carney, 471 U.S. 386, 19 391 (1985); see also United States v. Howard, 489 F.3d 484, 20 492 (2d Cir. 2007). One of the seminal cases defining the 21 exception, Carroll v. United States, emphasized vehicles’ 22 mobility: 1 [T]he guaranty of freedom from unreasonable 2 searches and seizures by the Fourth Amendment has 3 been construed, practically since the beginning of 4 the government, as recognizing a necessary 5 difference between a search of a store, dwelling 6 house, or other structure in respect of which a 7 proper official warrant readily may be obtained 8 and a search of a ship, motor boat, wagon, or 9 automobile for contraband goods, where it is not 10 practicable to secure a warrant, because the 11 vehicle can be quickly moved out of the locality 12 or jurisdiction in which the warrant must be 13 sought. 14 267 U.S. 132, 153 (1925); see also Carney, 471 U.S. at 390 15 (characterizing Carroll as being based on “a long-recognized 16 distinction between stationary structures and vehicles”). 17 Based on this reasoning, courts have held that vehicular 18 mobility is a sufficient exigency to permit law enforcement 19 to invoke the doctrine. E.g., Maryland v. Dyson, 527 U.S. 20 465, 466-67 (1999). 21 In addition to the mobility rationale, other authority 22 emphasizes that warrantless searches pursuant to the 23 automobile exception are also reasonable because citizens 24 possess a reduced expectation of privacy in their vehicles. 25 See Carney, 471 U.S. at 393. 26 “Automobiles, unlike homes, are subjected to 27 pervasive and continuing governmental regulation 28 and controls, including periodic inspection and 29 licensing requirements. As an everyday 30 occurrence, police stop and examine vehicles when 31 license plates or inspection stickers have 1 expired, or if other violations, such as exhaust 2 fumes or excessive noise, are noted, or if 3 headlights or other safety equipment are not in 4 proper working order.” 5 Id. at 392 (quoting South Dakota v. Opperman, 428 U.S. 364, 6 368 (1976)). Thus, citizens’ reasonable expectations of 7 privacy in their vehicles are reduced by the far-reaching 8 web of state and federal regulations that covers not only 9 vehicles but also our nation’s roadways. As a result, 10 warrantless searches of readily mobile vehicles, when based 11 on probable cause, are reasonable under the Fourth 12 Amendment. 13 Although we have characterized the mobility and 14 reduced-privacy rationales as “distinct,” they are related. 15 Howard, 489 F.3d at 492. A vehicle’s mobility has given 16 rise to “a range of . . . regulation[s] inapplicable to a 17 fixed dwelling,” which has in turn reduced citizens’ 18 reasonable expectations of privacy in their vehicles. 19 Carney, 471 U.S. at 393. Consequently, when a vehicle is 20 both inherently mobile and subject to a reduced expectation 21 of privacy — as we conclude is true of the trailer in this 22 case — a warrantless search supported by probable cause is 23 permissible under the automobile exception. 24 B. Mobility 1 The phrase “readily mobile” is frequently used as a 2 term of art to describe the mobility rationale. See, e.g., 3 Dyson, 527 U.S. at 467; Howard, 489 F.3d at 492-93; United 4 States v. Gaskin, 364 F.3d 438, 456 (2d Cir. 2004). As we 5 recently made clear, a vehicle’s inherent mobility — not the 6 probability that it might actually be set in motion — is the 7 foundation of the mobility rationale. See Howard, 489 F.3d 8 at 493. In our view, this rationale supports the 9 application of the automobile exception to the warrantless 10 search of the trailer. 11 As we have already indicated, the mobility rationale 12 originates from the Prohibition Era case of Carroll v. 13 United States, 267 U.S. 132 (1925). There, the Supreme 14 Court upheld a warrantless search of a car stopped on a 15 highway where the officers had probable cause to believe 16 that the vehicle’s occupants, two bootleggers, were 17 transporting “intoxicating spirituous liquor” in violation 18 of the National Prohibition Act. Id. at 134. The Carroll 19 Court conducted a historical inquiry and found a distinction 20 between the Fourth Amendment’s application to a search of a 21 “store, dwelling house, or other structure,” for which a 22 warrant was required, and a search of a “movable vessel” 1 such as a “ship, motor boat, wagon, or automobile,” “where 2 it is not practicable to secure a warrant.” Id. at 151, 3 153. To explain the distinction, the Court reasoned that a 4 vessel of the latter type could be “quickly moved” and 5 “readily . . . put out of reach of a search warrant.” Id. 6 at 151, 153. 7 Under our case law, the mobility rationale articulated 8 in Carroll does not turn on case-by-case determinations by 9 agents in the field regarding either the probability that a 10 vehicle could be mobilized or the speed with which movement 11 could be achieved. Rather, “[w]hether a vehicle is ‘readily 12 mobile’ within the meaning of the automobile exception has 13 more to do with the inherent mobility of the vehicle than 14 with the potential for the vehicle to be moved from the 15 jurisdiction, thereby precluding a search.” Howard, 489 16 F.3d at 493 (emphasis added). 17 In Howard, we sustained two roadside vehicular searches 18 that were conducted while the vehicles’ occupants were being 19 questioned at New York State Troopers’ barracks. Id. at 20 492-96. In doing so, we attributed error to the district 21 court’s decision “to regard the actual ability of a driver 22 or passenger to flee immediately in the car, or the 1 likelihood of him or her doing so, as a requirement for the 2 application of the automobile exception.” Id. at 493. We 3 also pointed out that “the district court’s inquiry into . . 4 . the proximity of the drivers and passenger to the vehicles 5 . . . [was] misplaced.” Id. at 494. Instead, “[t]he mere 6 inherent mobility of [a] vehicle is sufficient to constitute 7 the ‘ready mobility’ the automobile exception cognizes.” 8 Id. 9 In light of Howard’s emphasis on inherent mobility and 10 the practical concerns that animate the mobility rationale, 11 the district court erred in its assessment of the trailer 12 sans cab. It started by wrongly characterizing the 13 automobile exception as “generally relat[ing] to some type 14 of vehicle that is capable of moving on its own.” Navas, 15 640 F. Supp. 2d at 267. However, when the Supreme Court 16 introduced the mobility rationale in Carroll, it referenced 17 “wagon[s],” which, like trailers, require an additional 18 source of propulsion before they can be set in motion. 19 Carroll, 267 U.S. at 153; see also Ross, 456 U.S. at 820 20 n.26 (referring to “contraband . . . transported in a horse- 21 drawn carriage”). A wagon is not “capable of moving on its 22 own,” but the Carroll Court considered it to present 1 mobility concerns similar to those presented by the car 2 searched in that case. And, at least for purposes of the 3 Fourth Amendment, a trailer unhitched from a cab is no less 4 inherently mobile than a wagon without a horse. 5 The district court’s adoption of a false premise — 6 i.e., that the automobile exception centers on a vehicle’s 7 ability to “mov[e] on its own” — led it to place undue 8 emphasis on the fact that the trailer was disconnected from 9 a cab at the time of the search. However, the trailer 10 remained inherently mobile as a result of its own wheels and 11 the fact that it could have been connected to any cab and 12 driven away. For similar reasons, we are unpersuaded by the 13 district court’s reference to the position of the trailer’s 14 “legs.” These legs served only as a temporary stabilization 15 mechanism. They could be retracted and a cab could be 16 attached to the trailer. As such, the fact that the trailer 17 was “detached from a . . . cab with its legs dropped,” 18 Navas, 640 F. Supp. 2d at 267, did not eliminate its 19 inherent mobility. 20 Moreover, contrary to defendant Morel’s assertion, a 21 trailer “with its legs dropped,” id., is quite unlike a 22 motor home with its wheels “elevated on blocks,” Carney, 471 1 U.S. at 394 n.3. Trailers are routinely parked, legs 2 dropped, with the expectation of promptly returning them to 3 the road as soon as they have been loaded or a cab becomes 4 available to haul them. The dropping of the legs in no way 5 suggests that the trailer will not promptly return to 6 service on the highways. In contrast, the raising of a 7 motor home onto blocks is a more elaborate process, less 8 easily undone, which might “objectively indicate[] that [the 9 motor home] is being used as a residence” rather than a 10 vehicle. Id. The position of a trailer’s legs conveys no 11 such impression. There is no question that the trailer in 12 this case was being used as a vehicle and not a residence. 13 Finally, the district court also erred by relying on 14 the location of the defendants and the agents at the time of 15 the search. “Even where there is little practical 16 likelihood that the vehicle will be driven away, the 17 [automobile] exception applies . . . when that possibility 18 exists” because of the vehicle’s inherent mobility. Howard, 19 489 F.3d at 493. The district court concluded that this 20 standard was not satisfied, reasoning that it was “hard to 21 imagine a scenario where the [trailer] could have been 22 hooked up to a cab” because “[d]efendants were under arrest, 1 and more than a dozen government agents surrounded the 2 warehouse.” Navas, 640 F. Supp. 2d at 268. As in Howard, 3 the district court appears to have erroneously regarded “the 4 actual ability of a driver or passenger to flee immediately 5 in the [vehicle], or the likelihood of him . . . doing so, 6 as a requirement for the application of the automobile 7 exception.” 489 F.3d at 493. Although the arrestees were 8 detained and the warehouse was secured by the agents, these 9 facts had no bearing on the inherent mobility of the trailer 10 itself. 11 In reasoning otherwise, the district court suggested 12 that, instead of performing the search, the agents were 13 required to halt an ongoing investigation in order to wait 14 at the scene and ensure that the trailer remained secure 15 while a search warrant was obtained. The Fourth Amendment 16 does not necessitate such a course of action. The agents 17 had probable cause to conduct the search, and “an automobile 18 ‘search is not unreasonable if based upon facts that would 19 justify the issuance of a warrant, even though a warrant has 20 not been actually obtained.’” Howard, 489 F.3d at 495 21 (emphasis in original) (quoting Dyson, 527 U.S. at 467). 22 The “justification to conduct such a warrantless search does 1 not vanish once the car has been immobilized.” Michigan v. 2 Thomas, 458 U.S. 259, 261 (1982). 3 If the agents had left the area around the warehouse, 4 the inherent mobility of the trailer would provide ample 5 cause for concern that it could be removed from the 6 jurisdiction. For example, as we observed in Howard, 7 “confederates in another car, of whom the police were 8 unaware, might have observed the police intervention and 9 might drive the [trailer] away.” 489 F.3d at 493-94. The 10 district court referenced this hypothetical, but apparently 11 found it inapposite because the warehouse was “surrounded” 12 by “more than a dozen government agents.” Navas, 640 F. 13 Supp. 2d at 268. However, the very function of the 14 automobile exception is to ensure that law enforcement 15 officials need not expend resources to secure a readily 16 mobile automobile during the period of time required to 17 obtain a search warrant. 18 In sum, the trailer in this case was: (1) affixed with 19 at least one axle and a set of wheels; and (2) capable of 20 being attached to a cab and driven away. Therefore, we 21 conclude that the trailer was inherently mobile at the time 22 of the search, notwithstanding the fact that it was 1 unhitched from the cab that initially transported it to the 2 warehouse. Accordingly, we hold that the mobility rationale 3 militates in favor of the conclusion that the search of the 4 trailer was lawful under the automobile exception. 5 C. Reduced Expectation of Privacy 6 The district court also failed to properly consider the 7 reduced-privacy rationale underlying the automobile 8 exception. Although it acknowledged the “‘diminished 9 expectation of privacy enjoyed by the drivers and 10 passengers,’” the court discarded this proposition and 11 repeated its mobility-based holding that “the unhitched 12 trailer in the warehouse [did] not constitute a vehicle in 13 use for transportation.” Navas, 640 F. Supp. 2d at 268 14 (quoting Howard, 489 F.3d at 494). This failure to account 15 for defendants’ reduced expectation of privacy in the 16 trailer was also error. 17 Indeed, the reduced-privacy rationale applies 18 forcefully here. Agents had observed the trailer being used 19 for transportation. Unlike the motor home in Carney, the 20 trailer bore no objective indicia of residential use that 21 might give rise to elevated privacy expectations in its 22 contents. Moreover, any expectation of privacy that 1 defendants may have harbored in the trailer was 2 significantly diminished by the “pervasive schemes” of state 3 and federal regulation to which it was subject. Carney, 471 4 U.S. at 392; cf. New York v. Burger, 482 U.S. 691, 700 5 (1987) (reasoning that expectations of privacy are 6 “particularly attenuated in commercial property employed in 7 ‘closely regulated’ industries”). Several of our sister 8 circuits have held that the interstate commercial trucking 9 industry is pervasively regulated to an extent that 10 justifies a warrantless administrative search of a tractor 11 trailer. See, e.g., United States v. Delgado, 545 F.3d 12 1195, 1201-02 & n.3 (9th Cir. 2008). Although the 13 foundation for the administrative search exception to the 14 warrant requirement is entirely distinct from the rationales 15 underlying the automobile exception, the discussion of the 16 applicable regulatory structures in this authority is 17 instructive. Based on the nature and scope of the 18 regulations relating to the commercial trucking industry, we 19 are persuaded that defendants’ reasonable expectations of 20 privacy in the trailer were minimal. Therefore, the 21 reduced-privacy rationale provides further support for our 22 conclusion that the warrantless search of this inherently 1 mobile trailer was reasonable under the Fourth Amendment. 2 III. CONCLUSION 3 For the foregoing reasons, we hold that the automobile 4 exception applies because the trailer was inherently mobile, 5 and defendants possessed a significantly reduced expectation 6 of privacy in the trailer. Accordingly, the district 7 court’s order is REVERSED insofar as it granted the motion 8 to suppress, and the matter is REMANDED for further 9 proceedings consistent with this opinion.

09-90133-am In re David Rodkin United States Court of Appeals FOR THE SECOND CIRCUIT At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 4th day of March two thousand ten, Present: Jose A. Cabranes, Robert D. Sack, Richard C. Wesley, Circuit Judges. In re David Rodkin, 09-90 133-am Attorney. ORDER OF GRIEVANCE PANEL By order filed on December 3,2009, this panel directed David Rodkin to show cause why he should not be removed from the bar of this Court, or subject to other disciplinary or corrective measures, based on the conduct described in that order. Rodkin was directed to respond to the order within twenty-eight days of its filing date, but has failed to do so. For present purposes, we confine our consideration to the allegation in the December 2009 order that Rodkin failed to disclose, in his application for admission to the bar of this Court, his prior suspension from the bar of the State of New York State and his prior reciprocal suspension by the Executive Office for Immigration Review. As noted in our prior order, this Court's application for admission to the Court's bar requires a representation from the applicant that he has not been disbarred or suspended from practice in any court. Upon due consideration, it is hereby ORDERED that Rodkin's admission to this Court is VACATED based on that material misrepresentation in his application for admission to this Court's bar and his failure to respond to the December 2009 order. As a result, Rodkin is prohibited from serving as counselor performing legal services in cases before this Court, and must arrange for substitution of counsel in any case now pending in this Court in which he is counsel of record. We do not consider the present disposition to be equivalent to an ordinary disbarment. Depending on the precise circumstances, a similar misrepresentation in a different type of court filing might not warrant disbarment. However, a material misrepresentation in the very instrument by which an attorney seeks membership in this Court's bar, without a showing of mistake or mitigating circumstances, renders that instrument defective and requires vacatur of the bar admission obtained through that instrument. 1 The text of this panel's December 2009 order is appended to, and deemed part of, the present order for the following disclosure purposes. Rodkin must disclose this order to all clients in cases currently pending in this Court and to all courts and bars of which he is currently a member, and as required by any bar or court rule or order. Furthermore, the Clerk of Court is directed to release this order to the public by posting it on this Court's web site and providing copies to members of the public in the same manner as all other unpublished decisions of this Court, and to serve a copy on Rodkin, this Court's Committee on Admissions and Grievances, the attorney disciplinary committee for the New York State Appellate Division, First Department, and all other courts and jurisdictions to which this Court distributes disciplinary decisions in the ordinary course. FOR THE COURT: By: Supervisory Staff Attorney Counsel to the Grievance Panel APPENDIX 1 Text of December 2009 order For the reasons that follow, David Rodkin is ordered to show cause why disciplinary or other corrective measures, including removal from this Court's bar, should not be imposed on him pursuant to Federal Rules of Appellate Procedure 46(b) and (c) and Second Circuit Local Rule 46.1. In August 2005, Rodkin was suspended for a period of six months by the New York State Supreme Court, Appellate Division, First Department, for, inter alia, aiding the unauthorized practice of law by participating in "an established system where 'travel agencies[,]' advertising themselves as providers of legal services but staffed by nonlawyers[,] served as the primary advisors to illegal Chinese aliens seeking political asylum." In re Rodkin, 21 A.D3d 111, 112 (2005). That suspension 1 As a result of the present disposition, we need not consider whether the other conduct described in our December 2009 order warrants disciplinary or other corrective measures. However, any future application to this Court's bar, or challenge to this order, must address all of the conduct described in that order. 2 order further noted that Rodkin had been previously disciplined for the same misconduct in January 2000, for which he received a letter of admonition. Id. at 113. Based on the 2005 suspension, Rodkin was reciprocally suspended for a six-month period by the Executive Office for Immigration Review. See In re Rodkin, No. D2005-188 (BIA Jan. 30, 2006). However, in his application for admission to this Court in April 2006, Rodkin inaccurately stated to this Court that he had "been neither disbarred nor suspended from practice in any court." See Rodkin Statement and Certification in Support of Admission Application, dated 4/2612006. Review of this Court's docket has provided the following additional information concerning Rodkin. In June 2008, this Court issued the following warning to Rodkin regarding his briefing in Li Guo Zhu v. Mukasey: The serious deficiencies in the representation provided by Zhu's attorney, David J. Rodkin, compel us to express our concern. Rodkin's briefing was of extremely poor quality. The arguments presented were completely without merit, the brief did not present any arguments as to the motion to reopen that is under review, and counsel's statements regarding the filing of a new motion to reopen with the BIA could not be verified. Thus, we hereby warn Rodkin that continuing conduct of this nature could result in the initiation of disciplinary proceedings against him. See Fed. R. App. P. 46(b), (c). Li Guo Zhu v. Mukasey, Dkt. No. 07-4049-ag, summary order filed June 11,2008 at n.4. Further review of the 44 additional cases in this Court in which Rodkin is listed as attorney of record indicates a pattern in which Rodkin has either raised claims in this Court that had not been exhausted at the agency level, waived dispositive issues in this Court by failing to address themin his briefs, or failed to present sufficient argument on issues raised in this Court. In three cases where Rodkin was the attorney of record before both this Court and the Board of Immigration Appeals ("BIA"), this Court denied the petitions for review because dispositive issues had not been raised at the agency level. See Steevenez v. Gonzales, 476 F.3d 114 (2d Cir. 2007) (per curiam) (order filed Feb. 6,2007, under Dkt. No. 06-2114-ag) (denying petition because, inter alia, a challenge to the decision of the immigration judge ("IJ") that the petitioner could safely relocate had not been raised before the BIA); Zainidar v. Gonzales, Dkt. No. 06-2117 -ag, summary order filed May 31, 2007 (denying petition because the petitioner had not exhausted his challenge to a finding of the IJ that was dispositive of his withholding application); Sutrisno v. Mukasey, Dkt. No. 08-0209-ag, summary order filed Aug. 18, 2008) (denying petition, in part, because petitioner had "failed to argue before the agency that he was eligible for asylum based on a pattern or practice [of] persecution"). Notably, in Steevenez, the petitioner had submitted his brief pro se to the BIA but Rodkin filed a notice of appearance several days later, indicating that a more "detailed brief' would be forthcoming; however, no such brief was ever submitted. In at least two cases in which Rodkin was the petitioners' attorney before both the BIA and this Court, Rodkin's brief in this Court failed to address dispositive issues. In Khatun v. Filip, Rodkin filed a petition for review challenging the BIA's denial of a motion to reconsider, yet devoted his brief 3 to challenging the findings the BIA had made in denying the petitioner's separate motion to reopen, which was not properly before this Court. See Dkt. No. 07-5527-ag, summary order filed Jan. 30, 2009 (denying petition because petitioner "effectively waived any challenge to the decision [this Court is] 'empowered to review"'). In Ullah v. Gonzales, Rodkin's brief to this Court failed, without apparent reason or explanation, to challenge the BIA' s denial of asylum, withholding of removal, or relief under the Convention Against Torture ("CAT"). See Dkt. No. 06-5664-ag, summary order filed July 26, 2007 ("As an initial matter, petitioners have waived any challenge to the agency's denial of asylum, withholding of removal, and relief under the CAT, as they explicitly challenge only the BIA' s denial of their motion to remand."). Furthermore, in several cases where Rodkin was not the attorney of record before the BIA, he failed in the briefs submitted to this Court either to address the dispositive issues on appeal, or to account for why those claims had not been raised at the agency level. See Chen v. Mukasey, Dkt. No. 07 -3321-ag, summary order filed June 17, 2008 (denying petition based, in part, on petitioner's failure to challenge the U's demeanor finding which, in conjunction with testimonial inconsistencies, provided the basis for the U's adverse credibility determination); Zheng v. Mukasey, Dkt. No. 07­ 4166-ag, summary order filed July 1, 2008 (denying petition because petitioner did not challenge the U's relocation finding before the BIA and did not address this failure to exhaust before this Court); Jiang v. Holder, Dkt No. 08-2656-ag, summary order filed Aug. 4, 2009 (denying petition, in part, because petitioner's argument was "not only unexhausted, [but] irrelevant"). On two occasions, Rodkin improperly filed petitions for review in this Circuit, although the BIA orders attached to those petitions clearly showed that the immigration proceedings had been completed in another Circuit. See Huang v. Gonzales, Dkt. No. 07 -1720-ag, transfer order filed May 16,2007 (BIA proceedings occurred in Miami, Florida); Chen v. Mukasey, Dkt. No. 08-3981-ag, transfer order filed Sep. 15,2008 (BIA proceedings occurred in Baltimore, Maryland). In Hang Lin v. Gonzales, Rodkin failed to respond to this Court's order to show cause why the petition should not be dismissed after he withdrew the petition without prejudice to reinstatement pending the BIA's review of a motion to reopen. See Dkt. No. 07-1695-ag, entries at Feb. 27, 2008. Upon due consideration, it is hereby ORDERED that Rodkin show cause, in a detailed declaration, why he should not be removed from the bar of this Court, or subject to other disciplinary or corrective measures, based on his failure to disclose his prior suspensions in his application for admission to this Court, and the other conduct described above. The declaration must be made under penalty of perjury and filed within twenty-eight days of the filing date of this order. [additional text omitted] FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By: /s/ Michael Zachary Supervisory Staff Attorney Counsel to the Grievance Panel 4

09-3942-cv (L); 09-3997-cv (CON) The City of New York v. Golden Feather Smoke Shop, Inc. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009 (Argued: January 14, 2010 Decided: March 4, 2010) Docket Nos. 09-3942-cv (L); 09-3997-cv (CON) THE CITY OF NEW YORK, Plaintiff-Appellee, v. GOLDEN FEATHER SMOKE SHOP, INC., KIMO SMOKE SHOP, INC., SMOKE AND ROLLS, INC., SHAWN MORRISON , KIANA MORRISON , IN HER INDIVIDUAL CAPACITY , JESSEY WATKINS, TONY D. PHILLIPS, Defendants, MONIQUE’S SMOKE SHOP, ERNESTINE WATKINS, IN HER INDIVIDUAL CAPACITY , WAYNE HARRIS, RED DOT & FEATHERS SMOKE SHOP, INC., RAYMOND HART , IN HIS INDIVIDUAL CAPACITY , SMOKING ARROW SMOKE SHOP, DENISE PASCHALL, IN HER INDIVIDUAL CAPACITY , TDM DISCOUNT CIGARETTES, THOMASINA MACK, IN HER INDIVIDUAL CAPACITY , PEACE PIPE SMOKE SHOP, RODNEY MORRISON , CHARLOTTE MORRISON , IN HER INDIVIDUAL CAPACITY , Defendants-Appellants. Before: HALL and LIVINGSTON , Circuit Judges, and CHIN , District Judge.* Defendants-appellants Monique’s Smoke Shop et al. appeal from the August 25, 2009 grant of a preliminary injunction to the City of New York (the “City”) by the United States * The Honorable Denny Chin, United States District Judge for the Southern District of New York, sitting by designation. District Court for the Eastern District of New York (Amon, J.), enjoining the sale of untaxed cigarettes other than to members of the Unkechauge Nation for their personal use. The district court determined first that the City was not required to show irreparable harm; the court further ruled that even if the City were required to make such a showing, it had carried its burden of establishing both harm and a likelihood of success on the merits with respect to its claims under the Contraband Cigarette Trafficking Act, 18 U.S.C. § 2341 et seq., and under the Cigarette Marketing Standards Act, N.Y. Tax Law § 483 et seq. Before we can decide whether the preliminary injunction may stand, we must decide the applicability and scope of §§ 471 and 471-e of the New York Tax Code. Accordingly, as suggested by a number of the appellants, we respectfully certify two questions to the New York Court of Appeals for its consideration: (1) Does N.Y. Tax Law § 471-e, either by itself or in combination with the provisions of § 471, impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation’s nation or tribe? (2) If the answer to Question 1 is “no,” does N.Y. Tax Law § 471 alone impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation’s nation or tribe? JAMES M. WICKS, Farrell Fritz, P.C., Uniondale, New York (George C. Pratt, Hillary A. Frommer, Farrell Fritz P.C., James F. Simermeyer, Law Offices of James F. Simermeyer, P.C., on the brief), for Defendants-Appellants Monique’s Smoke Shop, Inc., Ernestine Watkins, Wayne Harris, Red Dot & Feather Smoke Shop, Inc., Raymond Hart, Smoking Arrow Smoke Shop, Denise Paschall, TDM Discount Cigarettes, and Thomasina Mack. DANIEL NOBLE , Law Office of Daniel Noble, New York, New York, for Defendants-Appellants Peace Pipe Smoke Shop, Rodney Morrison and Charolette Morrison s/h/a Charlotte Morrison. RICHARD LEVITT , Levitt & Kaizer, New York, New York, for Defendant-Appellant Wayne Harris. VICTORIA SCALZO , New York, New York (Stephen J. McGrath and Eric Proshansky, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, for Plaintiff-Appellee. HALL, Circuit Judge: Defendants-appellants appeal the order of the Eastern District of New York (Amon, J.), preliminarily enjoining the sale of untaxed cigarettes to anyone not a member of the Unkechauge Nation. We consider here whether the City of New York (the “City”) has demonstrated that it is entitled to a preliminary injunction. In order to effectuate our analysis, for the reasons that follow, we certify to the New York Court of Appeals two questions regarding the effect of §§ 471 and 471-e of the New York Tax Code on cigarette sales on Native American reservation land. BACKGROUND The Unkechauge Indian Nation has existed in New York State for hundreds of years. Its current lands lie in Mastic, Long Island, on the Poospatuck Reservation. The population and territorial reach of the Unkechauge has diminished over the years, but the Unkechauge still maintain a sovereign-to-sovereign relationship with New York State. Appellants are businesses and proprietors that sell cigarettes on the Poospatuck Reservation to members of the Unkechauge Nation and the general public alike. On September 29, 2008, the City filed a complaint against the above-named defendants and defendants-appellants, seeking injunctive relief, penalties, and damages under the Contraband Cigarette Trafficking Act, 18 U.S.C. § 2341 et seq., (the “CCTA”)1 and the Cigarette Marketing Standards Act, N.Y. Tax Law § 483 et seq. (the “CMSA”).2 The City filed its complaint in federal court, asserting that federal jurisdiction lies under 28 U.S.C. § 1331 for the CCTA claim and supplemental jurisdiction lies under 28 U.S.C. § 1367(a) for the CMSA claim. The district court, as provided for in § 1367(a), accepted the claims asserting both the federal and the state law violations. The complaint alleges that the reservation vendors sell untaxed cigarettes in bulk to “bootleggers” who then resell them in the City, causing a significant loss of tax revenue to both the City and New York State. In October 2008 the City moved for a preliminary injunction, arguing irreparable harm in lost tax revenues should the vendors continue their sales practice. Defendants Monique’s Smoke Shop, Ernestine Watkins, Wayne Harris, Red Dot & Feather Smoke Shop, Inc., Raymond Hart, Smoking Arrow Smoke Shop, Denise Paschall, TDM Discount Cigarettes, Thomasina Mack, Kimo Smoke Shop, Golden Feather Smoke Shop, Smoke and Rolls, and Kiana Morrision (the “Moving Defendants”) filed a motion to dismiss the City’s claims under Federal Rule of Civil Procedure 12(b)(1) for a lack of subject matter jurisdiction on the grounds of Tribal sovereign immunity. The district court denied this motion on March 16, 2009, concluding that the entities are private businesses rather than arms of the Tribe. The CCTA makes it illegal “for any person knowingly to ship, transport, receive, possess, sell, distribute, or purchase contraband cigarettes,” defined as “a quantity in excess of 10,000 cigarettes, which bear no evidence of the payment of applicable State or local cigarette taxes.” 18 U.S.C. §§ 2341-46. Under the CMSA, it is unlawful “[f]or any agent, wholesale dealer or retail dealer . . . to advertise, offer to sell, or sell cigarettes at less than cost.” N.Y. Tax Law § 484(a). The “basic cost of cigarettes” is defined as “the invoice cost of cigarettes to the agent who purchases from the manufacturer . . . less all trade discounts . . . to which shall be added the full face value of any stamps which may be required by law.” N.Y. Tax Law § 483. The Golden Feather Smoke Shop, Inc., Kimo Smoke Shop, Inc., Shawn Morrison, and Kiana Morrison entered into a consent injunction on May 14, 2009 and are not part of this appeal. Smoke and Rolls no longer operates as a business. Both Tony D. Phillips and Jessey Watkins currently have a motion for default judgment pending against them in the district court; they also are not part of this appeal. The remaining Moving Defendants filed a motion for reconsideration of their motion to dismiss. On August 25, 2009, the district court denied the motion for reconsideration and granted the City a preliminary injunction. This Court held a hearing on an emergency motion to lift the preliminary injunction and issued its order denying that request. We also asked the parties to brief whether to certify questions to the New York Court of Appeals on the applicability of New York Tax Law §§ 471 and 471-e to cigarette sales by reservation vendors. Factual Findings In its August 25, 2009 decision the district court made numerous factual findings regarding the actions of the various defendant smoke shops and proprietors. These findings were based upon testimony of cigarette bootleggers who did business with the shops as well as testimony of investigators from the Department of Taxation and Finance (the “DTF”). See City of New York v. Golden Feather Smoke Shop, Inc., 2009 WL 2612345, at *7-8, *10 (E.D.N.Y. Aug. 25, 2009). The facts are essentially unchallenged at this stage. Monique’s Smoke Shop, Peace Pipe Smoke Shop, Red Dot and Feather Smoke Shop, Smoking Arrow Smoke Shop, and TDM Discount Cigarettes, along with the proprietors of the shops, were found to have participated in bulk sales of unstamped cigarettes, often selling hundreds of cartons of unstamped cigarettes at a time, in blatant violation of the CCTA. The district court also found that these sales were likely to continue based on the high-volume sales practices of each of the defendant businesses. The court calculated the minimum price for which a retail dealer in New York State could sell a carton of Newport and Marlboro brand cigarettes in the years 2006 to 2009 based on the minimum price requirements of the CMSA, which includes the required State and local taxes. Considering the testimony of the proprietors and informants, the court found that because the smoke shops were regularly selling unstamped cartons, they were selling them for less than the minimum prices set by the CMSA throughout the years identified by the complaint. Based on their past practices, the court also found that the vendors were likely to continue selling these violative quantities of unstamped cigarettes in the future. In addition to making findings about the defendants-appellants’ business operations, the court found that these operations caused injury to the City because “large quantities of untaxed cigarettes are purchased in defendants’ stores and trafficked into the City where they are resold at below-market prices, without the payment of City or State taxes.” Golden Feather Smoke Shop, Inc., 2009 WL 2612345, at *22. The district court based this finding on the evidence from the bootleggers, DTF investigators, and arrest reports from Suffolk County documenting “that numerous individuals arrested in Suffolk County for transporting or possessing unstamped cigarettes have New York City addresses.” Id. This “substantial trade in unstamped cigarettes between the Poospatuck Reservation and New York City” caused injury to the City in the loss of “significant tax revenue.” Id. at *23. The court also found concomitant effects on the public health “due to the relationship between cigarette price and smoking behavior.” Id. Two expert witnesses testified about the harm to the City from the availability of unstamped, cheap cigarettes. The then-Commissioner of the City’s Department of Health and Mental Hygiene, Dr. Thomas Frieden, testified that cigarette use has a price elasticity of -0.4, meaning “that for every 10% increase in the price of cigarettes, there is a 4% decline in smoking.” Id. Dr. Frieden attributed half the decline to smokers quitting, while the other half was smokers who reduced their consumption. Dr. W. Kip Viscusi testified on behalf of the defendants, asserting that higher cigarette taxes do not induce smokers to quit, and that higher costs only lead to reduced consumption. Id. DISCUSSION Standard of Review We have jurisdiction in this appeal under 28 U.S.C. § 1292(a)(1), which provides in relevant part that “the courts of appeals shall have jurisdiction of appeals from [i]nterlocutory orders of the district courts of the United States . . . granting . . . injunctions.” We review the district court’s grant of a preliminary injunction to the City for abuse of discretion. SEC v. Dorozhko, 574 F.3d 42, 45 (2d Cir. 2009). An abuse of discretion exists if the district court “(1) based its ruling on an erroneous view of the law, (2) made a clearly erroneous assessment of the evidence, or (3) rendered a decision that cannot be located within the range of permissible decisions.” Lynch v. City of New York, 589 F.3d 94, 99 (2d Cir. 2009) (internal quotation marks omitted). The district court, however, does not receive “equal deference to every aspect of [its] decision. The abuse of discretion standard is used to evaluate the . . . court’s application of the facts to the appropriate legal standard, and the factual findings and legal conclusions underlying such decisions are evaluated under the clearly erroneous and de novo standards, respectively.” Garcia v. Yonkers Sch. Dist., 561 F.3d 97, 103 (2d Cir. 2009) (citation and brackets omitted); see Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 153 (2d Cir. 2007) (determining findings of fact underlying a preliminary injunction are reviewed under a clearly erroneous standard). Preliminary Injunction: Irreparable Harm In general, a party requesting a preliminary injunction must establish “‘(1) irreparable harm and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party.’” Lynch, 589 F.3d at 98 (quoting Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989)). In certain circumstances, generally when the party seeks a statutory injunction, we have dispensed with the requirement of showing irreparable harm, and instead employ a presumption of irreparable harm based on a statutory violation. See United States v. Diapulse Corp. of Am., 457 F.2d 25, 27 (2d Cir. 1972) (“[T]he function of a court in deciding whether to issue an injunction authorized by a statute of the United States to enforce and implement Congressional policy is a different one from that of the court when weighing claims of two private litigants.”). The district court determined that the City need not make a showing of irreparable harm since it was requesting an injunction statutorily authorized under the CMSA and the CCTA. We review de novo that legal conclusion. In SEC v. Management Dynamics, Inc., we recognized that when the SEC brings a securities action, it does so “as a statutory guardian charged with safeguarding the public interest.” 515 F.2d 801, 808 (2d Cir. 1975). The equitable standards that apply in private injunction actions are not the same as those that apply in SEC actions because the injunctions the SEC seeks are “creatures of statute.” Id. We do not require a showing of irreparable harm for “the issuance of an injunction in cases of this nature” since there is a “statutory sanction”; instead it is “enough if the statutory conditions for injunctive relief were made to appear.” Id. (internal quotation marks omitted) (noting additionally that “[t]his principle has been applied in granting both permanent injunctions and preliminary injunctions”). We reiterated these principles in SEC v. Unifund SAL, 910 F.2d 1028, 1035-36 (2d Cir. 1990), and expanded them to include a railroad’s claim for injunctive relief under tax law in Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 479 (2d Cir. 1995) (“[A] railroad seeking statutorily authorized injunctive relief from alleged tax discrimination . . . is not governed by these equitable criteria” and “need only demonstrate that there is reasonable cause to believe” a statutory violation will occur) (internal quotation marks omitted). In Commodity Futures Trading Commission v. British American Commodity Options Corp., we referred to the “well-established rule” that agencies “need not prove irreparable injury or the inadequacy of other remedies as required in private litigation suits, but only that there is a reasonable likelihood that the wrong will be repeated.” 560 F.2d 135, 141 (2d Cir. 1977). See also Weight Watchers Int’l, Inc. v. Luigino’s, Inc., 423 F.3d 137, 144 (2d Cir. 2005) (“A plaintiff who establishes that an infringer’s use of its trademark creates a likelihood of consumer confusion generally is entitled to a presumption of irreparable injury” when seeking injunctive relief, a presumption that can be overcome if the party seeking the injunction has delayed in seeking the injunction); Prayze FM v. FCC, 214 F.3d 245, 248 (2d Cir. 2000) (“Where the government seeks injunctive relief for a statutory violation, there is a presumption of irreparable harm” except when “the constitutionality of the statute allegedly violated was at issue”). The state statute, the CMSA, sets out the requirements that must be met before “any person injured by any violation or threatened violation of this article” can bring an injunction action. N.Y. Tax Law § 484(b)(1). The party requesting an injunction must demonstrate “a violation, or threatened violation, of any of the provisions of this article.” Id. The federal statute, the CCTA, on the other hand, allows a state or local government to “obtain any other appropriate relief for violations of this chapter from any person . . . including civil penalties, money damages, and injunctive or other equitable relief.” 18 U.S.C. § 2346(b)(2). In order to obtain an injunction under the federal law, a governmental entity must show a violation of the statute. We agree with the district court that the City was not required to make a showing of irreparable harm to obtain an injunction under either the CMSA or the CCTA. Both statutes authorize injunctive relief for violations, 18 U.S.C. § 2346(b)(2), or threatened violations, N.Y. Tax Law § 484(b)(1), of their provisions. Both statutes make unlawful specific conduct related to the sale and possession of certain unstamped cigarettes, indicating Congress and the New York Legislature’s determination that such conduct, in and of itself, is harmful to the public. Requiring a party seeking a statutorily-sanctioned injunction to make an additional showing of irreparable harm, therefore, is not required. We hold that the City is entitled to a presumption of irreparable harm with the caveat that it must show a likelihood of success on the merits of its CMSA and CCTA claims which are ultimately based, as discussed infra, on the applicability of §§ 471 and 471-e to the reservation vendors. Because we agree with the district court that there is a presumption of irreparable harm, based on its findings regarding statutory violations it is not necessary to consider the court’s alternative findings in that regard. Preliminary Injunction: Likelihood of Success on the Merits We turn now to the question of whether the City has demonstrated a likelihood of success on the merits of its claims. The City must make a “clear” and “substantial showing of a likelihood of success, both as to violation and risk of recurrence” for its CCTA and CMSA claims. Unifund SAL, 910 F.2d at 1039 (requiring a “clear showing” when the injunction sought is mandatory). The reservation vendors argue that there is no likelihood of success on the merits of the City’s claims because the CCTA and the CMSA require proof of an underlying violation of New York tax law which does not exist here. As the argument goes, New York does not currently have a law that makes sales of untaxed cigarettes by reservation vendors illegal because the potentially applicable laws, New York Tax Code §§ 471 and 471-e, do not apply to reservation vendors. For either the CMSA or CCTA to be violated,3 there must be an underlying tax provision that requires the reservation vendors to purchase stamped cigarettes for resale, and it is this requirement that the defendants-appellants argue does not exist. In order to determine whether an underlying tax violation exists for the reservation vendors, we first examine the mechanisms The CMSA makes it a violation to knowingly “ship, transport, receive, possess, sell, distribute, or purchase contraband cigarettes.” 18 U.S.C. § 2342(a). Contraband cigarettes, in turn, are a quantity of cigarettes in excess of 10,000 that “bear no evidence of the payment of applicable State or local cigarette taxes in the State or locality where such cigarettes are found.” § 2341(2). The underlying tax violation in the CCTA occurs when “any agent, wholesale dealer or retail dealer . . . sell[s] cigarettes at less than cost.” N.Y. Tax Law § 484(a)(1). The “cost” of cigarettes under the CCTA includes the tax stamps. Thus, selling cigarettes without a required tax stamp means that the cigarettes are sold below cost, and their sale violates the CCTA. § 483(a)(1). of New York’s cigarette taxation framework, including recent case law interpreting that framework. New York’s Cigarette Taxing Framework The answers to the questions at issue hinge on whether cigarette vendors on the Poospatuck Reservation violate state and federal law by selling untaxed cigarettes to people who are not members of the Unkechauge Nation. While federal tax law prohibits taxing cigarettes sold by Native Americans to other tribal members from the same reservation, see generally Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U.S. 463, 480-81 (1976), states can impose taxes upon the sale of cigarettes to non-reservation consumers provided the taxing scheme is not “unduly burdensome,” Dep’t of Taxation and Fin. of New York v. Milhelm Attea & Bros., Inc., 512 U.S. 61, 76 (1994). See also Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 514 (1991). New York State has a somewhat labored history as it concerns taxing sales of cigarettes on Native American reservation lands. Under New York Tax Law § 471, passed in 1939, a tax is imposed “on all cigarettes possessed in the state by any person for sale” except when the “state is without power to impose such tax.” N.Y. Tax Law § 471. Section 471(2) sets out the taxation scheme, requiring State-licensed agents, usually wholesale cigarette distributors, to purchase tax stamps that are then affixed to the cigarette packages. The stamp cost is built into the cost of the cigarettes and passed along to the ultimate consumer. N.Y. Tax Law § 471(2). If cigarettes are unstamped, the taxes on them have not been prepaid. Although enacted over forty years earlier, § 471 was not enforced against Native American vendors until 1988 when the New York DTF adopted regulations that created a taxing mechanism for sales to non-Tribal members. Milhelm Attea & Bros., Inc., 512 U.S. at 65. Ruling on a challenge to the enforcement of the DTF regulations, the Supreme Court approved the use of § 471 in conjunction with the DTF regulations as a method to tax cigarette sales made by reservation vendors to non-Tribal members. Id. at 78. The thrust of the DTF regulations allowed reservation vendors to sell untaxed cigarettes to tribal members for their own use but limited the quantity of cigarettes sold to an amount that would fill the “probable demand” of the individuals on the reservation. Id. at 65-66. The regulations set out alternative methods of determining the “probable demand” of individuals in the relevant tribe—either through information from the tribe itself or through an approximation based on the average cigarette consumption in New York. Id. at 66. After determining the probable demand, the DTF would issue tax-exemption coupons to the tribal vendors who would then redeem them with the wholesalers. Id. These regulations, however, were repealed in 1998, leaving § 471 standing alone. The DTF adopted a policy of forbearance at the time of repeal, and subsequently it suspended attempts to collect tax from all cigarette sales on reservation lands. See Cayuga Indian Nation of New York v. Gould, 884 N.Y.S.2d 510, 514 (N.Y. App. Div. 2009). In 2005, the New York Legislature (the “Legislature”) revisited the issue of taxing certain cigarette sales on reservations. The Legislature passed New York Tax Law § 471-e, setting up a tax-exempt coupon program for cigarette sales on reservation land. N.Y. Tax Law § 471-e(2). This provision had an effective date of March 1, 2006 and “provided that any actions, rules and regulations necessary to implement the provisions of this act on its effective date are authorized and directed to be completed on or before such date.” L. 2005, ch. 63, part A, § 4. The DTF issued an advisory opinion on March 16, 2006 that stated its intent: (1) to continue the forbearance policy until all issues surrounding taxing reservation cigarette sales were addressed and (2) not to begin enforcement of § 471-e on its effective date. N.Y. State DTF Advisory Op. No. TSB-A-06[2]M, at 3-4. In a subsequent challenge to § 471-e, the Appellate Division, Fourth Department, determined the provision was not “in effect” because the DTF failed to print or issue tax exempt coupons for reservation vendors, “and no determination ha[d] been made by the Department with respect to the probable demand for or proper distribution of such coupons.” Day Wholesale, Inc. v. State, 856 N.Y.S.2d 808, 811-12 (N.Y. App. Div. 2008). “The enactment of the Indian tax exemption coupon system in section 471-e was intended, in large measure, to provide such a means for verifying tax-exempt cigarette purchases on Indian reservations.” Id. at 812. Without the coupon system, the Appellate Division reasoned, there was no adequate method “to serve the intent of the Legislature to collect taxes that are legitimately due while at the same time ‘leav[ing] ample room for legitimately tax-exempt sales.’” Id. (quoting Milhelm Attea & Bros. Inc., 512 U.S. at 76). The New York Court of Appeals did not review the Day Wholesale decision. In Cayuga Indian Nation of New York, the Fourth Department again addressed the sale of untaxed cigarettes by reservation vendors. 884 N.Y.S.2d at 511. The court analyzed the issue of whether § 471-e “provides the exclusive means by which to tax cigarette sales on an Indian reservation” to people not members of the reservation tribe or instead § 471 “provides an independent basis for imposing a tax on such sales.” Id. In Cayuga, the majority acknowledged the plain language of § 471, concluding that on-reservation sales to tribal members fell in the category of sales the state was “without power” to tax, but that the state “has the power to tax on- reservation sales to non-Indians and non-member Indians.” Id. at 514. The majority then examined the methods that New York has employed to tax sales to non-Indians and non-member Indians, focusing on § 471-e as the most recent attempt by the Legislature to set up a taxing mechanism. Looking at the legislative intent in enacting § 471-e, the majority concluded that it was intended “to overhaul the statutory scheme and . . . to provide a single statutory basis for taxing cigarette sales on qualified reservations.” Id. at 516. The court then turned to the Day Wholesale decision, reiterating its holding that § 471-e was not in effect. The majority concluded that in light of “the sovereignty considerations attendant upon imposing and collecting a state cigarette tax on reservation sales” under § 471, as well as the non-effect of § 471-e under Day Wholesale, “there is no statutory basis for the imposition of a cigarette tax on a qualified reservation.” Id. at 517. The Cayuga dissent took the contrary position, reasoning that the Day Wholesale decision did not “disturb the underlying obligation to pay the taxes imposed by section 471. To the contrary, we recognized that the tax obligation on cigarettes stems from section 471, not section 471-e . . . .” Id. at 523 (Peradotto, J., dissenting). In its order imposing a preliminary injunction, the district court concluded that the New York Court of Appeals would agree not with the Cayuga majority but with Justice Peradotto’s dissent. The district court examined the plain language of § 471, noting that nowhere was an “exception made in the statute for sales of cigarettes by or to Native Americans or by retailers on Indian reservations.” Golden Feather Smoke Shop, Inc., 2009 WL 2612345, at *27. Not surprisingly, the City argues that § 471-e merely sets up a system to collect a tax that is imposed by § 471. In support of its position, the City cites to the Cayuga dissent and the district court’s adoption of that dissent. According to the City, the Cayuga majority failed to address the plain language of § 471, which the district court determined unambiguously imposed a tax upon all cigarettes possessed by vendors that the state has the power to tax. Section 471-e only supports this conclusion as it sets up the collection mechanism for the tax; whether it is in effect following Day Wholesale does not remove the underlying obligation imposed by § 471. The City argues that this position is further supported by United States v. Morrison, 596 F. Supp. 2d 661 (E.D.N.Y. 2009), and its determination that § 471 does not need regulations governing collection of taxes in order for statutory liability to attach. Id. at 678. The City also highlights several canons of construction, initially emphasized by the district court, that it argues were ignored by the Cayuga majority. First, the City points to the rule against implied repeals, arguing that § 471 still applies to the reservation vendors, regardless of the effect of § 471-e. In addition, according to the City, the district court was correct in pointing to the rule of harmonious construction that allows § 471 to be read as imposing the tax that the mechanism in § 471-e collects. Second, the City reiterates the district court’s admonishment that the Cayuga majority “runs afoul of the established rule of construction that ‘where the Legislature lists exceptions in a statute, items not specifically referenced are deemed to have been intentionally excluded.’” Golden Feather Smoke Shop, 2009 WL 2612345, at *30 (quoting Weingarten v. Bd. of Trs. of N.Y. City Teachers’ Retirement Sys., 780 N.E.2d 174, 179 (N.Y. 2002)). The City, in line with the district court, identified the three tax exceptions included in § 471, to wit, cigarettes: 1) sold under circumstances the state is “‘without power’” to tax, 2) “‘sold to the United States,’” or 3) “‘sold to or by a voluntary unincorporated organization of the armed forces of the United States.’” Id. (quoting N.Y. Tax Law § 471). There is no exemption for reservation vendors in this list, and the district court disagreed with the Cayuga majority and its inference that one does exist for the reservation vendors. The City concludes by pointing to the district court’s recitation of the legislative history of taxing cigarette sales by reservation vendors. The City contends this history demonstrates that § 471-e was not a revision of § 471 but rather the latest effort by the Legislature to collect the taxes imposed by § 471 on reservation cigarette sales to non-tribal members. Id. at *33. According to the City, the legislative history supports the district court’s adoption of the Cayuga dissent and was overlooked by the Cayuga majority. The defendants urge us on the other hand to embrace the majority decision in both the Cayuga and Day Wholesale decisions as the only settled law concerning § 471 and § 471-e. They argue that the district court’s reliance on the Cayuga dissent puts undue emphasis on a single judicial determination as evidence indicating the Court of Appeals would reverse the Cayuga majority. That is, one lone dissent that lays out an alternative interpretation of the legislative history of § 471, according to the defendants, is not sufficiently persuasive for the district court to reach a conclusion opposite to that reached by the Appellate Division. In addition, the defendants argue the district court’s interpretation of § 471 was done “in a vacuum” and thus ignores the circumstances under which the reservation vendors are allowed to operate. Because under federal common law the reservation vendors, when selling to members of the Unkechauge Indian Nation, are relieved of the requirement that the cigarettes have to be stamped, § 471 alone cannot be used to require those vendors to possess stamped cigarettes. Any other reading ignores both the use of § 471-e to address the need for a special taxing mechanism for reservation vendors, and the Day Wholesale Court’s determination that § 471-e is no longer “in effect,” thus leaving no applicable mechanism where one is required. Both the smoke shop vendors and the City offer us competing interpretations of §§ 471 and 471-e, each supported by cogent arguments and prior judicial analysis. Without in any way limiting future analysis of the issue, we observe that § 471 imposes a tax on all cigarettes unless the cigarettes are “sold under such circumstances that this state is without power to impose such tax.” Under the Fourth Department’s analysis in Day Wholesale, Inc., 856 N.Y.S.2d at 811, § 471-e, which establishes the mechanism for “the assessment or collection of” these taxes, see Milhelm Attea & Brothers, Inc., 512 U.S. at 75, is not in effect. Nor do we divine that any other mechanism exists by which to assess and collect such taxes. Given this state of affairs does the absence of any such mechanism applicable to taxes imposed on cigarette sales on reservations give rise to “circumstances that [render New York] without power to impose such tax”? N.Y. Tax Law § 471. Because resolution of the issue requires us to decide what is strictly an issue of statutory interpretation under New York law, we will now examine whether it is appropriate to certify that issue to the New York Court of Appeals. Certification Our local rules, as well as New York law, allow this Court to certify questions of state law to the New York Court of Appeals where no controlling precedent exists. See 2d Cir. R. 27.2 (“If state law permits, the court may certify a question of state law to that state’s highest court.”); 22 N.Y.C.R.R. § 500.27(a) (“Whenever it appears . . . that determinative questions of New York law are involved in a case pending before that court for which no controlling precedent of the Court of Appeals exists, the court may certify the dispositive questions of law to the Court of Appeals.”). Certification, however, should be done “sparingly, mindful that it is our job to predict how the New York Court of Appeals would decide the issues before us.” Highland Capital Mgmt., LP v. Schneider, 460 F.3d 308, 316 (2d Cir. 2006) (internal quotation marks and brackets omitted). Our decision to certify unsettled legal questions is based on, among other factors: “(1) the absence of authoritative state court decisions; (2) the importance of the issue to the state; and (3) the capacity of certification to resolve the litigation.” O’Mara v. Town of Wappinger, 485 F.3d 693, 698 (2d Cir. 2007); see also Morris v. Schroder Capital Mgmt. Int’l, 445 F.3d 525, 531 (2d Cir. 2006) (listing the three factors as main issues to consider). On October 14, 2009, this Court denied appellants’ emergency motion to stay the preliminary injunction. In our order, we requested the parties to brief the necessity of certifying two questions to the New York Court of Appeals that query the reach of New York Tax Law §§ 471 and 471-e and whether reservation vendors’ sale of unstamped cigarettes opens them to liability, criminal or otherwise. Whether we certify the questions as originally posed or other questions entirely depends upon our own consideration of the three primary factors of certification. See Highland Capital Mgmt. LP, 460 F.3d at 316. First, although some appellants argue that New York case law on these issues is well- settled, we disagree. We recognize that although we are not “strictly bound by state intermediate appellate courts, rulings from such courts are a basis for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” DiBella v. Hopkins, 403 F.3d 102, 112 (2d Cir. 2005) (internal quotation marks omitted). As the district court laid out in its order granting a preliminary injunction to the City, there are a number of factors that may persuade the Court of Appeals in its review of Cayuga to adopt the rationale of Justice Peradotto’s dissent. The plain language of § 471 is that a tax is “imposed . . . on all cigarettes possessed in the state by any person for sale” except for cigarettes “sold under such circumstances that this state is without power” to tax. N.Y. Tax Law § 471. The language of § 471-e, however, only gives the state a method by which to collect the taxes actually imposed by § 471. See § 471-e. The New York Court of Appeals has not spoken directly on the issue of the applicability of § 471 alone to reservation cigarette sales to non-Tribal members, nor has it addressed whether § 471-e is actually in effect considering the DTF’s explicit refusal to implement it with respect to reservation vendors. In its only case addressing taxation of cigarette sales on Native American reservations, Milhelm Attea & Bros., Inc. v. Department of Taxation and Finance of New York, 615 N.E.2d 994 (N.Y. 1993), the Court of Appeals addressed the validity of the 1988 regulations enacted to work in concert with § 471 to impose a tax collection scheme. At that time the Court of Appeals determined the regulations “impose[d] significant burdens on the wholesaler,” a burden not to be suffered in “the field of regulating Indian traders.” Id. at 424, 427. That field, reasoned the court, was preempted by Congress through the Indian trader statutes thus disallowing state laws that impose “additional burdens upon traders.” Id. at 424 (internal quotation marks omitted). The United States Supreme Court disagreed, determining instead that states may impose “reasonable regulatory burdens upon Indian traders” in order to enforce “valid state taxes.” Milhelm Attea & Bros., Inc., 512 U.S. at 74. The Court cautioned that “ample room for legitimately tax-exempt sales” must be left in determining “probable demand,” room that the New York regulations contained. Id. at 76. The New York Court of Appeals has not since addressed taxation of sales of cigarettes on reservations. Second, the question of taxing cigarette sales on reservation lands is one that has been addressed by the New York State courts, the New York Legislature, the Department of Taxation and Finance, and even New York’s Governor, all with varying outcomes. We recognize that the New York Court of Appeals is in a far better position to interpret the variety of laws, regulations, and state case law by which the issue will be determined. Thus certification on this issue will address an important issue of state law that to this point remains unresolved. See Runner v. N.Y. Stock Exch., 568 F.3d 383, 389 (2d Cir. 2009). Third, the questions we seek to address are purely legal. An answer from the New York Court of Appeals, therefore, will in all likelihood end this portion of the litigation. On the one hand, if §§ 471 and 471-e, individually or in combination, do not impose a tax on cigarettes sold by reservation vendors, then there would be no basis on which the City could pursue in federal court an injunction under either the CCTA or the CMSA. Conversely, if §§ 471 and 471-e, individually or in combination, do impose a tax such that the failure to pay the tax is a basis for a CCTA or a CMSA violation, the case will be returned to the district court for further proceedings, and the answers to these questions of law will ensure that any continuing litigation is resolved under an authoritative interpretation by New York’s highest court. In deciding whether to certify questions about the applicable tax laws, we take notice that the Cayuga decision addresses similar questions and that the Appellate Division, Fourth Department, has granted leave to appeal that decision to the New York Court of Appeals. We are informed that the Court of Appeals has set a March 25, 2010 date for oral argument in Cayuga. We also understand that Cayuga raises a separate, potentially dispositive issue concerning the boundaries of a “qualified reservation” under § 470(16)(a) and that a decision on that latter ground could relieve the Court of Appeals having to decide in that case whether § 471 alone or in conjunction with § 471-e requires that cigarettes sold by reservation vendors to non-tribal members be stamped. Thus, we understand that if the New York Court of Appeals in Cayuga does interpret §§ 471 and 471-e, it may well decline certification in this case. Having in mind the circumstances under which we seek these interpretations, we respectfully certify the following questions to the Court of Appeals of the State of New York: (1) Does N.Y. Tax Law § 471-e, either by itself or in combination with the provisions of § 471, impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation’s nation or tribe? (2) If the answer to Question 1 is “no,” does N.Y. Tax Law § 471 alone impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation’s nation or tribe? We invite the New York Court of Appeals to reformulate these questions in any way that it sees fit. In articulating the questions as we have, we do not intend to limit the scope of the New York Court of Appeals’ analysis or its response. The certified questions may be deemed expanded to cover any further pertinent issue that the Court of Appeals thinks it appropriate to address. It is hereby Ordered that the Clerk of the Court transmit to the Clerk of the New York State Court of Appeals a Certificate in the form attached, together with a copy of this opinion and a complete set of the briefs, appendices, and record filed by the parties in this Court. This panel will retain jurisdiction to decide the case once we have had the benefit of the views of the New York Court of Appeals or once that court declines certification. Finally, we order the parties to bear equally any fees and costs that may be requested by the New York Court of Appeals. Conclusion For the reasons stated above, we respectfully certify the following questions to the New York Court of Appeals: (1) Does N.Y. Tax Law § 471-e, either by itself or in combination with the provisions of § 471, impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation’s nation or tribe? (2) If the answer to Question 1 is “no,” does N.Y. Tax Law § 471 alone impose a tax on cigarettes sold on Native American reservations when some or all of those cigarettes may be sold to persons other than members of the reservation’s nation or tribe?

07-0985-ag Herrera-Molina v. Holder 1 UNITED STATES COURT OF APPEALS 3 FOR THE SECOND CIRCUIT 4 _______________________________ 6 August Term, 2009 8 (Argued: November 16, 2009 Decided: March 3, 2010) 10 Docket No. 07-0985-ag 11 _______________________________ 13 WILLIAM HERRERA -MOLINA , a.k.a. Eduardo Salazar, 15 Petitioner, 17 v. 19 ERIC H. HOLDER, JR., Attorney General of the United States, 21 Respondent.1 22 ____________________________________ 24 Before: MINER, CABRANES, and STRAUB, Circuit Judges. 25 ____________________________________ 26 Petitioner seeks review of a February 23, 2007 decision of the United States Department 27 of Homeland Security, Immigration and Customs Enforcement (“ICE”), reinstating a prior order 28 of deportation pursuant to section 241(a)(5) of the Immigration and Naturalization Act (“INA”), 29 as added by section 305(a)(3) of the Illegal Immigration Reform and Immigrant Responsibility The Clerk of Court is respectfully directed to amend the caption pursuant to Federal Rule of Appellate Procedure 43(c)(2) to reflect that Attorney General Eric H. Holder, Jr., has been substituted automatically for former Attorney General Michael B. Mukasey. 1 Act of 1996 (“IIRIRA”), 8 U.S.C. § 1231(a)(5). Petitioner argues that the reinstatement 2 provisions of INA section 241(a)(5) are impermissibly retroactive as applied to him, an alien who 3 illegally reentered the United States and married a United States citizen prior to section 4 241(a)(5)’s enactment. Petitioner further argues that section 241(a)(5) should not be interpreted 5 as foreclosing certain additional types of relief and that section 241(a)(5) deprives him of his due 6 process rights under the United States Constitution. For the reasons set forth below, we reject 7 petitioner’s arguments and DENY the petition for review of the reinstatement of petitioner’s 8 prior deportation order. Having completed our review, the stay of removal that this Court 9 previously granted in connection with this petition is VACATED. 10 _________________________________ 12 HAROUTYUN ASATRIAN , Strasser Asatrian, LLC, Newark, NJ, for Petitioner. 14 ANNA E. NELSON , Trial Attorney for the United States Department of Justice, Office of 15 Immigration Litigation (Kelly J. Walls, Trial Attorney for the United States Department 16 of Justice, Office of Immigration Litigation; Jeffrey S. Bucholtz, Acting Assistant 17 Attorney General for the United States Department of Justice, Civil Division; and Linda 18 S. Wernery, Assistant Director for the United States Department of Justice, Office of 19 Immigration Litigation, on the brief), Washington, DC, for Respondent. 20 _________________________________ 22 STRAUB, Circuit Judge: 23 Petitioner William Herrera-Molina seeks review of a February 23, 2007 decision of the 24 United States Department of Homeland Security, Immigration and Customs Enforcement 25 (“ICE”), reinstating a prior order of deportation for illegal entry, entered in July 1985 against 26 Herrera-Molina. The first issue before us is whether the reinstatement of removal statute, section 27 241(a)(5) of the Immigration and Naturalization Act (“INA”), as added by section 305(a)(3) of 1 the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), 8 U.S.C. 2 § 1231(a)(5), is impermissibly retroactive as applied to Herrera-Molina, an alien who illegally 3 reentered the United States and married a United States citizen prior to the statute’s enactment. 4 For the reasons set forth below, we hold that section 241(a)(5) is not impermissibly retroactive as 5 applied to Herrera-Molina. We further hold, as discussed below, that section 241(a)(5) 6 forecloses Herrera-Molina from applying for certain additional types of relief and that section 7 241(a)(5) does not deprive him of due process. 8 BACKGROUND 9 I. Herrera-Molina’s Initial Illegal Entry, Deportation, and Subsequent Illegal Reentry 11 Herrera-Molina, a native and citizen of Colombia, illegally entered the United States in 12 1972 at the age of twenty-two. In 1985, he pled guilty to two crimes: (1) simple possession of a 13 controlled substance (cocaine) in Nebraska and (2) fraudulent practices in the third degree in 14 Iowa. On June 6, 1985, Herrera-Molina was served with an Order to Show Cause charging that 15 he had entered the United States without inspection. On July 26, 1985, an Immigration Judge 16 ordered him deported from the United States to Colombia based on the charges contained in the 17 Order to Show Cause. Herrera-Molina waived appeal of that decision, and on October 21, 1985, 18 he was deported from the United States to Colombia. 19 In 1986, shortly after being deported to Colombia, Herrera-Molina reentered the United 20 States without inspection. He asserts that he then married Rosa Haydee Garofalo in 1986 in a 21 Mormon church in Texas but that the record of their marriage was misplaced by the church. 22 Subsequently, on July 4, 1988, Herrera-Molina and his wife had a child, William Herrera, Jr., 1 who is a United States citizen. Garofalo became a naturalized United States citizen in March 2 1995, and on May 27, 1995, Herrera-Molina remarried Garofalo and obtained an official 3 marriage license from the state of New York. 4 II. Proceedings Below: Herrera-Molina’s Applications for Relief and Reinstatement of 5 Herrera-Molina’s Prior Order of Deportation 7 In late 1997, Garofalo filed on behalf of Herrera-Molina a Petition for Alien Relative 8 (“Form I-130”) and an Application to Adjust Status (“Form I-485”). In connection with these 9 applications, Herrera-Molina paid a fee for having entered the United States without inspection. 10 In addition, in 2003, Herrera-Molina filed an Application for Permission to Reapply for 11 Admission into the United States after Deportation or Removal (“Form I-212”), which was 12 denied on March 17, 2004. 13 On February 23, 2007, ICE reinstated Herrera-Molina’s prior order of deportation from 14 its original date, July 26, 1985, pursuant to INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), and placed 15 him in custody. On the same date, an ICE officer interviewed Herrera-Molina, at which time he 16 indicated that he feared for his life if forced to return to Colombia. On April 25, 2007, an asylum 17 officer issued a Reasonable Fear Determination finding that Herrera-Molina was credible and 18 that he had a reasonable fear of returning to Colombia on account of his Mormon faith; in 19 conclusion, the asylum officer opined that Herrera-Molina should be allowed to pursue his 20 withholding of removal claim before an immigration judge. Based on the asylum officer’s 21 findings, Herrera-Molina was placed in withholding of removal proceedings before an 22 immigration judge (“IJ”), and on November 8, 2007, the IJ denied his application for withholding 23 of removal. Herrera-Molina appealed the IJ’s decision to the Board of Immigration Appeals 1 (“BIA”) on December 4, 2007.2 On July 31, 2009, the BIA dismissed Herrera-Molina’s appeal, 2 concluding that the IJ was not clearly erroneous in his determination that Herrera-Molina failed 3 to provide credible testimony and evidence in support of his assertion that his family has been 4 targeted for persecution.3 5 On October 5, 2009, we granted Herrera-Molina’s motion for a stay of removal pending 6 disposition of Herrera-Molina’s present petition for review of the reinstatement of his prior 7 deportation order. 8 DISCUSSION 9 Herrera-Molina argues that section 241(a)(5)—the provision pursuant to which his prior 10 order of deportation was reinstated—is impermissibly retroactive as applied to him. Herrera- 11 Molina further argues that, even if section 241(a)(5) is not impermissibly retroactive, the statute 12 nevertheless deprives him of due process and we should interpret section 241(a)(5) to allow him 13 to apply for additional types of relief. For the reasons set forth below, we hold that section 14 241(a)(5) is not impermissibly retroactive as applied Herrera-Molina, does not deprive him of 15 due process, and forecloses him from applying for certain additional types of relief. 16 I. Jurisdiction 17 Before reaching the merits of Herrera-Molina’s arguments, we first address whether we On December 11, 2007, ICE paroled Herrera-Molina out of detention and placed him under supervision because he established that he was likely to appear at all hearings or other immigration matters and that he posed no danger to the community. Herrera-Molina has presented no arguments here that challenge the BIA’s July 31, 2009 decision, and his counsel indicated at oral argument on November 16, 2009, that Herrera-Molina does not intend to seek review of that decision. 1 have jurisdiction over this matter. The parties initially disputed our jurisdiction because, at the 2 time that the parties filed their briefs, Herrera-Molina’s appeal of the IJ’s denial of withholding 3 of removal was still pending before the BIA. Due to the pendency of the appeal, the Attorney 4 General argued that the reinstated order of deportation was not a “final” order of removal over 5 which we could exercise jurisdiction. See Chupina v. Holder, 570 F.3d 99, 103-04 (2d Cir. 6 2009) (noting that our jurisdiction is limited to review of “final” orders of removal and that, 7 when a petitioner’s “pending applications [for relief] directly affect whether he may be removed . 8 . . , [the] order of removal is not final until those applications have been resolved by the 9 agency”). After the Attorney General filed his brief, however, the BIA subsequently dismissed 10 Herrera-Molina’s appeal of the denial of withholding of removal. As a result, the Attorney 11 General has withdrawn his argument that we lack jurisdiction to review the reinstatement of 12 Herrera-Molina’s prior deportation order. See Resp’t Supp. Letter Br. of Oct. 28, 2009 at 2 13 (“With the Board’s dismissal of Mr. Herrera-Molina’s appeal of the denial of withholding of 14 removal, the instant petition for review has ripened from a premature petition into a petition for 15 review of a final order of removal.”). Likewise, by supplemental letter brief dated October 29, 16 2009, Herrera-Molina concurred with the Attorney General’s position and represented that he 17 “has elected not to seek review of” the BIA’s July 31, 2009 decision dismissing his appeal from 18 the IJ’s denial of withholding of removal. 19 A premature petition for review of a not-yet-final order of removal can become a 20 reviewable final order upon the adjudication of remaining applications for relief and protection, 21 provided that the Attorney General has not shown prejudice. See Lewis v. Gonzales, 481 F.3d 1 125, 128–29 (2d Cir. 2007); Foster v. INS, 376 F.3d 75, 77 (2d Cir. 2004) (“Despite his 2 premature petition to us, we exercised jurisdiction noting that the BIA has since affirmed 3 petitioner’s removal order and the respondent has not shown prejudice.” (internal quotation 4 marks omitted)). In the present case, the BIA has now rendered a decision resolving Herrera- 5 Molina’s appeal of the denial of withholding of removal, and the Attorney General does not 6 claim that he was prejudiced by Herrera-Molina filing a petition for review prior to the BIA’s 7 decision—nor do we see how he could have been prejudiced. Accordingly, even if Herrera- 8 Molina’s initial petition were premature, we conclude that the reinstatement of his prior 9 deportation order is now a reviewable final order and proceed to the merits of his arguments. 10 II. The Reinstatement Provisions of Section 241(a)(5) 11 Before analyzing Herrera-Molina’s specific arguments regarding section 241(a)(5), it is 12 necessary to summarize briefly how section 241(a)(5) changed the law regarding reinstatement of 13 removal orders, formerly known as deportation orders.4 Section 241(a)(5) provides that: 14 If the Attorney General finds that an alien has reentered the United States illegally 15 after having been removed or having departed voluntarily, under an order of 16 removal, the prior order of removal is reinstated from its original date and is not 17 subject to being reopened or reviewed, the alien is not eligible and may not apply 18 for any relief under this chapter, and the alien shall be removed under the prior 19 order at any time after the reentry. 21 8 U.S.C. § 1231(a)(5). The statute became effective on April 1, 1997, “the first day of the first 22 month beginning more than 180 days after” it was enacted on September 30, 1996. Fernandez- As we have previously noted, the terms “order of deportation” and “order of removal” are synonomous. See Chupina, 570 F.3d at 104. “What was formerly known as ‘deportation’ is now called ‘removal’ in IIRIRA.” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33 n.1 (2006). 1 Vargas, 548 U.S. at 35 (internal quotation marks omitted). 2 Prior to April 1, 1997, only aliens who had previously been deported on certain specified 3 grounds, such as a conviction for an aggravated felony, were subject to having their original 4 deportation orders reinstated, and even those aliens subject to reinstatement could seek certain 5 kinds of discretionary relief. Id. at 33-34; see 8 U.S.C. §§ 1252(e)-(f), 1254(a) (1994). By 6 contrast, section 241(a)(5) “applies to all illegal reentrants, explicitly insulates the removal 7 orders from review, and generally forecloses discretionary relief from the terms of the reinstated 8 order.” Fernandez-Vargas, 548 U.S. at 35 (emphases added). 10 III. Retroactivity Analysis 11 As noted earlier, although Herrera-Molina applied for adjustment of status after section 12 241(a)(5) became effective, he illegally reentered the United States and married a United States 13 citizen before section 241(a)(5) became effective. On this basis, Herrera-Molina contends that 14 section 241(a)(5) is impermissibly retroactive as applied to him because “long standing INS 15 practice created a reasonable expectation that Petitioner could defend against later deportation by 16 seeking a discretionary adjustment of status to lawful permanent resident.” Opening Br. for Pet’r 17 at 26. For the reasons discussed below, Herrera-Molina’s argument is unavailing. 18 In one of its seminal retroactivity cases, the Supreme Court noted that “[e]lementary 19 considerations of fairness dictate that individuals should have an opportunity to know what the 20 law is and to conform their conduct accordingly; settled expectations should not be lightly 21 disrupted.” Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994). In the same case, however, 22 the Supreme Court observed that Congress may, within constitutional limits, enact laws that 1 operate retroactively. Id. at 267–68. The Court further acknowledged that “[r]etroactivity 2 provisions often serve entirely benign and legitimate purposes, whether to respond to 3 emergencies, to correct mistakes, to prevent circumvention of a new statute in the interval 4 immediately preceding its passage, or simply to give comprehensive effect to a new law 5 Congress considers salutary.” Id. 6 In light of these principles, the Supreme Court developed a two-step test for determining 7 whether a statute may be applied retroactively. At step one, a “court must ascertain, using the 8 ordinary tools of statutory construction, ‘whether Congress has expressly prescribed the statute’s 9 proper reach.’” Martinez v. INS, 523 F.3d 365, 370 (2d Cir. 2008) (quoting Landgraf, 511 U.S. 10 at 280). “If the answer is yes, the inquiry is over . . . .” Id. Applying ordinary tools of statutory 11 construction, the Supreme Court in Fernandez-Vargas found that Congress did not expressly 12 prescribe whether section 241(a)(5) should apply to individuals who illegally reentered the 13 United States before section 241(a)(5) went into effect on April 1, 1997. 548 U.S. at 38-42. 14 Because the statute contains no express command, we therefore proceed to step two of the 15 analysis, which “ask[s] whether applying the statute to the person objecting would have a 16 retroactive consequence in the disfavored sense of ‘affecting substantive rights, liabilities, or 17 duties [on the basis of] conduct arising before [its] enactment.’” Id. at 37 (alterations in original) 18 (quoting Landgraf, 511 U.S. at 278). Under step two of the relevant inquiry, “a statute is 19 impermissibly retroactive” when it (1) “‘takes away or impairs vested rights acquired under 20 existing laws’” or (2) “‘creates a new obligation, imposes a new duty, or attaches a new 1 disability, in respect to transactions or considerations already past.’”5 Martinez, 523 F.3d at 373 2 (quoting Landgraf, 511 U.S. at 269). When determining whether a statute is impermissibly 3 retroactive, courts must exercise “commonsense, functional judgment about whether the new 4 provision attaches new legal consequences to events completed before its enactment.” INS v. St. 5 Cyr, 533 U.S. 289, 321 (2001) (internal quotation marks omitted). This analysis is further 6 “informed and guided by familiar considerations of fair notice, reasonable reliance, and settled 7 expectations.” Id. (internal quotation marks omitted). 8 Applying these principles at step two, the Supreme Court held that section 241(a)(5) is 9 not impermissibly retroactive as applied to aliens who reentered the United States prior to its 10 enactment. Fernandez-Vargas, 548 U.S. at 42–47. The Court noted that, “[w]hile the law looks 11 back to a past act in its application to ‘an alien [who] has reentered . . . illegally,’ . . . it is the 12 conduct of remaining in the country after entry that is the predicate action.” Id. at 44 (emphasis 13 added). Thus, “[i]t is . . . the alien’s choice to continue his illegal presence, after illegal reentry 14 and after the effective date of the new law, that subjects him to the new and less generous legal 15 regime, not a past act that he is helpless to undo up to the moment the Government finds him 16 out.” Id. The Court further noted that, although section 241(a)(5) “became law on September 17 30, 1996,” it did not become “effective and enforceable” until April 1, 1997. Id. at 45. 18 “Unlawful alien reentrants . . . thus had the advantage of a grace period between the unequivocal Although the above quoted language is frequently cited when analyzing retroactivity, the Supreme Court has made clear that this language does not provide “the exclusive definition of presumptively impermissible retroactive legislation” and “does not purport to define the outer limit of impermissible retroactivity.” Hughes Aircraft Co. v. U.S. ex rel. Schumer, 520 U.S. 939, 947 (1997). 1 warning that a tougher removal regime lay ahead and actual imposition of the less opportune 2 terms of the new law.” Id. The Court observed that, “[i]n that stretch of six months, Fernandez- 3 Vargas could have ended his illegal presence and potential exposure to the coming law by 4 crossing back into Mexico.” Id. at 45. Furthermore, and most pertinent to the present case, the 5 Court noted that Fernandez-Vargas “could have married the mother of his son and applied for 6 adjustment of status during that period, in which case he would at least have had a claim (about 7 which we express no opinion) that proven reliance on the old law should be honored by applying 8 the presumption against retroactivity.” Id. at 46 (emphasis added). 9 In the present case, Herrera-Molina married a United States citizen before section 10 241(a)(5) went into effect, but he did not apply for adjustment of status until after section 11 241(a)(5) became effective. Accordingly, Herrera-Molina’s reliance on the Supreme Court’s 12 dicta—that petitioner might have had a claim had he married and applied for adjustment of status 13 before section 241(a)(5) became effective—is unavailing. It is true that several Courts of 14 Appeals have found section 241(a)(5) impermissibly retroactive as applied to individuals who 15 submitted applications for adjustment of status before section 241(a)(5) became effective. See 16 Valdez-Sanchez v. Gonzales, 485 F.3d 1084, 1086, 1090-91 (10th Cir. 2007) (finding section 17 241(a)(5) impermissibly retroactive as applied to a petitioner who had both applied for and 18 obtained adjustment of status prior to section 241(a)(5)’s effective date); Faiz-Mohammad v. 19 Ashcroft, 395 F.3d 799, 809 & n.10, 810 (7th Cir. 2005) (finding section 241(a)(5) impermissibly 20 retroactive as applied to a petitioner who had applied for adjustment of status prior to section 21 241(a)(5)’s effective date); Sarmiento Cisneros v. U.S. Attorney Gen., 381 F.3d 1277, 1284-85 1 (11th Cir. 2004) (same); Arevalo v. Ashcroft, 344 F.3d 1, 4, 15 (1st Cir. 2003) (same). However, 2 unlike the petitioners in those cases, Herrera-Molina, as we just noted, did not apply for 3 adjustment of status before section 241(a)(5)’s effective date. 4 In addition, the only Court of Appeals decision that found section 241(a)(5) 5 impermissibly retroactive as applied to a petitioner who married, but did not apply for adjustment 6 of status, before section 241(a)(5)’s effective date was an Eighth Circuit decision issued before 7 Fernandez-Vargas was decided. See generally Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (8th 8 Cir. 2002). After the Supreme Court issued Fernandez-Vargas, however, the Eighth Circuit 9 acknowledged that Alvarez-Portillo was overruled to the extent that it conflicted with Fernandez- 10 Vargas. See Gonzalez v. Chertoff, 454 F.3d 813, 816-18 (8th Cir. 2006) (holding that a different 11 immigration provision enacted at the same time as section 241(a)(5) was not impermissibly 12 retroactive as applied to a petitioner who married before the statute became effective and who 13 could have pursued adjustment of status as a defense to removal prior to the statute’s effective 14 date); id. at 818 n.4 (“To the extent our decision in Alvarez-Portillo . . . suggests a different 15 result, it is overruled by Fernandez-Vargas.”). 16 Herrera-Molina argues here that Fernandez-Vargas did not address whether section 17 241(a)(5) is impermissibly retroactive as applied to a petitioner who married, but did not apply 18 for adjustment of status, before section 241(a)(5)’s effective date. Accordingly, Herrera-Molina 19 concludes that Fernandez-Vargas does not conflict with Alvarez-Portillo and, therefore, Alvarez- 20 Portillo has not been overruled. Careful analysis of Alvarez-Portillo, however, illustrates that its 21 reasoning conflicts with Fernandez-Vargas and, therefore, Alvarez-Portillo has been overruled. 1 The Alvarez-Portillo decision analogized the retroactive effect at issue there, i.e., section 2 241(a)(5)’s effect on aliens who had reentered before section 241(a)(5)’s enactment, to the 3 retroactivity issue in Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939 (1997). 4 See Alvarez-Portillo, 280 F.3d at 866. After Fernandez-Vargas, it became clear that this analogy 5 was misplaced. Hughes Aircraft dealt with the retroactive application of a statutory amendment 6 to “conduct completed before [the amendment’s] enactment.” 520 U.S. at 952. By contrast, as 7 discussed earlier, Fernandez-Vargas made clear that the conduct which section 241(a)(5) 8 regulates is ongoing and is “not a past act that [petitioner] is helpless to undo up to the moment 9 the Government finds him out.” Fernandez-Vargas, 548 U.S. at 44. Accordingly, the reasoning 10 of Alvarez-Portillo conflicts with Fernandez-Vargas, and therefore, as the Eighth Circuit itself 11 has recognized, Alvarez-Portillo was overruled. 12 Unlike the Eighth Circuit’s Alvarez-Portillo decision, the Fourth and Fifth Circuits’ 13 decisions on this question—which hold that section 241(a)(5) is not impermissibly retroactive as 14 applied to petitioners who married, but did not apply for adjustment of status, before section 15 241(a)(5)’s effective date—are fully in line with Fernandez-Vargas. Silva Rosa v. Gonzales, 490 16 F.3d 403, 407–08 (5th Cir. 2007) (holding that section 241(a)(5) was not impermissibly 17 retroactive because, although the petitioner married and applied for a visa prior to section 18 241(a)(5)’s effective date, he did not apply for adjustment of status before section 241(a)(5) went 19 into effect); Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 109-10 (4th Cir. 2001) (reaching the 20 same result prior to Fernandez-Vargas). Implicitly recognizing that Fernandez-Vargas 21 foreclosed any argument that section 241(a)(5) applied to “completed” conduct, the Fifth Circuit 1 in Silva Rosa instead analyzed whether section 241(a)(5) impaired the “vested rights” of 2 petitioners who had married, but not applied for adjustment of status, before its effective date. 3 As the Fifth Circuit noted, “any expected relief from removal under a ‘reasonable expectation’ or 4 ‘vested rights’ theory [of retroactivity] must be ‘something more substantial than inchoate 5 expectations and unrealized opportunities.’” See Silva Rosa, 490 F.3d at 407 (quoting 6 Fernandez-Vargas, 548 U.S. at 44 n.10). In Fernandez-Vargas, the petitioner’s claims to relief 7 such as cancellation of removal and adjustment of status were “not vested rights,” but instead 8 were “contingent” because petitioner “never availed himself of them or took action that enhanced 9 their significance to him in particular.” 548 U.S. at 44 n.10 (internal quotation marks omitted). 10 Likewise, the Fifth Circuit reasoned that, even if a petitioner took preliminary steps to become 11 eligible to apply for adjustment of status because of his marriage, his claim for such discretionary 12 relief is contingent and not a “vested right” if he never actually applied for such relief before 13 section 241(a)(5) went into effect. Silva Rosa, 490 F.3d at 407-08. Or, as the Fourth Circuit 14 concluded, the petitioner “posit[ed] no way in which his marriage in ‘reliance’ on preexisting law 15 weakened his immigration status under the new law or hurt his chances of remaining in this 16 country.” Velasquez-Gabriel, 263 F.3d at 109 (emphasis omitted); id. at 110 (concluding further 17 that the petitioner’s “failure to apply to adjust his resident status before the new law took effect 18 fatally undermines his contention that § 241(a)(5)’s application to him attaches new legal 19 consequences to events completed before its enactment” (internal quotation marks omitted)). 20 Further weakening Herrera-Molina’s retroactivity argument is the Attorney General’s 21 contention, which Herrera-Molina fails to rebut, that Herrera-Molina would not have been 1 entitled to adjustment of status even prior to section 241(a)(5)’s enactment. See Br. for Resp’t at 2 25-27. The Attorney General argues that, because of his 1985 conviction for possession of 3 cocaine, Herrera-Molina would have been ineligible to adjust his status based upon his marriage 4 to a United States citizen, even before section 241(a)(5)’s enactment. See 8 U.S.C. § 5 1182(a)(2)(A)(i)(II) (1994) (providing that aliens convicted of any controlled substance violation 6 are an excludable class of aliens who are ineligible to receive a visa and who shall be excluded 7 from admission into the United States); id. § 1182(h) (1994) (providing that only a single offense 8 of simple possession of thirty grams or less of marijuana may be waived and, even then, only in 9 certain circumstances).6 Herrera-Molina fails to address this argument—that he would have been 10 ineligible for adjustment of status even under the old law—and instead argues that, 11 notwithstanding his convictions, he would have been eligible to apply for suspension of 12 deportation or asylum under the old law. 13 Herrera-Molina’s claim that he reasonably relied on the availability of suspension of On April 30, 2007, Herrera-Molina filed a motion to withdraw his previously entered guilty plea with the District Court of Douglas County, Nebraska, which was denied on the merits on June 14, 2007. Herrera-Molina represents that he appealed this decision to the Court of Appeals for the State of Nebraska, which appeal was pending at the time that he submitted his brief to this court on January 7, 2008. On May 14, 2008, subsequent to the submission of his opening brief to this court, the Court of Appeals for the State of Nebraska remanded the matter to the district court with instructions to dismiss Herrera-Molina’s motion to withdraw his guilty plea for lack of jurisdiction. State of Nebraska v. William Herrera, No. A-07-772, slip op. (Neb. Ct. App. May 14, 2008). In light of this discussion about Herrera-Molina’s prior guilty plea, it is worth noting that this case is completely distinguishable from INS v. St. Cyr, 533 U.S. 289 (2001). In St. Cyr, the Supreme Court found that a law that eliminated discretionary relief was impermissibly retroactive as applied to a petitioner who relied on the old law when deciding whether to plead guilty to a crime. Unlike the prior, completed predicate act in St. Cyr (the guilty plea), the predicate act here is Herrera-Molina’s continued presence in the United States after section 241(a)(5) went into effect, which as discussed earlier, is not a prior, completed act. 1 deportation or asylum fails for two reasons. First, the terms of section 241(a)(5) preclude such 2 relief, see Discussion infra Part IV, and Herrera-Molina chose to remain in this country despite 3 Congress’s warning that a new statutory framework that eliminated such relief was imminent and 4 despite a six month grace period in which to alter his conduct. Second, with respect to 5 suspension of deportation specifically, such relief has been completely repealed (not just in the 6 context of section 241(a)(5)), and we have previously found that the repeal of this relief is not 7 impermissibly retroactive. See Karageorgious v. Ashcroft, 374 F.3d 152, 156 (2d Cir. 2004) 8 (“The repeal of suspension of deportation does not . . . attach any new legal consequences to 9 petitioners’ pre-IIRIRA conduct. . . . Petitioners had no right to remain living illegally and 10 undetected in the United States. Therefore, they relinquished no rights and acquired no new 11 obligations when they turned themselves in to the INS.” (internal citation and quotation marks 12 omitted)). 13 In sum, section 241(a)(5) does not create new consequences for prior, completed conduct. 14 It is Herrera-Molina’s continued presence in the United States that serves as the predicate act to 15 which section 241(a)(5) applies, not some prior, completed conduct that Herrera-Molina is 16 helpless to correct. Nor does section 241(a)(5) impair Herrera-Molina’s vested rights. That 17 Herrera-Molina married a United States citizen prior to section 241(a)(5)’s enactment does not 18 alter these conclusions. Even if Herrera-Molina would have been eligible to apply for certain 19 discretionary relief before section 241(a)(5) became effective, he did not make any such 20 application prior to the law’s effective date and, therefore, did not have any “vested” right to such 21 relief. For the reasons discussed above, section 241(a)(5) is not impermissibly retroactive as 1 applied to Herrera-Molina. 2 IV. The Scope of Relief Provided By Section 241(a)(5) and Petitioner’s Due Process 3 Rights 5 In addition to arguing that section 241(a)(5) is impermissibly retroactive, Herrera-Molina 6 argues that section 241(a)(5)’s elimination of certain discretionary relief and the denial of a 7 formal hearing in connection with the reinstatement of his prior deportation order deprived him 8 of his due process rights. We squarely addressed these issues in Garcia-Villeda v. Mukasey, 531 9 F.3d 141 (2d Cir. 2008). In Garcia-Villeda, we applied the two-prong test enunciated in 10 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984), 11 to determine “whether elimination of the requirement of a hearing before an immigration judge, 12 pursuant to 8 C.F.R. § 241.8 (2001), is consistent with the reinstatement of removal statute.” 13 Garcia-Villeda, 531 F.3d at 144, 146. We further considered “whether the reinstatement of 14 removal procedure set forth in 8 C.F.R. § 241.8, both as applied in this case and on its face, 15 comports with the Due Process Clause of the Fifth Amendment; . . . and whether the ICE 16 properly reinstated the underlying deportation order without first adjudicating petitioner’s 17 pending applications for [relief].” Id. at 144. We rejected the petitioner’s arguments with regard 18 to all of the above issues. 19 First, we noted that, pursuant to section 241(a)(5)’s terms, “[t]he inquiry in a 20 reinstatement proceeding is limited to whether the ‘alien has reentered the United States illegally 21 after having been removed.’” Id. at 148 (quoting 8 U.S.C. § 1231(a)(5)). We further noted that, 22 according to section 241(a)(5), “illegal reentrants are now categorically declared ineligible for 1 any relief from removal.”7 Id. Accordingly, we had “little difficulty” granting Chevron 2 deference to the government’s interpretation of section 241(a)(5), as set forth in 8 C.F.R. § 241.8. 3 Id. at 148–49. We found the summary procedure set forth in 8 C.F.R. § 241.8, which eliminated 4 the requirement of a hearing before an immigration judge, “quite appropriate [because] the only 5 issues to be determined are . . . the alien’s identity, the existence of a prior removal order, and 6 whether the alien has unlawfully reentered.” Id. at 148 (internal quotation marks omitted). 7 Furthermore, we rejected the petitioner’s due process challenges to the reinstatement order 8 because he “admitted before the ICE and before us all of the facts necessary to warrant 9 reinstatement under INA § 241(a)(5), i.e., that he is an alien who reentered the U.S. illegally after 10 being previously deported.” Id. at 149 (internal quotation marks omitted); id. (“None of the 11 additional procedural protections he demands . . . would have changed this.”). Finally, we 12 rejected the petitioner’s claim that, “before the reinstatement order could be issued, he was 13 entitled to adjudication on the merits of his applications for [relief] filed with the DHS . . . before 14 the reinstatement order was issued.” Id. at 150. We concluded that “we cannot disregard the 15 statutory text” which provides that “[a]n illegal reentrant ‘is not eligible and may not apply for 16 any relief’ under the INA.” Id. at 151 (emphasis omitted) (quoting 8 U.S.C. § 1231(a)(5)). But 17 see supra [p. 18 n.7]. We did note, however, that 8 C.F.R. § 241.8 allows “an alien subject to reinstatement to (1) ‘express[] a fear of returning to the country designated in [the reinstatement] order’; or (2) apply for adjustment of status under either the Haitian Refugee Immigrant Fairness Act of 1998 or the Nicaraguan Adjustment and Central American Relief Act.” Garcia-Villeda, 531 F.3d at 151 n.8 (alterations in original) (quoting 8 C.F.R. § 241.8(e)). 1 In light of Garcia-Villeda, we reject Herrera-Molina’s argument that he is entitled to 2 apply for additional relief. Herrera-Molina has already applied for withholding of removal, the 3 only relevant relief apparently available to him, based on his fear of returning to Columbia, and 4 that application has been denied. According to the relevant statutory and regulatory provisions, 5 relief other than withholding of removal, e.g., asylum or cancellation of removal, is not available 6 to this petitioner. As we noted in Garcia-Villeda, 8 C.F.R. § 241.8 allows “an alien subject to 7 reinstatement to (1) ‘express[] a fear of returning to the country designated in [the reinstatement] 8 order’; or (2) apply for adjustment of status under either the Haitian Refugee Immigrant Fairness 9 Act of 1998 or the Nicaraguan Adjustment and Central American Relief Act.” 531 F.3d at 151 10 n.8 (alterations in original) (quoting 8 C.F.R. § 241.8(e)). Herrera-Molina does not argue that he 11 is entitled to apply for adjustment of status under the Haitian Refugee Immigrant Fairness Act or 12 the Nicaraguan Adjustment and Central American Relief Act. Moreover, with regard to those 13 aliens who express a fear of returning to the country designated in the reinstatement order, the 14 provisions of 8 C.F.R. § 241.8 state only that there is an “[e]xception for withholding of 15 removal” and do not state that there is any exception for asylum. See 8 C.F.R. § 241.8(e). In 16 this context, “[i]f an asylum officer determines that an alien [subject to a reinstatement order] has 17 a reasonable fear of persecution or torture, the officer shall so inform the alien and issue a Form 18 I-863, Notice of Referral to the Immigration Judge, for full consideration of the request for 19 withholding of removal only.” 8 C.F.R. § 208.31(e) (emphasis added). With regard to this 20 screening process, the Department of Justice has made clear that “aliens subject to reinstatement 21 of a previous removal order under section 241(a)(5)” are “ineligible for asylum.” 64 Fed. Reg. 1 8478, 8485 (Feb. 19, 1999) (emphasis added). Accordingly, we reject Herrera-Molina’s claim 2 that he is entitled to apply for asylum or additional types of relief other than withholding of 3 removal.8 4 Furthermore, we reject Herrera-Molina’s argument that section 241(a)(5) deprives him of 5 due process. Like the petitioner in Garcia-Villeda, Herrera-Molina admits all of the facts 6 necessary to warrant reinstatement under section 241(a)(5): he was deported in 1985, illegally 7 reentered the United States thereafter, and was apprehended while present in the United States. 8 In addition, Herrera-Molina does not allege any impropriety in the underlying 1985 deportation 9 proceedings and does not argue that those earlier proceedings deprived him of due process.9 As 10 in Garcia-Villeda, no “additional procedural protections . . . would have changed” the 11 determination that Herrera-Molina was subject to reinstatement of the prior deportation order. The Supreme Court in Fernandez-Vargas suggests in dicta that the above statutory and regulatory provisions “rais[e] the possibility of asylum.” See Fernandez-Vargas, 548 U.S. at 35 n.4. It is true that an alien who “expresses a fear of returning to the country” designated in the reinstatement order “shall be referred to an asylum officer for a reasonable fear determination.” 8 C.F.R. § 208.31(a), (b). Furthermore, if that asylum officer determines that the alien has established “a reasonable fear of persecution or torture”—a showing relevant to establishing eligibility for asylum—the alien is referred to an Immigration Judge. 8 C.F.R. § 208.31(e). However, the regulations are clear that this referral to an Immigration Judge is for the purpose of considering the alien’s “request for withholding of removal only.” Id. (emphasis added). Accordingly, Herrera-Molina’s counsel properly conceded at oral argument that, if we find that section 241(a)(5) is not impermissibly retroactive as applied to Herrera-Molina, he would be ineligible to apply for asylum under the relevant statutory and regulatory provisions. Because Herrera-Molina does not challenge the process afforded him in connection with his underlying deportation order, we need not consider the issue of whether we would have jurisdiction to review legal or constitutional challenges to the validity of that underlying deportation order. See Debeato v. Attorney Gen., 505 F.3d 231, 234–35 (3d Cir. 2007); Ramirez- Molina v. Ziglar, 436 F.3d 508, 513-14 (5th Cir. 2006). 1 531 F.3d at 149. Accordingly, because Herrera-Molina has failed to “allege some cognizable 2 prejudice fairly attributable to the challenged process,” id. (internal quotation marks omitted), we 3 conclude that he was not deprived of due process with regard to the reinstatement of his prior 4 deportation order. 5 CONCLUSION 6 For the reasons set forth above, Herrera-Molina’s petition for review of the ICE order 7 reinstating his prior order of deportation is DENIED. Having completed our review, the stay of 8 removal that this Court previously granted in connection with this petition is VACATED.

08-4748-pr Joe Burgos Vega v. Theresa Lantz, Jack Tokarz, and Frederick Levesque 1 UNITED STATES COURT OF APPEALS 3 FOR THE SECOND CIRCUIT 7 August Term, 2008 9 (Argued: July 16, 2009 Decided: March 2, 2010) 11 Docket No. 08-4748-pr 13 _________________________________ 15 JOE BURGOS VEGA , 17 Plaintiff-Appellee, 19 – v. – 21 THERESA LANTZ, JACK TOKARZ, FREDERICK LEVESQUE, 23 Defendants-Appellants. 26 _________________________________ 28 Before: Sack and B.D. Parker, Circuit Judges, and Goldberg, Judge.* 30 _________________________________ 33 Defendants-appellants appeal from a judgment of the United States District Court for the 34 District of Connecticut (Dorsey, J.). The district court found that officials from the Connecticut * The Honorable Richard W. Goldberg, United States Court of International Trade, sitting by designation. 1 Department of Corrections improperly labeled the plaintiff-appellee as a sex offender in 2 violation of the Due Process Clause of the Fourteenth Amendment. Reversed. 3 __________________________________ 5 LYNN D. WITTENBRINK, Attorney Generals Office, State of 6 Connecticut, Hartford, CT, for Defendants-Appellants. 8 WILLIAM K. PIOTROWSKI, Hartford, CT, for Plaintiff- 9 Appellee. 10 _________________________________ 13 BARRINGTON D. PARKER, Circuit Judge: 15 Defendants-appellants, who are prison officials, appeal from a judgment of the United 16 States District Court for the District of Connecticut (Dorsey, J.), granting-in-part plaintiff- 17 appellee Joe Burgos Vega’s motion for summary judgment. Vega, a prison inmate, sued 18 Connecticut prison officials alleging, among other things, that they violated his liberty interests 19 and procedural due process rights arising under the Fourteenth Amendment by failing to afford 20 him a hearing before assigning him an inmate classification that, in his view, was tantamount to 21 classifying him as sex offender. The district court granted Vega summary judgment and 22 injunctive relief on this claim and dismissed the remaining ones. Vega v. Lantz, No. 3:03-cv- 23 2248, 2008 WL 3992651 (D. Conn. Aug. 25, 2008). For the reasons set forth below, we reverse. 24 I. BACKGROUND 25 Vega is an inmate at the MacDougall-Walker Correctional Institution, under the custody 26 of the Connecticut Department of Correction (“DOC” or “the Department”). Vega’s 27 incarceration resulted from his conviction for two counts of assault in the first degree in violation 28 of Conn. Gen. Stat. § 53a-59 and one count of kidnapping in the second degree in violation of 1 Conn. Gen. Stat. § 53a-94. While the state also presented testimony that Vega committed sexual 2 assault in the first degree in violation of Conn. Gen. Stat. § 53a-70 (a)(1), he was acquitted of 3 that charge. The state trial court sentenced Vega to a total term of sixty years of incarceration. 4 Vega’s convictions arose from acts he committed against a sixteen-year-old girl, with 5 whom he had a sexual relationship, when he was twenty-nine-years old. The first violent act 6 occurred during the fall of 1995, when he tore the victim’s clothes, hit her, and forbade her from 7 attending her high school classes. The violence then crescendoed. During a series of events 8 during late 1995, Vega stabbed the victim, burned her with a cigarette, and carved the name 9 “Joey” on her chest with a piece of glass. Then in early 1996, he locked the victim in a bedroom 10 with her infant son, and, on the evening of January 7, entered the bedroom, stabbed the victim, 11 beat her and cut her nipple off of her right breast before forcing her to swallow it. 12 Following his conviction, Vega entered the custody of the DOC. As is customary, 13 Department officials assigned him both a “needs score,” designed to assess what rehabilitative 14 treatments were appropriate, and a “risk score,” designed to assess his risk of dangerousness. 15 The officials responsible for these assessments included the defendants-appellants Theresa Lantz, 16 the Commissioner of Correction (“Commissioner”), Jack Tokarz, the former Deputy 17 Commissioner and Fred Levesque, the Director of Inmate Classification and Population 18 Management. 19 According to the Department’s 2005 Objective Classification Manual, officials calculate 20 a “needs score” by assigning point levels between 1 and 5 to inmates based on their medical 21 needs, mental health needs, educational needs, vocational needs, substance abuse needs, 22 community resource needs, and “Sexual Offense Treatment Needs” (“SOTN”). In calculating a 1 risk score, officials consider a number of factors including the inmate’s risk of escape, the 2 severity of the offenses, any history of violence, the length of the sentence, pending charges, 3 disciplinary history and membership in a group that poses a security risk. An inmate with a 4 SOTN score of 2 or higher may not receive a risk level score of 1 or 2 absent approval from the 5 Commissioner. 6 When Vega was initially arrested in 1996, corrections officials assigned him a risk level 7 of 4 and a SOTN score of 1. In June 1997 they reassigned him a SOTN score of 3, with a 8 subcode of “U,” to denote that this classification was unverified. Following his conviction, his 9 risk score and SOTN score remained the same with one change: his SOTN subcode of “U” was 10 changed to “V” for “verified.” The Classification Manual describes persons with a SOTN score 11 of 3 as individuals who “have a current conviction, pending charge or known history of sexual 12 offenses involving physical contact with the victim(s)... The offenses may include coercion, 13 manipulation, or exploitation.” 14 In February 2001, Vega learned of his SOTN score and unsuccessfully requested 15 reclassification on the ground that he had been acquitted of sexual assault. According to Vega, 16 his classification as a sex offender exposed him to harassment from prison officials and other 17 inmates, as well as a denial of access to various programs such as one that permitted him to tutor 18 other inmates. Department officials dispute the allegations of harassment but acknowledge that 19 they deemed it ill advised to permit Vega to serve as a tutor based, in part, on his high SOTN 20 score. 21 In December 2003, Vega sued asserting various constitutional claims including violations 22 of substantive and procedural due process, equal protection and the Eighth Amendment. 1 Eventually, Vega moved for summary judgment on his due process claims, contending that the 2 state unconstitutionally classified him as a sexual offender despite the fact he has not been 3 convicted of a sexual offense. This misclassification, he contended, deprived him of a federal 4 constitutional liberty interest in not being falsely stigmatized and a state-created liberty interest in 5 not being labeled as a sex offender absent a criminal conviction. The parties cross-moved for 6 summary judgement. The district court granted summary judgment to Vega on his procedural 7 due process claims. It reasoned that “being classified as a sex offender invokes a constitutionally 8 protected liberty interest” and, therefore, Vega was entitled to a hearing before the Department 9 labeled him a sex offender. Vega, 2008 WL 3992651, at *14. The court further reasoned that the 10 Department’s manuals “created a liberty interest in not being assigned an SOTN score on the 11 basis of a charge for which an inmate has been acquitted,” and transgressed the state-created 12 liberty interest by labeling Vega a sex offender despite his acquittal for sexual assault in the first 13 degree. Id. at * 16. Accordingly, the district court granted Vega injunctive relief requiring DOC 14 officials to clear Vega’s SOTN score until they provided him with a hearing to contest that 15 classification. The district court granted the defendants qualified immunity and dismissed the 16 remainder of the Vega’s claims. This appeal followed. 17 II. DISCUSSION 18 A. 19 We review a grant of summary judgment under Rule 56 of the Federal Rules of Civil 20 Procedure de novo. Molinari v. Bloomberg, 564 F.3d 587, 595 (2d Cir. 2009). The judgment 21 will be upheld “only if the evidence, viewed in the light most favorable to the party against 22 whom it is entered, demonstrates that there are no genuine issues of material fact and that the 1 judgment was warranted as a matter of law.” Barfield v. N.Y. City Health & Hosps. Corp., 537 2 F.3d 132, 140 (2d Cir. 2008) (citing Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 3 317, 322-23 (1986); Rubens v. Mason, 527 F.3d 252, 254 (2d Cir. 2008)). 4 B. 5 Vega alleged that DOC officials defamed him by branding him as a sex offender without 6 due process. Generally, defamation is an issue of state, not of federal constitutional, law. Lauro 7 v. Charles, 219 F.3d 202, 207 (2d Cir. 2000) (citing Paul v. Davis, 424 U.S. 693, 699-701 8 (1976)). However, under limited circumstances, federal constitutional relief is available for 9 defamation committed by government officials. Paul, 424 U.S. at 701-10; see also Vitek v. 10 Jones, 445 U.S. 480, 493 (1980) (concluding that labeling an inmate mentally ill, and transferring 11 him to a mental hospital without due process, wrongly stigmatized him) . Specifically, an action 12 can be grounded in 42 U.S.C. § 1983 when that plaintiff can demonstrate “a stigmatizing 13 statement plus a deprivation of a tangible interest.” Algarin v. Town of Wallkill, 421 F.3d 137, 14 138 (2d Cir. 2005); see also Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir. 2004). 15 To establish a “stigma plus” claim, a plaintiff must show (1) “the utterance of a statement 16 sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and 17 that he or she claims is false,” and (2) “a material state-imposed burden or state-imposed 18 alteration of the plaintiff's status or rights.” Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir. 19 2004) (internal citations and quotation marks omitted) (Sotomayor, J.) This state-imposed 20 alteration of status or burden must be “ in addition to the stigmatizing statement.” Id. (emphasis 21 omitted). “Thus, even where a plaintiff's allegations would be sufficient to demonstrate a 22 government-imposed stigma, such defamation is not, absent more, a deprivation of a liberty or 1 property interest protected by due process.” Id. (citing Siegert v. Gilley, 500 U.S. 226, 233 2 (1991)). 3 Vega contends, and the district court found, that by classifying him as an inmate with a 4 SOTN score of 3, the state stigmatized him as a sex offender. For support, Vega relies on Doe v. 5 Dept. of Pub. Safety, where we found that the publication of a Connecticut sex offender registry 6 plainly stigmatized “the people listed on it insofar as it assert[ed] that they [were] persons 7 convicted of crimes characterized by the State as sexual offenses.” 271 F.3d 38, 47 (2d Cir. 8 2001), rev’d on other grounds in Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 6-7 (2003). 9 Although the Supreme Court reversed our conclusion that Connecticut’s sex offender registry 10 procedures violated due process, observing that a conviction for a sex offense was a prerequisite 11 to one’s inclusion in the registry, it continues to be the case that wrongly classifying an inmate as 12 a sex offender may have a stigmatizing effect which implicates a constitutional liberty interest. 13 See generally McKune v. Lile, 536 U.S. 24, 32 (2002) (calling “[s]ex offenders ...a serious threat 14 in this Nation.”); see also Coleman v. Dretke, 409 F.3d 665, 668 (5th Cir. 2005) (per curiam) 15 (concluding that “by requiring [inmate] to attend sex offender therapy, the state labeled him a sex 16 offender-a label which strongly implies that [the plaintiff] has been convicted of a sex offense 17 and which can undoubtedly cause adverse social consequences.”) (internal citations and 18 quotation marks omitted); Chambers v. Colorado Dep’t of Corr., 205 F.3d 1237, 1242, 1244 19 (10th Cir. 2000) (concluding that the sex offender label is “replete with inchoate stigmatization” 20 and enjoining Colorado from withholding earned time credit to a inmate who refused to admit to 21 being a sex offender.); Kirby v. Siegelman, 195 F.3d 1285, 1292 (11th Cir. 1999) (per curiam) 22 (“the stigmatizing effect of being classified as a sex offender constitutes a deprivation of liberty 1 under the Due Process Clause.”); Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997) (“We can 2 hardly conceive of a state’s action bearing more ‘stigmatizing consequences' than the labeling of 3 a prison inmate as a sex offender.”). 4 Nonetheless, while it may be the case that, in certain circumstances, misclassification as a 5 sex offender results in stigma plus, this possibility is of no particular assistance to Vega because 6 he has not established a threshold requirement– the existence of a reputation-tarnishing statement 7 that is false. Codd v. Velger, 429 U.S. 624, 627 (1977) ( per curiam ) (holding that plaintiff was 8 not entitled to a hearing with respect to derogatory statements about him because “[n]owhere in 9 his pleadings or elsewhere has [he] affirmatively asserted that the [statements in issue were] 10 substantially false”); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 446 (2d Cir. 11 1980) (“[T]o constitute deprivation of a liberty interest, the stigmatizing information must be 12 both false ... and made public ... by the offending governmental entity.”) (alterations in original; 13 citation and internal quotation marks omitted). 14 Vega has not alleged that the conduct underlying his conviction for assault– the removal 15 of a teenage girl’s nipple and the forcing her to swallow it– did not occur. Nor has Vega alleged 16 that Department officials were unreasonable in classifying this conviction a “sexual offense” that 17 involved “physical conduct,” the requirements for a SOTN score of 3 under the operative 18 Classification Manual.1 Since Vega did not allege falsity, he was not entitled to relief on his See also Conn. Gen. Stat. §§ 53a-65(3), (8) (state criminal code defining “sexual contact” as contact with the “intimate parts” of a person, which include “the genital area..., groin, anus..., inner thighs, buttocks, or breasts.”); 18 U.S.C. § 2246(3) (federal criminal code defining “sexual contact” as the “intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, degrade, or arouse or gratify the sexual desire of any person.”). 1 stigma plus due process claim and, accordingly, the district court erred in affording him 2 injunctive relief. 3 C. 4 Vega also asserts in his § 1983 claim a due process violation arising from the deprivation 5 of a state-created liberty interest. Welch v. Bartlett, 196 F.3d 389, 392-393 (2d Cir. 1999). To 6 establish such a claim, a prisoner must first demonstrate that state law creates such a liberty 7 interest. Sandin v. Conner, 515 U.S. 472, 479-81 (1995). A state-created liberty interest “arises 8 when state statutes or regulations require, in language of an unmistakably mandatory character, 9 that a prisoner not suffer a particular deprivation absent specified predicates.” Welch, 196 F.3d at 10 392 (internal citations and quotation marks omitted). To be actionable, the liberty interest must 11 subject the prisoner to “atypical and significant hardship ... in relation to the ordinary incidents of 12 prison life.” Sandin, 515 U.S. at 484. An inmate “who experiences a deprivation arising under 13 mandatory rules has no actionable due process claim if other prisoners experience approximately 14 the same deprivation in the ordinary administration of the prison with sufficient regularity that 15 such deprivation is typical.” Welch, 196 F.3d at 392. 16 Vega contended that he had a liberty interest in not being assigned the SOTN score he 17 received based on acquitted conduct. The district court concluded that an earlier, no-longer- 18 operative Classification Manual created such an liberty interest. The Manual stated that “nolled, 19 dismissed, or withdrawn information, which is part of another crime, may be used to determine 20 needs scores based upon the description of the crime from police reports, [pre-sentence 21 investigation reports], or other reliable investigative reports.” Acquitted crimes, the district court 22 observed, are not on that list, supporting, by negative inference, the conclusion that they should 1 not count. The district court further concluded that under the earlier manual, “[n]o charge for 2 which an offender has been found not guilty or the charge nolled, or dismissed, may be used to 3 determine any risk score.” The court found that the disregard by DOC officials of this language 4 resulted in atypical hardships in the form of denial of participation in certain treatment programs 5 and threats from other inmates. The district court’s analytic approach runs up against the 6 Supreme Court’s admonition in Sandin regarding the dangers of such negative inferences: “[W]e 7 believe that the search for a negative implication from mandatory language in prisoner 8 regulations has strayed from the real concerns undergirding the liberty protected by the Due 9 Process Clause.” 515 U.S. at 483. 10 More to the point, we believe the district court relied on the wrong manual. On his liberty 11 interest claim, Vega sought only prospective injunctive relief, not monetary damages. 12 Consequently, only the current regulations, not the older ones, are relevant. The current 13 regulations provide that “nolled, acquitted, dismissed or withdrawn information, which is part of 14 another crime, may be used to determine needs scores based upon the description of the crime 15 from police reports, [pre-sentence investigation reports], or other reliable investigative reports.” 16 Since the current regulations do not prohibit prison officials from considering acquitted conduct 17 when assigning a needs score, they do not support the existence of a liberty interest. 18 Finally, the record strongly indicates that Vega’s SOTN score would be a 3 even if he 19 had never been charged with, and acquitted of, sexual assault in the first degree. DOC officials 20 averred that Vega’s SOTN score would be remain a 3, even absent the acquittal for sexual 21 assault, because he was convicted of “Assault in the First Degree... on the basis of the mutilation 22 and amputation of his minor victim’s nipple.” Vega has contradicted neither the conduct 1 supporting this conviction, nor the Department’s sworn averment that this convicted conduct 2 sustains Vega’s SOTN score “standing alone.” As the district court noted, “there are numerous 3 reasons why the crimes for which Vega was convicted could be found to reflect problematic 4 sexual attitudes and behavior which justify labeling his crimes ‘sexual offenses,’ not the least of 5 which is the law’s consideration of a breast as a ‘sexual organ.’” Vega, 2008 WL 3992651, at 6 *15 (citing Conn. Gen.Stat. §§ 53a-65(3), (8)). Vega has identified no facts he could potentially 7 elicit in a hearing that would undermine the Department’s determination that his convicted 8 conduct is reasonably termed a “sexual offense” under the operative classification manual. 9 If Vega had not been convicted of amputating a part of a sixteen year old girl’s body that 10 is classified as a sexual organ under Connecticut law, this may well have presented a different 11 case. Vega, however, does have such a conviction. And prison officials are under no 12 constitutional obligation to blind themselves to reality in assessing Vega’s needs while he is in 13 their care. 14 III. CONCLUSION 15 The judgment of the district court is reversed. The case is remanded so that the district 16 court may enter judgment in favor of the defendants.

08-4820-ag Caranza-Fuentes v. Holder 1 UNITED STATES COURT OF APPEALS 2 F OR THE S ECOND C IRCUIT 5 August Term, 2009 7 (Argued: December 9, 2009 Decided: March 2, 2010) 9 Docket No. 08-4820-ag 12 M ILTON R ONALDO R ODAS C ASTRO, M ARIA L UISA C ARRANZA-F UENTES, 14 Petitioners, 16 — v.— 18 E RIC H. H OLDER, J R., U NITED S TATES A TTORNEY G ENERAL,* 20 Respondent. 23 B e f o r e: 25 L EVAL, H ALL AND L YNCH, Circuit Judges. 27 __________________ 28 Petitioners Milton Ronaldo Rodas Castro and his wife, Maria Luisa Carranza- 29 Fuentes, petition for review of that portion of a final order of the Board of Immigration * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr., is automatically substituted as respondent in this case. 1 Appeals affirming the decision of an Immigration Judge denying their applications for 2 asylum. Because the agency’s treatment of petitioners’ claim of political persecution 3 based on Rodas’s reporting of official corruption to an international human rights 4 organization was based on substantial errors, we grant the petition and remand the case to 5 the BIA for further consideration. 7 V ACATED AND R EMANDED. 10 A NNE P ILSBURY (Miwako Dai and Heather Y. Axford, on the brief), Central 11 American Legal Assistance, Brooklyn, New York, for Petitioners. 13 J AMIE M. D OWD (Michael F. Hertz, Acting Assistant Attorney General Civil 14 Division, and Ernesto H. Molina, Jr., Assistant Director, on the brief), 15 Office of Immigration Litigation, Civil Division, U.S. Department of 16 Justice, Washington, DC, for Respondent. 19 G ERARD E. L YNCH, Circuit Judge: 20 In September 2005, Milton Ronaldo Rodas Castro (“Rodas”), a native and citizen 21 of Guatemala and a former police officer there, applied for asylum and withholding of 22 removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158, 23 1231(b)(3), and for relief under the United Nations Convention Against Torture and 24 Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), Dec. 10, 1984, S. 25 Treaty Doc. No. 100-20, 1465 U.N.T.S. 85; see 8 C.F.R. §§ 1208.16-18 (implementing 26 the CAT), alleging retaliation and threats on his life by the Guatemalan police following 27 his reports of official corruption to an international human rights organization. Rodas’s 1 wife, Maria Luis Carranza-Fuentes (“Carranza”), also a native and citizen of Guatemala, 2 independently applied for asylum, withholding of removal and relief under the CAT 3 based on the same factual predicate, and their cases were consolidated in the Immigration 4 Court. Carranza is also listed as a derivative applicant on Rodas’s application.1 5 On September 10, 2008 the Board of Immigration Appeals (“BIA”), affirmed a 6 January 8, 2007 decision of Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa, 7 granting Rodas and Carranza relief under the CAT, but denying their requests for asylum 8 and withholding of removal under the INA. In re Caranza & Rodas, Nos. A097 909 250 9 & A099 423 445 (B.I.A. Sept. 10, 2008), aff’g Nos. A097 909 250 & A099 423 445 10 (Immig. Ct. N.Y. City Jan. 8, 2007). At issue in this appeal is the portion of the BIA’s 11 order holding petitioners ineligible for asylum upon a finding that Rodas failed to 12 establish a sufficient nexus between a protected ground and the harm he encountered and 1 Under the derivative asylum provision, “[a] spouse . . . of an alien who is granted 2 asylum . . . may, if not otherwise eligible for asylum . . . , be granted the same status as the 3 alien if accompanying, or following to join, such alien.” 8 U.S.C. § 1158(b)(3)(A). 4 Although Carranza independently applied for asylum based on persecution on account of 5 political opinion and membership in a social group, she has never – either before the agency 6 or here – identified either her political opinion or the social group to which she purports to 7 belong. Indeed, Carranza’s Form I-589 application does not reference any of her own 8 political beliefs, but instead seeks relief “because of [Rodas’s] desire to change the 9 government.” As the substantive focus in petitioners’ joint brief on appeal is exclusively on 10 Rodas’s eligibility for relief, for the purposes of this appeal, we consider Carranza’s claim 11 for asylum only insofar as she may be eligible as a derivative asylee on Rodas’s application, 12 as we read the IJ and BIA to have done implicitly. 1 will encounter if removed to Guatemala.2 We find that the agency erred in concluding 2 that the danger Rodas encountered lacked any political dimension, because the agency 3 failed to properly consider the relevant context in which Rodas’s claim arises and, in so 4 doing, misconstrued the concept of political opposition. Accordingly, we grant the 5 petition and remand the case for further consideration. 6 BACKGROUND 7 I. Rodas’s Claim of Persecution 8 In 1996, with the signing of various Peace Accords, Guatemala emerged from 9 thirty-six years of civil war under the leadership of President Álvaro Arzú of the Partido 10 de Avanzada Nacional (“PAN”). Following the implementation of the Peace Accords, 11 among other changes, President Arzú abolished the Guatemalan National Police and 12 Treasury Police, which had been run by the military, and established in their place the 13 Guatemalan National Civil Police Force (“PNC”). According to Rodas’s unrebutted 14 testimony – as well as an affidavit submitted by Jorge Nowell Enriquez, a former 1 Although petitioners mention in their reply brief that they are challenging the denial 2 of their claims for both asylum and withholding of removal under the INA, petitioners have 3 waived any challenge to the denial of their § 1231(b)(3) withholding of removal claims 4 because their petition for review and opening brief were explicitly limited to challenging the 5 agency’s asylum decision. Cf. Evangelista v. Ashcroft, 359 F.3d 145, 155 n.4 (2d Cir. 2005) 6 (“We will not consider an argument raised for the first time in a reply brief.”) (internal 7 brackets and quotation marks omitted). Moreover, given the agency’s grant of withholding 8 of removal under the CAT, petitioners have nothing to gain by continuing to pursue 9 withholding of removal under the INA; as petitioners noted in their brief to the BIA, at this 10 point they can benefit only by obtaining asylum, as there is no practical difference in the 11 relief afforded between withholding of removal under the INA and under the CAT. 1 Guatemalan political leader – as part of this transformation, President Arzú removed 2 many corrupt officers from power. Against this backdrop, Rodas joined the PNC in 1998 3 as part of the first wave of new post-Peace Accord officers, because it “had a good 4 image” and he wanted to contribute to his community. 5 In 2000, however, Present Arzú and the PAN were succeeded in power by 6 President Alfonso Portillo of the Frente Republicano Guatemalteco (“FRG”). President 7 Portillo was closely aligned with a former military dictator and, according to Rodas’s and 8 Enriquez’s unrebutted testimony, under President Portillo’s command, many corrupt 9 elements from the pre-Peace Accord regime were reinstated. Following President 10 Portillo’s assumption of power, problems with corruption in Guatemala reportedly 11 deepened. As noted by a 2003 report of the United States Drug Enforcement 12 Administration provided as part of Rodas’s asylum application, in that environment, 13 “[r]ampant corruption permeate[d] all levels of law enforcement, the judiciary, military 14 and other governmental agencies in Guatemala.” Drug Enforcement Admin., U.S. Dep’t 15 of Justice, Drug Intelligence Brief, Country Brief: Guatemala 2, 7 (2003) (hereinafter 16 “DEA Drug Intelligence Brief”). 17 In August 2001, Rodas’s supervisor, Second Officer Edgar Noberto Hernandez 18 Revolorio, assigned him to investigate suspected leaders of drug trafficking groups. 19 Rodas did so, and presented his findings to Revolorio. The following month, while 20 Rodas and another officer were patrolling the streets, they witnessed Revolorio and 1 another supervisor, First Officer Rubelio Navas, engaged in a cocaine transaction with 2 one of the men Rodas had been assigned to investigate and about whom Rodas had 3 provided information to Revolorio. 4 Upon the arrival of Rodas and his partner, Revolorio and Navas passed off the 5 transaction as official police business and instructed the subordinate officers to return to 6 the police station. They did so, but Rodas dismissed the suggestion that Revolorio and 7 Navas were engaged in an undercover sting operation because, as Rodas testified, the 8 Guatemalan police did not engage in such transactions. Accordingly, upon returning to 9 the station Rodas immediately called the regional police commissioner, Juan Francisco 10 Jacinto Ruiz, who was superior to both Revolorio and Navas, and reported what he had 11 seen. Jacinto Ruiz told Rodas not to worry and that he would take care of the situation. 12 The following day, Revolorio removed Rodas from patrol duties, prohibited him 13 from making phone calls, and suspended him. Several days later, on September 21, 14 Rodas went to the United Nations Human Rights Verification Mission in Guatemala 15 (“MINUGUA”) – a human rights organization set up under United Nations auspices as 16 part of the implementation of the Peace Accords to monitor the peace process and human 17 rights issues – to report the drug trafficking activities of his police supervisors. Rodas 18 explained that he sought to report the incident to MINUGUA “because it was an 19 organization that was created so that human rights would be respected, [that] has been 20 guarding or watching the human rights not just of police officers but all of the citizenry in 1 general,” and because Rodas “like[s] to be a man who’s honest and correct.” Rodas’s 2 partner, who also witnessed the drug transaction, did not want to put himself in danger by 3 making such a report and did not accompany Rodas to MINUGUA. 4 MINUGUA workers warned Rodas that reporting such a blatant act of corruption 5 was extremely dangerous. Accordingly, on MINUGUA’s advice, Rodas’s official report 6 was limited to several lesser incidents of malfeasance within the PNC, which would 7 enable MINUGUA to open an investigation and thereby lead them to the more serious 8 issues Rodas presented while minimizing the risk to Rodas. 9 Police commissioner Jacinto Ruiz was unhappy that Rodas made this report to 10 MINUGUA and instructed him to rescind it. MINUGUA officers cautioned Rodas not to 11 accede to Jacinto Ruiz’s demands because if Rodas’s complaint were withdrawn there 12 would be no evidence of Rodas’s actions in the event something were to happen to him. 13 Rodas decided not to withdraw the complaint and so informed Jacinto Ruiz. 14 Thereafter, Rodas’s life took a drastic turn for the worse, exemplified by his 15 effective ouster from the PNC, several attempts on his life, and his brother’s murder. 16 Initially, Rodas’s work duties were reduced and he was assigned to security detail at the 17 hospital. One day in October 2001, while Rodas was guarding a prisoner, three men, one 18 carrying a pistol, came looking for Rodas. The armed man said that they were sent “from 19 the above” because Rodas did not behave, and said something to the effect of “we’re 20 coming for you now that you won’t join us.” Rodas summoned another officer for help, 1 and, after a scuffle, Rodas and his partner were able to arrest two of the three men. Rodas 2 and his partner brought the arrestees to the police station and reported the incident. A 3 subsequent background check revealed that one of the arrestees was a fellow PNC officer 4 from another unit. Charges against these men never went forward, however, for when 5 Rodas appeared in court to present charges as the arresting officer, he discovered that his 6 assailants had been released and replaced by two innocent homeless men. 7 Following this event, Rodas was given six months of disability leave to tend to his 8 ankle, which had fractured during the hospital fight. Rodas and Carranza moved to the 9 town where Carranza grew up and stayed with various relatives while Rodas received 10 physical therapy. Over the next several months, Rodas was followed on various 11 occasions by people driving motorcycles and cars and by uniformed police officers, and 12 was told that armed men came looking for him at his wife’s parents’ house and at the 13 hospital where he was being treated. PNC officers also visited Rodas’s parents in another 14 town, informing Rodas’s parents that they had a message for Rodas that could only be 15 delivered to him personally. 16 Rodas’s suspicions that the PNC were out to get him were confirmed by his 17 colleague – the same officer who witnessed the cocaine transaction with Rodas, and who 18 still worked for the PNC – who warned Rodas not to return to police duty because the 19 PNC were setting a trap to kill him. At some point, Rodas encountered two men who said 20 they were from “the above,” and asked when Rodas would return to work. Terrified that 1 the PNC had finally tracked them down, Rodas and Carranza moved to another part of the 2 country. 3 In August 2003, Rodas’s sister-in-law received a telegram directing Rodas to come 4 to the police station to sign formal resignation papers. MINUGUA workers accompanied 5 Rodas for protection. Upon review of the papers, Rodas saw that they falsely accused 6 him of stealing police equipment after his suspension. He therefore declined to sign 7 anything, fearing that these documents would be used as an excuse to detain him. 8 The PNC made another attempt on Rodas’s life in December 2003. As Rodas was 9 driving home one day, one of his former PNC colleagues opened fire, striking Rodas’s car 10 several times, but missing Rodas. Rodas returned home and told his wife what happened 11 and the two fled to another part of the country that night. For the next several months, 12 Rodas and Carranza moved frequently, but there was always some sign of danger or 13 suspicious people searching for them and they realized that they needed to leave 14 Guatemala. 15 Rodas and Carranza fled Guatemala in August 2004, staying briefly in Mexico en 16 route to the United States. While in Mexico, Rodas learned from his brother that the PNC 17 were still looking for him. Rodas’s brother told the PNC to give up as Rodas was no 18 longer in the country. Several weeks later, Rodas’s brother was shot in the head and 19 killed. Rodas believes that the PNC is responsible for his brother’s murder. 20 Rodas and Carranza entered the United States separately in 2004. In January 2005, 1 Carranza filed for asylum, withholding of removal under the INA and relief under the 2 CAT; Rodas applied for the same relief in September 2005. Rodas’s family told him that 3 PNC officers continue to look for him and have said that he will be killed if he returns to 4 Guatemala. 5 II. Prior Proceedings 6 Rodas testified before the IJ in support of his and Carranza’s applications and the 7 IJ issued an oral decision at the conclusion of the merits hearing. In re Caranza & Rodas, 8 Nos. A097 909 250 & A099 423 445 (Immig. Ct. N.Y. City Jan. 8, 2007). The IJ found 9 Rodas credible and, based on his testimony – coupled with background documentary 10 evidence detailing high levels of corruption in Guatemala and PNC involvement in 11 extrajudicial killings, torture and other abuse – granted Rodas and Carranza relief under 12 the CAT, finding it more likely than not that they would be tortured if they were removed 13 to Guatemala. Id. at 13-15. Though recognizing the reality and severity of the past 14 threats Rodas had received and that were likely to continue to plague the family if they 15 returned to Guatemala, the IJ denied Rodas’s and Carranza’s applications for asylum and 16 withholding of removal under the INA, concluding that they had “failed to establish a 17 nexus between [Rodas’s] experience and any of the five enumerated grounds” (namely, 18 race, religion, nationality, membership in a particular social group, or political opinion) – 19 a requirement to obtain either asylum or withholding of removal under the INA, but not to 20 obtain relief under the CAT. Id. 1 More specifically, citing I.N.S. v. Elias-Zacarias, 502 U.S. 478 (1992), the IJ 2 concluded that Rodas “was not deemed politically offensive,” but rather that he “was 3 sought after because he did not join corrupt police officials.” Id. at 12. While 4 recognizing that Rodas was also targeted because he reported corruption within the PNC, 5 the IJ held that, as a police officer, Rodas assumed the risk of the harm he suffered at the 6 hands of “rogue police officers” and that accordingly, the harm he suffered was not on 7 account of his political opinion. Id. at 12-13, citing Matter of Fuentes, 19 I. & N. Dec. 8 658 (BIA 1988). Finally, the IJ concluded that because Rodas’s past experience lacked a 9 nexus to a protected ground, so too did Rodas’s fear of future persecution. Id. at 15. 10 Accordingly, the IJ found Rodas ineligible for either asylum or withholding of removal 11 under the INA. 12 On September 10, 2008, the BIA adopted and affirmed the IJ’s decision. In re 13 Carranza & Rodas, Nos. A097 909 250 & A099 423 445 (B.I.A. Sept. 10, 2008). The 14 BIA agreed with the IJ’s conclusion that Rodas failed to “demonstrate[] that any harm he 15 encountered or may encounter is . . . on account of his political opinion.” Id. The BIA 16 also addressed Rodas’s claim of persecution on account of his membership in a particular 17 social group, an issue the IJ did not address. The BIA rejected that argument, however, 18 finding that the social group on account of which Rodas claimed persecution – defined as 19 “Guatemalan policemen who have registered complaints against official corruption” – 20 lacked the requisite social visibility. Id. Additionally, noting that the REAL ID Act’s 1 “one central reason” standard governs Rodas’s case, the BIA held that Rodas had not 2 demonstrated that membership in any social group was “one central reason” for Rodas’s 3 fear of persecution. Id. 4 DISCUSSION 5 I. Legal Standards 6 “Where, as here, the BIA has adopted and supplemented the IJ’s decision, we 7 review the decision of the IJ as supplemented by the BIA.” Delgado v. Mukasey, 508 8 F.3d 702, 705 (2d Cir. 2007). Legal issues, and the application of law to fact, are 9 reviewed de novo. Roman v. Mukasey, 553 F.3d 184, 186 (2d Cir. 2009). “[B]ecause the 10 IJ found [Rodas] to be credible, we treat the events []he experienced in the past as 11 undisputed facts.” Delgado, 580 F.3d at 705. The agency’s findings of fact are 12 “conclusive unless any reasonable adjudicator would be compelled to conclude to the 13 contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Xu Duan Dong v. Ashcroft, 406 F.3d 110, 14 111 (2d Cir. 2005). Accordingly, we review such findings under the substantial evidence 15 standard, which requires that they be supported by “reasonable, substantial and probative 16 evidence in the record when considered as a whole.” Iouri v. Ashcroft, 487 F.3d 76, 81 17 (2d Cir. 2007) (internal quotations marks omitted). “This standard ‘requires a certain 18 minimum level of analysis from the IJ and BIA,’ as well as ‘some indication that the IJ 19 considered material evidence supporting a petitioner’s claim.’” Delgado, 508 F.3d at 705 20 (internal bracket omitted), quoting Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 1 2005). “We will vacate and remand for new findings . . . if the agency’s reasoning or its 2 factfinding process was sufficiently flawed.” Xiao Kui Lin v. Mukasey, 553 F.3d 217, 3 220 (2d Cir. 2009). 4 Asylum is a discretionary form of relief available to certain aliens who qualify as 5 “refugees” within the meaning of the INA. 8 U.S.C. § 1158(b)(1)(A). In relevant part, 6 the INA defines a “refugee” as a person who is unable or unwilling to return to his or her 7 native country “because of persecution or a well-founded fear of persecution on account 8 of race, religion, nationality, membership in a particular social group, or political 9 opinion.” 8 U.S.C. § 1101(a)(42)(A). For applications filed after May 11, 2005, such as 10 Rodas’s, the REAL ID Act of 2005 places the burden on the asylum applicant to establish 11 a sufficiently strong nexus to one of the protected grounds by demonstrating that “race, 12 religion, nationality, membership in a particular social group, or political opinion was or 13 will be at least one central reason for persecuting the applicant.” REAL ID Act 14 § 101(a)(3), Div. B of Pub. L. No. 109-13, 119 Stat. 302, 303 (May 11, 2005), codified at 15 8 U.S.C. § 1158(b)(1)(B)(i); see also REAL ID Act § 101(h)(2), 119 Stat. at 305 (making 16 the Act’s provisions applicable to applications filed on or after the date of enactment). 17 The only issue here is the agency’s finding that Rodas failed to satisfy this nexus 18 requirement linking his fears and the harms he suffered to either his political opinion or 19 his membership in a particular social group. 1 II. Application 2 To establish persecution “on account of” political opinion under § 1101(a)(42), an 3 asylum applicant must demonstrate that the persecution arises from his own political 4 opinion, actual or imputed. Elias-Zacarias, 502 U.S. at 482; accord, Koudriachova v. 5 Gonzales, 490 F.3d 255, 263 (2d Cir. 2007). “The applicant must also show, through 6 direct or circumstantial evidence, that the persecutor’s motive to persecute arises from the 7 applicant’s political belief.” Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 8 2005), citing Elias-Zacarias, 502 U.S. at 483. 9 Within this framework, as we and several of our sister circuits have held, 10 opposition to government corruption may constitute a political opinion, and retaliation 11 against someone for expressing that opinion may amount to political persecution. See, 12 e.g., Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 294 (2d Cir. 2007); Yueqing 13 Zhang, 426 F.3d at 547-48; Osorio v. I.N.S., 18 F.3d 1017, 1030-31 (2d Cir. 1994); see 14 also Hayrapetyan v. Mukasey, 534 F.3d 1330, 1336 (10th Cir. 2008) (finding that actions 15 “taken in retaliation for [petitioner’s] threatened exposure of government corruption. . . . 16 alone can support a claim of political persecution”); Musabelliu v. Gonzales, 442 F.3d 17 991, 995 (7th Cir. 2006) (“Whistle-blowing about public corruption can be a form of 18 political opinion.”); Grava v. I.N.S., 205 F.3d 1177, 1181 (9th Cir. 2000) (“[W]here the 19 whistle blows against corrupt government officials, it may constitute political activity 20 sufficient to form the basis of persecution on account of political opinion.”); Marku v. 1 Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004) (collecting cases holding that, under certain 2 circumstances, opposition to government corruption may constitute a political opinion). 3 Although opposing corruption for purely self-interested reasons may lack a political 4 motivation, “opposition to endemic corruption . . . may have a political dimension when it 5 transcends mere self-protection and represents a challenge to the legitimacy or authority 6 of the ruling regime.” Yueqing Zhang, 426 F.3d at 547-48. In considering whether 7 opposition to corruption constitutes a political opinion, “[t]he important questions . . . are 8 whether the applicant’s actions were ‘directed toward a governing institution, or only 9 against individuals whose corruption was aberrational,’” and “whether the persecutor was 10 attempting to suppress a challenge to the governing institution, as opposed to isolated, 11 aberrational acts of greed or malfeasance.” Id. at 548, quoting Mamouzian v. Ashcroft, 12 390 F.3d 1129, 1135 (9th Cir. 2004). Answering these questions necessarily involves a 13 “complex and contextual factual inquiry” into the nature of the asylum applicant’s 14 activities in relation to the political context in which the dispute took place. Id. 15 Here, Rodas presented substantial evidence supporting his contention that his 16 reporting of official corruption was inherently political when viewed in the context of the 17 political shift that took place in 2000 when President Portillo assumed power and the 18 ruling regime became antithetical to the ideals and goals of the Peace Accords. Whereas 19 President Arzú led the country out of civil war and strove for adherence to the rule of law, 20 Rodas argues, the new regime revived many of the corrupt aspects of the pre-Peace 1 Accords era. This version of events is supported by the testimony of Enriquez, a former 2 political leader in Guatemala, who served, among other capacities, in President Arzú’s 3 office and assisted with the implementation of the Peace Accords. According to 4 Enriquez, “[w]hen the PAN was in power, they dissolved the old police, removed a lot of 5 corrupt elements and personnel and created the new PNC.” However, there were 6 nevertheless “strong elements in the Guatemalan Government and particularly the Army 7 that were opposed to the peace process,” and, as a member of Arzú’s administration, 8 Enriquez “experienced first hand the resistance within the Army and related security 9 forces to truly carrying out the accords.” Enriquez also recounts that things became much 10 worse in 2000, when President Portillo and the FRG replaced President Arzú and the 11 PAN. According to Enriquez, as the FRG is “a party of the right run by the former 12 General Rios Montt [a former military dictator] and associated with the security forces,” 13 under President Portillo’s leadership, “[p]olice and military officials who had been 14 dismissed for violations of human rights and/or criminal activity regained their positions. 15 The majority of these people are members of the FRG.” 16 Beyond Rodas’s and Enriquez’s accounts, the record is replete with evidence 17 documenting substantial and pervasive corruption in the PNC and the Guatemalan 18 government more broadly. The 2005 State Department Country Report on Human Rights 19 Practices in Guatemala, included as part of Rodas’s asylum application, reports that 20 “[c]orruption and substantial inadequacies in the police and judicial sectors . . . 1 continue[]” with “unlawful killings committed by members of the security forces.” U.S. 2 Dep’t of State, 2005 Country Report on Human Rights Practices: Guatemala (Mar. 8, 3 2006), available at http://www.state.gov/g/drl/rls/hrrpt/2005/61729.htm. The 2004 State 4 Department Country Report likewise indicates that “[p]olice corruption was a problem, 5 and there were credible allegations of involvement by individual police officers in 6 criminal activity.” U.S. Dep’t of State, 2004 Country Report on Human Rights Practices: 7 Guatemala (Feb. 28, 2005), available at 8 http://www.state.gov/g/drl/rls/hrrpt/2004/41762.htm.3 9 Corruption related to drug trafficking is a particular problem – so much so that in 10 October 2002, the United States Congress held hearings on the topic of “Drug Corruption 11 and Other Threats to Democratic Stability in the Dominican Republic and Guatemala.” 12 Drug Corruption and Other Threats to Democratic Stability in the Dom. Rep. and Guat.: 13 Hearing Before the H. Subcomm. on the W. Hemisphere of the Comm. on Int’l Relations, 14 107th Congress 50-51 (2002), hearing transcript available at 15 http://commdocs.house.gov/committees/intlrel/hfa82262.000/hfa82262_0f.htm. At those 1 The State Department’s Reports on Guatemala for 2001 through 2003, not included 2 in the administrative record, note similar problems. See U.S. Dep’t of State, 2003 Country 3 Report on Human Rights Practices: Guatemala (Feb. 25, 2004) (“Corruption, especially drug- 4 related, was widespread.”), available at http://www.state.gov/g/drl/rls/hrrpt/2003/27900.htm; 5 U.S. Dep’t of State, 2002 Country Report on Human Rights Practices: Guatemala (Mar. 31, 6 2003), available at http://www.state.gov/g/drl/rls/hrrpt/2002/18333.htm; U.S. Dep’t of State, 7 2001 Country Report on Human Rights Practices: Guatemala (Mar. 4, 2002), available at 8 http://www.state.gov/g/drl/rls/hrrpt/2001/wha/8344.htm. 1 hearings, Paul E. Simons of the State Department testified that “[w]idespread corruption . 2 . . ha[s] plagued counternarcotics efforts in Guatemala during the last three years,” to 3 such an extent that “[a] week does not go by without another corruption scandal involving 4 government officials.” Id. at 50-51 (statement of Paul E. Simons, Acting Assistant 5 Secretary of State for Int’l Narcotics and Law Enforcement). Simons further testified that 6 corruption persists “at all levels of the system,” and noted that many implicated in 7 corruption have close ties to President Portillo. Id. at 51-52. A 2003 report of the United 8 States Drug Enforcement Administration notes that “Guatemalan law enforcement 9 officials profited from stolen drug loads; offered protection for traffickers . . . ; stole 10 money from suspects; assassinated drug transporters for the purposes of stealing their 11 shipments; tortured and killed innocent civilians; and committed a variety of other 12 criminal acts.” DEA Drug Intelligence Brief 6. In September 2006, the former head of 13 Guatemala’s drug enforcement agency and his top deputy pled guilty to conspiring to 14 smuggle cocaine into the United States. Eric M. Weiss, Former Guatemalan Agency 15 Chiefs Guilty in Drug Plot, Wash. Post, Sept. 8, 2004, at A4. Additional examples 16 abound, but these alone provide ample evidence of an endemic problem with corruption 17 in Guatemala and support Rodas’s contention that by opposing such corruption, he was in 18 essence opposing the regime of President Portillo and, more generally, those who sought 19 to thwart the development of a stable rule-of-law democracy in Guatemala. 20 The IJ, however, failed to consider Rodas’s claim in this context. Instead of 1 evaluating the claim against the backdrop of Guatemala’s volatile political history, the IJ 2 short-circuited the analysis and dismissed Rodas’s claim of political persecution by 3 presuming that Rodas was targeted for his resistance to being recruited by the corrupt 4 officers, which the IJ believed to lack any political dimension, and for reporting the 5 crimes of rogue police officers, which the IJ considered an occupational hazard of 6 Rodas’s job and thus again non-political. Both strands of that analysis are flawed. 7 The IJ did not clearly articulate her grounds for finding that Rodas was the target 8 of a recruitment effort. Presumably, the IJ was influenced by the fact that Rodas was 9 assigned to investigate drug trafficking by the same officer who he later witnessed 10 engaging in a drug deal and the reference by one of the thugs sent to attack Rodas while 11 he was on guard at the hospital to Rodas’s refusal to join them. While such facts might 12 arguably point towards such an inference were they standing on their own, the IJ’s 13 recruitment finding is not supported by substantial evidence when viewed in light of the 14 record as a whole. Indeed, the government makes no genuine effort to defend this 15 finding, simply mechanically asserting, without elaboration, that it is supported by 16 substantial evidence. Rodas’s supervisors, Revolorio and Navas, made no attempt to 17 recruit Rodas when he came upon them consorting with the drug dealer but rather 18 pretended that they were engaged in official business and sent Rodas on his way. Nor 19 was any active recruitment effort made at any point thereafter. Moreover, there is no 20 evidence that Rodas’s partner, who also witnessed Revolorio’s and Navas’s drug 1 transaction but, unlike Rodas, did not denounce the corruption to MINUGUA, suffered 2 any adverse consequences; indeed, he continued to serve as a member of the PNC 3 following this incident, while Rodas had to flee for his life. There is similarly no 4 evidence that Rodas’s partner joined in any corrupt activities, beyond simply failing to 5 report on the corruption of others. 6 Certainly, this case is unlike Elias-Zacarias, upon which the IJ relied in ruling that 7 the purported recruitment of Rodas lacked a political component. In Elias-Zacarias, the 8 asylum applicant left his country (incidentally, Guatemala) to avoid being drafted into a 9 guerilla army, an undesirable fate visited on him because the guerillas needed soldiers and 10 not necessarily because of his opposition to their political views. 502 U.S. at 480, 482- 11 83. The Supreme Court rejected Elias-Zacarias’s claim of political persecution, holding 12 that “the mere existence of a generalized ‘political’ motive underlying the guerrillas’ 13 forced recruitment,” without more, did not amount to persecution “on account” of a 14 political opinion. Id. at 482. The Court noted that there were a variety of possible 15 reasons that even one who supported the guerillas’ cause may resist joining the rebel 16 army. Id. Moreover, Elias-Zacarias himself testified that he resisted recruitment not 17 because he opposed the guerillas’ politics, but because he feared retaliation by the 18 government if he joined. Id. Accordingly, the Court held that the evidence did not 19 compel the conclusion that Elias-Zacarias was expressing a political opinion in resisting 20 recruitment, nor that the guerillas would necessarily have believed his resistance to be the 1 expression of a hostile political view. Id. Here, by contrast, according to Rodas’s 2 testimony – which was credited by the IJ – Rodas was actively opposed to corruption and 3 was targeted for retaliation because he took affirmative action to quell such activity. 4 Additionally, even if recruitment were one reason for Rodas’s persecution, that 5 would not be conclusive, for Rodas need show only that his political opinion, actual or 6 imputed, was “one central reason” for his persecution, not that it was the sole reason for 7 it. Thus, “careful attention to the particular circumstances surrounding the alleged 8 persecution remains necessary even if the persecution is generally categorized as 9 extortion or recruitment.” Marroquin-Ochoma v. Holder, 574 F.3d 574, 577 (8th Cir. 10 2009), quoting De Brenner v. Ashcroft, 388 F.3d 629, 638 n.2 (8th Cir. 2004). As we 11 have repeatedly recognized, persecutors may have “mixed motives,” and an asylum 12 applicant need not demonstrate that a protected ground was the exclusive reason for 13 persecution, for “[t]he plain meaning of the phrase ‘persecution on account of the 14 victim’s political opinion,’ does not mean persecution solely on account of the victim’s 15 political opinion.” Osorio, 18 F.3d at 1028; accord, Aliyev v. Mukasey, 549 F.3d 111, 16 116 (2d Cir. 2008). 17 This Circuit has yet to consider how the REAL ID Act’s “one central reason” 18 standard – requiring an asylum applicant to demonstrate not only that his persecution is 19 “on account of” a protected ground, but more strictly that the protected ground is “one 20 central reason” for the persecution – impacts the mixed motive analysis. On its face 1 however, the language employed makes clear that mixed motives asylum claims continue 2 to be viable, and the BIA has so held. In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 212 3 (BIA 2007). Specifically, in interpreting this phrase, the BIA has noted that the use of the 4 term “one central reason” “confirms that aliens whose persecutors were motivated by 5 more than one reason continue to be protected . . . if they can show a nexus to a protected 6 ground.” Id. at 213. 7 Rodas does not claim that he left Guatemala because he did not want to be a 8 corrupt police officer and his superiors sought to corrupt him. Rather, Rodas claims that 9 he fled Guatemala because the PNC agents were trying to kill him for blowing the whistle 10 on their corruption. Accordingly, even if the IJ had been correct in concluding that 11 Revolorio and Navas targeted Rodas in part because he rejected their recruitment efforts, 12 Rodas could still prevail by demonstrating that one central reason for his persecution was 13 an action that reflected, or was perceived by his persecutors to reflect, a political opinion. 14 Here, there is considerable evidence that whatever else may have also motivated 15 Rodas’s superiors, he was targeted because he undertook the independent step of blowing 16 the whistle on the senior PNC officers’ corrupt activities. Substantial record evidence 17 supports the conclusion that in the Guatemalan context at the time of these events, 18 Rodas’s actions reflected, or would likely be perceived to reflect, political opposition to 19 the governing regime. As recounted in detail above, Rodas introduced evidence 20 documenting pervasive corruption during that period and direct ties between corrupt 1 elements and President Portillo and his regime, which was affiliated with a former 2 military dictator. Moreover, Rodas’s particular actions had a political cast: by reporting 3 his allegation not merely to police officials but to a United Nations watchdog agency 4 created as part of a political accord between rival factions and designed to support human 5 rights and the rule of law, Rodas could well have been perceived as striking a political 6 blow against the Guatemalan government. Indeed, Enriquez posits that “the FRG and 7 those who re-entered the authorities after its victory would have identified [Rodas] with 8 the PAN” and “would have seen a PNC agent such as [Rodas] as a problem. . . . 9 especially since he had witnessed acts of corruption and had spoken to the Human Rights 10 Office.” 11 The IJ recognized this aspect of Rodas’s claim; however, she denied that the 12 retaliation against Rodas contained a political component, finding that, as a member of 13 the PNC, Rodas voluntarily assumed the risks of harm that followed from reporting a 14 crime committed by “rogue police officers.” There are two interrelated flaws in the IJ’s 15 reasoning. 16 First, substantial evidence does not support the IJ’s finding that Rodas’s 17 persecutors were rogue police officers, rather than representatives of a regime 18 characterized by endemic, systemic corruption. Although in granting Rodas and Carranza 19 relief under the CAT, the IJ recognized Guatemala’s substantial problems with police 20 corruption, the IJ does not appear to have considered any of this extensive evidence in 1 deeming those out to get Rodas “rogue” forces, nor did the IJ provide any reasoning to 2 support this bald conclusion. In light of the evidence detailing the widespread problems 3 with corruption plaguing Guatemala, the IJ’s cursory finding that Rodas’s persecutors 4 were merely “rogue” police officers cannot stand. See, e.g., Passi v. Mukasey, 535 F.3d 5 98, 101 (2d Cir. 2008) (“We will . . . vacate and remand for new findings if the agency’s 6 reasoning or its factfinding process was sufficiently flawed, for example, where the 7 agency’s determination was based on an inaccurate perception of the record, omitting 8 potentially significant facts.”) (internal quotation marks omitted). 9 Second, compounding this error, the IJ also endorsed the erroneous view that 10 Rodas’s position as a member of the PNC inherently refutes the conclusion that, in 11 reporting governmental corruption, he was expressing a political opinion. In reaching this 12 conclusion, the IJ relied on Matter of Fuentes, where the BIA found “that dangers faced 13 by policemen as a result of that status alone are not ones faced on account of . . . political 14 opinion” or any other protected ground. 19 I. & N. Dec. at 661. In Fuentes, a former 15 member of the El Salvadoran police force claimed that he would be persecuted by 16 guerillas if he returned to El Salvador. Id. at 659. The BIA rejected the argument that 17 such harms would constitute political persecution, noting that police officers “are often 18 attacked either because they are (or are viewed as) extensions of the government’s 19 military . . . or simply because they are highly visible embodiments of the power of the 20 state,” and that “[s]uch dangers are perils arising from the nature of their employment and 1 domestic unrest rather than ‘on account of’ immutable characteristics or beliefs within the 2 scope of [the INA].” Id. at 661. 3 Rodas’s situation is quite distinct from this paradigm. He argues not that he is 4 being targeted for being an agent of the state but – because the state is corrupt – for 5 opposing the state. Rodas thus “does not fear the usual job hazards of a law enforcement 6 officer; his alleged tormentors are not mere criminals or guerilla forces. Rather, he claims 7 they are instruments of the government itself.” Grava, 205 F.3d at 1181-82. 8 Accordingly, Rodas’s “position as a law enforcement officer does not per se disqualify 9 him from asylum.” Id. at 1181. 10 Moreover, Rodas’s actions unquestionably went beyond those of an ordinary 11 policeman reporting a crime. As noted above, in addition to simply reporting the incident 12 within the PNC’s chain of command, Rodas denounced the corruption he observed to an 13 external international human rights organization set up as part of a political process. This 14 action alone removes the dangers Rodas faced from the ambit of mere occupational 15 hazards of police duty.4 See Haxhiu v. Mukasey, 519 F.3d 685, 690-91 (7th Cir. 2008) 16 (“Haxhiu’s military duties are no obstacle to his asylum claim because his anticorruption 17 activities persisted beyond his employment with the Albanian Army. He approached the 18 press after his termination – and suffered persecution for doing so.”) (internal citation 1 Moreover, Rodas further implicated that organization by bringing representatives of 2 it along to protect him when he went to the police station to review the proposed resignation 3 papers. 1 omitted); cf. Pavlyk v. Gonzales, 469 F.3d 1082, 1089 (7th Cir. 2006) (rejecting 2 purported whistle blower’s claim of political persecution because “in his investigation 3 into corruption [petitioner] did not take [his evidence of corruption] to the public in quest 4 of a political decision” but “[i]nstead, [he] pursued an investigation within his role as a 5 prosecutor”) (internal quotation marks omitted; second brackets in original). As a result, 6 the IJ erroneously relied on Matter of Fuentes in finding that Rodas’s had, in joining the 7 police force, voluntarily assumed the risk of being subjected to death threats by senior 8 police officials and having his brother murdered. 9 The IJ’s combined legal and factual errors in considering Rodas’s claim of 10 political persecution require us to remand. The IJ treated Rodas’s claim as if he were 11 simply an ordinary policeman targeted by criminals for taking routine law enforcement 12 activities against isolated corrupt police officers in a system otherwise manifesting 13 adherence to the rule of law. If that were the reality underlying Rodas’s claims, then the 14 IJ would have been correct to dismiss the claim of political persecution. But in reaching 15 that result, the IJ ignored substantial evidence to the contrary and in doing so 16 fundamentally erred. The government argues that simply having an affinity for the rule of 17 law and being against corruption is not a political opinion. While that may be true in a 18 stable country governed by the rule of law, in certain contexts, opposition to endemic 19 corruption is precisely a political opinion, and retaliation for expressing such an opinion 20 may constitute political persecution. 1 Rodas’s case exemplifies why a claim of political persecution cannot be evaluated 2 in a vacuum, as it was here, without reference to the relevant circumstances in which the 3 claim arises. We have repeatedly emphasized the fallacy of this approach and have on 4 several occasions remanded cases in which the agency denied an application for asylum 5 based on its failure to properly engage in the “complex and contextual factual inquiry” 6 that such claims often require. Yueqing Zhang, 426 F.3d at 548; see also Vumi v. 7 Gonzales, 502 F.3d 150, 157 (2d Cir. 2007) (faulting the BIA for failing to consider the 8 “potentially deeply political nature of Vumi’s persecution”); Osorio, 18 F.3d at 1030 9 (characterizing the BIA’s decision as “reveal[ing] a complete lack of understanding of the 10 political dynamics in Guatemala” and faulting the BIA for “intentionally ignor[ing] the 11 underlying political context of the dispute”). Nevertheless, in this case, the agency has 12 once again embraced an “impoverished view of what political opinions are, especially in 13 a country . . . where certain democratic rights have only a tenuous hold,” Yueqing Zhang, 14 426 F.3d at 546 (omission in original), quoting Osorio, 18 F.3d at 1030, by rejecting 15 Rodas’s claim without any coherent examination of the surrounding political 16 environment. 17 To properly evaluate Rodas’s claim, a careful consideration of the broader political 18 context is necessary to ascertain “whether [his] actions were directed toward a governing 19 institution, or only against individuals whose corruption was aberrational,” and “whether 20 the persecutor[s] [were] attempting to suppress a challenge to the governing institution, as 1 opposed to a challenge to isolated, aberrational acts of greed or malfeasance.” Yueqing 2 Zhang, 426 F.3d at 548 (internal quotation marks omitted). Here, “[b]ecause the IJ did 3 not undertake this inquiry, the appropriate course is to grant the petition for review and 4 remand the case to the agency for consideration in the first instance of whether [Rodas] 5 made the requisite showing.” Id. at 548-49; see also Manzur, 494 F.3d at 294. As the 6 Supreme Court has reminded us, “the law entrusts the agency to make the basic asylum 7 eligibility decision. . . . In such circumstances a judicial judgment cannot be made to do 8 service for an administrative judgment.” I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 9 (2002) (internal citations and quotation marks omitted). Here, however, the agency failed 10 to make this decision, instead avoiding it by erroneously excluding Rodas from within the 11 ambit of asylum protection by the agency’s recruitment and police officer theories.5 12 CONCLUSION 13 For the foregoing reasons, the petition for review is granted and the case is 14 remanded to the BIA – “or [to] the IJ, if that is the most appropriate decision-maker in the 1 Rodas’s alternative argument that he qualifies for asylum based on his membership 2 in the social group defined as Guatemalan police officers who have registered complaints 3 against official corruption essentially overlaps with the political opinion claim. To the extent 4 there is any reality to the assumption that whistle blowing police officers are perceived as a 5 distinct social group with the requisite social visibility, what identifies that group would be 6 precisely the imputed political opposition to the regime discussed above. That determination 7 requires the same contextual evaluation of the relevant circumstances as is necessary for the 8 claim of political persecution. As the BIA has noted, “[w]hether a proposed group has . . . 9 the requisite ‘social visibility’ must be considered in the context of the country of concern 10 and the persecution feared.” In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74 (BIA 2007). 1 first instance,” Mahmood v. Holder, 570 F.3d 466, 471 (2d Cir. 2009) – for further 2 proceedings consistent with this opinion.

08-2799-cv Brzak v. United Nations 1 UNITED STATES COURT OF APPEALS 3 FOR THE SECOND CIRCUIT 7 August Term, 2008 9 (Argued: May 29, 2009 Decided: March 2, 2010) 11 Docket No. 08-2799-cv 15 17 CYNTHIA BRZAK, NASR ISHAK, 19 Plaintiffs-Appellants, 21 – v. – 23 UNITED NATIONS, KOFI ANNAN , RUND LUBBERS, WENDY CHAMBERLIN , 25 Defendants-Appellees.* 29 31 Before: LEVAL, POOLER, AND B.D. PARKER, Circuit Judges. 33 Appeal from a judgment of the United States District Court for the Southern District of 34 New York (Sweet, J.) dismissing plaintiffs’ claims for lack of subject-matter jurisdiction on the 35 grounds that the United Nations is absolutely immune and its former employees who are the 36 individual defendants are functionally immune. AFFIRMED. * The Clerk of Court is directed to amend the official caption to conform to the listing of the parties stated above . 1 EDWARD PATRICK FLAHERTY , Schwab, Flaherty & 2 Associes, Geneva, Switzerland, for Plaintiffs-Appellees. 4 DONALD FRANCIS DONOVAN , (Catherine M. Amirfar, 5 Semra A. Mesulam, Natalie L. Reid, on the brief), 6 Debevoise & Plimpton LLP, New York, New York, for 7 Defendant-Appellant United Nations. 11 Barrington D. Parker, Circuit Judge: 12 Cynthia Brzak and Nasr Ishak appeal from a judgment of the United States District Court 13 for the Southern District of New York (Sweet, J.) dismissing claims against the United Nations and 14 various United Nations officials. The complaint charges defendants with sex discrimination under 15 several federal statutory and state common law theories. The district court dismissed the claims for 16 lack of subject-matter jurisdiction on the grounds that the United Nations and the individual 17 defendants enjoy absolute and functional immunity, respectively. Brzak v. United Nations, 551 F. 18 Supp. 2d 313, 318 (S.D.N.Y. 2008); see Fed. R. Civ. P. 12(b)(1). On appeal, Brzak and Ishak 19 challenge the findings of immunity and also contend that, if they are correct, the grants of immunity 20 violate the Constitution. We affirm. 21 BACKGROUND 22 Except as noted, the facts are not contested. Brzak is an American citizen who worked in 23 Geneva, Switzerland, for the United Nations High Commissioner for Refugees (“UNHCR”). Ishak 24 is a French and Egyptian national who also worked in Geneva for the UNHCR. Defendant Kofi 25 Annan was formerly the Secretary-General for the United Nations, and worked in New York City. 26 Defendant Lubbers was the United Nations High Commissioner for Refugees, and defendant Wendy 1 Chamberlin was a deputy to the Commissioner. Both worked in Geneva. Brzak contends that during 2 the course of a meeting of UNHCR staff members in Geneva in 2003, Lubbers improperly touched 3 her. On the advice of Ishak, Brzak filed a complaint against Lubbers with the United Nations’ Office 4 of Internal Oversight Services (“OIOS”). The OIOS issued a report confirming Brzak’s complaint 5 and recommending that the United Nations discipline Lubbers. Brzak alleges that Annan 6 disregarded the finding and eventually exonerated Lubbers. Brzak then appealed through the United 7 Nations’ internal complaint adjustment process. The plaintiffs allege that, as a consequence of 8 Brzak’s complaint, and Ishak’s assistance pursuing it, United Nations officials and employees 9 retaliated against them by taking steps such as manipulating Brzak’s work assignments and denying 10 Ishak merited promotions. 11 The plaintiffs sued the United Nations and the individual defendants in the United States 12 District Court for the Southern District of New York, alleging sex discrimination and retaliation in 13 violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., violations of the 14 Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., and 15 various state common law torts (brought in federal court through supplemental jurisdiction). The 16 United Nations formally returned the complaint to the American ambassador to the United Nations 17 and moved to dismiss on the grounds of immunity, a motion supported by the United States 18 Attorney’s Office for the Southern District of New York. Brzak, 551 F. Supp. 2d at 316; see Letter 19 of United States Attorney for the Southern District of New York, Brzak v. United Nations, 06-Civ. 20 3432 (S.D.N.Y., Oct. 2, 2007). The district court granted the motion. Judge Sweet concluded that 21 the Convention on Privileges and Immunities of the United Nations, Feb. 13, 1946, entered into 1 force with respect to the United States Apr. 29, 1970, 21 U.S.T. 1418, (the “CPIUN”), granted the 2 United Nations absolute immunity, which it had not waived, and dismissed the complaint. With 3 regard to the individual defendants, Judge Sweet concluded that the CPIUN granted them the same 4 form of functional immunity former diplomats enjoy under international law. This functional 5 immunity, Judge Sweet held, applied to employment-related suits. Brzak, 551 F. Supp. 2d at 318-20. 6 This appeal followed. We review de novo a district court’s dismissal of a claim for lack of subject- 7 matter jurisdiction. Flores v. Southern Peru Copper Corp., 414 F.3d 233, 241 (2d Cir. 2003). We 8 also review de novo legal conclusions which grant or deny immunity. Aurelieus Capital Partners, 9 LP v. Republic of Argentina, 584 F.3d 120, 129 (2d Cir. 2009); Gollomp v. Spitzer, 568 F.3d 355, 10 365 (2d Cir. 2009). 11 DISCUSSION 12 As the District Court correctly concluded, the United States has ratified the CPIUN which 13 extends absolute immunity to the United Nations. Specifically, the CPIUN provides that “[t]he 14 United Nations . . . shall enjoy immunity from every form of legal process except insofar as in any 15 particular case it has expressly waived its immunity.” Id. art. II, § 2. If the CPIUN applies, then 16 appellants’ claims fail. The answer to this question turns on whether the CPIUN is self-executing. 17 The parties do not dispute that the CPIUN is binding on the United States as a matter of 18 international law. However, they disagree about whether American courts must recognize the 19 immunity it adopts in domestic litigation. Cf. Medellin v. Texas, 552 U.S. 491, 504, 506 (2008) 20 (acknowledging that an International Court of Justice opinion is binding on the United States as a 21 matter of international law, while holding that the same opinion lacks domestic legal effect). 1 Brzak and Ishak contend that the CPIUN should not be enforced by American courts because 2 it is not self-executing, and consequently cannot be enforced absent additional legislation which was 3 never passed. See Medellin, 552 U.S. at 505. Whether a treaty is self-executing depends on whether 4 “the treaty contains stipulations which . . . require no legislation to make them operative;” if so, “they 5 have the force and effect of a legislative enactment.” Id. at 505-06 (quoting Whitney v. Robertson, 6 124 U.S. 190, 194 (1888)). 7 In determining whether a treaty is self-executing, we look to the text, the negotiation and 8 drafting history, and the postratification understanding of the signatory nations. Medellin, 552 U.S. 9 at 506-07. Additionally, the executive branch’s interpretation of a treaty “is entitled to great weight.” 10 Id. at 513 (quoting Sumitomo Shoji America, inc. v. Avagliano, 457 U.S. 176, 184-85 (1982)). Based 11 on these criteria, we have little difficulty concluding that the CPIUN is self-executing. 12 CPIUN Section 34 states “[i]t is understood that, when an instrument of accession is 13 deposited on behalf of any Member, the Member will be in a position under its own law to give 14 effect to the terms of this convention.” When the United States acceded to the CPIUN in 1970 (by 15 the President’s ratification, with the advice and consent of the Senate), it was affirming that it was 16 “in a position under its own law to give effect” to the CPIUN’s terms at that time. This means that 17 the treaty became effective at ratification, and therefore, is self-executing. “[T]he label ‘self- 18 executing’ usually is applied to any treaty that according to its terms takes effect upon ratification.” 19 Mora v. New York, 524 F.3d 183, 193 n.16 (2d Cir. 2008) (quoting United States v. Li, 206 F.3d 56, 20 67 (1st Cir. 2000) (en banc) (Selya & Boudin, JJ., concurring)). 1 The ratification history of the CPIUN reinforces this conclusion. During testimony before 2 the Senate Foreign Relations Committee as it considered whether to recommend that the Senate 3 ratify the CPIUN, the Legal Advisor to the State Department stated that: “It is clear from the 4 language of the convention . . . that the convention is self-executing and no implementing legislation 5 is necessary.” S. Exec. Rep. No. 91-17, App. at 16 (Statement of John R. Stevenson, Legal Advisor, 6 Department of State); see also id. at 13 (“I would like to have the record reflect[] that we regard the 7 convention as self-executing.”). The Foreign Relations Committee’s report on the CPIUN also 8 expressed the view that “the convention is self-executing and will require no implementing 9 legislation.” Id. at 5. 10 Finally, the executive branch continues to assert that the CPIUN is self-executing. See Letter 11 of United States Attorney for the Southern District of New York, Brzak v. United Nations, 06-Civ. 12 3432 (S.D.N.Y., Oct. 2, 2007). These views, as we have seen, are entitled to “great weight.” 13 Medellin, 552 U.S. at 513; Mora, 524 F.3d at 204. Consequently, we hold that the CPIUN is self- 14 executing and applies in American courts without implementing legislation. 15 As the CPIUN makes clear, the United Nations enjoys absolute immunity from suit unless 16 “it has expressly waived its immunity.” Id. art. II, § 2. Although the plaintiffs argue that purported 17 inadequacies with the United Nations’ internal dispute resolution mechanism indicate a waiver of 18 immunity, crediting this argument would read the word “expressly” out of the CPIUN. The United 19 Nations has not waived its immunity. See Letter from Nicolas Michel, United Nations Under- 20 Secretary-General for Legal Affairs, to Alejandro D. Wolff, Deputy Permanent Representative of the 21 United States of America to the United Nations (May 15, 2006); Letter from Nicolas Michel, United 1 Nations Under-Secretary-General for Legal Affairs, to John R. Bolton, Permanent Representative 2 of the United States, to the United Nations (Oct. 19, 2006). Consequently, the United Nations enjoys 3 absolute immunity and the district court’s decision to dismiss the claims against the United Nations 4 was correct. 5 Our conclusion is further confirmed by the International Organizations Immunities Act of 6 1945, 22 U.S.C. § 288a(b) (the “IOIA”), which provides that international organizations designated 7 by the President should receive the “same immunity from suit and every form of judicial process as 8 is enjoyed by foreign governments.” The United Nations has been so designated. See Exec. Ord. 9 No. 9698, 11 Fed. Reg. 1809 (Feb. 19, 1946). The plaintiffs argue that designated international 10 organizations no longer have absolute immunity in all cases, because, since that act was passed, 11 Congress has passed the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602-11(“FSIA”), which 12 strips foreign sovereigns of their immunity in certain circumstances. Plaintiffs argue that it is this 13 narrower definition of sovereign immunity that now defines what sort of immunity the IOIA applies 14 to international organizations. Although this argument has been rejected by at least one other Court 15 of Appeals, see Atkinson v. Inter-American Dev. Bank, 156 F.3d 1335, 1340-42 (D.C. Cir. 1998), 16 we need not resolve whether plaintiffs’ argument is correct for at least two reasons. The first is that, 17 whatever immunities are possessed by other international organizations, the CPIUN unequivocally 18 grants the United Nations absolute immunity without exception. The second is that the plaintiffs 19 have not presented any argument, either at the district level or to us, which would suggest that one 20 of FSIA’s exceptions to immunity would apply. Therefore, even under the plaintiffs’ interpretation 21 of the IOIA, the United Nations would still be immune from suit. 1 The plaintiffs also sued three former United Nations officials. The CPIUN also addresses 2 their immunity: “The Secretary-General and all Assistant Secretaries-General shall be accorded . . 3 . the privileges and immunities . . . accorded to diplomatic envoys, in accordance with international 4 law.” Id. art. v, sect. 19. As we have determined above that the CPIUN is a self-executing treaty, 5 this provision is binding on American courts. International law provides extensive protection for 6 diplomatic envoys. See The Vienna Convention on Diplomatic Relations, Apr. 18, 1961, entered 7 into force with respect to the United States Dec. 13, 1972, 23 U.S.T. 3227 (the “VCDR”). Although 8 current diplomatic envoys enjoy absolute immunity from civil and criminal process, see id. art. 31, 9 former diplomatic envoys retain immunity only “with respect to acts performed by such a person in 10 the exercise of his functions” as a diplomatic envoy. Id. art. 39, para. 2. As the plaintiffs have sued 11 former United Nations officials, each of whom held a rank of Assistant Secretary-General or higher, 12 it is this functional immunity, which the CPIUN incorporates by reference, that is relevant. The 13 Diplomatic Relations Act of 1978, 22 U.S.C. § 254d, makes pellucid that American courts must 14 dismiss a suit against anyone who is entitled to immunity under either the VCDR or other laws 15 “extending diplomatic privileges and immunities.” As CPIUN section 19 is such a law, the 16 remaining question is whether the plaintiffs’ allegations against the individual defendants involve 17 acts that the defendants performed in the exercise of their United Nations functions. 18 When a court attempts to determine whether a defendant is seeking immunity “with respect 19 to acts performed by such a person in the exercise of his functions,” VCDR art. 39, para. 2, the court 20 must do so without judging whether the underlying conduct actually occurred, or whether it was 1 wrongful.** Of the plaintiffs’ seven claims, all except the fourth make allegations with respect to acts 2 that the defendants performed in exercise of their official functions, namely, their management of 3 the office in which the plaintiffs worked. The first two claims allege that defendants discriminated 4 against Brzak in the conditions of her employment and retaliated against her, both in violation of 5 Title VII. The fifth claim alleges that the defendants retaliated against Ishak in violation of Title VII 6 as well. These allegations involve personnel management decisions falling within the ambit of the 7 defendants’ professional responsibilities. Brzak’s third claim, for intentional infliction of emotional 8 distress, also relates to the management of the office, because it challenges the defendants’ conduct 9 in investigating Brzak’s claims, and charges retaliation through changes of her work assignments. 10 The sixth and seventh claims, which allege violations of RICO, also relate to Annan’s and Lubbers’ 11 roles as United Nations officials. 12 The only remaining claim is the fourth, in which Brzak alleges Lubbers committed the state 13 law tort of battery. We have said that if a plaintiff’s federal claims are dismissed before trial, “the 14 state claims should be dismissed as well.” Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 15 250 (2d Cir. 2008) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)). 16 Because Bzrak’s federal claims were dismissed on jurisdictional grounds at the very beginning of 17 the case, there was no colorable basis for the district court to exercise supplemental jurisdiction over 18 her state law claim. We thus affirm the district court’s dismissal without reaching Bzrak’s argument 19 that the claim involves conduct outside the scope of the defendant’s immunity. Bzrak is free to re- ** This test parallels the objective tests we have adopted in applying other forms of immunity. For instance, a prosecutor is immune from suit under 42 U.S.C. § 1983 “for virtually all acts . . . associated with his function as an advocate.” Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994). In applying that functional test, we have looked to the objective acts of the prosecutor in question, not to the type of injury alleged. Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996). 1 file her battery claim in the state courts. If she does so, the state court would need to adjudicate in 2 the first instance the defendant’s claim of immunity. 3 The appellants raise several constitutional objections to the proposition that the United 4 Nations and its former officials enjoy immunity. Specifically, they contend that such a grant of 5 immunity would violate their procedural due process right to litigate the merits of their case, their 6 substantive due process right to access the courts, their First Amendment right to petition the 7 government for redress of grievances, and their Seventh Amendment right to a jury trial on their 8 common law claims. Each of these arguments fails, as each does no more than question why 9 immunities in general should exist. 10 The short – and conclusive – answer is that legislatively and judicially crafted immunities 11 of one sort or another have existed since well before the framing of the Constitution, have been 12 extended and modified over time, and are firmly embedded in American law. See, e.g., Act for the 13 Punishment of Certain Crimes Against the United States, 25, 1 Stat. 112, 117-18 (1790) (diplomatic 14 immunity); The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116 (1812) (foreign sovereign 15 immunity); Tenney v. Brandhove, 341 U.S. 367, 376-77 (1951) (legislative immunity); Barr v. 16 Matteo, 360 U.S. 564, 573 (1959) (plurality) (executive official immunity); Pierson v. Ray, 386 U.S. 17 547, 554-55 (1967) (judicial immunity); Imbler v. Pachtman, 424 U.S. 409, 424 (1976) 18 (prosecutorial immunity); National City Bank of New York v. Republic of China, 348 U.S. 356, 358- 19 60 (1955) (discussing the history of foreign sovereign immunity since Schooner Exchange); See 20 generally Linda S. Frey & Marsha L. Frey, The History of Diplomatic Immunity (1999) (tracing the 21 concept of diplomatic immunity from ancient Greek society forward to the twentieth century). If 1 appellants’ constitutional argument were correct, judicial immunity, prosecutorial immunity, and 2 legislative immunity, for example, could not exist. Suffice it to say, they offer no principled 3 arguments as to why the continuing existence of immunities violates the Constitution. 4 CONCLUSION 5 The judgment of the district court is affirmed.

08-4828-cv Ma v. Merrill Lynch & Co., Inc. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _____________________ August Term, 2008 (Argued: June 26, 2009 Decided: March 2, 2010) Docket No. 08-4828-cv _____________________ YOUXIN MA , Plaintiff, GEORGE BROTHERS INVESTMENT CO . LTD . AND COVINA 2000 VENTURES CORP ., Plaintiffs-Appellants, —v.— MERRILL LYNCH , PIERCE , FENNER & SMITH , INC., Defendant-Appellee, IRENE S. NG , Defendant. ___________________ Before: DENNIS JACOBS , Chief Judge, B.D. PARKER, Circuit Judge, NICHOLAS TSOUCALAS, Judge, Court of International Trade.* ___________________ Appeal from a judgment of the United States District Court for the Southern District of New York (Cote, J.) dismissing Plaintiffs-Appellants’ claims on the ground that they are barred by N.Y. UCC § 4-A-505. AFFIRMED. * The Honorable Nicholas Tsoucalas, Senior Judge of the United States Court of International Trade, sitting by designation. ___________________ DAVID FRANCESCANI (Karolina Jesien, on the brief), Fish & Richardson P.C., New York, New York, for Plaintiffs-Appellants George Brothers Investment Co. Ltd. and Covina 2000 Ventures Corp. LAWRENCE E. FENSTER (Lawrence D. Ross and Matthew C. Plant, on the brief), Bressler Amery & Ross, P.C., New York, New York, for Defendant-Appellee Merrill Lynch, Pierce, Fenner & Smith, Inc. ___________________ BARRINGTON D. PARKER, Circuit Judge: This appeal, arising from a judgment of the United States District Court for the Southern District of New York (Cote, J.), requires us to consider whether the New York Uniform Commercial Code Section 4-A-505, which imposes a one-year statute of repose on certain claims based on electronic funds transfers, bars Plaintiffs-Appellants’ common law claims, which have longer limitations periods. The District Court concluded that it does. Covina 2000 Ventures Corp. v. Merrill Lynch, Pierce, Fenner & Smith, No. 06 Civ. 15497, 2008 WL 1821738 (S.D.N.Y. Apr. 21, 2008). We agree and affirm. I. BACKGROUND The relevant facts are undisputed unless otherwise noted. In 2000, Youxin Ma, a businessman with substantial interests in Asia and in this country, established Covina 2000 Ventures Corp., a British Virgin Islands-based company, and George Brothers Investment Co. Ltd., a Cayman Islands-chartered corporation, as investment vehicles. That same year, Ma opened accounts for Covina and George Brothers at Merrill Lynch, Pierce, Fenner & Smith, Inc. (“Merrill Lynch”). Merrill Lynch assigned Irene Ng, a financial advisor, as the registered representative on both accounts. Ng was authorized to, among other things, effectuate funds transfers from the accounts upon Ma’s request. Ma maintains that Ng was involved in an elaborate scheme involving Rebecca and Terry Solomon, a married couple who pled guilty to conspiracy to commit mail and wire fraud, wire fraud, and money laundering, in connection with their perpetuation of two fraudulent investment schemes.1 See Press Release, United States Department of Justice, United States Attorney’s Office, Northern District of California, Husband and Wife Plead Guilty to Conspiracy, Fraud, and Money Laundering in $18 Million Investment Scheme (Sept. 26, 2008). According to Ma, Ng fraudulently, and without his knowledge, executed a loan agreement pursuant to which George Brothers was to lend the Solomons an unspecified amount of money. Apparently pursuant to this loan agreement, and in a series of approximately twenty-five wire transfers occurring from June 2002 to April 2004, Ng transferred more than $9 million from the Covina and George Brothers accounts to various accounts controlled by Rebecca Solomon. The record is unclear as to how much Ma knew about these transactions. Twenty-four of the wire transfers’ letters of authorization were apparently signed by Ma. Twenty-one of these letters contain written notations by Ng purportedly indicating that she confirmed the transactions with Ma. However, Ma maintains that Ng forged his signature on the letters of authorization and falsely noted The first complaint filed in this action named Ma, George Brothers, and Covina as plaintiffs. Pursuant to a Stipulation and Order dated March 14, 2007, George Brothers and Covina filed an amended complaint removing Ma as a plaintiff. However, we refer to Ma throughout this Opinion, as he is the principal officer of Covina and George Brothers, the owner of all of the funds in the Covina and George Brothers accounts, and the individual authorized to request the transfer of funds from the accounts to third party beneficiaries. that she had confirmed the transfers with Ma. We assume, for purposes of this appeal, that, as Ma contends, the transactions were unauthorized. The account agreements required Merrill Lynch to send Ma monthly statements summarizing the accounts’ activity, such as any wire transfers executed from the accounts. The parties do not dispute that Merrill Lynch generated these statements in the ordinary course of business, that Merrill Lynch mailed them to Ma at the address he provided, and that Ma received at least some of them. None of the statements was returned as undeliverable by the post office. It is also not disputed that the Covina and George Brothers monthly account statements listed the date and amount of each wire transfer, though the statements did not identify the wire transfers’ beneficiaries. Ma’s position is somewhat inconsistent. He concedes that he received some account statements during the June 2002 to April 2004 period, but maintains that he did not receive the statements on a regular basis. He also contends that he did not review any of the statements that he did receive. Instead, he relied on Ng to update him on the state of the accounts while his secretary placed the unopened statements in a storage room in his office. Ma did not notify Merrill Lynch that he believed he was not receiving his statements on a regular basis until November 2006, when he was preparing to sue. Ma also admits that, prior to that time, he was not aware that any of the statements was missing. As he put it: “[b]ecause I never reviewed a statement, therefore, I don’t know whether I received it or not.” Ma sued Merrill Lynch in December 2006 (more than two years after the last allegedly fraudulent wire transfer), alleging various common law claims, including breach of contract, breach of fiduciary duty, fraud, conversion, negligence, and breach of the covenant of good faith and fair dealing.2 Merrill Lynch moved for summary judgment on the ground that the one-year statute of repose in Section 4-A-505 of the New York Uniform Commercial Code bars all of Ma’s claims. The District Court granted Merrill Lynch’s motion. This appeal followed. We review de novo the District Court’s grant of summary judgment. See Arbitron, Inc. v. Tralyn Broad., Inc., 400 F.3d 130, 134 (2d Cir. 2005). II. DISCUSSION Article 4A of the New York Uniform Commercial Code governs electronic funds transfers, commonly known as wholesale wire transfers. N.Y. UCC § 4-A-102 & cmt. Funds transfers are “series of transactions, beginning with the originator’s payment order, made for the purpose of making payment to the beneficiary of the order” and are completed “by acceptance by the beneficiary’s bank of a payment order for the benefit of the beneficiary of the originator’s payment order.” Id. § 4-A-104. A payment order is “an instruction of a sender to a receiving bank, transmitted orally, electronically, or in writing, to pay . . . a fixed or determinable amount of money to a beneficiary [where] the receiving bank is to be reimbursed by debiting an account of . . . the sender.” Id. § 4-A-103. The “sender” is “the person giving instruction to the receiving bank.” The “receiving bank” is “the bank to which the sender’s instruction is addressed.” Id. The “beneficiary” is “the person to be paid by the beneficiary’s bank” and the beneficiary’s bank is “the bank identified in a payment order in which an On May 15, 2008, Covina and George Brothers voluntarily dismissed Ng from the litigation pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). account of the beneficiary is to be credited pursuant to the order.” Id. Under these definitions, the Merrill Lynch wire transfers constitute electronic funds transfers governed by Article 4A.3 Sections 4-A-202, 4-A-203, and 4-A-204 of the N.Y. UCC govern liability for unauthorized funds transfers. If a receiving bank accepts a payment order issued in its customer’s name, and the customer did not authorize the payment order, the bank is obligated to refund any payment made pursuant to that payment order. Id. §§ 4-A-202, 203, 204. In other words, under the N.Y. UCC, banks bear the risk of loss from unauthorized wire transfers (if certain conditions discussed below are met). See id. However, Section 4-A-505 contains a one-year statute of repose4 pursuant to which a bank is not required to reimburse its customer for a wire transfer processed pursuant to an unauthorized payment order if the bank’s customer did not object within one year of receiving notice of the account’s debit: If a receiving bank has received payment from its customer with respect to a payment order issued in the name of the customer as sender and accepted by the bank, and the customer received notification reasonably identifying the order, the customer is precluded from asserting that the bank is not entitled to retain the payment unless the customer notifies the bank of the customer’s objection within one year after the notification was received by the customer. The definition of “bank” for Article 4A purposes encompasses Merrill Lynch. N.Y. UCC § 4- A-105 (defining “bank” as “a person engaged in the business of banking and includes a savings bank, savings and loan association, credit union, and trust company”); see also Woods v. MONY Legacy Life Ins. Co., 641 N.E.2d 1070, 1072 (N.Y. 1994) (construing liberally the UCC’s definition of “bank” to “promote the underlying purposes and policies of the UCC”). Statutes of repose and statutes of limitations are often confused, though they are distinct. A statute of limitations creates an affirmative defense where plaintiff failed to bring suit within a specified period of time after his cause of action accrued, often subject to tolling principles. Stuart v. Am. Cyanamid Co., 158 F.3d 622, 627 (2d Cir. 1998); see also P. Stolz Family P’ship v. Daum, 355 F.3d 92, 102-03 (2d Cir. 2004). By contrast, a statute of repose extinguishes a plaintiff’s cause of action after the passage of a fixed period of time, usually measured from one of the defendant’s acts. See P. Stolz Family P’Ship, 355 F.3d at 102-03. Id. § 4-A-505; see id. cmt. Section 4-A-505’s text appears to bar Ma’s claims: they are based on electronic funds transfers and he failed to notify Merrill Lynch of his objections within one year. Undeterred, Ma claims that his common law claims—all having limitations periods well in excess of one year—remain viable for three reasons. First, he contends that the transfers are “only incidental” to the common law claims, and, consequently, are not controlled by Article 4A. Second, though he concedes that “common law claims that are either inconsistent with Article 4-A or covered by its provisions are preempted,” he maintains that his common law claims fall into neither category. He contends that, because Article 4A contains no direct reference to claims such as those for breach of fiduciary duty, conversion, or fraud, the Article, presumably, was not intended to reach them and, in any event, his common law claims do not impose liabilities inconsistent with the rights and liabilities created by Article 4A. Third, Ma contends that because the account statements he received did not identify the beneficiary of the funds transfers, they failed to comply with Section 4-A-505’s limitation of its one-year period of repose to bank customers who received notification “reasonably identifying” the payment order at issue. We are not persuaded. Prior to Article 4A’s adoption by the New York State Legislature in 1990, “existing rules of law did not adequately address the problems presented by” the widespread use of electronic funds transfers. Banque Worms v. BankAmer. Int’l, 570 N.E.2d 189, 194 (N.Y. 1991). Article 4A was enacted to create a “comprehensive body of law” that “use[s] precise and detailed rules to assign responsibility.” N.Y. UCC § 4-A-102 cmt.; see Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 102-03 (2d Cir. 1998). The drafters made clear that Article 4A reflects “a deliberate decision . . . to write on a clean slate and to treat a funds transfer as a unique method of payment to be governed by unique rules that address the particular issues raised by this method of payment.” N.Y. UCC § 4-A-102 cmt. The statute of repose in N.Y. UCC Section 4-A-505 is one such “unique rule.” See id. Prior to Article 4A’s adoption, courts resolved disputes over funds transfers in part by “referring to general principles of common law or equity.” Id. Article 4A rejected this piecemeal approach in favor of a more disciplined regime under which common law claims at odds with Article 4A are no longer permitted. Article 4A precludes customers from bringing common law claims inconsistent with the statute: “[R]esort to principles of law or equity outside of Article 4A is not appropriate to create rights, duties and liabilities inconsistent with those stated in this Article." Id. (emphasis added); see also Grain Traders, 160 F.3d at 102-03. Not all common law claims are per se inconsistent with this regime. See Regions Bank v. Provident Bank, Inc., 345 F.3d 1267, 1275-76 (11th Cir. 2003); Sheerbonnet, Ltd. v. Am. Express Bank, Ltd., 951 F. Supp. 403, 407-09 (S.D.N.Y. 1995); Regions Bank v. Wieder & Mastroianni, P.C., 423 F. Supp. 2d 265, 268-69 (S.D.N.Y. 2006). Practically speaking, Article 4A controls how electronic funds transfers are conducted and specifies certain rights and duties related to the execution of such transactions. It calls for banks to adopt certain security procedures (§§ 4-A-201, 202), controls the timing for executing payments (§ 4-A-301), and assigns responsibility for reporting erroneous electronic debits (§§ 4-A-304, 505). Claims that, for example, are not about the mechanics of how a funds transfer was conducted may fall outside of this regime. Because Article 4A’s statute of repose only applies to claims that are “inconsistent” with the Article, we do not believe that it was intended to shield banks from all fraud claims—or other common law claims raised more than a year after an electronic transfer occurred. See Regions Bank v. Provident Bank, Inc., 345 F.3d 1267, 1276 (11th Cir. 2003) (“Interpreting Article 4A in a manner that would allow a beneficiary bank to accept funds when it knows or should know that they were fraudulently obtained, would allow banks to use Article 4A as a shield for fraudulent activity.”). For Article 4A purposes, the critical inquiry is whether its provisions protect against the type of underlying injury or misconduct alleged in a claim. Two of Article 4A’s principal purposes are to protect against erroneous and unauthorized electronic funds transfers and to cabin banks’ liability for unreported errors. See N.Y. UCC §§ 4-A- 303, 304, 305, 505. Ma’s various claims concern alleged misconduct by Merrill Lynch with respect to its execution of electronic transfers. For instance, Ma alleges that “Defendants . . . breached their fiduciary obligations by . . . failing to contact Plaintiffs about the transactions taking place in their account, and allowing funds to be removed from the accounts without proper authorization.” Additionally, Ma alleges “Defendants [committed conversion by] wrongfully and without authorization exercis[ing] dominion and control over [Plaintiffs’] property by taking it out of Plaintiffs’ accounts and giving it to a third party, to the exclusion of Plaintiffs’ rights of possession.” Importantly, Ma does not allege, for example, that he authorized the electronic funds transfers in reliance on promises concerning returns on his investments, or that the funds transfers he approved were secretly misdirected. Nor, for that matter, does he allege that the bank violated the federal securities laws by inducing him to transfer funds. See, e.g., Employment of Manipulative and Deceptive Devices (Rule 10b-5), 17 C.F.R. § 240.10b-5 (prohibiting, among other things, “any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security”); see also Securities Exchange Act of 1934, 15 U.S.C. § 78j(b). Rather, he claims that the funds transfers were altogether unauthorized. Since all of Ma’s claims are, at their core, assertions that he did not order or approve any of the disputed electronic transfers of funds from his accounts, we are bound to recognize the rights and duties New York law provides for precisely these circumstances. See N.Y. UCC § 4-A-102 cmt. As a result, resort to Article 4A and its statute of repose is unavoidable. We recognize that a number of Ma’s claims, such as his claim for breach of fiduciary duty, have six-year limitations periods. But we have little difficulty concluding that when a legislature imposes a one-year statute of repose on claims alleging injury by an unauthorized electronic transfer, permitting the customer to bring common law claims within a longer limitations period is inconsistent with the legislature’s intent. See Id. § 4-A-505 cmt. The fact that Article 4A does not expressly refer to common law claims such as fraud or breach of fiduciary duty is not dispositive. Article 4A’s text strongly suggests that it applies to claims asserting the existence of unauthorized wire transfers regardless of what the claims may be called and, in any event, the accompanying commentary is pellucid on the issue. See id. ReAmerica, S.A. v. Wells Fargo Bank International, 577 F.3d 102, 106-07 (2d Cir. 2009), is instructive. There, ReAmerica, a reinsurance company, opened an account with Wells Fargo’s predecessor-in-interest. Minnesota law, which includes Article 4A of the UCC, governed the parties’ wire transfer agreement. Id. at 104-05; see Minnesota Statute § 336.4A-505 (providing a one-year statute of repose for disputed funds transfers). A ReAmerica consultant forged the signature of ReAmerica’s chief executive officer on numerous payment orders in order to divert ReAmerica’s funds to a personal account. ReAm., 577 F.3d at 104. Nearly two years after Wells Fargo transmitted the funds to the account, ReAmerica notified Wells Fargo that it was disputing the forged payment orders. Wells Fargo declined to refund ReAmerica for the transactions, citing the one-year period of repose specified in Minnesota Statute Section 336.4A-505. We interpreted Minnesota Statute Section 336.4A-505, which is identical to N.Y. UCC Section 4-A-404, to time-bar Re-America’s common law negligence claim, which had a six-year statute of limitations. We reasoned that permitting ReAmerica’s negligence claim to proceed despite the expiration of Section 336.4A-505’s one-year period of repose would “impose liability inconsistent with the liabilities created by Article 4A,” id. at 106, and therefore concluded that ReAmerica was barred from raising its negligence claim nearly two years after the date its alleged injury occurred, id. at 107. Ma further contends that the account statements he received were inadequate to alert him to the fraud he alleges. Section 4-A-505’s one-year period of repose applies only where “a payment order [has been] issued in the name of the customer as sender and accepted by the bank, and the customer received notification reasonably identifying the order.” N.Y. UCC § 4-A-505 (emphasis added). Pointing out that a payment order is defined as “an instruction of a sender . . . to pay . . . a fixed or determinable amount of money to a beneficiary,” id. § 4-A-103, Ma contends that in order for any notice to “reasonably identify” a particular payment order, that notice must, in addition to identifying the amount transferred, also identify the beneficiary of the transfer, something Merrill Lynch’s statements failed to do. Ma contends that “[unless] a customer knows the beneficiary of a particular payment order . . . a bank customer is not in a position to ascertain whether the payment order was authorized.” The UCC’s drafters declined to define the term “reasonably identify” and we have not done so. Thus, the District Court turned for guidance to Sections 9-108 and 9-504 of the N.Y. UCC, which relate to secured transactions.5 Under these sections, collateral is reasonably identified if it is “objectively determinable.” Id. § 9-108. The District Court was correct to use this objective standard and we agree with its conclusion that the account statements reasonably identified the payment orders underlying the wire transfers at issue. Each of the monthly statements provided the dollar amount of the transfer, the date of the transfer, the total dollar amount transferred out of the account for that month, the account’s total value at the end of that month, and the total dollar amount transferred out of the account for the year-to-date. In addition, Merrill Lynch assigned a unique identification number to every wire transfer listed on the statements. Since Ma alleges that he did not authorize any of the funds transfers in dispute, we easily conclude that Ma had information sufficient to timely object were he so inclined:6 If Ma had reviewed the statements, he would have discovered that at least $9 million had been transferred out of the accounts through numerous wire transfers that he now contends he did not authorize. A cursory review Section 9-108 states “a description of personal or real property is sufficient, whether or not it is specific, if it reasonably identifies what is described.” N.Y. UCC § 9-108 (a). Section 9-108 goes on the state that reasonable identification occurs when the identity of the collateral is “objectively determinable.” Id.(b)(6). Section 9-504 states that a financing statement “sufficiently indicates the collateral that it covers” if it provides a “description of the collateral pursuant to Section 9-108.” Ma’s appeal does not require us to reach the question of whether the account statements would provide sufficient notice under N.Y. UCC Section 4-A-505 where a bank customer authorized funds transfers for the benefit of a particular third party, but alleges that the bank fraudulently transferred the funds to a third party different from the one specified on the customer’s payment order. of the statements would have alerted Ma to the fact that the accounts’ balances had fallen sharply as a result of these numerous, allegedly unauthorized wire transfers, regardless of Ng’s verbal assurances to the contrary. That was all the information he needed to object. See id. § 9-108 cmt. (“The test of sufficiency of a description under this section . . . is that the description do the job assigned to it: make possible the identification of the collateral described.”). Since, according to Ma, he did not authorize any funds transfers, including additional information in the account statements, such as the beneficiaries, would not have assisted him. In any event, as we have seen, Ma concedes that he never reviewed any of the statements until years after Merrill Lynch mailed them to him. Section 4-A-505’s statute of repose only applies where a bank has provided its customer with actual notice of the payment order underlying the wire transfer at issue. Regatos v. N. Fork Bank, 838 N.E.2d 29, 633-34 (N.Y. 2005) (finding Section 4-A-505 unsatisfied by an “inquiry” notice system whereby a bank made its customer’s monthly account statements available for review but “waited for him to request them rather than send them to him”). Ma contends that he did not receive actual notice because Merrill Lynch did not provide him with “actual knowledge” that Ng was making unauthorized funds transfers out of the accounts to various third parties and because he did not receive all of the statements sent during the relevant time period. Ma confuses actual knowledge with actual notice. Article 4A contains a notice, not a knowledge, requirement: It requires banks that wish to avail themselves of Section 4-A-505’s period of repose to provide their customers with actual notice of payment orders processed from their accounts. See id. at 400-01 (defining Section 4-A-505’s notice requirement as actual notice). Since a bank customer is in a far better position than a bank to identify unauthorized transfers, Article 4A’s drafters quite sensibly did not impose on financial institutions the type of far-reaching investigation and disclosure requirements Ma would prefer. Cf. ReAm., 577 F.3d at 106-07; Grain Traders, 160 F.3d at 102-04. In any event, the notice Merrill Lynch provided to Ma was sufficient to alert him to the funds transfers he now contends are fraudulent. Finally, for purposes of resolving this appeal, we are required to assume that Ma received the statements. As the District Court correctly determined, a presumption of receipt arises where, as here, the record establishes office procedures, followed in the regular course of business, pursuant to which notices have been addressed and mailed. Nassau Ins. Co. v. Murray, 386 N.E.2d 1085, 108 (N.Y. 1978); see also Meckel v. Cont’l Res. Co., 758 F.2d 811, 817 (2d Cir. 1985). To rebut this presumption, a litigant must show that “routine office practice was not followed or was so careless that it would be unreasonable to assume that notice was mailed.” Nassau Ins. Co., 386 N.E.2d at 1086. Mere denial of receipt is insufficient to rebut the presumption. See Akey v. Clinton County, 375 F.3d 231, 235 (2d Cir. 2004). Merrill Lynch benefits from this presumption and it is unrebutted. The record indicates that the account statements were mailed from a central Merrill Lynch facility in Piscataway, New Jersey, over which account representatives, such as Ng, had no control. More importantly, the record shows that Ma received account statements that, if he had opened and examined, would have disclosed funds transfers he now claims to have been unauthorized but that, for whatever reason, he chose to ignore. III. CONCLUSION The judgment of the District Court is AFFIRMED.

09-3099-ag De La Rosa v. Holder UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT December Term, 2009 (Argued: December 21, 2009 Decided: February 25, 2010 Amended: February 25, 2010) Docket No. 09-3099-ag Marino De La Rosa, Petitioner, – v. – Eric H. Holder, Jr., Attorney General, Respondent. Before: CALABRESI, and POOLER Circuit Judges, and KAHN, District Judge.* Petition for review of decisions by the Board of Immigration Appeals (“BIA”) reversing an immigration judge’s (“IJ”) grant of deferral of removal and affirming a subsequnt order of removal against petitioner pursuant to the Convention Against Torture (“CAT”). The BIA’s order is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion. Alexander Arandia, Arandia & Arandia, Forest Hills N.Y., for Petitioner. * The Honorable Lawrence E. Kahn, United States District Court Judge for the Northern District of New York, sitting by designation. Tony West, Assistant Attorney General, Civil Division, John S. Hogan, Senior Litigation Counsel, Aimee J Frederickson, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for Respondent. Kahn, District Judge: Petitioner Marino De La Rosa, a native of the Dominican Republic, appeals from the June 22, 2009, final decision and order of the Board of Immigration Appeals (“BIA”) affirming the October 8, 2008, decision of Immigration Judge (“IJ”) Helen Sichel denying De La Rosa’s application for deferral of removal under the Convention Against Torture (“CAT”), and ordering his removal from the United States to the Dominican Republic. See United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. The IJ issued that October 8, 2008, order of removal following a May 22, 2008, decision by the BIA reversing and vacating the IJ’s June 22, 2006, decision granting deferral of removal, and remanding De La Rosa’s record to the IJ for the sole purpose of ordering removal. On appeal, De La Rosa argues that he has shown a sufficient likelihood that he would be subject to torture upon removal to the Dominican Republic, and that the BIA erred in reversing the June 22, 2006, decision of the IJ. We find the BIA committed error in its review of the IJ’s factual findings and of the evidentiary record in De La Rosa. The BIA may not engage in fact-finding during an appeal from the decision of IJ, and may only review the IJ’s factual findings for clear error. 8 C.F.R. § 1003.1(d)(3(I). The BIA employed an improper standard of review by considering the evidentiary record in De La Rosa’s case and by finding facts inconsistent with the findings of the IJ. On this basis, the BIA concluded that the “weight of the evidence” did not show that it is more likely than not De La Rosa would be tortured upon removal. Additionally, the BIA may have rested its decision on an alternative ground, concluding that the IJ’s factual findings and De La Rosa’s submissions, as a matter of law, necessarily precluded a finding of government acquiescence to torture. Due to our concerns with the BIA’s treatment of the “government acquiescence” standard for torture under the CAT, we remand to the BIA for precedential consideration of this issue. Therefore, we vacate the BIA’s June 22, 2009 and May 22, 2008, decisions, and we remand De La Rosa’s record to the BIA for further proceedings consistent with the Court’s opinion. Given the amount of time this panel has spent with this case, we shall retain jurisdiction over any post-remand appeal that may be made. I. BACKGROUND De La Rosa, born in the Dominican Republic in 1964, entered the United States in 1982 to play professional baseball. Based on the sponsorship of his then-wife, a United States citizen, he was admitted to the United States on November 12, 1989 as a lawful permanent resident. Removal proceedings were initiated against De La Rosa in December of 2001 after he pled guilty in to the crime of conspiracy to distribute and possess, with intent to distribute, cocaine and heroin, in violation of Sections 846, 846(a)(1), 841(a)(1), and 841(b)(1)(A) of Title 21 of the United States Code. He was charged with removability pursuant to Sections 237(a)(2)(A)(iii) and 237(a)(2)(B)(I) of the Immigration and Nationality Act due to his status as an alien convicted of an aggravated felony and as an alien who, after admission, was convicted of a violation involving a controlled substance. De La Rosa was found ineligible for asylum and withholding of removal on February 4, 2003, because of his conviction for a serious crime. Over the next several years, he sought relief under Article 3 of the CAT and gave testimony in support of that application to the IJ, ultimately resulting in the June 22, 2006, decision and order granting him deferral of removal pursuant to 8 C.F.R. §§ 1208.16(c)(4) and 1208.17(a). The BIA reversed and remanded the IJ’s decision with the instruction to issue an order of removal. Following the IJ’s compliance with that instruction, the BIA dismissed De La Rosa’s appeal, and De LaRosa filed the petition for review now before this Court. That appeal was expedited, and the Court has granted a temporary stay of removal pending its disposition. De La Rosa’s claim for relief under Article 3 of the CAT revolve around his cooperation with federal prosecutors following his arrest for involvement in a drug trafficking conspiracy. By assisting the government, De La Rosa obtained a significant downward departure in his own sentencing and facilitated the conviction of other individuals, including a Dominican national named Jonas Brito (“Brito”). De La Rosa contends that he will more likely than not be tortured or killed upon removal to the Dominican Republic due to a number of facts, including: the express, repeated desire of Brito and others to kill him; the presence of Brito’s family and contacts currently in the Dominican Republic, including a brother in the government; the corruption and ineffectiveness of the Dominican authorities; and the pattern of Dominican government involvement in unlawful killings. To establish entitlement to relief under the CAT, De La Rosa bears the burden of proving that it is more likely than not that removal will cause him to be subject to torture. Torture is defined as the infliction of severe pain or suffering by, at the instigation of, or with the consent or acquiescence of a public official. See C.F.R. §§ 1208.16, 1208.17, 1208.18, § 1208.18(a)(1). In the June 22, 2006, decision granting De La Rosa deferral of removal, the IJ determined that De La Rosa met that burden, having “demonstrated that it is more likely than not that the Dominican police will show willful blindness to, or even actively participate in, torturing and/or killing [him]. Both the May 22, 2008, BIA decision reversing the IJ and the June 22, 2009, BIA decision dismissing De La Rosa’s appeal rejected this conclusion, finding that the “weight of the evidence simply does not indicate that it is ‘more likely than not’ that he will be tortured,” and that “the evidence fails to show that the government would acquiesce in acts to torture him.” II. DISCUSSION As an initial matter, the REAL ID1 Act of 2005 limits our jurisdiction to review final orders of removal against individuals removable for having committed crimes involving a controlled substance to constitutional claims or questions of law. See 8 U.S.C. §§ 1252(a)(2)(C), (D). We have found this section to so limit our jurisdiction in withholding of removal cases. See Pierre v. Gonzales, 502 F.3d 109, 111-13 (2d Cir. 2007). We have also assumed, without discussion, that section 1252(a)(2)(C) is applicable to deferral of removal claims under the CAT. E.g., Poole v. Mukasey, 522 F.3d 259, 262 (2d Cir. 2008). We have not, however, expressly held that the section is applicable to deferral claims. It should be noted that the Ninth Circuit draws a Rearing and Empowering America for Longevity against acts of International Destruction distinction between withholding and deferral claims, treating the jurisdictional limits imposed by section 1252(a)(2)(C) as inapplicable if the conviction does not provide the basis of the IJ’s decision on relief under the CAT. See Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084, n.3 (9th Cir. 2008) (distinguishing Ruiz-Morales v. Ashcroft, 361 F.3d 1219 (9th Cir. 2004) and stating that “‘[w]hen an IJ does not rely on an alien’s conviction in denying CAT relief and instead denies relief on the merits, none of the jurisdiction-stripping provisions. . . apply to divest this court of jurisdiction.’” (quoting Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007))). In the instant case, we need not address this jurisdictional issue because the appeal raises only questions of law. a. BIA’s Standard of Review of IJ’s Factual Findings Since September 25, 2002, the BIA has been bound to review the factual findings of immigration judges only for clear error. See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289 (2d Cir. 2006). “The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.” 8 C.F.R. § 1003.1(d)(3)(i). The BIA did not comply with this regulatory command in reviewing the IJ’s factual findings, but rather applied a standard that substantially deviated from clear error and may have been de novo. Whatever the precise level of review undertaken by the BIA with respect to the IJ’s factual findings in De La Rosa’s case, it constituted error. In its May 22, 2008, decision reversing the IJ’s determination of De La Rosa’s CAT claim, the BIA articulated its standard of review as that of determining “the weight of the evidence.” In exercising this review, the BIA appears to have made its own factual findings based on “all evidence.” In doing so, the BIA’s characterization of facts deriving from the evidentiary record is demonstratively at odds with factual findings made by the IJ, including several directly inconsistent findings. For example, the BIA deviated from the IJ’s factual findings when it determined that De La Rosa failed to establish that Brito’s family would be able to identify De La Rosa or that such persons would even seek him out in the Dominican Republic. Id. Other than concluding that the IJ “erroneously granted the respondent’s application for deferral,” the BIA did not indicate or explain how the IJ may have committed clear error. The standard of review entailed by “weight of the evidence” cannot be squared with review for clear error in this Circuit. See Ceraseo v. Motiva Enterp., LLC, 326 F.3d 303, 316-17 (2d Cir. 2003) (distinguishing clearly erroneous findings, which is a ground for reversal, from “weight of the evidence,” which cannot be such a ground). Indeed, “weight of the evidence” is often equated across circuits with a de novo inquiry into the preponderance of the evidence. See, e.g., Nutraceutical Corp. v. Von Eschenbach, 459 F.3d 1033, 1040 (10th Cir. 2006) (“The preponderance of the evidence standard requires the party with the burden of proof to support its position with the greater weight of the evidence.”); Jazz Photo Power Corp. v. United States, 439 F.3d 1344, 1350 (Fed. Cir. 2006) (stating that “we have defined preponderance of the evidence in civil actions to mean ‘the greater weight of evidence, evidence which is more convincing than the evidence which is offered in opposition to it.’”) (citation omitted); United States v. Garcia- Guizar, 160 F.3d 511, 523 n.9 (9th Cir. 1998) (“A preponderance of the evidence means the greater weight of the evidence.”); Lowry v. Alabama Power Co., 483 F.3d 1184, 1209 (11th Cir. 2007) (same). But see MBH Commodity Advisors, Inc. v. Commodity Futures Trading Comm’n, 250 F.3d 1052, 1060-1061 (7th Cir. 2001) (distinguishing “weight of the evidence” review from a “de novo” review involving new factual findings and the possibility of new evidence in the context of the Commodities Exchange Act, 7 U.S.C. § 21). While the Court does not review the factual findings of the IJ and the BIA, it is apparent that, as a matter of law, the BIA’s “weight of the evidence” review of the IJ’s findings does not conform to the dictates of 8 C.F.R. § 1003.1(d)(3)(i). The improper standard of review used by the BIA is the type of error that requires remand. We have said that “[i]t is precisely because factfinding in both the asylum and withholding contexts is expressly committed to the discretion of the Executive Office of Immigration Review (“EOIR”) that, when those findings rely upon legal errors, the appropriate remedy is generally to vacate those finding and remand to the BIA for reconsideration of an applicant’s claim.” La Hua Lin v. United States Dep’t of Justice, 453 F.3d 99, 106 (2d Cir. 2006). Minor errors, however, do not require remand. See Cao He Lin v. United States Dep’t of Justice, 428 F.3d 391, 401 (2d Cir. 2005). Remand is unnecessary if it would be pointless or futile, such as where there is an alternative and sufficient basis for the result, the error is tangential to non-erroneous reasoning, or the overwhelming evidence makes the same decision inevitable. See also Xiao Ji Chen v. United States Dep’t of Justice, 434 F.3d 144, 161 (2d Cir. 2006). The general rule is that the Court must be “confident that the agency would reach the same result upon a reconsideration cleansed of errors.” La Hua Lin, 453 F.3d at 107. Absent an alternative and sufficient ground for the BIA’s decision, the error in the standard of review requires remand. In view of the IJ’s factual findings which may support a decision in De La Rosa’s favor, as well as the new evidence submitted by De La Rosa to the BIA on appeal,2 the Court finds that the BIA, applying the proper standard of review for clear error, could conclude that it is more likely than not that De La Rosa would be tortured upon removal to the Dominican Republic within the meaning of the CAT. However, our review of the BIA decisions reveals that the BIA may have an alternative basis for its reversal of the June 22, 2006, IJ decision and dismissal of De La Rosa’s appeal. Accordingly, we must proceed to review this possible alternative ground, which if sufficient to support the BIA’s decision, would insulate the BIA’s error. Cao He Lin, 428 F.3d at 401. b. Government Acquiescence The BIA may have denied De La Rosa’s CAT application for an alternative reason. The BIA’s opinion implies that, as a matter of law, the evidence in the case precluded a finding of government acquiescence. The BIA explained: “evidence he provides on appeal includes several police investigations and arrests related to his complaints. . . . Therefore, the evidence fails to show that the government would acquiesce in acts to torture him, or that it would be unable or unwilling to fulfill its duty to protect him.” This implies that the existence of some government actors attempting to prevent torture is sufficient to negate the fact that other government actors would be complicit in that torture, even when evidence strongly indicates that the government as The BIA received and considered new evidence submitted by De La Rosa on appeal, finding that it actually undermined his claim. This procedure was inconsistent with 8 C.F.R. § 1003.1(d)(3)(iv), which states that “[e]xcept for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals.” The proper course for the BIA would have been to either reject the evidence without consideration or move, sua sponte, to reopen the case before the IJ with the additional evidence. a whole would be unable to prevent the torture from occurring. Such an understanding of government acquiescence would, of course, provide an alternative ground for denying De La Rosa’s CAT application. It is not entirely clear, however, to what extent the BIA order fully adopts this view or rests its outcome upon it. Article 3 of the CAT prohibits the deportation of any person to a country where it is more likely than not that “[the individual] would be in danger of being subjected to torture.” Article 3, 1465 U.N.T.S. 85 (CAT).3 For pain and suffering to be cognizable as torture under the CAT, as set forth in Article 1 of the Convention, it must be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Article 1, 1465 U.N.T.S. 85 (CAT). The CAT’s implementing regulations clarify, and the Senate voted for ratification with the understanding that, “[a]cquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 208.18; 136 Cong. Rec. 36, 198 (1990). Thus we have held that “torture requires only that government officials know of or remain willfully blind to an act and thereafter breach their legal responsibility to prevent it.” Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004). Given this background, we are concerned with the BIA’s legal conclusion that the evidence submitted by De La Rosa precludes the possibility of government acquiescence to his torture. The IJ made a series of factual findings bearing on the actual involvement of Dominican government actors in the possible killing of De La Rosa. These include findings that Brito has Article 3 of CAT uses the language “substantial ground for believing that” rather than “more likely than not that.” The Senate ratified the CAT with the understanding that the latter standard would operate in place of the former. See 136 Cong. Rec. 36, 198 (1990). contacts in the Dominican government, that Brito’s brother is an official in that government, and that this brother had met De La Rosa and is able to recognize him. The IJ also found that Brito told a co-defendant of De La Rosa that he has brothers in the Dominican army. Id. Additionally, the IJ received the most recent United States State Department Report on the Dominican Republic, taking notice that it documented widespread corruption within the government and police force, including infiltration by criminals and involvement in drug trafficking. Finally, De La Rosa submitted evidence to the BIA indicating that Brito is present in the Dominican Republic with the intent to kill De La Rosa and that the Dominican government lacks the resources to prevent De La Rosa’s murder upon his removal to the country. Despite this array of factual findings and submissions on appeal, the BIA concluded that the evidence fails to show that the Dominican government would acquiesce in the torture of De La Rosa, apparently on the basis that De La Rosa introduced evidence that some persons within the government had taken steps to prevent his torture. Without discussion, the BIA appears to have assumed that the activity of these actors overrides both the complicity of other government actors and the general corruption and ineffectiveness of the Dominican government in preventing unlawful killings. We have significant doubts about this view of what may constitute government acquiescence. In short, it is not clear to this Court why the preventative efforts of some government actors should foreclose the possibility of government acquiescence, as a matter of law, under the CAT. Where a government contains officials that would be complicit in torture, and that government, on the whole, is admittedly incapable of actually preventing that torture, the fact that some officials take action to prevent the torture would seem neither inconsistent with a finding of government acquiescence nor necessarily responsive to the question of whether torture would be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Article 1, 1465 U.N.T.S. 85 (CAT); see also 8 C.F.R. § 208.18. In light of the Court’s concern with the BIA’s application of the “government acquiescence” legal standard, we find it appropriate to remand the instant case for additional analysis and discussion of that question. The Supreme Court has stated that “[g]enerally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.” Immigration and Naturalization Serv. v. Ventura, 537 U.S. 12, 16 (2002). At this juncture, the proper course is for the BIA to make a considered judgment on the application of the government acquiescence standard in the category of circumstances at issue. “The agency can bring its expertise to bear upon the matter; it can evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed discussion and analysis, help a court later determine whether its decision exceeds the leeway that the law provides.” Id. at 17; see also Yuanliang Liu v. United States Dep’t of Justice, 455 F.3d 106 (2d Cir. 2006) (explaining prudential reasons for remand to the BIA, whether or not administrative law principles require it). Accordingly, we ask that the BIA issue a precedential opinion on whether, as a matter of law, a government may acquiesce to a person’s torture where (1) some officials attempt to prevent that torture (2) while other officials are complicit, and (3) the government is admittedly unable to actually prevent the torture from taking place. III. CONCLUSION The law is not clear as to whether the BIA’s implication or assumption that De La Rosa’s evidence precludes a finding of government acquiescence would provide an alternative and sufficient basis on which to uphold the BIA’s May 22, 2008 and June 22, 2009 orders. Therefore, the BIA’s misapplication of the standard of review with respect to the IJ’s factual findings requires that we vacate the BIA’s orders denying De La Rosa deferral of removal and dismissing his appeal, and that we remand De La Rosa’s record back to the BIA. This panel retains jurisdiction over any post-remand appeal that the parties may make.

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 09-1635 MS. RACHAEL SCHAAR, Appellant, v. LEHIGH VALLEY HEALTH SERVICES, INC.; LEHIGH VALLEY PHYSICIANS BUSINESS SERVICES, INC. On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Number: 07-cv-04135) District Judge: Honorable Henry S. Perkin Argued December 15, 2009 Before: FISHER, HARDIMAN and VAN ANTWERPEN, Circuit Judges. (Filed: March 11, 2010) David L. Deratzian (Argued) Hahalis & Kounoupis 20 East Broad Street Bethlehem, PA 18018-0000 Attorneys for Appellant Jonathan B. Sprague (Argued) Darren M. Creasy A. James Johnston Post & Schell 1600 John F. Kennedy Boulevard Four Penn Center, 14th Floor Philadelphia, PA 19103-0000 Attorneys for Appellees OPINION OF THE COURT HARDIMAN, Circuit Judge. Rachael Schaar appeals the District Court’s summary judgment in favor of her former employer, Lehigh Valley Physicians Business Services, Inc. (Lehigh Valley). The District Court held that Schaar did not qualify for leave under the Family and Medical Leave Act (FMLA) because she did not present evidence of a serious health condition. This appeal raises a question of first impression in this Court: whether a combination of expert and lay testimony can establish that an employee was incapacitated for more than three days as required by the FMLA’s implementing regulations. I. We exercise plenary review over the District Court’s summary judgment, viewing the facts in the light most favorable to the nonmoving party. Erdman v. Nationwide Ins. Co., 582 F.3d 500, 502 (3d Cir. 2009). “Summary judgment is appropriate only if there are no genuine issues of material fact such that the movant is entitled to judgment as a matter of law.” Id. A. Schaar worked as a medical receptionist for Lehigh Valley from December 2002 until her termination on October 3, 2005. Two weeks before she was fired, on September 21, 2005, Schaar was treated for low back pain, fever, nausea and vomiting. Dr. Twaddle, who also worked for Lehigh Valley, diagnosed Schaar with a urinary tract infection, fever and low back pain. His records indicate that Schaar was “comfortable and nontoxic.” Dr. Twaddle placed Schaar on a clear diet and prescribed an anti-inflammatory for her back. He also prescribed an antibiotic for the infection, to be taken once a day for at least three days. During his deposition, Dr. Twaddle testified that the antibiotic should have lowered Schaar’s fever and eliminated her symptoms after a day or two. Nevertheless, Dr. Twaddle testified that it was “possible, although very unlikely” that Schaar would not be fully recovered enough to work after three days. At the end of the visit, Dr. Twaddle wrote a note advising Schaar’s supervisor, office manager Patricia Chromczak, that Schaar’s illness prevented her from working Wednesday, September 21, and Thursday, September 22. In the note, Dr. Twaddle stated Schaar was under his care “for febrile illness and will be unable to perform duties at work today or tomorrow.” Though there is some dispute about what Dr. Twaddle told Schaar, she claims he offered to speak with Chromczak upon her arrival at work. Schaar then taped the note to Chromczak’s door and went home. Schaar did not seek any further treatment with Dr. Twaddle. Consistent with Dr. Twaddle’s note, Schaar took paid sick leave on September 21 and 22 and was in bed with pain, fever and vomiting. As chance would have it, Schaar had previously scheduled vacation days on Friday, September 23 and Monday, September 26. Schaar claims she spent Friday, September 23 in bed because she was still vomiting and nauseous. Although she a felt a little better on Saturday, she spent that day in bed as well. By Sunday, Schaar claims she felt well enough to go to the couch, but was still ill. On Monday, Schaar testified she was well enough to do some housework, and she returned to Lehigh Valley the following day, Tuesday, September 27, 2005. Upon returning to work, Schaar told Chromczak that she had been sick all weekend. Schaar neither requested FMLA leave nor asked Lehigh Valley to convert her two paid vacation days into paid sick days, however. Though their conversation is disputed, Schaar claims Chromczak threatened to fire her for violating the company policy requiring her to call off on her two sick days. When Schaar told Chromczak she thought the policy did not apply because she left a note, Chromczak said she was going to consult with human resources about the next step. After doing so, Chromczak was told that Schaar’s decision to leave a note in lieu of calling off was not a terminable offense. Six days later, on October 3, 2005, Schaar was terminated. In a written explanation, Chromczak stated: “[o]n 9/21/05 Rachael brought a note from her doctor for a 2 day excuse from work. She taped the note to manager’s door and left, never calling off from work.” Chromczak also listed several mistakes and performance issues relating to essential aspects of Schaar’s job, including improperly listing co- payments on bank deposit slips. Schaar had been disciplined in the past for similar issues, including several warnings that culminated in a one-day suspension without pay in October 2004. After the suspension Schaar was again warned to improve within 60 days and that failure to improve would “lead to disciplinary action and/or termination.” B. Schaar sued Lehigh Valley, claiming interference and discrimination in violation of the FMLA, 29 U.S.C. § 2601 et seq.1 In its motion for summary judgment, Lehigh Valley argued Schaar did not qualify for FMLA leave because she failed to establish she was incapacitated for three days and failed to give proper notice that she may qualify for leave. Alternatively, Lehigh Valley argued that it could not be liable because it fired Schaar for violating the call-in policy, not for taking FMLA leave, and because it would have fired her anyway for poor performance. The District Court granted Lehigh Valley’s motion for summary judgment, holding that Schaar did not establish a serious health condition because she failed to present medical evidence that she was incapacitated for more than three days. Schaar v. Lehigh Valley Health Servs., Inc., No. 07-4135, 2009 WL 323140, at *4-*6 (E.D. Pa. Feb. 9, 2009). The District Court reasoned that expert medical testimony is necessary to establish that the incapacity was “due to” the illness. Id. Schaar filed this timely appeal, arguing that the District Court erred in granting summary judgment on her FMLA claims. The District Court had jurisdiction under 28 U.S.C. § 1332 and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. II. Schaar also sued Lehigh Valley’s parent company, Lehigh Valley Health Services, Inc. The purpose of the FMLA is “to balance the demands of the workplace with the needs of families.” 29 U.S.C. § 2601(b)(1). Accordingly, the FMLA “entitle[s] employees to take reasonable leave for medical reasons,” id. § 2601(b)(2), but they must do so “in a manner that accommodates the legitimate interests of employers.” Id. § 2601(b)(3). An eligible employee is entitled “to a total of twelve workweeks of leave during any twelve month period” but only if the employee has a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” Id. § 2612(a)(1)(D). Once an employee is entitled to leave, the FMLA prohibits an employer from interfering with it or retaliating against an employee for taking it. Id. § 2615(a) & (b). The crucial question in this appeal is whether Schaar was entitled to take FMLA leave. To be eligible, Schaar had to be a covered employee working for a covered employer. Id. §§ 2611(2), (4)(A)(i). She also had to suffer from a serious health condition and give her employer adequate notice of her need for FMLA leave. Id. §§ 2612(a)(1)(D), (e)(2)(B). It is undisputed that Schaar was an eligible employee 2 and that Lehigh Valley was a covered employer.3 Lehigh Valley An employee is eligible if she worked for a covered employer for at least 12 months and for at least 1,250 hours during the previous 12 months. 29 U.S.C. § 2611(2). A covered employer is “any person engaged in commerce or in any industry or activity affecting commerce who disputes, however, that Schaar suffered from a “serious health condition” and that she gave adequate notice. The District Court granted Lehigh Valley summary judgment, finding that Schaar did not present a triable issue of fact on a serious health condition, without addressing the question of notice. As relevant to this appeal, the FMLA defines serious health condition as “an illness, injury, impairment, or physical or mental condition that involves . . . continuing treatment by a health care provider.” Id. § 2611(11). A Department of Labor regulation further defines continuing treatment by a health care provider as a “period of incapacity . . . of more than three consecutive calendar days . . . that also involves . . . [t]reatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.” 4 29 C.F.R. § 825.114(a) (2005).5 Incapacity means the “inability to work, attend school or employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.” 29 U.S.C. § 2611(4)(A)(i). Regimen of continuing treatment includes “a course of prescription medication (e.g., an antibiotic).” 29 C.F.R. § 825.114(b). The Department of Labor regulations have since been renumbered. All citations herein are to the regulations as they existed in 2005. perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.” Id. The only issue in dispute is whether Schaar presented evidence that she was incapacitated for more than three days. The District Court held Schaar had to establish more than three days of incapacitation through medical evidence. Because Schaar presented a doctor’s note that established incapacitation for only two days and relied on her own testimony about the remaining days, the District Court granted summary judgment for Lehigh Valley. Although we have not addressed the question presented by this appeal, other courts have adopted three approaches: (1) the evidence of incapacitation must come exclusively from a medical professional; (2) lay testimony, on its own, is sufficient; or (3) lay testimony can supplement medical professional testimony or other medical evidence. Many district courts, including those in the Third Circuit, have held that a health care provider’s professional medical opinion is the only evidence that can establish incapacity. See Schaar, 2009 WL 323140, at *4-*6 (compiling cases). These decisions reason that a medical expert is required to establish that the employee was incapacitated because of the injury or illness. 29 C.F.R. § 825.114(a) (requiring the period of incapacitation be “due to the serious health condition”); Olsen v. Ohio Edison Co., 979 F. Supp. 1159, 1166 (N.D. Ohio 1997) (“It does not mean that, in the employee’s own judgment, he or she should not work . . . . Rather, it means that a ‘health care provider’ has determined that, in his or her professional medical judgment, the employee cannot work (or could not have worked) because of the illness.”). Contrary to the aforementioned district courts, all of the circuit courts of appeals to address the question we now consider have held that lay testimony can create a genuine issue of material fact regarding incapacitation. Lubke v. City of Arlington, 455 F.3d 489, 495-96 (5th Cir. 2006); Rankin v. Seagate Techs., Inc., 246 F.3d 1145, 1148-49 (8th Cir. 2001); Marchisheck v. San Mateo County, 199 F.3d 1068, 1074 (9th Cir. 1999); see also Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 499-500 (7th Cir. 1999) (looking for evidence of incapacitation in the employee’s diary and deposition testimony). Some of our sister circuits have held that lay testimony alone is sufficient to establish incapacitation, while others have held that lay testimony may be used to supplement medical evidence. The Courts of Appeals for the Fifth and Ninth Circuits hold that lay testimony is sufficient, by itself, to establish incapacitation. Lubke, 455 F.3d at 495-96; Marchisheck, 199 F.3d at 1074. The Fifth Circuit has held that expert medical testimony is not “necessary to demonstrate [the employee’s] incapacitation.” Lubke, 455 F.3d at 495-96. The Ninth Circuit has gone even farther, holding lay testimony creates a genuine issue of material fact even when all medical evidence is to the contrary. Marchisheck, 199 F.3d at 1072-75. In Marchisheck, the employee took time off to care for her son. The treating physician said the boy was “feel[ing] remarkably well” and sent him home without any restrictions, id. at 1071, but the boy said he “did not and could not do anything for four or five days.” Id. at 1074. The Ninth Circuit reversed summary judgment, stating: “Notwithstanding the stronger evidence to the contrary, [the boy’s] declaration creates a disputed issue of fact and precludes summary judgment on the issue of ‘incapacity.’” Id. Taking a more restrictive approach than the Fifth and Ninth Circuits, the Eighth Circuit has allowed lay testimony only to supplement incomplete medical evidence. Rankin, 246 F.3d at 1148-49. In Rankin, the employee visited the doctor for a routine check up and discussed her illness with the nurses. Id. at 1146. A week later when the severity became more apparent, she phoned the nurse practitioner complaining of vomiting, coughing, congestion, and sleeplessness and was then examined by the nurse practitioner who diagnosed a viral illness. Id. The employee was prescribed cough suppressants, a decongestant and an inhaler. Id. The Eighth Circuit held that the employee’s testimony, combined with the medical evidence from the nurses and nurse practitioner, created a genuine issue of material fact regarding incapacitation. Id. at 1148-49. III. Our interpretation is guided by the statute and the Department of Labor regulations. Congress vested the Secretary of Labor with the authority to “prescribe such regulations as are necessary to carry out” the FMLA provisions. 29 U.S.C. § 2654. Acting on that authority, the Secretary promulgated a series of regulations.6 29 C.F.R. § 825 et seq. We interpret those regulations using our well-established canons of statutory interpretation. The regulation at issue in this case provides that the ambiguous statutory language “continuing treatment by a health care provider,” 29 U.S.C. § 2611(11)(b), can be satisfied by showing at least three days of incapacitation. 29 C.F.R. § 825.114. This regulation does not speak to whether medical testimony is required. In the very next regulation, however, the Department of Labor requires a “health care provider” to determine that an employee is “unable to perform the functions of the position.” Id. § 825.115. Because the incapacitation regulation does not require, or even mention, a health care provider determination, id. § 825.114, we find no support in the regulations to exclude categorically all lay testimony regarding the length of an employee’s incapacitation. Cf. Jama v. ICE, 543 U.S. 335, 341 (2005) (“We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.”). Contrary to the Fifth and Ninth Circuits, however, we do not find lay testimony, by itself, sufficient to create a genuine As a result, we have held that Chevron deference applies to these regulations, Sommer v. Vanguard Group, 461 F.3d 397, 399 n.2 (3d Cir. 2006), except when they contradict the statute. See Erdman, 582 F.3d at 507. issue of material fact. Some medical evidence is still necessary to show that the incapacitation was “due to” the serious health condition. 29 C.F.R. § 825.114. This does not place an undue burden on employees because they must present some medical evidence anyway to establish the inability to perform the functions of the position. Id. § 825.115. In contrast, allowing unsupported lay testimony would place too heavy a burden on employers to inquire into an employee’s eligibility for FMLA leave based solely on the employee’s self-diagnosed illness. For these reasons, we hold that an employee may satisfy her burden of proving three days of incapacitation through a combination of expert medical and lay testimony. Viewing the facts of this appeal in the light most favorable to Schaar, Dr. Twaddle wrote that Schaar was incapacitated for two days because of her illness. When that expert medical opinion is combined with Schaar’s lay testimony that she was incapacitated for two additional days, it necessarily follows that a material issue of fact exists as to whether Schaar suffered from a “serious health condition.” Of course, we express no opinion as to whether Schaar’s lay testimony regarding her incapacitation is credible and we do not reach the question of the adequacy of her notice because the District Court did not address it. For the reasons explained herein, we will vacate the judgment of the District Court and remand the case for further proceedings.

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 08-3230 _____________ UNITED STATES OF AMERICA, Appellant v. EDWARD STEARN, AKA EXTRA, JOSEPH DOEBLEY, AKA MAXI, and MICHAEL DOEBLEY, AKA MIV, Appellees _____________ On Appeal from the United States District Court for the Eastern District of Pennsylvania Criminal Action 06-00203 District Judge: Honorable Juan R. Sanchez _____________ Argued September 9, 2009 _____________ Before: SCIRICA, Chief Judge, RENDELL and ALDISERT, Circuit Judges (Opinion Filed: March 9, 2010) DAVID J. IGNALL (ARGUED) KATHY A. STARK U.S. Attorney’s Office 615 Chestnut St. Suite 1250 Philadelphia, PA 19106 Attorneys for Appellant ARNOLD C. JOSEPH (ARGUED) JOSEPH & ASSOCIATES 6198 Butler Pike Ste 135 Bluebell, PA 19422 Attorneys for Appellee Edward Stearn ELLIOT M. COHEN (ARGUED) LOUIS T. SAVINO, JR. LOUIS T. SAVINO AND ASSOCIATES Suite 1516 Two Penn Center Plaza 15th and John Fitzgerald Kennedy Boulevard Philadelphia, PA 19102 Attorneys for Appellee Michael Doebley GERALD A. STEIN (ARGUED) 1500 Market Street Suite 2727, Centre Square West Philadelphia, PA 19102-2146 Attorney for Appellee Joseph Doebley _____________ OPINION OF THE COURT _____________ ALDISERT, Circuit Judge. The United States Government appeals the order of the District Court for the Eastern District of Pennsylvania granting in part motions to suppress evidence in favor of Defendants Joseph Doebley, Michael Doebley and Edward Stearn.1 In its memorandum and order, the District Court suppressed evidence seized pursuant to seven warrants because (1) four warrants lacked probable cause and three additional warrants were “fruits of the poisonous tree,” and (2) the warrants’ “bare bones” supporting affidavits rendered inapplicable the Leon exception for “good faith” reliance on a search warrant. See United States The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 18 U.S.C. § 3731. v. Leon, 468 U.S. 897, 926 (1984). Moreover, although the Government objected that each defendant lacked a legitimate expectation of privacy in some of the searches, the District Court suppressed evidence as to each defendant without resolving the Government’s so-called “standing” challenges.2 See Rakas v. Illinois, 439 U.S. 128, 140, 143 (1978). On appeal, the Government contends that the District Court erred in all three respects. Except for the search of 5020 Homestead, from which no evidence was seized,3 we will reverse the District Court’s order At times we will employ the term “standing” as “shorthand for the determination of whether a litigant’s Fourth Amendment rights have been implicated.” See United States v. Mosley, 454 F.3d 249, 253 n.5 (3d Cir. 2006) (citation omitted). We use the term to facilitate reference, but with the understanding that the inquiry actually turns on the presence or absence of the defendant’s legitimate expectation of privacy in the place searched. The Government appeals the District Court’s entire order, which suppressed evidence seized pursuant to the warrant to search 5020 Homestead. But because no evidence was seized at this location, this point is moot. Cf. United States v. Garrett, No. 4:08CR00703, 2009 WL 1086974, at *6 (E.D. Mo. Apr. 22, 2009) (“Because there is no evidence to suppress, defendant’s motion to suppress evidence will be denied, as moot.”); cf. also, e.g., United States v. Taylor, 599 F.2d 832, 837 n.1 (8th Cir. in its entirety. As set forth below, the magistrate judge had a substantial basis for determining that probable cause existed to search 4049 Higbee, the apparent residence of a confirmed drug dealer, and we will uphold the search on that basis. Closer probable cause questions are presented by the searches of 5019 Homestead, 5022 Homestead, 5034 Homestead and 5038 Homestead, which had discernible, but less direct connections to the defendants’ alleged drug activities. Without deciding these probable cause questions, we will uphold each search under the Leon good faith exception, as each warrant was sufficiently colored in probable cause to justify the executing officers’ good faith reliance. Finally, because we reject Stearn’s Fourth Amendment challenge to the search of 5019 Homestead – his only challenge to the property searches – we also reverse the District Court’s suppression of Stearn’s saliva sample as “fruit of the poisonous tree,” as he failed to prove a “primary” invasion of his own Fourth Amendment rights. See United States v. Smith, 522 F.3d 305, 306 n.2 (3d Cir. 2008). Because this appeal requires a considered study of Fourth Amendment precepts – a study driven by complicated facts involving three defendants and warrant-based searches of six residences, a garage and two motor vehicles – our analysis, of necessity, is protracted. 1979); United States v. Franklin, No. CRIM. A. 04-10117RWZ, 2005 WL 2177120, at *1 (D. Mass. Sept. 9, 2005). I. On October 6, 2005, Officer Ryan, a veteran of the Philadelphia Police Department’s narcotics unit, submitted an affidavit in support of search warrants for six locations in Philadelphia, Pennsylvania. Officer Ryan submitted a second affidavit on October 7, 2005, seeking search warrants for additional locations. Because no party presented evidence outside the affidavits themselves, our “factual” discussion is drawn almost entirely from the affidavits.4 (App. 158-160.) A. According to his October 6 affidavit, Officer Ryan received a tip from a confidential informant on September 28, 2005 that implicated Joseph Doebley, Michael Doebley and Edward Stearn in drug distribution crimes in the city of Neither the parties’ briefs nor the Appendix are clear as to the date the warrant issued for Stearn’s blood and/or saliva, and no party furnished us with a copy of the warrant. As far as we can tell, that warrant issued approximately one week after the initial searches and some time after that, a saliva sample was collected from Stearn. Because Stearn sought to suppress his saliva sample only as fruit of the poisonous tree (and made no other argument concerning probable cause), we confine ourselves to the issue whether Stearn’s saliva sample was fruit of the poisonous tree. (See App. 108.) Philadelphia.5 Specifically, the informant told Ryan that Joseph Doebley sells cocaine powder in weight with his brother Michael Doebley and that Edward Stearn was Joseph Doebley’s supplier. (App. 88.) The informant also told Ryan that Joseph Doebley operated his cocaine business from his house on the 4000 block of Higbee Street and a garage on the 4800 block of Comly Street, which he had converted to a gym. According to the informant, Joseph Doebley operated a rust-colored Chevrolet Impala and blue-and-white pickup truck with fancy rims. In the subsequent week, officers corroborated many details of the informant’s tip through investigation and surveillance. On September 28, the day Ryan received the tip, officers located the gym at 4808 Comly and observed a blue- and-white pickup truck with fancy rims parked in the gym’s side yard. Police officers additionally verified that Joseph Doebley was the listed owner of 4808 Comly and learned that Jane Betty Doebley owned 4049 Higbee. That evening, officers observed Joseph Doebley exit 4808 Comly and depart in the Chevrolet In relating the officers’ observations, Officer Ryan’s affidavits sometimes record observations of “Doebley,” without specifying whether Joseph or Michael was observed. On our reading, it appears that officers used the name “Doebley” to refer to Joseph Doebley, and typically referred to Michael Doebley using his full name. Read in context, the affidavits leave almost no doubt as to which Doebley was under observation at any given time. Impala. Soon thereafter, officers watched Doebley sell a 3.5- gram baggie of cocaine, in a controlled buy, from the inside of his Impala. During surveillance on October 4 and 5, police officers confirmed Joseph Doebley’s drug involvement and tracked his movements among several properties in the neighborhood. On October 4, a white male exited 4808 Comly, spoke with Joseph Doebley in the side yard, drove to the intersection of Cheltenham and Hegerman, and completed a sale of approximately 3.5 grams of cocaine from inside his car. The white male returned to 4808 Comly and counted out and delivered currency to Doebley, who entered 4808 Comly and departed after a brief stay. Later that evening, Doebley left 4808 Comly in the blue-and-white pickup truck, and approximately two hours later, arrived at 5038 Homestead. He remained there for two hours. After a brief stop at 4808 Comly, Doebley was next observed as he parked in a rear driveway near 4049 Higbee at approximately 11:50 p.m. He entered the rear yard of 4049 Higbee, which contained a pit bull, and entered the attached garage through a rear door. Police terminated surveillance shortly thereafter, but at 7:15 a.m. the next morning, officers observed that the pickup truck remained parked in the rear of 4049 Higbee. According to the affidavit, property records listed Ruth Nolan as the owner of 5038 Homestead, and listed 4049 Higbee as a co-owner address. The affidavit did not name the co-owner. Police also learned that the water bill for 5038 Homestead was mailed to 4049 Higbee. The affidavit next recounts the officers’ October 5 observations of Joseph and Michael Doebley as they moved among several properties on Homestead Street and the 4808 Comly gym. That afternoon, officers observed Michael Doebley leave 5019 Homestead, drive to 4808 Comly, depart with Joseph Doebley, and arrive at 5019 Homestead, which both men entered. Joseph Doebley then left 5019 Homestead, entered 5022 Homestead and returned to 4808 Comly with an unidentified white male. Joseph Doebley then drove back to Homestead Street and entered 5019 and 5017 Homestead, subsequently using keys to enter both 5022 and 5028 Homestead. Doebley then met with a white female, entered 5030 Homestead and remained there for approximately one hour. Thereafter Doebley returned to 5022 Homestead. According to real estate records, 5019 Homestead was owned by Edward Stearn, who had three prior drug distribution arrests. Michael Doebley had two prior drug distribution arrests. Officer Ryan submitted an affidavit on October 6, alleging that the foregoing facts established probable cause to search 4049 Higbee, 4808 Comly, 5017 Homestead, 5019 Homestead, 5022 Homestead and 5038 Homestead. A judge of the Pennsylvania Court of Common Pleas reviewed the affidavit and issued each of the warrants requested. On October 6, officers executed all warrants, except for the warrant to search 5017 Homestead. (See App. 96.) The results were reported in Officer Ryan’s second affidavit, the details of which follow. B. On October 7, 2005, Officer Ryan submitted a second affidavit seeking warrants to search 5020 Homestead and 5034 Homestead, the rust-colored Chevrolet Impala and the blue-and- white pickup truck. This affidavit incorporated the first affidavit, detailed the results of additional surveillance, and reported the results of the October 6 searches. (App. 95-97.) On the morning of October 6, FBI and IRS agents raided Dangerous Curves Gentlemen’s Club at Homestead Street and State Road, adjacent to the 5000 block of Homestead Street. At 3:15 p.m., a confidential informant arranged another controlled purchase from Joseph Doebley, but the purchase was not consummated. At approximately 3:30 p.m., federal agents left the Gentlemen’s Club, and “[s]hortly after that,” Edward Stearn, Michael Doebley, and one Chris Simon left 5019 Homestead and entered 5020 Homestead. (App. 96.) Thereafter, Michael Doebley entered and exited 5022, 5038 and 5034 Homestead in a short span of time, and he returned to 5022 Homestead. Edward Stearn then departed 5022 Homestead, entered 5019 Homestead, exited carrying clothes and a bag, and entered a black truck. At the same time, Michael Doebley left 5022 Homestead carrying white trash bags and entered a grey Jeep Cherokee. Both vehicles departed at the same time. According to the affidavit, young white males exited 5019 Homestead and 5038 Homestead, and they “fled East bound” with backpacks. (App. 96.) Shortly thereafter, highway patrol units stopped Michael Doebley’s Jeep, detained him, and found large amounts of cash on his person. Officers also pursued Edward Stearn, but lost him. According to the affidavit, officers subsequently executed the warrants for 4049 Higbee, 4808 Comly, 5019 Homestead, 5022 Homestead and 5038 Homestead, but not 5017 Homestead. (App. 96.) At 4049 Higbee, officers found marijuana, packaging material, a firearm and documents in Joseph Doebley’s name. At 5019 Homestead, officers found proof of residence for Edward Stearn, mail for Michael Doebley, bulk cocaine powder, marijuana, pills and U.S. currency. At 5022 Homestead, officers found marijuana and packaging, and may have also found documents for Michael Doebley.6 At 5038 Homestead, officers found an estimated eight kilograms of cocaine in bricks and smaller units, approximately 15 handguns and proof of residence for Michael Doebley. Officers also executed the warrant for 4808 Comly, but nothing was found nor taken. (App. 96.) Pending the application for the additional warrants, officers secured the premises at 5020 Homestead and 5034 Homestead and seized the blue-and-white pickup truck and the According to the affidavit, “Marijuana and packaging was recovered for Michael Doebley.” (App. 96.) Although it appears a typo or omission was made, this may suggest that some type of documents were found for Michael Doebley. rust-colored Chevrolet Impala. (App. 96.) Just before officers secured 5034 Homestead, a white female identified herself as Sophia Beltz and told officers she was the owner. (Id.) When asked for keys to the property, Beltz stated she would not know who had keys, and she told officers that Michael Doebley was the only person inside the property. (App. 96-97.) After reviewing Ryan’s second affidavit, a Philadelphia bail commissioner issued warrants for 5020 Homestead and 5034 Homestead, the pickup truck and the Chevrolet Impala. In the ensuing searches, officers recovered marijuana and grinders from 5034 Homestead, and they found one ounce of cocaine and packaging material in the pickup truck. Nothing was found nor taken from 5020 Homestead or the Chevrolet Impala. (App. 91, 94.) Approximately one week later, Officer Ryan apparently obtained a warrant to collect blood and saliva from all three defendants. (See Appellant’s Br. 18; App. 104.) Although we are not certain of the timeline, saliva was collected from Defendant Stearn sometime after his arrest. II. On April 26, 2006, a federal grand jury charged Joseph Doebley, Michael Doebley and Edward Stearn with federal narcotics and weapons offenses.7 Defendant Joseph Doebley The grand jury returned an indictment, charging Edward Stearn, Joseph Doebley and Michael Doebley with one count filed a motion to suppress evidence seized from 4808 Comly, 4049 Higbee, 5019 Homestead, 5022 Homestead, 5034 Homestead, 5038 Homestead and the blue-and-white pickup truck. Defendant Stearn filed a motion to suppress evidence seized from 5019 Homestead and the saliva sample taken after his arrest. Michael Doebley filed a motion to join and adopt Joseph Doebley’s motion to suppress. (App. 131, 153.) In its consolidated response, the Government argued that the searches were valid under Leon because they were executed in good faith reliance on validly issued warrants. The Government additionally argued that probable cause supported each search, and that in any case, not all defendants had each of conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846; possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1); possession of firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1); and possession of firearms by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The indictment also charged Joseph Doebley with one count of distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1). On September 13, 2006, the grand jury returned a superseding indictment, which added an additional charge against Edward Stearn for possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). “standing” to challenge each of the disputed searches.8 The Government conceded that Fourth Amendment challenges could be maintained by: Joseph Doebley as to 4808 Comly, 4049 Higbee and 5038 Homestead; Michael Doebley as to 5022 Homestead and 5034 Homestead; and Edward Stearn as to 5019 Homestead.9 The Government maintained, however, that each Defendant lacked “standing” to challenge the search of any other premises. A. At the suppression hearing on April 10, 2008, the Government reasserted its “standing” challenges, but suggested that the Court proceed “in the reverse order” and address the Specifically the Government argued that Joseph Doebley lacked a legitimate expectation of privacy in 5019 Homestead, 5022 Homestead, 5034 Homestead and 5038 Homestead. It argued that Michael Doebley lacked a legitimate expectation of privacy in 4049 Higbee, 5019 Homestead, 5022 Homestead, 5038 Homestead or Joseph Doebley’s car. The Government acknowledged that Edward Stearn challenged only the search of 5019 Homestead, “which was his home.” It conceded Stearn’s right to challenge that search. (App. 135.) The Government made these concessions in its briefs, except for the concession that Joseph Doebley had a legitimate expectation of privacy in 5038 Homestead, which was made at the outset of the suppression hearing. (See Appellant’s Br. 74-75; see also App. 135, 156-157.) probable cause issue first. (App. 157.) In the Government’s view, that procedure was more expedient because it would “moot any standing issues” and obviate the need for testimony or proof on “standing.” (App. 157.) The District Court and the defendants agreed, and the hearing proceeded on the issues of probable cause and the Leon good faith exception. Each defendant declined the Court’s invitation to present testimony or evidence outside the affidavits. (App. 158.) Once argument began, neither the parties nor the Court returned to the issue whether each defendant had a legitimate expectation of privacy in each of the properties searched. (App. 164-192.) At the close of argument, the Court took the matter under advisement. On April 25, 2008, the District Court granted in part the defendants’ motions to suppress. See United States v. Stearn, 548 F. Supp. 2d 182, 193-194 (E.D. Pa. 2008). Although the Court acknowledged its duty to accord great deference to the magistrate judge’s probable cause determination, the Court demurred with respect to four of the October 5 warrants, stating: I am unable to find sufficient evidence of probable cause within the four corners of the affidavit to support the search warrants for 4049 Higbee Street, 5022, 5019, and 5038 Homestead Street. The affidavit contains not a shred of evidence regarding the reliability of the “informant,” no exchanges are witnessed in the vicinity of the houses on Homestead or Higbee streets, no buys were made from or near the houses, and no one was seen leaving any of the houses before going to a drug sale. Id. at 192. The Court expressed serious concerns about the informant’s credibility, finding that “the affidavit provides no assertion the officers believed the confidential informant, no history of past cooperation by the informant, no drug buys by the informant, and no inside information supplied by the informant.” Id. at 190. Because the affidavit failed to establish meaningful corroboration, the informant’s tip did not support probable cause that Joseph Doebley, Michael Doebley and Edward Stearn were drug dealers. Id. at 190, 192. In addition, Joseph Doebley’s documented drug transactions afforded probable cause to search the 4808 Comly gym and the two vehicles, but not 4049 Higbee, 5019 Homestead, 5022 Homestead or 5038 Homestead. Id. at 192- 195. The Court observed that because the “only two drug sales documented in the affidavits had . . . a . . . nexus to 4808 Comly Street,” the affidavit established probable cause to search that location. Id. at 193. Likewise, Doebley’s drug sales established probable cause to search the blue-and-white pickup truck because, according to the affidavit, officers observed him driving that vehicle. Id. By contrast, the Court ruled that probable cause did not exist to search the Higbee or Homestead properties because the affidavit failed to connect any of those locations with drug activity. Id. at 192. In so ruling, the Court rejected the Government’s argument that probable cause was established through Whitner and its progeny, which permit a magistrate to infer that a drug dealer is likely to use his home as a “stash house.” Id. at 191 (citing United States v. Whitner, 219 F.3d 289, 292 (3d Cir. 2000)).10 In the Court’s view, that inference was available only where the affidavit suggested large-scale operations or described drug sales in the immediate vicinity of a dealer’s home. Id. (citing Burton, 288 F.3d at 105; Hodge 246 F.3d at 306; Whitner, 219 F.3d at 292). Because Ryan’s affidavit detailed only small drug transactions and revealed no drug sales in the immediate vicinity of the Higbee or Homestead properties, Whitner and its progeny did not support a finding of probable cause. Id. Because it found the affidavit’s defects so severe, the Court perfunctorily declined to apply the Leon “good faith” exception to the exclusionary rule. Id. n.5 (citing Leon, 468 U.S. at 922). In a three-sentence footnote, the Court ruled Leon inapplicable because “the defects in this case were in the affidavits to establish probable cause,” and because those affidavits were “bare bones.” Id. The Court then excluded as fruits of the poisonous tree See also United States v. Burton, 288 F.3d 91, 104 (3d Cir. 2002); United States v. Hodge, 246 F.3d 301, 306 (3d Cir. 2001); United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993). all evidence seized pursuant to the September 6 warrants for 5020 Homestead, 5034 Homestead and Stearn’s saliva sample. Id. at 193-195. All told, the District Court suppressed the evidence seized from 4049 Higbee, 5019 Homestead, 5020 Homestead, 5022 Homestead, 5034 Homestead and 5038 Homestead, as well as Stearn’s saliva sample. (App. 22, 25.) Id. The Court denied suppression only of the evidence found at 4808 Comly and in the blue-and-white pickup truck. Id. Significantly, the Court did not limit its suppression order to those defendants possessing legitimate expectations of privacy in each property, nor did it mention the Government’s so-called “standing” challenges. See id. at 194. Consequently, evidence from all seven searches was suppressed against Joseph Doebley, even though the Government raised serious concerns about his “standing” to challenge the searches of 5019 Homestead, 5022 Homestead, and 5034 Homestead. Further, although Michael Doebley merely joined in Joseph Doebley’s motion to suppress without specifically alleging his own expectation of privacy in the searched properties, evidence from all seven searches was suppressed as to him. In addition, evidence from all seven searches was suppressed as to Edward Stearn, even though he challenged only the warrants for 5019 Homestead and his saliva sample. B. The Government moved for reconsideration of the issues of probable cause, good faith and “standing,” but was rebuffed on all three grounds. See United States v. Stearn, No. 06-203, 2008 WL 2550582, at *1 (E.D. Pa. June 26, 2008). In its order of June 26, 2008, the Court reaffirmed its rejection of the Government’s good faith and probable cause arguments, essentially for the reasons given in its original order. Id. Moreover, although the Court addressed the Government’s “standing” objections, it dismissed them in a three-sentence footnote, stating: The Government also seeks in its brief for reconsideration to argue standing as to each of the Defendants. At oral argument, the Government conceded the standing issue was subservient to the issue of probable cause. Because I find the searches were unreasonable, the evidence will be suppressed as to each of the three Defendants. Id. at *4 n.2. The Government timely appealed, renewing its arguments on “standing,” probable cause and good faith. III. We first address the Government’s argument that the District Court’s suppression order improperly excluded evidence as to defendants who lacked legitimate expectations of privacy in the places searched. Our review is “for clear error as to the underlying factual findings,” and we “exercise[] plenary review of the District Court’s application of the law to those facts.” United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002) (citation omitted). To invoke the Fourth Amendment’s exclusionary rule, a defendant must demonstrate that his own Fourth Amendment rights were violated by the challenged search or seizure. See Rakas, 439 U.S. at 132-134. These rights are violated only if “the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.” Id. at 140. Significantly, a defendant’s Fourth Amendment rights are not violated by the introduction of evidence obtained in violation of a third party’s rights. Id. at 134. Because Fourth Amendment rights are “personal,” id. at 139, the proponent of a motion to suppress “bears the burden of proving not only that the search . . . was illegal, but also that he had a legitimate expectation of privacy in [the place searched].” Rawlings v. Kentucky, 448 U.S. 98, 104 (1980). “The ‘standing’ inquiry, in the Fourth Amendment context, is shorthand for the determination of whether a litigant’s Fourth Amendment rights have been implicated.” Mosley, 454 F.3d at 253 n.5. When the Government conceded each defendant’s “standing” to challenge one or more specified searches, it relieved each defendant of his burden of demonstrating a legitimate expectation of privacy with respect to those specified searches. Indeed, because the legitimate-expectation-of-privacy inquiry is distinct from jurisdictional “standing,” we honor the Government’s express concessions of the rights of each defendant to challenge one or more specified searches.11 As set The Government made its “standing” concessions in the District Court, and has not taken a contrary position on appeal. But because disagreement exists over whether a concession of Fourth Amendment “standing” is valid, we briefly discuss the import of these concessions. Some of our sister Courts of Appeals reject the notion that the government may concede a defendant’s legitimate expectation of privacy in a searched premises. See United States v. Bouffard, 917 F.2d 673, 677 (1st Cir. 1990) (remanding to the district court to conduct a “standing” inquiry, notwithstanding the government’s concession of the defendant’s “standing” in the district court and on appeal, because “there is a clear insufficiency of evidence to demonstrate that the defendant possessed a legitimate expectation of privacy”); see also United States v. Smith, 621 F.2d 483, 489 n.3 (2d Cir. 1980) (“[S]tanding is a question of law and a concession by the Government on a question of law is never binding on this Court. Thus the Government is free to argue the question of Smith’s standing even if it ‘conceded’ it during the proceedings below.” (citation omitted)). Implicit in this view is that the government either does not, or cannot, “waive” its challenge to “standing” by conceding it. See id. In these courts, the government remains free to challenge “standing” even if it conceded that issue below, and a reviewing court may revisit the issue even if no party raises it on appeal. See Bouffard, 917 F.2d at 676; id. at 678 (Toruella, J., dissenting). We believe the better view is that the government may concede a defendant’s Fourth Amendment “standing,” and that in doing so, it waives its right to challenge “standing” on appeal. See United States v. Amuny, 767 F.2d 1113, 1122 (5th Cir. 1985) (holding that the government “forfeited” its opportunity to challenge “standing” on appeal where it conceded “standing” in the district court); see also United States v. Cellitti, 387 F.3d 618, 623 (7th Cir. 2004). Fourth Amendment “standing” is one element of a Fourth Amendment claim, and does not implicate federal jurisdiction. See Rakas, 439 U.S. at 139. Consequently, “standing” can be conceded by the government, and it is also subject to the ordinary rule that an argument not raised in the district court is waived on appeal. See Steagald v. United States, 451 U.S. 204, 209 (1981) (warning that the government can “lose its right” to challenge “standing” “when it has made contrary assertions in the courts below . . . or when it has failed to raise such questions in a timely fashion during the litigation”); Belitskus v. Pizzingrilli, 343 F.3d 632, 645 n.11 (3d Cir. 2003). As here, when the Government concedes “standing” in the district court, it waives its right to make contrary arguments on appeal. Nor are we obligated to revisit the “standing” issue on our own initiative. Contrary to the conclusion of the First Circuit Court of Appeals, we need not ensure that the Government’s forth above, the Government conceded that Fourth Amendment challenges could be maintained by: Joseph Doebley, with respect to 4808 Comly, 4049 Higbee and 5038 Homestead; Michael Doebley with respect to 5022 Homestead and 5034 Homestead; and Edward Stearn with respect to 5019 Homestead. Aside from these concessions, the Government disputed each defendant’s right to challenge all other searches. No defendant established a legitimate expectation of privacy in any other location; in fact, only Joseph Doebley even asserted an expectation of privacy in additional locations. With respect to the defendants and locations for which the Government did not concede a legitimate expectation of privacy, the District Court’s exclusion order plainly ran afoul of black-letter precepts of Fourth A mendment law . Notwithstanding the Government’s well-founded contention that each defendant lacked “standing” for some of the suppression “standing” concessions are supported by “evidence to demonstrate that the defendant possessed a legitimate expectation of privacy.” See Bouffard, 917 F.2d at 677. We believe that view treats Fourth Amendment “standing” as a jurisdictional requirement rather than an element of a Fourth Amendment claim, and we believe it is inconsistent with Rakas. Accordingly, we acknowledge the Government’s select concessions of “standing” in the district court, we deem contrary arguments waived, and we have no need to explore the concessions further. motions, the Court’s first order did not mention, much less analyze, whether each defendant possessed a legitimate expectation of privacy in the places searched. See Rakas, 439 U.S. at 140. Indeed, the Court apparently ordered the exclusion of evidence based on its bare conclusion that the relevant searches were illegal. The Court held: Because I find a number of the searches conducted on October 6, 2005 unreasonable under the Fourth Amendment, I will suppress the evidence seized during those searches. . . . In sum, any evidence seized on warrants issued for 4049 Higbee Street, 5022, 5019, 5038, 5020, and 5034 Homestead street., [sic] as well as the warrant for blood and saliva from Stearn is suppressed. Stearn, 548 F. Supp. 2d at 193-194 (citation and quotation omitted). As the accompanying order made clear, the Court suppressed this evidence as to all three defendants, ignoring Rakas’s directive that courts limit the exclusionary remedy to individuals whose own Fourth Amendment rights have been violated. Rakas, 439 U.S. at 139. For nearly forty years, the Supreme Court has unwaveringly required the proponent of a motion to suppress to “assert[] his own legal rights and interests rather than basing his claim for relief upon the rights of third parties.” E.g., id. at 139. This is black-letter law. Strikingly, the Court’s across-the-board exclusion order suppressed evidence against a defendant who did not even challenge its admissibility. See Stearn, 548 F. Supp. 2d at 194- 195. Indeed, although Edward Stearn challenged only the warrants for 5019 Homestead and his saliva, the District Court’s wholesale suppression of evidence from the other searches foreclosed the Government’s use of that evidence against him as well. (See App. 98-108, 194-195.) The District Court thereby made the exclusionary remedy available to a defendant who did not even challenge a series of searches, much less prove an expectation of privacy therein. This, too, was a fundamental error. We similarly disagree with the District Court’s treatment of the expectation-of-privacy issue in its denial of the Government’s motion to reconsider. In a footnote, the Court explained that its previous order did not resolve the “standing” question because the Government had “conceded” that issue as to all three defendants: The Government also seeks in its brief for reconsideration to argue standing as to each of the Defendants. At oral argument, the Government conceded the standing issue was subservient to the issue of probable cause. Because I find the searches were unreasonable, the evidence will be suppressed as to each of the three Defendants. Stearn,2008 WL 2550582, at *4 n.2. That reading is wrong. In its brief in opposition to the defendants’ motions, the Government conceded the “standing” of each defendant to challenge some searches and properly objected to each defendant’s “standing” to challenge any other search. At the outset of the suppression hearing, the Government told the Court that its position on “standing” was reflected in its opposition papers, but conceded Joseph Doebley’s right to challenge one additional search – the search of 5038 Homestead. (App. 156- 157.) The Government then suggested that the hearing proceed in “reverse order” and that the Court and parties address the “probable cause issues first.” (App. 157.) Quite obviously, the Government’s “reverse order” language reflected its belief that the Court would not need to reach the “standing” issue because it would resolve the probable cause and good faith issues in the Government’s favor. When this did not happen, the Court was obligated to address the “standing” issue anew. It was thus clear error for the Court to conclude that the Government concede” the defendants’ so-called “standing” to challenge all of the disputed searches. We conclude that the District Court erred in ordering the suppression of evidence without regard to the defendants’ ability to demonstrate legitimate expectations of privacy in the locations searched. Although the District Court had discretion to decide the issues of probable cause and good faith first, see United States v. Varlack Ventures, 149 F.3d 212, 216 (3d Cir. 1998), it was required under Rakas to address the defendants’ Fourth Amendment “standing” for the searches it ultimately determined were unreasonable. Its failure to do so was an egregious error. Notwithstanding the District Court’s failure to address the defendants’ so-called “standing” to challenge the searches, we cannot resolve this case on Rakas’s “standing” prong alone. Because we recognize the Government’s express concessions that each defendant had “standing” to challenge one or more searches, this appeal requires us to decide the constitutionality of the searches for which the Government conceded that any defendant had “standing.” In particular, we must decide the constitutional merits of the searches of: 4049 Higbee and 5038 Homestead as to Joseph Doebley; 5022 and 5034 Homestead as to Michael Doebley; and 5019 Homestead as to Edward Stearn. Additionally, we must decide whether the District Court erred in concluding that the warrant for Edward Stearn’s saliva was inadmissible as “fruit of the poisonous tree.” Moreover, because the probable cause and good faith analyses are not defendant- specific, any search we deem to be constitutional will be upheld against all three defendants. By contrast, evidence from an illegal search is suppressed only against the defendants who are able to satisfy Rakas’s “standing” prong. IV. We now consider the Government’s arguments that each search was supported by probable cause, or at the very least, good faith reliance on a validly issued search warrant.A. We exercise plenary review over the District Court’s evaluation of the magistrate’s probable cause determination. United States v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993). By contrast, we conduct only a deferential review of the initial probable cause determination made by the magistrate. Illinois v. Gates, 462 U.S. 213, 236 (1983). This is the same deferential review the District Court should have conducted. Id. at 238-239. The role of a reviewing court is not to decide probable cause de novo, but to determine whether “the magistrate had a substantial basis for concluding that probable cause existed.” Id. at 238 (citation and quotation omitted). As we explained in Jones, [O]ur role is not to make our own assessment as to whether probable cause existed. Rather, we are constrained to determine only whether the affidavit provides a sufficient basis for the decision the magistrate judge actually made. Jones, 994 F.2d at 1057. If a substantial basis exists to support the magistrate’s probable cause finding, we must uphold that finding even if a “different magistrate judge might have found the affidavit insufficient to support a warrant.” Conley, 4 F.3d at 1205. Although we do not merely “rubber stamp a magistrate’s conclusions,” Whitner, 219 F.3d at 296 (citation and quotation omitted), we must heed the Supreme Court’s direction that “doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” Gates, 462 U.S. at 237 n.10 (citation and quotation omitted). Probable cause is a “fluid concept” that “turn[s] on the assessment of probabilities in particular factual contexts.” Id. at 232. When presented with an application for a search warrant, the magistrate must “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 238. Although every affidavit ideally would contain direct evidence linking the crime with the place to be searched, a magistrate may issue a search warrant even without direct evidence. Probable cause can be, and often is, inferred from “the type of crime, the nature of the items sought, the suspect’s opportunity for concealment and normal inferences about where a criminal might hide [evidence].” Jones, 994 F.2d at 1056 (citation and quotation omitted). Because probable cause is a “practical, nontechnical conception,” we are concerned with “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Gates, 462 U.S. at 231 (citation and quotation omitted). 1. The Government argues, and we agree, that the District Court’s probable cause analysis erroneously discounted the reliability of the confidential informant. In the Court’s view, “[t]he affidavit contains not a shred of evidence regarding the reliability of the informant,” and “provides no assertion the officers believed the confidential informant, no history of past cooperation by the informant, no drug buys by the informant, and no inside information supplied by the informant.” Stearn, 548 F. Supp. 2d at 190, 192. On that basis, the Court gave no weight whatsoever to the informant’s tip. This was error. A magistrate may issue a warrant relying primarily or in part upon the statements of a confidential informant, so long as the totality of the circumstances gives rise to probable cause. Before the Supreme Court’s decision in Gates, many courts held under the Aguilar-Spinelli doctrine that an informant’s statements could not furnish probable cause unless the affidavit established both the informant’s “veracity” and his “basis of knowledge.” See Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964). This standard was difficult to meet; as the Gates Court observed, “the veracity of persons supplying anonymous tips is . . . largely unknown, and unknowable,” and consequently, “anonymous tips seldom could survive a rigorous application of either of the Spinelli prongs.” Gates, 462 U.S. at 237. In the Court’s view, “a conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment,” but “a standard that leaves virtually no place for anonymous citizen informants is not.” Id. at 238. When the Gates Court abandoned the two-pronged Aguilar-Spinelli test, it reaffirmed the relevance of an informant’s “veracity” and “reliability” but ruled that “these elements should [not] be understood as entirely separate and independent requirements to be rigidly exacted in every case.” Gates, 462 U.S. at 230. Gates instead instructs that “a deficiency in one [element] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Id. at 233. In particular, Gates endorsed independent “[police] corroboration of details of an informant’s tip” as an important method for establishing a tip’s reliability. Id. at 241. On the facts of Gates, neither “veracity” nor a “basis of knowledge” was apparent from an informant’s anonymous letter advising police that the Gates were drug dealers who stored large quantities of drugs in their home. In relevant part the informant’s tip stated: Most of [their] buys are done in Florida. Sue [Gates, Lance Gates’s] wife drives their car to Florida, where she leaves it to be loaded up with drugs, then Lance flys [sic] down and drives it back. Sue flys [sic] back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over $ 100,000.00 in drugs. Id. at 225. Even so, the Gates Court found probable cause to support a warrant where police investigation verified specific details of the tip. Police investigation confirmed that Lance Gates flew from Chicago to West Palm Beach, Florida on May 5 and checked into a room registered to Susan Gates. The next morning, Lance departed with an unidentified woman, heading toward Chicago in a Mercury bearing the Illinois license plates assigned to the Gates’s Hornet station wagon. When Lance and Susan Gates arrived home twenty-two hours later, police executed warrants to search their car and home. Those searches produced vast quantities of marijuana, weapons and other contraband. The Illinois Supreme Court affirmed the suppression of this evidence, reasoning that even when supplemented by police investigation, the anonymous tip did not meet the two-pronged Aguilar-Spinelli test. Rejecting that test, the Supreme Court upheld the searches, holding that “the judge could rely on the anonymous letter, which had been corroborated in major part by [police] efforts.” Id. at 215. The police corroboration of all of the letter’s predictions about the Gates’ peculiar travel, by plane and car, to and from Florida, “indicated, albeit not with certainty, that the informant’s other assertions also were true.” Id. at 244. This corroboration provided a “substantial basis for crediting the hearsay” because it “reduced the chances of a reckless or prevaricating tale.” Id. at 244-245 (citations and quotations omitted). Even though police investigation corroborated only “seemingly innocent activity,” that activity “became suspicious in light of the initial tip.” Id. at 243 n.13 (citations and quotation omitted). Above all, Gates affirmed “the value of [police] corroboration of details of an informant’s tip” as a viable basis for crediting the hearsay tip of a confidential informant. Id. at 241. As in Gates, the magistrate judge in this case had a “substantial basis for crediting the [informant’s] hearsay” tip because the tip was corroborated in significant part by independent police investigation. Id. at 245 (citations and quotations omitted). As set forth above, the informant alleged that Joseph Doebley sold drugs “in weight” with his brother Michael, and that Edward Stearn was his supplier. Crucially, officers corroborated Joseph Doebley’s drug involvement when they observed the confidential informant consummate a controlled buy of 3.5 grams of cocaine from Joseph Doebley at the intersection of Higbee and Cottage. One week later, officers obtained additional corroboration when they observed a white male depart the Comly gym after speaking with Doebley, sell 3.5 grams of cocaine to another white male, return to 4808 Comly, and count and deliver cash to Joseph Doebley. Just as the informant alleged, both sales were “in weight.” Police investigation additionally confirmed the credibility of the informant’s statement that Joseph Doebley’s cocaine business was operated from a gym on the 4800 block of Comly Street. Consistent with the informant’s allegations, real estate records indicated that Joseph Doebley owned 4808 Comly, and police confirmed that Joseph Doebley had installed a gym at that location. Additionally, police connected 4808 Comly with both of the drug deals documented in the affidavit, as Joseph Doebley left that property before the controlled buy and received proceeds there after the apparent sale through an agent. The informant also demonstrated knowledge of Joseph Doebley’s home and cars. The informant averred that Joseph Doebley maintained a home on the 4000 block of Higbee Street, and that he operated a blue-and-white pickup truck and a rust- colored Impala. Real estate checks revealed that 4049 Higbee was owned by Jane Betty Doebley – an obvious relation of Joseph Doebley – and on October 4 he apparently spent the night there after entering at will. Consistent with the tip, police later observed Joseph Doebley operating each of the vehicles. Likewise, police corroborated elements of the informant’s tip relating to Michael Doebley and Edward Stearn. In particular, the informant told police that Edward Stearn lived on the 5000 block of Homestead, which officers confirmed when they learned that Edward Stearn owned 5019 Homestead. Additionally, police confirmed that Edward Stearn had three prior arrests for possession with intent to distribute. The affidavit reported that Michael Doebley had two such arrests. That information corroborated the informant’s allegations about Michael Doebley and Edward Stearn because “[t]he use of prior arrests . . . is often helpful” to establish probable cause, particularly where “the previous arrest or conviction involves a crime of the same general nature as the one which the warrant is seeking to uncover.” Conley, 4 F.3d at 1207. Officers’ October 5 surveillance additionally corroborated, albeit circumstantially, the informant’s statement that Joseph Doebley, Michael Doebley and Edward Stearn worked together in drug-dealing operations. That afternoon, Stearn’s residence at 5019 Homestead appeared to be a focal point of Joseph and Michael Doebley’s movements among properties on Homestead Street and Higbee Street. Michael Doebley was seen departing 5019 Homestead and driving to 4808 Comly, the location with the strongest nexus to the two documented drug deals. Michael Doebley entered 4808 Comly and left with Joseph Doebley; both men returned to and entered 5019 Homestead. Joseph Doebley then exited 5019 Homestead, entered 5022 Homestead and returned to 4808 Comly with an unidentified white male. Joseph Doebley then returned to Homestead Street and again entered 5019 Homestead; thereafter he entered 5017 Homestead and used keys to enter 5022 Homestead and 5028 Homestead. Although not direct evidence, we find circumstantial corroboration of the informant’s tip in the Doebley brothers’ peculiar shuttling among these properties and their frequent stops at 4808 Comly, which police had linked to two drug deals. We take guidance from Gates, which instructs that “[if] an informant is right about some things, he is more probably right about other facts.” Gates, 462 U.S. at 244 (quoting Spinelli, 393 U.S. at 427 (White, J., concurring)). We therefore find no merit in Edward Stearn’s assertion that the magistrate lacked a substantial basis for crediting the informant’s tip insofar as it suggested that evidence would be found at 5019 Homestead. Contrary to the District Court’s conclusion, the police officers’ corroboration was not insufficient because it related only “innocent details” or details available to the “casual observer.” Id. at 229; Stearn, 2008 WL 2550582, at *3. As an initial matter, Gates recognized that “seemingly innocent activity [might] bec[o]me suspicious in light of the initial tip,” which demonstrably was the case here. Gates, 462 U.S. at 243 n.13 (citations and quotation omitted). Moreover, unlike the wholly innocent behavior observed in Gates, police in this case linked Joseph Doebley with two drug sales and confirmed the informant’s claim that the Comly gym was linked to the defendants’ drug activity. In our view, Michael and Joseph Doebley’s “seemingly innocent” movements among the Comly gym and the homes on Homestead Street (including Edward Stearn’s residence at 5019 Homestead) became suspicious in view of the initial tip and police confirmation that Joseph Doebley sold drugs, sometimes using an agent, and apparently from the Comly gym. In view of the foregoing, we conclude that the magistrate judge had a substantial basis for crediting the informant’s tip, and we defer to his decision to do so. 2. When the crime under investigation is drug distribution, a magistrate may find probable cause to search the target’s residence even without direct evidence that contraband will be found there. In a series of cases beginning with Whitner, 219 F.3d at 298, we recognized that “evidence associated with drug dealing needs to be stored somewhere, and . . . a dealer will have the opportunity to conceal it in his home. After all, a dealer could logically conclude that his residence is the best, and probably the only, location to store items such as records[,] . . . cash, . . . guns, . . . and large quantities of drugs to be sold.” Our subsequent decisions in Hodge and Burton embraced this inference also. See Burton, 288 F.3d at 104 (“[I]t is a reasonable inference to conclude that drug dealers often store evidence of drug crimes in their residences[.]”); Hodge, 246 F.3d at 306 (“It is reasonable to infer that a person involved in drug dealing on such a scale would store evidence of that dealing at his home.”). The Government contends that the District Court erred in declining to apply the inference from Whitner, Hodge, and Burton to find probable cause to search 4049 Higbee and 5038 Homestead (as Joseph Doebley’s residences) and 5019 Homestead (as Stearn’s residence). Although we postpone our discussion of whether these searches were ultimately supported by probable cause, we agree with the Government that the District Court’s refusal to consider these cases resulted from its unduly restrictive parsing of our case law. In its suppression order, the District Court ruled that the inference from Whitner, Hodge and Burton only applied when large quantities of drugs are involved, Whitner, 219 F.3d at 292; when sales are made in the vicinity of the dealers’s [sic] houses, Hodge, 246 F.3d at 306; or when some other recitation in the affidavit support [sic] the inference a large- scale drug operation is involved. Burton, 288 F.3d at 105. None of those factors is present in this affidavit. Stearn, 548 F. Supp. 2d at 192. In its denial of the Government’s motion to reconsider, the District Court clarified its view that the Burton inference applies only where there is no “suggestion that any of the defendants had any other place in which to hide their contraband.” Stearn, 2008 WL 2550582, at *4. Applying that principle, the Court concluded that because the defendants initiated drug deals from the 4808 Comly gym, it was “more reasonable” to infer that the gym was the situs of contraband. Id. at *5. In the Court’s view, the searches violated the Fourth Amendment because the defendants’ homes lacked a “recited nexus to the crimes alleged.” Id. at *5. Although we agree that the Fourth Amendment precludes the search of a home lacking a “nexus” to the alleged crimes, we disagree with the Court’s assessment of what constitutes a nexus sufficient to justify a search. The starting point is that a magistrate judge may infer probable cause from “the type of crime, the nature of the items sought, the suspect’s opportunity for concealment and normal inferences about where a criminal might hide . . . [evidence].” Jones, 994 F.2d at 1056. Proceeding from that premise, Hodge, Whitner and Burton permit the magistrate to infer from “the type of crime,” “nature of the items sought” and the defendant’s “opportunit[ies] for concealment” that a drug dealer in some circumstances may use his home to store evidence associated with drug dealing. Although the District Court’s bright-line rules were based on factual elements present in Whitner, Hodge and Burton, the factual circumstances of those cases do not limit the inferences a detached magistrate is permitted to draw. We understand the District Court’s inclination to read these cases narrowly, but we must reject its attempt to substitute bright-line rules for a more “fluid . . . assessment of probabilities in particular factual contexts.” Gates, 462 U.S. at 232. Gates directs, and we agree, that probable cause is an inquiry “not readily, or even usefully, reduced to a neat set of legal rules.” Id. United States v. Burton, 288 F.3d at 104, the most recent in this line of cases, acknowledged the limits of the Whitner- Hodge inference without resorting to bright-line rules. Although we reaffirmed the “reasonable inference . . . that drug dealers often store evidence of drug crimes in their residences,” we held that “application of this inference is based on evidence supporting three preliminary premises: (1) that the person suspected of drug dealing is actually a drug dealer; (2) that the place to be searched is possessed by, or the domicile of, the dealer; and (3) that the home contains contraband linking it to the dealer’s activities.” Id. Burton answered a question both Whitner and Hodge left open – whether a magistrate judge may infer probable cause to search a defendant’s residence solely from evidence suggesting that the defendant is a drug dealer.12 Whitner did not reach the question “whether the fact that Whitner appears to be a drug dealer is sufficient under the circumstances of this case to conclude that he would be likely to store evidence of his drug dealing at his residence.” Whitner, 219 F.3d at 298. There, the “affidavit offer[ed] an additional important piece of evidence linking the crime to the [] location [to be searched]”: the defendant’s suspicious and deceptive responses to police questioning about his residence, which “logically suggest[ed] that Whitner was storing some evidence of illegal activity at the apartment.” Id. at 298-299. Burton’s third prong answered this question in the negative. In demanding some evidence “that the home contains contraband linking it to the drug dealer’s activities,” we moored our “drug dealer” inferences back to the “practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, at 238; cf. United States v. Savoca, 739 F.2d 220, 224-225 (6th Cir. 1984). We recognized that the search of a drug dealer’s home would be unreasonable if the affidavit suggested no reason to believe contraband would be found there. Thereafter in Hodge, the affidavit also recited a “nexus” between the defendant’s residence and the drug distribution crimes under investigation. We observed that the sheer quantity of crack cocaine possessed by the defendant (one-fourth to one- half of one kilogram) – suggesting large scale operation – gave rise to the inference that the defendant stored evidence at his home. Hodge, 246 F.3d at 306-307.That inference was buttressed by the circumstances that probable cause existed to arrest Hodge and that “Hodge’s home was in the same city where he was to make [a] drug delivery, rendering his home a more likely repository of his drug-related paraphernalia.” Id. at 307. Finally, we held that the magistrate was entitled to “give considerable weight” to the averment of the experienced affiant officer, who detailed his belief that the defendant’s home would likely contain evidence. Id. (citation and quotation omitted) Our case law, from Jones to Burton, suggests many factors that help establish the required nexus between a defendant’s drug-dealing activities and his home. These include: large-scale operations,13 a defendant’s attempts to evade officers’ questions about his address,14 the conclusions of experienced officers “regarding where evidence of a crime is likely to be found,” 15 the proximity of the defendant’s residence to the location of criminal activity,16 probable cause to arrest the defendant on drug-related charges,17 and the tip of a “concerned citizen” that a specific stolen item would be found in the defendant’s residence.18 Contrary to the District Court’s ruling, these factors are not requirements. Nor are these factors exhaustive. We similarly reject the District Court’s assumption that Burton, 288 F.3d at 104; Hodge, 246 F.3d at 306. Burton, 288 F.3d at 104-105; Whitner, 219 F.3d at 298- 299. Hodge, 246 F.3d at 307; see also Burton, 288 F.3d at 104. Hodge, 246 F.3d at 307. Id. Jones, 994 F.2d at 1056-1057. a magistrate may not infer probable cause to search a drug dealer’s residence if the dealer “had any other place in which to hide [his] contraband.” Stearn, 2008 WL 2550582, at *4. As a logical matter, we recognize that a drug dealer’s ready access to “private places” outside his home weakens the inference that his residence is “the best, and probably the only, location to store items.” Whitner, 219 F.3d at 298. But even if another location is an equally likely repository of evidence, a magistrate may infer probable cause to search the drug dealer’s home so long as the affidavit establishes a nexus between the dealer’s home and the crime under investigation. As with the standard probable cause inquiry, a magistrate’s task is simply “to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238. We again reject the District Court’s attempt to limit the “normal inferences [a magistrate may draw] about where a criminal might hide . . . [evidence].” Jones, 994 F.2d at 1056 (citation and quotation omitted). B. The Government contends that even if we agree that some or all of the searches were invalid, we must reverse the District Court’s suppression order because the executing officers were entitled to rely in good faith on the warrants. We note at the outset that the Court’s initial opinion relegated this most critical issue to a three-sentence footnote, and that its second order repackaged the cursory footnote into two conclusory paragraphs. Although we will not here analyze the good faith exception with respect to the individual searches, the District Court’s good faith analysis impels us to review the governing principles. Even if the magistrate judge lacked a sufficient basis for his probable cause determinations, that fact alone does not warrant the “extreme sanction of exclusion.” Leon, 468 U.S. at 926. In Leon, the Supreme Court established the good faith exception to the exclusionary rule, carefully tethering the exclusionary remedy to its overarching policy of “deterring official unlawlessness.” Id. at 907 n.6 (citations and quotations omitted). Balancing the exclusionary remedy’s “substantial costs” against its deterrent “benefits,” Leon held that the exclusionary remedy was not justified where officers act in the “objectively reasonable belief that their conduct d[oes] not violate the Fourth Amendment.” Id. at 918. If an officer obtains a warrant and executes it in good faith, “there is no police illegality and thus nothing to deter.” Id. at 921. Accordingly, a court should not suppress evidence seized under a warrant’s authority, even if that warrant is subsequently invalidated, unless “a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” United States v. Zimmerman, 277 F.3d 426, 436 (3d Cir. 2002) (quoting Leon, 468 U.S. at 922 n.23). Ordinarily, the “mere existence of a warrant . . . suffices to prove that an officer conducted a search in good faith,” and will obviate the need for “any deep inquiry into reasonableness.” Hodge, 246 F.3d at 308 (citing Leon, 468 U.S. at 922 n.23); Leon, 468 U.S. at 922 (citation and quotation omitted). Indeed, we neither expect nor require police to perform complex legal analysis in the field, for they are untrained in the law and are often called to make “hurried judgment[s].” Zimmerman, 277 F.3d at 436 (quoting Leon, 468 U.S. at 922 n.23). In “narrow circumstances,” however, the good faith doctrine is not sufficient to override the warrant’s lack of probable cause.19 We have identified four narrow situations in which an officer’s reliance on a warrant is not reasonable: (1) the magistrate issued the warrant in reliance on a deliberately or recklessly false affidavit; (2) the magistrate abandoned his judicial role and failed to perform his neutral and detached function; (3) the warrant was based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable;” or (4) the warrant was so facially deficient that it Relevant for our purposes, the good faith exception does not apply where the affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923 (citation and quotation omitted); Williams, 3 F.3d at 74 n.4. These are the rare circumstances in which, although a neutral magistrate has found probable cause to search, a lay officer executing the warrant could not reasonably believe that the magistrate was correct. Although few of our cases ultimately condemn officers’ reliance on a warrant as unreasonable, this “exception to the good faith exception” retains vitality in our Court. See Zimmerman, 277 F. 3d at 429; id. at 440 (Alito, J., dissenting). In Zimmerman, child pornography was seized pursuant to a warrant to search for both adult and child pornography, based on an affidavit’s allegation that the defendant had shown adult pornography to a child some six to ten months prior. Id. at 429 (majority opinion). With little difficulty, we determined that no probable cause existed to search for either type of pornography: the affidavit contained no evidence suggesting the defendant possessed child pornography, and information linking the failed to particularize the place to be searched or the things to be seized. Williams, 3 F.3d 69, 74 n.4 (3d Cir. 1993). This case implicates only the third exception to the Leon exception to the exclusionary rule. defendant with adult pornography was stale. Id. at 432-436. We thereafter determined that the face of the warrant “preclude[d] reasonable reliance” because “[a]ny reasonably well-trained officer in the stationhouse shop would recognize [the affidavit] as clearly insufficient.” Id. at 437 (citations and quotations omitted). As we explained, Leon . . . weakened the exclusionary rule, but it did not eviscerate it. Good faith is not a magic lamp for police officers to rub whenever they find themselves in trouble. . . . That aside, the good faith exception requires a sincerely held and objectively reasonable belief that the warrant is based on a valid application of the law to all known facts. The objective standard requires officers to have a reasonable knowledge of what the law prohibits. Zimmerman, 277 F.3d at 437-438 (citations and quotations omitted). To some degree we attribute the District Court’s brusque good faith analysis to its conclusion that the affidavits were woefully insufficient to establish probable cause. Although we ultimately disagree with that conclusion, we do not necessarily view the Court’s truncated good faith analysis as an error separate and apart from its probable cause determinations. Because the probable cause inquiry remains highly relevant to the reasonableness of an officer’s reliance on a warrant, it may be proper in some cases for a court to truncate its good faith analysis if an affidavit is truly “bare bones.” See Leon, 468 U.S. at 926. Notwithstanding the Court’s probable cause conclusion, however, truncation of the good faith analysis was not proper here. As we have explained, the affidavit was a far cry from “bare bones,” as the District Court characterized it. As in Leon, the supporting affidavit implicated the defendants via the tip of “a confidential informant of unproven reliability,” and detailed officers’ subsequent “extensive investigation,” including verification of criminal, real estate and motor registry records, and observations of drug transactions and other activity evocative of drug dealing. Leon, 468 U.S. at 901. Of course, where multiple warrants are supported by a single affidavit, an otherwise detailed affidavit may nevertheless be “bare bones” with respect to some of the warrants sought.20 But that demonstrably was not the case for every warrant the Ryan affidavit sought. To the contrary, Ryan’s affidavit to some See United States v. Mayneng Xiong, No. 07-CR-112, 2007 WL 2703859, at *8 (E.D. Wis. Sept. 14, 2007) (“[O]ften a single affidavit setting forth facts to establish probable cause is submitted to the issuing judge in support of search warrants for several locations involved in one common investigation. In such case, the description of the places to be searched and the items to be seized are individualized and vary based on the location and supporting probable cause.”). degree linked every location with either drug activity or an alleged or confirmed drug dealer. See infra Part IV.C. Without a doubt, this affidavit was not so lacking in probable cause that, without analysis, the District Court could assume that each of the magistrate’s probable cause determinations involved “a mere ratification of the bare conclusions of others.” Gates, 462 U.S. at 239; see Zimmerman, 277 F.3d at 436-437.21 On these facts, we reject the District Court’s categorical approach to the good faith exception; here, a property-by-property analysis was See Gates, 462 U.S. at 239 (characterizing as “bare bones” the affidavit in Nathanson v. United States, 290 U.S. 41, 54 (1933), which stated only that the affiant “‘has cause to suspect and does believe’ that liquor illegally brought into the United States is located on certain premises”); id. (characterizing as bare bones the affidavit in Aguilar, 378 U.S. at 108, which included only “an officer’s statement that ‘[affiants] have received reliable information from a credible person and do believe’ that heroin is stored in a home”); see also, e.g., United States v. Leake, 998 F.2d 1359, 1367 (6th Cir. 1993) (finding “bare bones” an affidavit based on an anonymous tip where the investigating officer merely “posted himself outside the house for only two hours on two nights, where he observed absolutely nothing out of the ordinary”); United States v. Barrington, 806 F.2d 529, 531 (5th Cir. 1986) (characterizing as “bare bones” an affidavit stating “only that Captain Solomon ‘received information from a confidential informant’ who is ‘known to Captain Phil Solomon and has provided information in the past that has led to arrest and convictions’”). required. Additionally, the District Court’s good faith analysis plainly charged the executing officers with a greater knowledge of the law than our precedent requires. Even though the District Court ultimately declined to credit the informant’s tip and declined to apply the Burton inference to Joseph Doebley and Edward Stearn’s residences, it did so only after a detailed analysis of our case law, analysis we neither expect nor require from “nonlawyers in the midst and haste of a criminal investigation.” United States v. Ventresca, 380 U.S. 102, 108 (1965). Given the complexity of the District Court’s probable cause analysis, we find untenable its categorical conclusion that no search could be upheld under the good faith exception. C. We now turn to the question whether the informant’s tip, in conjunction with the evidence adduced by officers in subsequent investigation, afforded the magistrate with a substantial basis for determining probable cause existed to search each of the properties at issue. Mindful of our deferential standard of review, we inquire only whether the magistrate had a substantial basis for determining “there [was] a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238. Thereafter, for those properties for which we determine the magistrate’s probable cause determination lacked a substantial basis, we consider whether evidence from those searches is nevertheless admissible under the Leon good faith exception to the exclusionary rule. 1. 4049 Higbee Street Applying the foregoing principles, we hold that the magistrate had a substantial basis for determining there was a fair probability that contraband would be found at 4049 Higbee. With respect to 4049 Higbee, the affidavit met each of the Burton prongs, justifying the inference that evidence of Joseph Doebley’s drug-dealing activities would be found there. First, the affidavit provided powerful evidence that Joseph Doebley was a drug dealer. As set forth above, the affidavit detailed an informant’s tip that Joseph Doebley was a drug dealer. Police then confirmed Joseph Doebley’s involvement in two drug transactions: a controlled buy and a sale apparently made through an agent. (App. 88.) Second, the affidavit contained ample evidence that 4049 Higbee was Joseph Doebley’s home. The informant’s tip, which we have deemed reliable, averred that Joseph Doebley resided in the 4000 block of Higbee Street. Investigating that tip, police confirmed that an apparent relative of Joseph Doebley owned a home at 4049 Higbee, reasonably suggesting that 4049 Higbee was the home that the informant ascribed to Joseph Doebley. (Id.) Thereafter, while under police surveillance, Joseph Doebley apparently admitted himself into that residence: On October 4, 2005, he parked his blue-and-white pickup truck behind 4049 Higbee, “entered the rear yard of 4049 Higbee that contained a white pit bull,” “opened the rear garage door,” and “entered this location” at approximately 11:50 p.m. Police terminated surveillance at 12:30 a.m., but observed Doebley’s pickup truck parked at the rear of 4049 Higbee at approximately 7:15 a.m. the next morning, suggesting that he remained there overnight. (Id.) This police surveillance, in the context of the informant’s tip that Joseph Doebley lived on the 4000 block of Higbee, leads us to conclude that the affidavit afforded the magistrate with significant, though not conclusive, evidence that Joseph Doebley resided at 4049 Higbee. (Id.) Third, the affidavit suggested a nexus between 4049 Higbee and Joseph Doebley’s drug dealing activities. Principally, the informant’s tip averred that Joseph Doebley sold drugs out of his 4808 Comly gym and his house on Higbee Street. (Id.) Police investigation substantially corroborated the informant’s allegations regarding the Comly gym, suggesting the informant was also correct that Doebley sold drugs out of his Higbee Street home. In addition, Joseph Doebley apparently slept at 4049 Higbee the evening after he collected proceeds from a drug sale, suggesting the possibility that he entered that residence with drugs or drug-sale proceeds on his person. (See id.) The magistrate may have additionally taken judicial notice that 4049 Higbee is a mere half-mile from the location of Joseph Doebley’s September 28 drug sale, made at the intersection of Higbee and Cottage Streets. In fact, that sale occurred almost exactly halfway between the 4808 Comly gym and 4049 Higbee Street, on a virtually direct route.22 Finally, the magistrate may have inferred that 4049 Higbee would contain contraband because the affidavit suggested that it was part of a network of suspiciously titled homes and cars, each connected to at least one of the three defendants. During their investigation, police learned that four properties in the vicinity exhibited a peculiar pattern of co-ownership. From real estate records, police ascertained that 4049 Higbee was listed as a co-owner address for 5038 Homestead, which was owned by Ruth Nolan; 4049 Higbee also received water bills for that address. (Id.) Two other properties were similarly linked: property records showed that 5028 Homestead was owned by Patrick Fox, but listed 5019 Thus this was not a case in which the distance between the defendant’s home and the location of the crime was so great as to render the defendant’s home an implausible repository of evidence. Cf. Savoca, 739 F.2d at 224-225 (declining to apply the normal inference that known bank robbers conceal evidence in private places, because the robbery under investigation occurred more than 2,000 miles from the location searched). Homestead as a co-owner address. (Id. at 89.) That property, in turn, was owned by Edward Stearn, who the informant alleged to be Joseph Doebley’s dealer. (Id. at 88, 89.) In addition, the unusual circumstance that Joseph Doebley appeared to have at-will access to 5017, 5019, 5022, 5028, 5030 and 5038 Homestead reasonably suggested an even more substantial network of collectively or communally owned properties. (Id.) This pattern extended to cars, too. The blue-and-white pickup truck operated by Joseph Doebley was registered not in his own name, but to one Steven Little. (Id. at 88.) The rust-colored Impala operated by Joseph Doebley was registered in his own name, but registration records listed an address in Richboro, Pennsylvania. (Id.) Similarly, the Jeep Grand Cherokee operated by Michael Doebley was registered in his own name, but the address on file was 5019 Homestead – Edward Stearn’s home. (Id. at 89.) From this unusual pattern of home co-ownership, access, and cross-listed addresses, the magistrate judge reasonably may have inferred that the defendants had a stronger connection to the properties and cars than was immediately apparent. The judge may have inferred an intent by the defendants’ to conceal their true addresses. See Burton, 288 F.3d at 104-105; Whitner, 219 F.3d at 298-299 (noting that defendant’s attempted concealment of association with home logically suggests the defendant “was storing some evidence of illegal activity [there] which he did not want the agents to discover”). Alternatively, these facts may have suggested that the defendants deliberately obscured their ownership of the cars and homes at issue, perhaps to avoid criminal forfeiture. Cf. United States v. Tramunti, 513 F.2d 1087, 1102 (2d Cir. 1975) (“Experienced narcotics officers know . . . criminals are aware that cars used to transport narcotics or other contraband, if seized, are generally subject to forfeiture.”). On this score, it would have been helpful if Officer Ryan had furnished his theory as to the import of these circumstances, which police apparently believed to suggest that the defendants owned cars and homes in the names of straws. (See e.g., Grand Jury Indictment ¶ 4-5; App. 53-54.) Even so, the affidavit’s description of these ownership and title irregularities (of which 4049 Higbee was part) lends support to the inference that drugs would be found at 4049 Higbee. That inference, together with the informant’s corroborated tip and 4049 Higbee’s proximity to the Comly gym – the location of the controlled buy – provide a nexus sufficient to suggest “that the [4049 Higbee] home contain[ed] contraband linking it to the dealer’s drug activities.” Burton, 288 F.3d at 104. Because the affidavit contained evidence meeting Burton’s three “preliminary premises,” we hold that a substantial basis existed for the magistrate’s determination that probable cause existed to search 4049 Higbee. “To be sure, ‘it would have been preferable if [Officer Ryan] could have supplied more information linking [4049 Higbee Street] to the criminal activity.’” Hodge 246 F.3d at 307 (quoting Whitner, 219 F.3d at 299). Nevertheless, “the fact remains that he did bring the evidence . . . to a magistrate judge, who determined that there was probable cause to issue the warrant[].” Id. (quoting Jones, 994 F.2d at 1057). In view of the “Fourth Amendment’s strong preference for searches conducted pursuant to a warrant,” we are further persuaded to uphold the search of 4049 Higbee. Id. (quoting Ventresca, 380 U.S. at 108). 2. 5019 Homestead Street & Stearn’s Saliva It is a closer question whether the magistrate had a substantial basis for concluding that the affidavit established probable cause to search Edward Stearn’s home at 5019 Homestead. Though not overwhelming, the affidavit contained circumstantial evidence that Stearn was a drug dealer, raising the inference that contraband would be found in Stearn’s residence. Notwithstanding this “common-sense inference,” Burton directs that probable cause is established only if the affidavit contains evidence that (1) the defendant was a drug dealer, (2) the place to be searched was his home and (3) that home had a nexus to the defendant’s drug activity. In our view, the affidavit adequately supports the second and third “preliminary premises” of Burton. It is a close question, however, whether the affidavit contained adequate evidence to support Burton’s first “preliminary premise” – that Stearn was a drug dealer – to raise the inference that drugs would be stored at his home. Consequently, we will resolve 5019 Homestead under the Leon good faith exception, and we uphold the search on those grounds. The strongest evidence that Stearn was a drug dealer was the confidential informant’s assertion that Stearn was Joseph Doebley’s supplier. (App. 88.) Although the affidavit did not directly corroborate this aspect of the informant’s tip, the informant’s demonstrated accuracy in other regards lends credibility to this assertion. In light of the tip, circumstantial evidence supported the inference that Stearn was a drug dealer, including Joseph and Michael Doebley’s access to 5019 Homestead and its apparent centrality to their October 5 shuttling among Homestead Street properties and the Comly gym. (Id. at 89.) Also relevant were Stearn’s three prior drug distribution arrests and 5019 Homestead’s apparent relationship to 5028 Homestead and Michael Doebley’s vehicle. (Id. at 88- 89.) Indeed, even Stearn’s conspicuous association with Joseph Doebley, a known drug dealer, supports the inference that Stearn was involved in the drug trade. See Burton, 288 F.3d at 104 (quoting Whitner, 219 F.3d at 298). Although Burton does not specify the quanta of evidence required to support each “preliminary premise,” we are mindful that the evidence that Stearn was a drug dealer is weaker than the evidence marshaled against the defendants in Whitner, Hodge, and Burton. In the Whitner affidavit, the affiant stated that the defendant “had been arrested as a result of a controlled delivery of 5.75 pounds of methamphetamine.” Whitner, 219 F.3d at 298. As described in the Hodge affidavit, on an informant’s tip, officers were present at the defendant’s scheduled delivery of crack cocaine; when he saw them, he fled, dropped his drugs near a trash can, and was immediately arrested. Hodge, 246 F.3d at 304. Finally, according to the Burton affidavit, a wired, reliable informant attempted to purchase drugs from a drug dealer under investigation, but inadvertently interrupted an apparently major drug transaction between that dealer and the defendant. Burton, 288 F.3d at 94- 95. We found probable cause to search the defendant’s home based on the informant’s account, officers’ statements that they observed the defendant deposit a plastic bag in his trunk, and our conclusion that the affidavit furnished probable cause that the defendant was a drug dealer. Id. at 104. Here, by contrast, the affidavit did not directly connect Stearn to an actual drug transaction, and did so only through a confidential informant and circumstantial corroboration. Burton, of course, calls only for “evidence supporting [the] preliminary premise[]” that the defendant is a drug dealer, of which we certainly have some. Id. at 104. Additionally, we believe Burton’s second and third prongs are easily met. Indeed, the affidavit indicated that Stearn was 5019 Homestead’s record owner and connected 5019 Homestead to the drug allegations via the informant’s tip, the Doebleys’ apparent at-will access and 5019 Homestead’s peculiar relationship with both 5028 Homestead and Michael Doebley’s Jeep. (App. 89.) But wary of carrying our Burton inference too far, we decline to decide whether “these facts and the inferences to be drawn from them reasonably could lead a magistrate judge to conclude that [Stearn] was involved in the drug trade.” Whitner, 219 F.3d at 298. Because the parties neither briefed nor argued this issue in detail, we will resolve the propriety of the 5019 Homestead search under the good faith exception. Contrary to the District Court’s assertion, the affidavit was not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” either across the board or with respect to 5019 Homestead. Zimmerman, 277 F.3d at 436-437. As set forth above, the affidavit contained evidence on all three prongs of Burton, although evidence on the “drug dealer” prong was weaker than that adduced in Whitner, Hodge and Burton. But even if we determined that the evidence against Stearn was insufficient to invoke Burton, “the officers could not be expected to know that the magistrate judge made an erroneous probable cause determination due to insufficient evidence connecting [Stearn’s] house to drug dealing.” Hodge, 246 F.3d at 309 (citation and quotation omitted). “Indeed, the magistrate judge himself could not know whether this Court would ultimately agree with his determination given the unsettled jurisprudence governing cases of this type.” Id. Accordingly, we conclude that the search of 5019 Homestead “presented a close call. Once the magistrate judge made that call, it was objectively reasonable for the officers to rely on it.” Id. Our decision to uphold the search of 5019 Homestead compels us to reject the District Court’s conclusion that the warrant for the collection of Stearn’s saliva is fruit of the poisonous tree. See Smith, 522 F.3d at 306 n.2 (“In light of the result that we reach here that the seizure and search were lawful, there was no ‘poisonous tree.’”). Because he challenged only the search of 5019 Homestead, it is irrelevant for Stearn whether the warrant for saliva was obtained as a consequence of an illegal entry into another location. See Rakas, 439 U.S. at 134 (“[I]t is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the [exclusionary] rule’s protections.”); Wong Sun v. United States, 371 U.S. 471, 488 (1963) (predicating exclusion of evidence as “fruit of poisonous tree” on the existence of a primary constitutional violation). Because Stearn made no alternative probable cause argument in his motion to suppress, we will reverse the District Court’s suppression of Stearn’s saliva sample. (See App. 107- 108.) 3. 5038 Homestead Street Likewise, we will uphold the search of 5038 Homestead under the Leon good faith exception. Considering the affidavit, the most plausible theory linking 5038 Homestead with drug activity is that it was owned or otherwise possessed by Joseph Doebley. See Burton, 288 F.3d at 104. As with the previous searches, the affidavit contains some evidence on each of Burton’s three preliminary premises. See id. The first prong is easily satisfied; independent police surveillance confirmed that Joseph Doebley was a drug dealer. Although we do not necessarily deem it sufficient for probable cause purposes, the affidavit contained some evidence as to Burton’s second prong. Indeed, the informant alleged that Joseph Doebley lived on Higbee Street, police investigations suggested he resided at 4049 Higbee, and 4049 Higbee was the co-owner address of 5038 Homestead (and received its water bill). In this regard, we believe the magistrate (or executing officers) may also have inferred Joseph Doebley’s ownership interest from the broader network of ownership and title irregularities, described above, of which 5038 Homestead was part. In addition, Joseph Doebley’s autonomous ingress and egress into 5038 Homestead, detailed by the affidavit, suggested that he had some degree of dominion over the property.23 The affidavit recites: “Doebley was observed on State rd and followed onto 5000 Homestead St and observed entering 5038 Homestead St . . . at 9:15pm. At approx. 11:30pm Doebley was observed leaving 5000 Homestead St operating the blue/white pick up truck . . . .” (App. 88.) Because the affidavit generally reported the instances in which the defendants were Finally, although not necessarily sufficient for probable cause, the affidavit also demonstrated a nexus between 5038 Homestead and Joseph Doebley’s drug activities. According to the affidavit, Joseph Doebley spent two hours at 5038 Homestead within four hours of apparently receiving the proceeds of a drug sale from an unidentified white male. (App. 88.) A magistrate reasonably may have inferred that he entered 5038 Homestead in possession of drugs or drug proceeds, which he may have stashed during the two hours he remained inside the dwelling. Additionally, 5038 Homestead is located on the same block as Edward Stearn’s home. According to the informant, whose tip was extensively corroborated by independent police investigation, Edward Stearn is Joseph Doebley’s supplier. We have held that geographic proximity can contribute to a nexus between the crime and the location to be searched. Hodge, 246 F.3d at 307 (“Hodge’s home was in the same city where he was to make the anticipated drug delivery, rendering his home a more likely repository of his drug-related paraphernalia.”) (citation omitted); cf. Jones, 994 F.2d at 1057 (“[A]ll three defendants’ homes were on St. Croix and thus were relatively near the site of the crime, making all of their homes a likely repository for evidence.”). If we were reviewing the facts in the first instance, we are accompanied by third parties, Joseph Doebley likely entered 5038 Homestead alone. unprepared to say that this evidence would satisfy the Burton three-prong test. Nevertheless, we simply cannot say that the officers were unreasonable in relying on the magistrate’s probable cause determination. Critically, the affidavit adduces some evidence for each Burton prong and, of crucial importance, the issuing magistrate made a finding of probable cause. On these facts, we cannot conclude that the affidavit was so egregiously lacking in probable cause that a police officer, untrained in the law, should have declined to execute the warrant. See United States v.$92,422.57, 307 F.3d 137, 146 (3d Cir. 2002). We will reverse the District Court’s suppression of evidence seized from 5038 Homestead. 4. 5022 Homestead Street The search of 5022 Homestead also falls within the good faith exception to the exclusionary rule. Although not overpowering, the affidavit contained some circumstantial evidence suggesting that the defendants, and particularly Joseph Doebley, may have used 5022 Homestead to store drugs and paraphernalia. At approximately 4:45 p.m. on October 5, 2005, police officers observed Michael Doebley leave 5019 Homestead for 4808 Comly. Thereafter, both Doebleys departed 4808 Comly, arrived at the 5000 block of Homestead, and entered 5019 Homestead. Joseph Doebley then left by himself and entered 5022 Homestead. While Joseph Doebley remained inside, an unidentified white male entered 5022 Homestead. Both men departed 5022 Homestead in the white male’s automobile and traveled to 4808 Comly. From there, Doebley drove back in his own car to the 5000 block, and entered 5019, 5017, 5022 (using keys) and 5028 Homestead (using keys). After that, he entered 5030Homestead with an unidentified white female, and then entered 5022 Homestead, remaining there until 8:15 p.m. Without deciding the issue of probable cause, we are confident that the affidavit contained sufficient indicia of probable cause to satisfy the good faith exception to the exclusionary rule. See Zimmerman, 277 F.3d at 436-438. In all, the affidavit demonstrates that Joseph Doebley accessed 5022 Homestead three times during a four-hour period during which the Doebleys entered the Comly gym and five different properties on Homestead. One property – 5019 Homestead – was owned by Edward Stearn, who was alleged by the confidential informant to deal drugs from that residence. Another was 4048 Comly, which was a confirmed situs of Joseph Doebley’s drug activities. On the afternoon in question, both of these properties were accessed multiple times, as was 5022 Homestead. In addition, the affidavit suggests that Joseph Doebley exercised some degree of control over 5022 Homestead. His repeated entries were apparently at-will, he appeared to receive another individual at the property, and on at least one occasion, he entered with a key. As discussed with respect to 5038 Homestead, this evidence potentially raises the Burton inference that Doebley used 5022 to store drugs and paraphernalia. See Burton, 288 F.3d at 104. Without deciding whether these circumstances meet the three prongs of Burton, we believe a police officer would be warranted in believing that the magistrate’s probable cause determination rested on the Burton inference. Because the warrant to search 5022 Homestead was supported by much more than a “bare bones” assertion that evidence would be found there, we will uphold that search under the good faith exception. 5. 5034 Homestead Street The District Court suppressed evidence from 5034 Homestead as fruit of the poisonous tree because it was a product of Ryan’s second affidavit, which detailed the returns on four searches the Court deemed unconstitutional. See Stearn, 548 F. Supp. 2d at 193. But because we uphold those searches, the warrant to search 5034 Homestead Street cannot be said to exploit a primary invasion of any defendant’s Fourth Amendment rights, and is not fruit of the poisonous tree. See Smith, 522 F.3d at 306 n.2. Our inquiry, therefore, is whether Ryan’s second affidavit afforded the issuing bail commissioner with a substantial basis for finding probable cause, or whether the good faith exception applies. Without deciding the close question of probable cause, we will uphold the search of 5034 Homestead under the Leon good faith exception. The second affidavit put before the bail commissioner compelling evidence that Stearn and the Doebleys were large- scale drug dealers who maintained a network of stash houses. The search of 5019 Homestead produced proof of residence for Edward Stearn, bulk cocaine powder, money, pills, marijuana, and mail for Michael Doebley. (App. 96.) The search of 5038 Homestead produced eight kilograms of cocaine, fifteen handguns, and “proof of residence for Michael Doebley.” (App. 96.) The search of 5022 Homestead produced marijuana and packaging. (App. 96.) The search of 4049 Higbee produced a firearm, marijuana, packaging paraphernalia and documents for Joseph Doebley. (App. 96.) The vast quantities of drugs, firearms, and packing equipment, combined with the documents for Michael Doebley found at 5019 Homestead and 5038 Homestead, further corroborated the informant’s tip that the three defendants were part of one drug-dealing enterprise. In addition, this evidence suggested the defendants were using houses on Homestead Street to store drugs and paraphernalia. A plausible inference is that on October 5, when the Doebleys accessed and entered a number of Homestead properties, they were actually moving through properties they used as stash houses. Although evidence linking 5034 Homestead with the defendants’ drug activity is not overwhelming, it is more than colorable. Officers did not see any defendant enter 5034 Homestead until just before the first set of warrants was executed on October 6 when Michael Doebley and Edward Stearn apparently fled from Homestead Street. (App. 96.) After a federal raid on a nearby establishment, Michael Doebley left 5019 Homestead (with Stearn) and went to 5022 Homestead, and then to 5038 Homestead. (Id.) Afterward, he entered 5034 Homestead and returned to 5022 Homestead, and then both he and Stearn departed from Homestead Street after loading bags into their respective vehicles. (Id.) Although grudgingly, even the District Court conceded that a magistrate might have inferred “flight by the suspects from Homestead Street.” Stearn, 548 F. Supp. 2d at 191. With that inference in mind, we believe Michael Doebley’s pre-flight stop at 5034 Homestead, together with the incriminating fruits of the other Homestead Street searches, support the inference that 5034 Homestead would also contain drugs and paraphernalia. That inference is even more plausible given the affidavit’s later suggestion that Michael Doebley had a possessory interest in 5034 Homestead. According to the affidavit, as officers were preparing to secure 5034 Homestead pending application for a warrant, one Sophia Beltz identified herself as the owner of the property. (App. 96.) When asked for keys, she said that she wouldn’t know who had keys, and that the only person who is in the property is Michael Doebley.24 Because the affidavit earlier indicated that Michael Doebley was detained after departing Homestead Street, a magistrate may have reasonably construed Beltz’s statement to suggest Michael Doebley was the possessor of 5034 Homestead. This of course would strengthen the inference that he stored drugs there. See Burton, 288 F.3d at 104. Without deciding whether this nexus is sufficient for probable cause, we easily uphold this search under the Leon good faith exception. On these facts it is plain that the warrant was not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Zimmerman, 277 F.3d at 436-437; see Leon, 468 U.S. at 923. We will uphold this search under the good faith exception to the exclusionary rule. Conclusion Because the searches of 5019 Homestead, 5022 The affidavit recites: “5034 Homestead was about to be secured by P/O Nicoletti #4620 when a W/F who ID herself as Sophia Beltz said she was the owner. Beltz was asked for keys ands [sic] stated she wouldn’t know who had keys but the only person who is in the property is Michael Doebley.” (App. 96.) Homestead, 5034 Homestead, 5038 Homestead and 4049 Higbee did not violate the Fourth Amendment, evidence seized from those searches shall not be suppressed as to any defendant. Except for 5020 Homestead, from which no evidence was seized, we will reverse the District Court’s suppression order in its entirety, all in accordance with the foregoing. :

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 09-1997 ___________ STACIE BYERS and DEBORAH A. SELTZER, individually and on behalf of all others similarly situated Appellants v. INTUIT, INC.; H&R BLOCK DIGITAL TAX SOLUTIONS, LLC; and FREE FILE ALLIANCE, LLC, each individually and on behalf of all others similarly situated; THE INTERNAL REVENUE SERVICE _______ Appeal from the United States District Court for the Eastern District of Pennsylvania (No. 07-4753) District Court Judge: Honorable Thomas N. O’Neill, Jr. ________ Argued November 9, 2009 Before: AMBRO, GARTH and ROTH, Circuit Judges (Opinion Filed: March 3, 2010) Thomas Martin, Esquire (Argued) Alan M. Feldman, Esquire Thomas More Marrone, Esquire Feldman, Shepherd, Wohlgelernter, Tanner, Weinstock & Dodig 1845 Walnut Street, 25th Floor Philadelphia, Pennsylvania 19103 Counsel for Appellants Judith A. Hagley, Esquire (Argued) Jonathan S. Cohen, Esquire Gilbert S. Rothenberg, Esquire Tax Division Department of Justice 950 Pennsylvania Avenue, N.W. P.O. Box 502 Washington, D.C. 20044 Counsel for Appellee Internal Revenue Service Stephen M. Ryan, Esquire (Argued) Jason A. Levine, Esquire Rahul Rao, Esquire Paul M. Thompson, Esquire McDermott Will & Emery LLP 600 13th Street, N.W. Washington, D.C. Counsel for Appellee Free File Alliance, LLC, et al. Aaron B. Hewitt, Esq. Scott A. Stempel, Esq. Morgan Lewis & Bockius 1111 Pennsylvania Avenue, N.W. Suite 800 North Washington DC 20004 Jami W. McKeon, Esq. Morgan Lewis & Bockius One Market Street Spear Street Tower San Francisco, CA 94105 Patrick A Particelli, III, Esq. Morgan, Lewis & Bockius 1701 Market Street Philadelphia PA 19103 Counsel for Appellee Intuit Inc. Laurence Z. Shiekman, Esq. Larry R. Wood, Jr., Esq. Pepper Hamilton 18 th & Arch Streets 3000 Two Logan Square Philadelphia PA 19103 Counsel for Appellee H& R Block Digital Tax Solutions,LLC. ___________ OPINION ___________ GARTH, Circuit Judge: This appeal arises out of the District Court’s dismissal of a putative class action brought by Plaintiff-Appellants Stacie Byers and Deborah A. Seltzer against Intuit, Inc., H&R Block Digital Tax Solutions LLC, Free File Alliance, LLC, and the Internal Revenue Service. We will affirm. I. A. In 1998, Congress passed the Internal Revenue Service Restructuring and Reform Act, Pub. L. No. 105-206, Title II, 112 Stat. 723 (1998) (“RRA”). The RRA states, in pertinent part, that “[i]t is the policy of Congress that paperless filing should be the preferred and most convenient means of filing Federal tax and information returns,” and consequently that “it should be the goal of the Internal Revenue Service to have at least 80 percent of all such returns filed electronically by the year 2007.” Id. at § 2001(a). Rather than ordering the IRS to develop its own internal electronic filing system in order to achieve this goal, Congress mandated that the IRS “should cooperate with and encourage the private sector by encouraging competition to increase electronic filing of such returns,” id., and to “establish a plan to eliminate barriers, provide incentives, and use competitive market forces to increase electronic filing gradually over the next 10 years....” Id. at § 2001(b). In response, the IRS initiated the Free File Program, pursuant to which it entered into an agreement in October 2002 (“2002 Agreement”) with Free File Alliance, LLC (“FFA”), a consortium of companies in the electronic tax preparation and filing industry. The 2002 Agreement provided that the individual companies comprising FFA would offer free electronic filing (“e-filing”) services to at least 60% of taxpayers, but it did not set an upper limit as to the percentage of taxpayers who could be offered free e-filing services. The 2002 Agreement expired after three years, and in 2005 the IRS and FFA entered into a new agreement (“2005 Agreement”) wherein they agreed to extend the provisions of the initial agreement, subject to certain amendments. For example, in contrast to the 2002 Agreement, the 2005 Agreement limited the percentage of taxpayers eligible to receive free e-filing services from FFA to the 70% of taxpaying population with the lowest adjusted gross income. In addition, the 2005 Agreement imposed a cap on the amount of free e-filing services available from any individual FFA member at 50% of all taxpayers. These provisions (referred to hereinafter as the “Ceiling Provisions”) were inserted by the IRS in order to ensure the continuing vitality of the Free File Program, which the IRS feared might otherwise cause many e-filing vendors to go out of business, thereby frustrating the program’s ultimate goals. See Transcript of Oral Argument at 21-22, Byers v. Intuit, Inc., No. 09-1997 (3d Cir. Nov. 17, 2009). B. In November 2007, Stacie Byers initiated a putative class action on behalf of U.S. taxpayers against FFA and its members (collectively referred to hereinafter as the “FFA Members”), alleging that in charging fees in exchange for providing e-filing services, the FFA Members violated the Independent Offices Appropriations Act, 31 U.S.C. § 9701 (“IOAA”).1 Byers The IOAA provides: (a) It is the sense of Congress that each service or thing of value provided by an agency (except a mixed ownership Government corporation) to a person (except a person on official business of the United States Government) is to be self-sustaining to the extent possible. (b) The head of each agency (except a mixed ownership Government corporation) may prescribe regulations establishing the charge for a service or thing of value provided by the agency. Regulations prescribed by the heads of executive agencies are subject to policies subsequently filed a first amended complaint that (1) added named plaintiff Deborah Seltzer, (2) added the IRS as a defendant with respect to the IOAA claim, and (3) added a claim under Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, against the FFA Members, alleging that the 2005 Agreement constituted an illegal horizontal agreement amongst the FFA prescribed by the President and shall be as uniform as practicable. Each charge shall be – (1) fair; and (2) based on – (A) the costs to the Government (B) the value of the service or thing to the recipient; (C) public policy or interest served; and (D) other relevant facts. (c) This section does not affect a law of the United States – (1) prohibiting the determination and collection of charges and the disposition of those charges; and (2) prescribing bases for determining charges, but a charge may be redetermined under this section consistent with the prescribed bases. Members to restrict output, which had the effect of causing plaintiffs and the members of the proposed class to pay “supracompetitive prices” for e-filing and related services. On May 28, 2008, the District Court issued a memorandum and order dismissing the IOAA claim with prejudice pursuant to Fed. R. Civ. P. 12(b)(6),2 and dismissing the Sherman Act claim with leave to amend. With respect to the IOAA claim, the District Court held that: (1) the IOAA does not apply to the FFA Members, since it only applies to a government agency or a private entity tasked with performing an agency’s statutory duty; and (2) the IOAA does not provide a private right of action.3 In its May 28, 2008 memorandum and order, the District Court dismissed the IOAA claim only with respect to FFA, but not with respect to the IRS, which had not yet completed its briefing. The IOAA claim against the IRS was subsequently dismissed in an order dated March 19, 2009. Byers argued before the District Court that her IOAA claim should in fact be construed as a claim seeking equitable remedies under the Administrative Procedure Act, 5 U.S.C. § 702 (“APA”). The District Court rejected that argument, stating “I believe that Count I of the First Amended Complaint is more naturally read as asserting a claim under the IOAA, not the APA.” App. at 77 n.66. Nonetheless, the District Court held that, to the extent that Byers did assert claim under the APA, “I conclude that [Byers] cannot sue the [FFA Members] under the APA, because they are not ‘agencies’ within the meaning of the APA.” App. at 77. With respect to the Sherman Act claim, the District Court held that although the Ceiling Provisions of the 2005 Agreement do have the effect of restricting competition between the FFA Members in violation of the Sherman Act, the FFA Members are entitled to conduct-based implied antitrust immunity and are therefore shielded from antitrust liability, since their anti- competitive behavior was required by the IRS pursuant to the 2005 Agreement. In so holding, however, the District Court noted that it may be possible for Byers 4 to allege facts triggering the exception to conduct-based implied antitrust immunity articulated by the Supreme Court in Otter Tail Power Co. v. United States, 410 U.S. 366, 378-79 (1973), and thereby reinstate the viability of Byers’ Sherman Act claim against the FFA Members. As such, the District Court dismissed Byers’ Sherman Act claim with leave to amend. Byers filed a second amended complaint, which contained all of the allegations present in her first amended complaint as well as several paragraphs intended to invoke the Otter Tail exception mentioned by the District Court. Nevertheless, on March 18, 2009, the District Court issued an order dismissing Byers’ Sherman Act claim with prejudice pursuant to Rule 12(b)(6), holding that Byers had failed to assert sufficient allegations to invoke the Otter Tail exception, and For the sake of convenience, “Byers” will hereinafter be used to refer collectively to named plaintiff-appellants Stacie Byers and Deborah Seltzer, as well the putative class they purport to represent. therefore that her Sherman Act claim fails due to the conduct- based implied antitrust immunity shielding the FFA Members. On the following day, March 19, 2009, the District Court issued an order dismissing Byers’ IOAA claim against the IRS for the same reasons that it dismissed her IOAA claim against the FFA Members. Byers timely appealed the District Court’s dismissal of her IOAA claims against the FFA Members and the IRS, as well as the District Court’s dismissal of her Sherman Act claim against the FFA Members.5 II. “Our standard of review of the District Court’s dismissal under Rule 12(b)(6) is plenary.” Lora-Pena v. F.B.I., 529 F.3d 503, 505 (3d Cir. 2008). We “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Grammar v. John J. Kane Reg’l Ctrs.– Glen Hazel, 570 F.3d 520, 523 (3d Cir. 2009). In addition, While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more The District Court had jurisdiction pursuant to: 28 U.S.C. §§ 1331, 1332, 1337(a), 1346(a)(2), and 1361, and 15 U.S.C. §§ 1, 15, and 26. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations, quotation marks and alterations omitted). A. IOAA Claim (1) IOAA Claim against FFA Members The District Court dismissed Byers’ IOAA claim against the FFA Members on two independent grounds, holding that: (1) the IOAA does not apply to the FFA Members; and (2) there is no express or implied private right of action under the IOAA.6 Because the District Court was correct in holding that the IOAA does not apply to the FFA Members, we will affirm its dismissal of the IOAA claim on that ground, and need not reach the issue of whether a private right of action exists under the IOAA. The IOAA provides, in pertinent part, that “[t]he head of each agency . . . may prescribe regulations establishing the charge for a service or thing of value provided by the agency.” 31 U.S.C. §9701(b) (emphasis added). From the plain language As noted above, see supra n.3, to the extent that Byers’ IOAA claim against the FFA Members was asserted under the APA, the District Court held that such a claim fails because the APA does not apply to the FFA Members, who are not “agencies” within the meaning of the APA. of the statute, it is evident that the IOAA applies only to entities that are considered to be an “agency” under the statute. In Title 31 of the United States Code, the term “agency” is defined as “a department, agency, or instrumentality of the United States Government.” 31 U.S.C. § 101. The FFA Members, who are wholly private entities, clearly do not fit within this definition, and thus the IOAA is facially inapposite. However, Byers argues that the IOAA’s reach extends not only to services provided directly by a government “agency,” but also to private entities who provide services on behalf of a government agency pursuant to an agreement with that agency. Accordingly, Byers asserts that since the FFA Members provided e-filing services pursuant to agreements with the IRS—which is clearly an “agency” for IOAA purposes—the IOAA therefore applies to the fees that the FFA Members charged for e-filing services provided to taxpayers. In support of her position, Byers relies primarily on Thomas v. Network Solutions, Inc., 176 F.3d 500 (D.C. Cir. 1999). In Thomas, the D.C. Circuit held that while the IOAA traditionally applies only to services provided directly by government agencies, “[g]overnment agencies cannot escape responsibility for failing to perform their statutory duties by hiring private parties to perform those duties,” and thus, under certain circumstances, the IOAA’s reach may be extended to encompass private entities as well. Id. at 510. Under Thomas, the IOAA applies to a private entity providing services pursuant to an agreement with a government agency, but only if: (1) the services provided by the private entity are services that the agency is statutorily required to provide; (2) the agency effectively controlled the private entity’s provision of the services at issue; or (3) the services provided by the private entity are “quintessential government service[s].” Id. at 510-11. Exception (1) – Services Provided by the Private Entity are Services that the Agency is Statutorily Required to Provide Byers argues that since the FFA Members were tasked with performing the IRS’s statutory duty, this case falls under Thomas exception (1), and the IOAA therefore applies. We cannot accept Byers’ argument since she erroneously conflates the statutory duty delegated to the IRS—i.e., collecting and processing tax returns—with the services provided by the FFA Members—i.e., preparing and filing the returns. 26 U.S.C. §§ 6011 and 6091 make clear that the filing of tax returns is the sole responsibility of the private individual or entity who is making the filing. Moreover, while §6011(f) provides that “[t]he Secretary is authorized to promote the benefits of and encourage the use of electronic tax administration programs,” nowhere does it state that the IRS is obligated to assist taxpayers with the filing—electronic or otherwise—of their tax returns. Rather, the text merely provides that “a return...shall be made to the Secretary . . . .” Id. at §6091(b)(1)(A) (emphasis added). The Secretary—and by extension, the IRS—has no statutory duty with respect to the preparation or filing of tax returns. Rather, the IRS’s obligations begin only after the tax return is actually “return[ed] . . . to the Secretary,” id., which triggers the IRS’s statutory mandate to review the return and assess the proper taxes as dictated by the Internal Revenue Code. Id. at §6201. The FFA Members, in offering e-filing services to the public, do not perform any of the tasks statutorily assigned to the IRS, but rather serve the very same private-sector functions as accountants (who aid with preparation of returns) and delivery services such as Federal Express (which aid with the filing of returns). As such, Byers has failed to state a viable IOAA claim under Thomas exception (1). Exception (2) – The Agency Effectively Controlled the Private Entity’s Provision of the Services At Issue With respect to Thomas exception (2), Byers cannot sustain an argument that the IRS effectively controlled the conduct of the FFA Members, since Byers herself acknowledges that despite the FFA Members’ agreement with the IRS, they were free to charge whatever they saw fit for their e-filing services. See Brief for Appellants at 32. Moreover, the plain language of the record indicates that the relationship between the IRS and the FFA Members was cooperative and bilateral in nature, with neither party exercising “effective control” over the other.7 For example, while Article V.A. of the 2002 Agreement states that “[t]he IRS will host and maintain the Web Page,” Article V.C. of the same Agreement provides that “[t]axpayers will be able to use [FFA Members]’ software to prepare and electronically file their own personal income returns using proprietary processes and systems which such Participants host and maintain.” App. at 226. These two provisions illustrate the co-dependent nature of the Agreements, and belie any argument Exception (3) – The Services Provided by the Private Entity are Quintessential Government Services Nor does Thomas exception (3) support Byers’ argument. The services offered by the FFA Members—i.e., the preparation and filing of tax returns—are activities that have always been the province of the private sector. Indeed, rather than providing a “quintessential government service,” the FFA Members in fact provide a quintessentially private-sector service. Accord H.R. Rep. No. 107-575, p. 38 (2002) (“[T]he IRS stated that it did not intend to enter into the tax preparation software business; instead it intended to work in partnership with [private] industry to expand the electronic filing of tax returns . . . . The Committee strongly believes in the [private] industry-IRS partnership concept . . .”). * * * Since the IOAA is facially inapplicable to the FFA Members, and none of the Thomas exceptions apply, the District Court was correct in dismissing Byers’ IOAA claim against the FFA Members pursuant to Rule 12(b)(6) on the ground that the IOAA does not apply to those entities.8 by Byers that, under the Agreements, the IRS effectively controlled the FFA Members. Since we will affirm the District Court’s dismissal on this ground, we need not reach the questions of whether the service provided by the FFA Members constitutes a “service or thing of value” under the IOAA, or whether a private right of action exists under the IOAA or the APA. (2) IOAA claim against IRS Byers’ IOAA claim against the IRS is identical to Byers’ claim asserted against the FFA Members. Since, as we note above, the e-filing services at issue in this case are quintessentially private-sector services, and the IRS is a quintessential government agency, the IOAA does not apply to this claim. See supra § II(A)(1). Moreover, neither are the Thomas exceptions, discussed in that section, applicable. The IRS did not exercise control—effective or otherwise—over the provision of those services, and accordingly, the IOAA claim against the IRS fails as a matter of law. The District Court did not err in dismissing the IOAA claim against the IRS pursuant to Fed. R. Civ. P. 12(b)(6). B. Sherman Act claim The District Court dismissed Byers’ Sherman Act claim against the FFA Members pursuant to Rule 12(b)(6) on the ground that Byers failed to assert sufficient allegations to establish that the FFA Members are not shielded from her Sherman Act claims under the doctrine of conduct-based implied antitrust immunity. Byers argues that the District Court erred in (1) holding that the FFA Members are entitled to conduct-based implied antitrust immunity, and (2) holding that Byers had failed to assert sufficient allegations in her second amended complaint to invoke the Otter Tail exception. (1) Conduct-Based Implied Antitrust Immunity Byers submits that conduct-based implied antitrust immunity is accorded to private parties only when the private parties are: (1) acting at the direction of a government agency; and (2) providing a “government service.” Br. for Appellants at 44-46. Thus, argues Byers, if the District Court were indeed correct in holding that the IOAA does not apply to the FFA Members pursuant to Thomas because they were not providing a “quintessential government service,” it must necessarily follow that the FFA Members are not entitled to implied antitrust immunity. In essence, Byers complains that the FFA Members cannot “have their cake and eat it too”—if they lose on the IOAA issue, they must win on the antitrust immunity issue—and therefore cannot emerge victorious on both counts. Byers’ logic, however, is fatally flawed in that she fails to cite any authority for the proposition that implied antitrust immunity is available to private entities only when the service being provided is “governmental” in nature. Indeed, as the FFA Members note, “[t]he cases in this area demonstrate that [in order to trigger implied antitrust immunity,] the specific nature of a private entity’s conduct need not be the provision of a ‘governmental’ function, provided the conduct is directed by a federal agency, pursuant to a defined government program or policy.” Joint Opening Brief of Appellees Intuit, Inc., H&R Block Tax Digital Solutions, Inc., and Free File Alliance LLC at 46, (“Br. of FFA Members”) (second and third emphases added).9 Such immunity is provided to a private party acting See, e.g., Jes Properties, Inc. v. USA Equestrian, Inc., 458 F.3d 1224 (11th Cir. 2006) (antitrust immunity accorded to private entities who, pursuant to statutory authority, engaged in the non-governmental activity of regulating equestrian competitions); Name.Space, Inc. v. Network Solutions, Inc., 202 anti-competitively pursuant to an agreement with a government agency when: (1) the government agency is acting pursuant to a clearly defined policy or program; and (2) the private party is acting at the direction or consent of the government agency. Whether the particular activity in question is of a private or governmental nature is immaterial to the analysis. It is clear that the IRS was statutorily authorized to enter into the 2002 and 2005 Agreements pursuant to the RRA. See RRA §2001(a) (mandating that the IRS “should cooperate with and encourage the private sector” to increase e-filing). In addition, the Ceiling Provisions in the 2005 Agreement expressly directed the FFA Members to restrict the availability of free e-filing services under the Free File Program.10 F.3d 573 (2d Cir. 2000) (antitrust immunity accorded to private entity that was compelled by government agency to engage in the non-governmental service of overseeing distribution and management of internet “domain names”); Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285 (9th Cir. 1985) (implied antitrust immunity accorded to private entity that engaged in non-governmental service of selling specified merchandise to travelers at an airport); Champaign-Urbana News Agency, Inc. v. J.L. Cummins News Co., Inc., 632 F.2d 680 (7th Cir. 1980) (antitrust immunity accorded to distributor engaged in private activity of selling books and magazines to the Army and Air Force Exchange Service). As explained above, see supra § I(A), the Ceiling Provisions included in the 2005 Agreement provided that: (1) only the 70% of the taxpaying population with the lowest Since both prongs (1) and (2) of the standard set forth above are satisfied, we conclude that the FFA Members are entitled to conduct-based implied antitrust immunity with respect to the anti-competitive action taken pursuant to the Ceiling Provisions of the 2005 Agreement. (2) Otter Tail Exception The Supreme Court in Otter Tail Power Co. v. United States, 410 U.S. 366 (1973), established an exception to the doctrine of implied antitrust immunity. Otter Tail held that even when the circumstances otherwise dictated that a private entity was entitled to implied antitrust immunity, such protection would not be accorded if: (1) the private entity had “insisted” on anti-competitive restrictions in its contract with a government agency; and (2) those restrictions “hindered” the government. See 410 U.S. at 379. Since, as we hold, see supra §II(B)(1), the FFA Members are otherwise entitled to antitrust immunity, for Byers’ Sherman Act claim against the FFA Members to survive, she must show that: (1) the FFA Members “insisted” upon the anti-competitive Ceiling Provisions present in the 2005 Agreement; and (2) that these restrictions “hindered” the goals of the IRS’s Free File Program. Byers failed to include such allegations in her first adjusted gross income was eligible to receive free e-filing services from the FFA members; and (2) no individual FFA member was permitted to offer free e-filing services to more than 50% of all taxpayers. amended complaint, leading the District Court to dismiss her Sherman Act claim with leave to amend, “since [Byers] may be able to amend [her Sherman Act claim] to allege facts that cast doubt on the [FFA Members]’ conduct-based [antitrust] immunity.” App. at 110. In her second amended complaint, Byers attempted to invoke the Otter Tail exception by including the following paragraphs: The IRS agreed to the restrictions on free services only at the corporate defendants’ insistence, and those restrictions were a hindrance to the IRS, especially the IRS’s ability to fulfill the President’s Management Agenda and the E Z Tax Filing Initiative to provide free services to all citizens and to promote electronic filing in an effort to meet its electronic filing goals set by the IRS Restructuring and Reform Act of 1998. [...] Thus the IRS agreed to the restrictions on free services only at the corporate defendants’ insistence, and that those restrictions were a hindrance to the IRS. For example, in the year following implementation of the 2005 Agreement, participation in the free file program decreased by 23%. App. at 492-93 (emphases added). In support of these allegations, Byers appended a 2006 report issued by the Treasury Inspector General for Tax Administration (“TIGTA”)11 analyzing the 2005 Agreement between the IRS and the FFA Members, and also included pertinent portions of the TIGTA report in the body of her second amended complaint. See App. at 492-93. The contents of the appended TIGTA report support Byers’ allegations that (1) the Ceiling Provisions were included the 2005 Agreement at the insistence of the FFA Members, and (2) the Ceiling Provisions had the effect of hindering the IRS’s ability to fulfill the goal of the Free File Program to increase electronic filing. However, while the TIGTA report itself buttresses Byers’ Otter Tail allegations, the IRS’s “Management Response” to the report,12 which was included in the 2006 TIGTA report’s appendix, see App. at 605-08, directly refutes the substance of those allegations. Although Byers did not append the IRS’s Management Response to her second amended complaint, the District Court was nonetheless permitted to consider its contents in ruling on FFA Members’ motion to dismiss, notwithstanding the general rule that a motion to dismiss for failure to state a claim is to be evaluated only on the contents of the pleadings, see, e.g., Mele v. Fed. Reserve Bank of New York, 359 F.3d 251, 257 (3d Cir. 2004), since: (1) Byers appended the TIGTA “The TIGTA is an independent, third-party auditor that reviews IRS programs and makes recommendations.” App. at 17. By law, each TIGTA report includes a section containing the IRS’s response to the contents of the report. See Inspector General Act of 1978 § 5(b), 5 U.S.C. app. 3 (2008). report to her complaint and quoted at length from its contents, and the Management Response is a statutorily required part of the TIGTA report, see supra n.12; and (2) the FFA Members attached the Management Response to their motion to dismiss. See Seinfeld v. Becherer, 461 F.3d 365, 367 n.1 (3d Cir. 2006) (citing In re Donald J. Trump Casino Sec. Litig. – Taj Mahal Litig., 7 F.3d 357, 368 n.9 (3d Cir. 1993)). As noted by the District Court: According to the management’s response to the TIGTA report, the IRS’ intent for the initiative was to “provid[e] a basic electronic filing option for a limited taxpayer segment filing simple returns,” which suggests that the IRS had a goal of restricting the size of the population which the FFA would service and that restrictions were not added at [FFA Members]’ “insistence.” Additionally, the IRS stated that it believed that the program had “successfully fulfilled the intent of the initiative.” This language strongly suggests that the restriction did not “hinder” IRS policy. [...] In short, according to the IRS statement in the management report, the Free File Program successfully met the IRS’ intended objectives.... App. at 17-18.13 Byers argues that since the TIGTA report and the IRS’s Management Response “present differences of opinion regarding whether or not changes to the 2005 Agreement actually hindered the initial and stated goals of the IRS,” Br. for Appellants at 50, this “creates a factual dispute regarding whether the 2005 Agreement hindered IRS’s stated goals,” rendering the Sherman Act claim unripe for dismissal. Id. We do not agree. By law, the views expressed in the TIGTA report do not reflect official IRS policy, see Inspector General Act of 1978 § 3(c), 5 U.S.C. app. 3 (2008), whereas the views expressed in the Management Response do reflect the official policy and perspective of the IRS. Id. at §5(b). As such, the contradiction between the TIGTA report and the Management Response does not create a factual dispute; rather, the IRS’s official stance as articulated in the Management Response is, under the law, the final word as to whether the Ceiling Provisions were foisted upon the IRS at the insistence of the FFA Members, and whether they have proved a hindrance Indeed, the accuracy of the District Court’s reading of the Management Response was verified at oral argument by the attorney representing the IRS, who stated to the Court that the “IRS did what it thought was best and made the policy choice to have [an] income restriction” in the 2005 Agreement in order to “maintain[] the viability of the [Free File] Alliance” and thereby fulfill Congress’ directive regarding the encouragement of e- filing. Transcript of Oral Argument at 21-22, Byers v. Intuit, Inc., No. 09-1997 (3d Cir. Nov. 17, 2009). to the IRS’s institutional goals. Accordingly, we conclude as a matter of law that—notwithstanding the opinions expressed in the 2006 TIGTA report—the Ceiling Provisions in the 2005 Agreement were not included at the insistence of the FFA Members, nor did they have the effect of hindering the goals of the Free File Program. Given that the TIGTA report does not represent the official policy of the IRS, and therefore cannot be accepted as to “insistence” and “hindrance,” all that remains in support of Byers’ attempt to invoke the Otter Tail exception in her second amended complaint are her unadorned allegations regarding “insistence” and “hindrance.” While as a general rule we must accept as true the allegations contained in a complaint attacked by a 12(b)(6) motion to dismiss, Grammar, 570 F.3d at 523, “a plaintiff’s obligation to state the grounds of entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (quotation marks and alterations omitted). Here, Byers has incanted the “insistence” and “hindrance” elements necessary to invoke the Otter Tail exception, see App. at 492-93, but—aside from appending and quoting a wholly refuted source—has otherwise failed to bolster her allegations with sufficient supporting facts to satisfy the Twombly pleading standard. See Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (“After Twombly, it is no longer sufficient to allege mere elements of a cause of action; instead a complaint must allege facts suggestive of the proscribed conduct.”) (quoting Twombly, 550 U.S. at 563 n.8) (alterations and quotation marks omitted). Without the aid of the Otter Tail exception, Byers’ Sherman Act claim against the FFA Members is foreclosed by the conduct-based implied antitrust immunity to which the FFA Members are otherwise entitled. See supra § II(B)(1). The District Court therefore did not err in dismissing the Sherman Act claim pursuant to 12(b)(6). (3) Noerr-Pennington The FFA Members argue that even if they are not shielded from Byers’ Sherman Act claim on the basis of implied antitrust immunity, they are still protected under the Noerr- Pennington doctrine, which immunizes private parties against antitrust liability based on the petitioning of government entities, even if there is an improperly anti-competitive motive or purpose behind the petition. We have cogently summarized the Noerr-Pennington doctrine as follows: Under the Noerr- Pennington doctrine, a party who petitions the government for redress generally is immune from antitrust liability. Petitioning is immune from liability even if there is an improper purpose or motive. [...] The immunity reaches not only to petitioning the legislative and executive branches of government, but the right to petition extends to all departments of the Government, including the judiciary. [...] A petitioner may be immune from the antitrust injuries which result from the petitioning itself. Also, [...] parties are immune from liability arising from the antitrust injuries caused by government action which results from the petitioning. Therefore, if its conduct constitutes valid petitioning, the petitioner is immune from antitrust liability whether or not the injuries are caused by the act of petitioning or are caused by government action which results from the petitioning. A.D. Bedell Wholesale Co., Inc. v. Philip Morris Inc., 263 F.3d 239, 250-51 (3d Cir. 2001). The District Court held that while “[t]he negotiations that preceded the 2005 Agreement between [the FFA Members] and the IRS may constitute valid petitioning that ultimately requires me to dismiss [the Sherman Act claim] under the Noerr- Pennington doctrine . . . I cannot consider evidence of those negotiations at this time because such evidence is neither mentioned in the pleadings nor [is] a matter of [public] record.” App. at 98. We have explained the contours of a Noerr-Pennington claim so that the FFA Members can be assured that we have given recognition to their Noerr-Pennington argument. However, given that we will affirm the District Court’s dismissal of Byers’ Sherman Act claim, see supra § III(B)(1)- (2), we find no need to dwell on or further address the FFA Members’ Noerr-Pennington argument, which, even if we were to accept it, would in any event lead to the same result that we have already reached on other grounds. III. The District Court did not err in dismissing Byers’ IOAA claims against the IRS and the FFA Members pursuant to 12(b)(6), nor did it err in dismissing Byers’ Sherman Act claim against the FFA Members pursuant to 12(b)(6). Accordingly, we will affirm the judgments of the District Court dated May 28, 2008; March 18, 2009; and March 19, 2009.

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 07-4532 ____________ TORREY B. REAL, Appellant v. SUPERINTENDENT SHANNON; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; FIRST DEPUTY PROSECUTOR YORK COUNTY DISTRICT ATTORNEY ____________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 07-cv-00733) District Judge: The Honorable Richard P. Conaboy ____________ Argued January 25, 2010 Before: FUENTES and FISHER, Circuit Judges, and DIAMOND,* District Judge. (Filed: March 3, 2010) Diana Stavroulakis, Esq.[ARGUED] 262 Elm Court Pittsburgh, PA 15237 Counsel for Appellant Jeffrey F. Boyles, Esq.[ARGUED] David J. Maisch, Esq. Office of District Attorney of York County 45 North George Street York County Judicial Center York, PA 17401 Counsel for Appellees ____________ OPINION OF THE COURT ____________ DIAMOND, District Judge. * Honorable Paul S. Diamond, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. Torrey Real appeals from the District Court’s denial of his petition for a writ of habeas corpus. 28 U.S.C. § 2254. We granted a certificate of appealability to consider whether Real’s trial counsel was ineffective. For the reasons that follow, we affirm. I. The District Court had jurisdiction pursuant to 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. § 1291. II. On February 4, 1999, the Commonwealth of Pennsylvania charged Appellant with rape, statutory sexual assault, aggravated indecent assault, and corruption of a minor, alleging that Real attacked a twelve-year-old girl in January 1999. On March 18, 1999, Real was also charged with rape and corruption of a minor for attacking a fifteen-year-old girl “on or about December 1996.” The victims in these prosecutions were stepsisters. The two cases were consolidated, and trial was scheduled for May 2000 in the York County Common Pleas Court. In a letter dated December 23, 1999, Real’s trial counsel notified the prosecutor and the court that he intended to present military records to establish an alibi for Real with respect to the 1996 rape. See Pa. R. Crim. P. 567 (“A defendant who intends to offer the defense of alibi at trial shall file with the clerk of courts . . . a notice specifying an intention to offer an alibi defense, and shall serve a copy of the notice . . . on the attorney for the Commonwealth.”). At trial, the 1996 victim (“B.B.”) testified that although she was not certain, she believed that Real assaulted her sometime between November and December 1996. Counsel did not object to this testimony, even though it was arguably inconsistent with the criminal information charging Real, which stated that the attack occurred “on or about December 1996.” Rather, defense counsel sought to establish that: (1) both victims had colluded to make false charges against Real; and (2) Real had an alibi – military service – for most of November and December 1996. Accordingly, counsel vigorously cross- examined B.B., suggesting that her inability to remember the date of the assault was not credible. Counsel also presented records showing that Real traveled to South Carolina on November 18, 1996 to begin U.S. Army service and did not return to York until February 1997. Real testified to these same facts. In their closings, the prosecutor and defense counsel sought to characterize the evidence to their advantage. The prosecutor argued that in light of B.B.’s testimony that the rape might have occurred in November, Real’s alibi defense – which covered the period beginning November 18th – was incomplete. Defense counsel argued that Real could not have attacked B.B. because he was performing military service. Counsel also told that jury that B.B. was not credible, especially because she could not recall the date and circumstances of the attack. The trial court later charged the jury that in regards to [B.B.], her testimony was she believed [the rape] occurred during the period November, December 1996, although she was not certain of the exact date and, of course, that whole issue as to when it occurred, if you determine that it did occur, and the alibi defense. All of that you will have to reconcile and measure. But the point here is that you are not bound by any particular or specific date. It is not an essential element of the crime or crimes charged. You may find the Defendant guilty if you are satisfied beyond a reasonable doubt that he committed the crime charged even though you’re not satisfied that he committed it on a particular day or at the particular time alleged in the charging documents. (App. at 87.) Trial counsel did not object to these instructions. On May 10, 2000, the jury returned a guilty verdict on all but one charge: corruption of a minor in connection with the 1996 attack. On June 19, 2000, the trial court sentenced Real to an aggregate term of ten to twenty years imprisonment. The Pennsylvania Superior Court affirmed, and the Pennsylvania Supreme Court denied allocatur. See Commonwealth v. Real, 792 A.2d 1286 (Pa. Super. 2001), appeal denied, 831 A.2d 599 (Pa. 2003). On November 28, 2004, Real filed a timely pro se petition in state court under the Post Conviction Relief Act. 42 Pa. Cons. Stat. § 9541. The PCRA Court subsequently appointed counsel, who contended, inter alia, that trial counsel was ineffective for failing to object to: (1) B.B.’s testimony that she was raped in November or December 1996, even though the information stated that the rape occurred “on or about December 1996”; and (2) the trial court’s alibi instruction. Following an evidentiary hearing, the PCRA Court denied relief on June 6, 2005, and Real appealed to the Superior Court. On appeal, Real reiterated his contention that trial counsel ineffectively failed to raise the purported variance between the criminal information and B.B.’s testimony. Relying on Commonwealth v. Devlin, the Superior Court affirmed. 333 A.2d 888 (Pa. 1975). In Devlin, the Pennsylvania Supreme Court held that the Commonwealth is required to prove the date on which a crime was committed only to a “reasonable certainty,” even when the defendant presents an alibi defense. Id. at 891. The Devlin Court did not create a single test for determining when a variance as to the date of the charged offense might be impermissible, noting instead that “[a]ny leeway permissible [must] vary with the nature of the crime and the age and condition of the victim, balanced against the rights of the accused.” Id. at 892. Applying this test to Real’s case, the Superior Court balanced the serious nature of the crimes charged, B.B.’s age, and the time that had passed between the attack and B.B.’s testimony against Real’s due process rights, concluding that “the variance between the allegations in the criminal information and the proof adduced during trial was reasonable . . . .” (App. at 38.) Accordingly, the Court ruled that trial counsel was not ineffective for failing to raise a meritless variance objection to B.B.’s testimony. The Court similarly rejected Real’s contentions respecting trial counsel’s failure to object to the trial court’s instructions: The record supports the PCRA court’s determination that the trial court properly advised the jury to consider [Real’s] alibi defense along with all of the other evidence in determining whether the Commonwealth satisfied its burden of proving beyond a reasonable doubt that [Real] committed the offenses charged. Thus, when read in its entirety, the court’s jury instruction clearly, adequately, and accurately reflected the law. As such, [Real’s] ineffective assistance of counsel claim lacks arguable merit. (Id. at 39-40.) Rejecting Real’s remaining claims on April 19, 2006, the Superior Court affirmed the denial of PCRA relief. On April 20, 2007, Real, again acting pro se, sought habeas corpus relief in the District Court, alleging that his trial counsel was ineffective for failing to: (1) seek a severance with respect to the 1996 and 1999 attacks; (2) object to the purported variance between B.B.’s testimony and the criminal information; and (3) object to the trial court’s jury instruction. 28 U.S.C. § 2254. On October 29, 2007, the District Court denied relief, concluding that the Superior Court’s adjudication of Real’s claims did not “result[] in a decision that was contrary to, or involve[] an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d). The District Court also found no basis for the issuance of a certificate of appealability. On December 3, 2007, Real filed a Notice of Appeal, along with an Application for a Certificate of Appealability. On February 7, 2008, we granted Real a certificate of appealability to consider whether trial counsel was ineffective for failing to object to: (1) the variance between B.B.’s testimony and the criminal information; and (2) the trial court’s instruction regarding Real’s alibi defense. III. Because the District Court denied Real’s petition without conducting an evidentiary hearing, our review of the District Court’s decision is plenary. Jacobs v. Horn, 395 F.3d 92, 99 (3d Cir. 2005) (citation omitted). Under the Antiterrorism and Effective Death Penalty Act of 1996, we apply the same standards as the District Court: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); see also Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir. 2002). Real does not challenge the state courts’ factual determinations. Rather, he contends that the Superior Court’s rejection of his claims “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law,” and that he is thus “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §§ 2254(a), (d). We do not agree. A. Real argues first that his trial counsel should have raised the variance between B.B.’s testimony and the criminal information. To determine whether a variance violates the Constitution, federal courts look to “whether or not there has been prejudice to the defendant,” focusing on the defendant’s right to notice and his ability to defend himself at trial. United States v. Asher, 854 F.2d 1483, 1497 (3d Cir. 1988) (internal citations and quotation marks omitted). The true inquiry . . . is whether there has been such a variance as to “affect the substantial rights” of the accused. The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense. Berger v. United States, 295 U.S. 78, 82 (U.S. 1935) (internal citations omitted). Accordingly, a variance violates the Constitution “only if it is likely to have surprised or otherwise has prejudiced the defense.” United States v. Daraio, 445 F.3d 253, 262 (3d Cir. 2006) (citing United States v. Schurr, 775 F.2d 549, 553-54 (3d Cir. 1985)). Insofar as the Devlin test applied by the Superior Court requires courts to balance the rights of the accused against “the nature of the crime and the age and condition of the victim,” this test is incompatible with federal law. Devlin is “contrary to” Berger and related federal decisions, which focus exclusively on whether a variance violates the defendant’s due process rights. See Williams v. Taylor, 529 U.S. 362, 405 (2000) (“A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases.”). The Superior Court’s error, however, does not, by itself, warrant the granting of habeas relief. Rather, where a state prisoner “surmount[s] 2254(d)’s bar to habeas relief” by showing that the state court’s decision is “contrary to” federal law, the federal courts must review the prisoner’s claim de novo under the correct federal standard. Wiggins v. Smith, 539 U.S. 510, 542 (2003) (citing Williams, 529 U.S. at 393-94, 397, 412). Applying that standard, we do not believe the “variance” between B.B.’s testimony and the information violated Real’s due process rights. The information stated that B.B.’s rape occurred “on or about December 1996.” “Where ‘on or about’ language is used, the government is not required to prove the exact dates, if a date reasonably near is established.” United States v. Nersesian, 824 F.2d 1294, 1323 (2d Cir. 1987); accord United States v. Benson, 591 F.3d 491, 497 (6th Cir. 2010); United States v. Mata, 491 F.3d 237, 243 (5th Cir. 2007); United States v. Reed, 887 F.2d 1398, 1403 (11th Cir. 1989); United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988). Our sister Circuits have held that where, as here, the government’s evidence proves that an offense was committed within a month of the month specified in an “on or about” indictment or information, the “reasonably near” requirement is satisfied. See, e.g., United States v. Portela, 167 F.3d 687, 698 n.7 (1st Cir. 1999) (“The indictment’s specification of possession ‘on or about’ March 1995 reasonably encompasses criminal conduct in April 1995.”); United States v. Barsanti, 943 F.2d 428, 438-39 (4th Cir. 1991) (variance of four months did not prejudice the defendant); Nersesian, 824 F.2d at 1323 (“In our view, the government’s argument that the date of the actual transaction was possibly July or early August was not an improper material variance from the ‘on or about June 1984’ date charged in the indictment.”); cf. United States v. Ross, 412 F.3d 771, 775 (7th Cir. 2005) (“Four years isn’t ‘reasonably near.’”). Accordingly, in charging that the 1996 rape took place “on or about December,” the Commonwealth necessarily charged that the attack may have occurred in November or January as well. In these circumstances, there was no variance between B.B.’s testimony and the information, and no violation of Real’s due process rights. Moreover, Real has not shown prejudice: trial counsel did not testify at the PCRA hearing that he was surprised by B.B.’s testimony, nor has Real explained how his defense would have been different had the information explicitly stated that the rape occurred in November or December 1996. For this reason as well, we do not believe that the difference between the information and B.B.’s testimony violated Real’s federal due process rights. See United States v. Somers, 496 F.2d 723, 746 (3d Cir. 1974) (variance not unconstitutional unless defendant was “so surprised by the proof adduced that he was unable to prepare his defense adequately”); cf. Kokotan v. United States, 408 F.2d 1134, 1138 (10th Cir. 1969) (no prejudice to defendant where proof at trial was within weeks of the specific “on or about” date charged in the indictment). Accordingly, trial counsel was not ineffective for failing to raise a meritless due process objection to the variance between the information and B.B.’s testimony. See Parrish v. Fulcomer, 150 F.3d 326, 328 (3d Cir. 1998) (counsel not ineffective for failing to raise a meritless argument). B. Real also argues that his trial counsel was ineffective for failing to object to the trial court’s alibi instruction. In Real’s view, the instruction: (1) did not comport with due process because it “did not clarify for the jury that, in light of [Real’s] alibi defense, time was of the essence”; and (2) contravened Pennsylvania law, which provides that the alleged date of occurrence is an essential element of the underlying crime where the defendant presents an alibi. (Appellant’s Br. at 45, 48.) We do not agree. “Habeas relief for a due process violation concerning an absent or defective jury instruction is available only when the absence of an instruction, or a defective instruction, infects the entire trial with unfairness.” Albrecht v. Horn, 485 F.3d 103, 129 (3d Cir. 2007) (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)); see also Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (an improper state court instruction warrants the granting of habeas relief only upon a showing that “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, not merely [that] the instruction is undesirable, erroneous, or even universally condemned”) (internal citations and quotation marks omitted). “The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal.” Id. Although Real contends that his alibi defense made time “essential and of the essence in the underlying case,” he offers no supporting authority. (Appellant’s Br. at 42.) In fact, other Circuits have expressly “rejected the contention that time becomes a material element of a criminal offense merely because the defense of alibi is advanced.” United States v. Creamer, 721 F.2d 342, 343 (11th Cir. 1983) (citing United States v. King, 703 F.2d 119, 123-24 (5th Cir.1983)); see also United States v. Stuckey, 220 F.3d 976, 982 (8th Cir. 2000) (“Time is not a material element of a criminal offense unless made so by the statute creating the offense.”) (citations omitted). In these circumstances, Real has failed to demonstrate that the trial court’s instruction – which confirmed the Commonwealth’s burden of presenting proof of Real’s guilt beyond a reasonable doubt – “infect[ed] his entire trial with unfairness.” Albrecht, 485 F.3d at 129; see also United States v. Jacobs, 44 F.3d 1219, 1226 (3d Cir. 1995) (no due process violation where instruction, “taken as a whole, adequately conveyed the concept of proof beyond a reasonable doubt”). Nor has Real shown that this instruction violated Pennsylvania law. As the Superior Court noted, the challenged instruction parallels Pennsylvania Suggested Standard Criminal Jury Instruction 3.19, “Date of Crime: Proof of Date Alleged Not Essential.” The Superior Court further observed that Pennsylvania trial courts have “broad discretion in phrasing [their] instructions so long as the law is clearly, adequately, and accurately presented to the jury.” (App. at 38) (citing Commonwealth v. Miller, 746 A.2d 592, 604 (Pa. 2000)). The Court thus concluded that the trial court properly advised the jury to consider [Real’s] alibi defense along with all of the other evidence in determining whether the Commonwealth satisfied is burden of proving beyond a reasonable doubt that [Real] committed the offenses charged. Thus, when read in its entirety, the court’s jury instruction clearly, adequately, and accurately reflected the law. As such, [Real’s] ineffective assistance of counsel claim lacks arguable merit. (App. at 39-40.) A federal court may re-examine a state court’s interpretation of its own law only where this interpretation “appears to be an obvious subterfuge to evade consideration of a federal issue . . . .” Hallowell v. Keve, 555 F.2d 103, 107 (3d Cir. 1977) (internal citations and quotation marks omitted). Because there is nothing in the record to suggest that the Superior Court was attempting “to evade consideration of a federal issue,” we must accept that Court’s conclusion that the trial court’s instruction was consistent with Pennsylvania law. Id. Having done so, we find no basis on which to conclude that this instruction was improper, either under federal due process standards or state law. Accordingly, Real’s trial counsel was not ineffective for failing to raise a meritless claim, and the Superior Court’s denial of PCRA relief was neither “contrary to, [n]or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d); see also Parrish, 150 F.3d at 328 (counsel not ineffective for failing to raise a meritless argument). IV. For the reasons stated, we will affirm the judgment of the District Court.

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 09-1756 _____________ UNITED STATES OF AMERICA v. JAMES L. CHEESEMAN, Appellant ___________ On Appeal from the District Court for the District of Delaware (No. 09-cr-00124-001) District Judge: Honorable Sue L. Robinson ___________ Argued October 27, 2009 Before: SLOVITER, FUENTES, and HARDIMAN, Circuit Judges (Opinion Filed: March 2, 2010) Chandra J. Williams (Argued) Charles M. Oberly, III Drinker Biddle & Reath, LLP 1100 North Market Street Suite 1000 Wilmington, DE 19801 Counsel for Appellant Keith M. Rosen (Argued) Lesley F. Wolf Office of the United States Attorney 1007 N. Orange Street Suite 700 P.O. Box 2046 Wilmington, DE 19899 Counsel for Appellee OPINION OF THE COURT FUENTES, Circuit Judge: Appellant, James L. Cheeseman, pled guilty to violating 18 U.S.C. § 922(g)(3), which criminalizes possession of firearms and ammunition by an unlawful user or addict of a controlled substance. He appeals from the District Court’s judgment directing the forfeiture of over 600 firearms and ammunition enumerated in Count I of the indictment to which he pled guilty. Cheeseman raises two arguments on appeal. He first contends that forfeiture pursuant to 18 U.S.C. § 924(d)(1) was improper because the property was neither “involved in” nor “used in” a knowing violation of 18 U.S.C. § 922(g)(3). Alternatively, Cheeseman argues that forfeiture of his property violates the Excessive Fines Clause of the Eighth Amendment. Because we find that the firearms and ammunition specifically identified in Count I of the indictment were involved in Appellant’s § 922(g)(3) violation, and because we conclude that the forfeiture of Cheeseman’s property was not grossly disproportionate to the gravity of the § 922(g)(3) offense, we will affirm the District Court’s Order of Forfeiture. I. Background1 From 1994 through August 2007, Cheeseman was the owner and sole proprietor of X-Ring Supply, a sporting goods and firearms store located in Newark, Delaware. The federal firearms license (“FFL”) for X-Ring was held in Cheeseman’s name. X-Ring maintained an inventory of approximately 600 firearms. The premises included a separate warehouse located next to the store. Cheeseman’s drug abuse began in 2003 after his wife ended their marriage. Between 2005 and 2007, as his crack cocaine addiction worsened, Cheeseman converted X-Ring’s warehouse into his home, storing inside it an air mattress, sleeping bag and bedding. The District Court found that fellow crack cocaine abusers occasionally stayed with Cheeseman in the warehouse and that he occasionally turned off X-Ring’s security system. Although Cheeseman argues to the contrary, the District Court found that ammunition and gun boxes were These facts are derived from the indictment and the District Court’s opinion. See United States v. Cheeseman, 593 F. Supp. 2d 682 (D. Del. 2009). Although Cheeseman’s recitation of the facts surrounding his access and use of X-Ring differs slightly from the District Court’s findings of fact, he does not allege that those findings are clearly erroneous, nor does he point to any factual error. He merely presents the facts in a light more favorable to his legal arguments. After reviewing the record, including the portions cited by Cheeseman in support of his factual assertions, we discern no clear error in the District Court’s findings of fact. stored in the warehouse. In 2005, Cheeseman completed a renewal application for his FFL, on which he indicated that he did not unlawfully use narcotics. Answering this question falsely subjects an applicant to 18 U.S.C. § 924(d) penalties. Because of Cheeseman’s erratic behavior due to his severe drug habit, his sister Nancy Macknatt assumed power of attorney over her brother and began to manage X-Ring’s daily operations. Accordingly, Cheeseman’s presence in the store was “sporadic and unpredictable.” Cheeseman, 593 F. Supp. 2d at 685. Nonetheless, employees found crack pipes on X-Ring’s premises on at least three separate occasions. A. The incident prompting this case occurred on August 5, 2007, when Delaware police officers observed a woman urinating in the parking lot of a pharmacy. The woman was Cheeseman’s companion. After the police officers found drugs on her person, Cheeseman consented to a pat down, during which officers located a crack pipe and crack cocaine. A subsequent search of his vehicle revealed a second crack pipe and additional crack cocaine. Cheeseman told the police officers that he abused drugs and had recently returned from a rehabilitation facility. Shortly thereafter, federal agents executed a search warrant at X-Ring and seized approximately 609 guns and ammunition; an estimated sixty-seven of the firearms were identified as comprising Cheeseman’s personal collection. Some of the seized weapons were antique firearms. In the warehouse, agents recovered a crack pipe, a mirror with cocaine residue, a burnt spoon with cutting residue, an ashtray with white residue, ammunition, a butane torch and a scale with white residue. Consequently, a federal grand jury returned a three-count indictment against Cheeseman with notice of forfeiture, accusing him of: (1) possession of a firearm by an unlawful drug user in violation of 18 U.S.C. § 922(g)(3); (2) possession of more than five grams of crack cocaine in violation of 21 U.S.C. § 844(a); and (3) distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1). Relevant to this appeal, § 922(g)(3) makes it unlawful for any person “who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act . . .) . . . to . . . possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(3). Count One of the indictment identified individually the 609 firearms and a quantity of ammunition that Cheeseman was accused of illegally possessing. In December 2007, Cheeseman divested himself of all of his interest in X-Ring, selling it to Macknatt and to his other sister, Pamela Rhoades.2 Now a convicted felon, Cheeseman cannot lawfully possess a firearm. See 18 U.S.C. § 922(g)(1). If we were to rule that the forfeiture was improper or unconstitutional, it is less than certain that the firearms and ammunition would be returned to Cheeseman’s sisters, the owners of X-Ring. Cf. United States v. Felici, 208 F.3d 667, 670 (8th Cir. 2000) (ruling that convicted felons cannot constructively possess firearms). B. In February 2008, Cheeseman pled guilty to violating § 922(g)(3). In his plea agreement he admitted that: [I]f there were a trial, the Government would have to prove three elements of the offense: (1) that from on or about August 5, 2007, through August 14, 2007, the defendant possessed a firearm or ammunition; (2) that the defendant was a regular user of, or addicted to, a controlled substance during a period of time proximate to or contemporaneous with the possession of the firearm or ammunition; and (3) the above-described firearm affected interstate commerce. The defendant knowingly, voluntarily, and intelligently admits for purposes of his guilty plea and sentencing that, from on or about August 5, 2007, through August 14, 2007: (a) he actually and constructively possessed the firearms and ammunition set forth in [Count One] of the indictment; (b) he was a regular unlawful user of, and addicted to, cocaine base; and (c) the firearms and ammunition at issue affected interstate commerce. Cheeseman, 593 F. Supp. 2d at 683 (internal quotation marks & citation omitted). The District Court delayed sentencing in order to hold a forfeiture hearing to determine whether the firearms and ammunition specifically enumerated in Count One of the indictment were forfeitable pursuant to § 924(d)(1), and if so, whether forfeiture would violate the Excessive Fines Clause of the Eighth Amendment. Section 924 is the penalty provision of the Gun Control Act of 1968 (“Gun Control Act”). Section 924(d)(1) provides that “any firearm or ammunition involved in or used in any knowing violation of subsection . . . (g) . . . of section 922 . . . shall be subject to seizure and forfeiture.” Section 924(d)(2)(c) mandates that “[o]nly those firearms or quantities of ammunition particularly named and individually identified as involved in or used in any violation of the provisions of this chapter . . . shall be subject to seizure, forfeiture, and disposition.” Pursuant to 26 U.S.C. § 5872(b), any firearms or ammunition forfeited may be destroyed, sold to a state, or used by the federal government. C. Although the District Court did not clearly identify which portion of § 924(d) it found satisfied, i.e., whether Cheeseman “involved” or “used” the firearms in a knowing violation of § 922(g)(3), the District Court, after holding a hearing on the forfeitability of Cheeseman’s property, concluded that Cheeseman’s guilty plea sufficiently satisfied the statute’s forfeiture requirements. The District Court first noted that the Government must prove forfeitability by a preponderance of the evidence and establish a sufficient nexus between the § 922(g)(3) violation and the property sought to be forfeited. See Fed. R. Crim. P. 32.2(b)(1)(A) (providing that when “the government seeks forfeiture of specific property, the court must determine whether the government has established the requisite nexus between the property and the offense”). Next, the District Court rejected Cheeseman’s contention that “there [was] no evidence that he ever used or involved a firearm in any manner to facilitate his cocaine addiction.” Cheeseman, 593 F. Supp. 2d at 687. Rather, the District Court made the following findings of fact linking Cheeseman’s drug abuse to his § 922(3)(g)(3) violation: [I]t is clear from the evidence and testimony presented at the evidentiary hearing as well as the uncontested [Pre-Sentencing Report] that: (1) defendant has been using cocaine since 2003; (2) he was living and using crack cocaine at X-Ring; (3) during after[-]business hours, defendant allowed users of crack cocaine to stay with him at X-Ring; (4) drug paraphernalia was found at X-Ring; (5) defendant lied about his addiction on his FFL renewal; (6) after defendant’s FFL was renewed-on false pretenses-he continued to operate X-Ring, including purchasing and selling firearms; (7) he compromised the security of X-Ring by turning off the security alarm in order to allow himself and crack addicts into the retail store; (8) he stored his personal gun collection unsecured; and (9) although not actively involved in the day-to-day business of X-Ring, defendant used drugs on the premises and had unfettered access to the inventory of firearms and ammunition.3 Id. Thus, the District Court ruled that the firearms and ammunition specifically identified in Count One of the indictment were forfeitable pursuant to § 924(d)(1). Next, the District Court rejected Cheeseman’s contention that forfeiture of the firearms and ammunition would violate the Eighth Amendment’s prohibition on excessive fines. While Cheeseman contended that the seized firearms were worth approximately $500,000 and the Government countered that they were valued at $371,500, the District Court assumed, arguendo, that the actual value was the higher figure. Reasoning that the Government could have charged each individual possession as a separate offense, thereby exposing Cheeseman to multiple special assessments and statutory fines, the District Court concluded that the Government’s restraint in charging rendered the forfeiture constitutional. Cheeseman was then sentenced to eight months time-served and three years of supervised release. The District Court declined to impose a fine. II. Discussion Cheeseman raises two arguments on appeal. First, he contends that forfeiture of his firearms and ammunition pursuant to §924(d)(1) was improper because the property was neither involved in nor used in a knowing violation of § 922(g). Cheeseman alternatively avers that the forfeiture violates the Cheeseman offers “innocent” explanations for his behavior. For example, he contends that he would occasionally turn off X-Ring’s security cameras for privacy reasons when he had female companionship at the store. (See Appellant’s Br. 17.) He does not, however, explain why the District Court’s finding constitutes clear error. Eighth Amendment’s prohibition on excessive fines.4 We do not find either argument persuasive. A. Statutory Arguments Cheeseman first argues that forfeiture pursuant to 18 U.S.C. § 924(d) was improper because the contraband was not “involved in” or “used in” a knowing violation of the substantive provision of the Gun Control Act to which he pled guilty. We will first address the second of the two alternatives in the statute, which permits forfeiture of firearms and ammunition “used in” a § 922(g)(3) violation. The District Court had subject matter jurisdiction over this criminal case pursuant to 28 U.S.C. § 1331. We exercise jurisdiction over this appeal from the final judgment of conviction pursuant to 28 U.S.C. § 1291. Even though Cheeseman no longer owns the firearms or ammunition, Federal Rule of Criminal Procedure 32.2(4)(A), which governs criminal forfeiture, provides that a forfeiture becomes final at sentencing and that a defendant may appeal a forfeiture order once sentenced. See United States v. Bennett, 423 F.3d 271, 275 (3d Cir. 2005) (holding that a final order of forfeiture can only be imposed as part of a defendant’s criminal sentence); United States v. Pelullo, 178 F.3d 196, 202 (3d Cir. 1999) (noting that “the order of forfeiture entered at sentencing is a final order with respect to the defendant from which he can appeal”). We review a district court’s factual findings for clear error and exercise plenary review over a district court’s interpretation of a statute. See United States v. Rivera Constr. Co., 863 F.2d 293, 295 n.3 (3d Cir. 1988). We review de novo a district court’s determination of whether a forfeiture constitutes an excessive fine in violation of the Constitution’s Eighth Amendment. See United States v. Bajakajian, 524 U.S. 321, 336-37 (1998). The first step in interpreting the meaning of § 924(d)(1) is analyzing the statutory text. See Bailey v. United States, 516 U.S. 137, 144-45 (1995). Because neither “involved in” nor “used in” is defined in the statute, we look to the ordinary and natural meaning of the words, as well as the “placement and purpose [of the phrases] in the statutory scheme.” Id. at 145 (internal quotation marks & citation omitted). Thus, the “meaning of statutory language, plain or not, depends on context.” Id. at 144-45 (instructing interpreting courts to review the “language, context, and history” of a statute). In turn, it is appropriate to examine similar language in the statute to ascertain the meaning of undefined terms. See id. (noting that “using a firearm should not have a different meaning in § 924(c)(1) than it does in § 924(d)”) (internal quotation marks & citation omitted). If a statute is ambiguous and punitive in nature, “the rule of lenity requires that any ambiguity in the statute be resolved in favor of the claimant.” United States v. $734,578.82 in United States Currency, 286 F.3d 641, 657 (3d Cir. 2002) (citing United States v. One 1973 Rolls Royce, 43 F.3d 794, 801 (3d Cir. 1994)). The rule of lenity, however, is inapplicable if there is only a mere suggestion of ambiguity because most “statutes are ambiguous to some degree.” See id. at 658 (internal quotation marks & citation omitted). Furthermore, any “[j]udicial perception” that the result in a case is unreasonable may not enter into our interpretation of an unambiguous statute. See Comm’r v. Asphalt Prods. Co., 482 U.S. 117, 121 (1987). 1. “Used In” Prong of 18 U.S.C. § 922(g)(3) Cheeseman argues that forfeiture pursuant to 18 U.S.C. § 924(d)(1) was improper because the seized firearms and ammunition were not “used in” his § 922(g)(3) violation. Although no precedential case law directly addresses the meaning of “used in” with respect to a § 922(g)(3) violation, in a trilogy of cases the Supreme Court has extensively explored the meaning of “uses” in the § 924(c) context. Section 924(c) adds five years to a sentence for anyone who uses, carries, or possesses a firearm during and in relation to a crime of violence or a drug trafficking crime. Because the meaning of “use” is presumed to be the same in §§ 924(c) and 924(d)(1), these cases guide our interpretation of the meaning of the phrase “ used in any knowing violation of subsection . . . (g) . . . of section 922” in § 924(d)(1). See Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007) (“A standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning.”). The first case in which the Supreme Court addressed the definition of “uses” in the context of § 924(c) was Smith v. United States, 508 U.S. 223 (1993). In Smith, the Court ruled that trading a firearm for drugs constituted a “use” for purposes of applying § 924(c)’s enhanced penalty. 508 U.S. at 225. The Court looked at the dictionary definition of “use,” noting that it is defined, variably, as “[t]o make use of; to convert to one’s service; to employ; to avail oneself of; to utilize; to carry out a purpose or action by means of.” Id. at 229 (internal quotation marks & citation omitted). Thus, according to the plain language of the term, the Smith Court ruled that “use” of a firearm is not limited to firing a firearm. Id. To the contrary, the Court held that Smith used the firearm when he traded it for drugs. See id. at 240-41. Two years later in Bailey v. United States, 516 U.S. 137 (1995), the Court addressed whether mere possession of a firearm constituted a “use” of a firearm during and in relation to drug trafficking.5 Ruling in the negative, the Court concluded that “evidence of the proximity and accessibility of a firearm to drugs or drug proceeds is alone [in]sufficient to support a conviction for ‘use’ of a firearm during and in relation to a drug trafficking offense.” Bailey, 516 U.S. at 138-39. Invoking the canon of statutory interpretation that “a legislature is presumed to have used no superfluous words,” the Court reasoned that the expansive reading of “use” urged by the government would also encompass carrying a firearm, thereby rendering the term “carry” superfluous. Id. at 145-46. Because the Court discerned no intention by Congress for these terms to be redundant, it rejected the government’s expansive reading of “use.” Thus, according to Bailey, “use” requires more than mere possession of a firearm; rather, “use” entails active employment or utilization of a firearm to bring it within the meaning of § 924(c). See id. at 143. Finally, in United States v. Watson, the Court ruled that trading drugs for a firearm did not constitute a use within the meaning of § 924(c). 552 U.S. 74, 76 (2007). Building upon Smith and Bailey, the Watson Court noted that in a bartering situation, a “seller does not ‘use’ a buyer’s consideration.” 552 U.S. at 79 (citation omitted). Thus, receipt of a gun in trade for drugs does not constitute a “use” of a firearm for § 924(c) purposes. Citing this trilogy of cases, Cheeseman contends that forfeiture was inappropriate because the seized firearms and ammunition were not “used in” a knowing violation of § At the time Bailey was decided, § 924(c) did not include the term “possess.” It only included the terms “carry” and “use.” After the Court ruled that mere possession did not constitute a “use” for § 924(c) purposes, Congress amended the statute to criminalize possession of a firearm during and in relation to a drug trafficking offense. 922(g)(3). The Government counters that Cheeseman employed the firearms by “purchasing them, offering them for sale [through X-Ring], and using the proceeds to support his crack cocaine addiction.” (Appellee’s Br. 23.) According to the Government, like the defendant in Smith, Cheeseman bartered with his firearms to purchase drugs. To adopt this argument, we must accept that (1) illegally purchasing guns on behalf of X-Ring (2) in order to sell those guns to lawful buyers (3) for the purpose of using the proceeds from the sales to purchase drugs, is similar to the facts of Smith, in which the defendant gave his gun directly to a drug dealer for cocaine. This reasoning stretches Smith too far and therefore must be rejected. There is no evidence in the record suggesting that Cheeseman actively employed the firearms or traded his firearms to drug dealers to purchase crack cocaine. Rather, the record supports a finding that Cheeseman unlawfully possessed the firearms while addicted to narcotics. Indeed, unlawful possession due to his status as a drug abuser was the basis for Cheeseman’s guilty plea. Because Bailey dictates that mere possession does not constitute “use” for § 924(d)(1) purposes, forfeiture cannot be based upon this portion of the statute. 2. “Involved In” Prong of 18 U.S.C. § 922(g)(3) Cheeseman’s next argument, that the District Court’s order should be reversed because the seized firearms and ammunition were not “involved in” a violation of the Gun Control Act, is less persuasive. Like “used in,” “involved in” is not defined in § 924(d)(1). Therefore, our analysis again begins with the plain meaning of “involved.” Merriam-Webster defines “involved” as: (1) “to engage as a participant”; (2) “to relate closely”; (3) “to have within or as part of itself”; and (4) “to require as a necessary accompaniment.” Merriam-Webster’s Collegiate Dictionary 660 (11th ed. 2003). The term’s plain meaning leads to the conclusion that the seized firearms specifically identified and enumerated in Count I were “involved in” the offense to which Cheeseman pled guilty because the firearms served as the foundation of his criminality and conviction. Indeed, without the firearms, there would have been no crime. Accordingly, the firearms were related closely to and were a necessary accompaniment to the crime charged in Count One. Nonetheless, Cheeseman contends that the firearms were not “related at all to,” nor “involved in,” his addiction. (See Appellant’s Br. 25.) This argument exposes Cheeseman’s misunderstanding of § 924(d)(1). The forfeiture statute does not require that the firearms be “involved in” Cheeseman’s addiction in order to be subject to forfeiture. To the contrary, § 924(d)(1) permits forfeiture of all firearms that are involved in the § 922(g)(3) offense. In other words, the object of “involved in” is not Cheeseman’s addiction. Rather, “involved in” addresses the offenses enumerated in § 924(d)(1), including the § 922(g)(3) violation to which Cheeseman pled guilty. Furthermore, as the Government notes, possession of firearms is a necessary element of a § 922(g)(3) offense. See United States v. 13 Firearms & Ammunition Seized from 7438 KY 718 Dewitt, Ky., No. 06-cv-51, 2006 WL 1913360, at *2 (E.D. Ky. July 11, 2006) (noting that “involved in . . . includes firearms possessed by prohibited persons”); see also United States v. Jones, 232 F. Supp. 2d 618, 623 n.8 (E.D. Va. 2002) (reasoning that in § 922(g)(3) the firearm is the corpus delicti)6 ; cf. United States v. Huber, 404 F.3d 1047, 1056 (8th Cir. 2005) (noting that the laundered money is the corpus of a money laundering violation and is therefore “involved in” the offense). Corpus delicti means “the substance of the crime.” Black’s Law Dictionary 369 (8th ed. 2004). Indeed, all § 922(g)(3) requires for a violation is mere possession of firearms by an unlawful drug abuser, and Cheeseman admitted unlawful possession in his guilty plea. Cheeseman’s argument that the very firearms that serve as the basis for his underlying conviction are not “involved in” or “related to” that conviction strains credulity. Nor is the phrase “involved in” ambiguous, which would otherwise merit application of the rule of lenity, because when read in the context of the entire statute, interpreting “involved in” to include possession of firearms does not render § 924(d)(1)’s “used in” clause redundant. See Bailey, 516 U.S. at 146 (“We assume that Congress used two terms [‘carry’ and ‘use’] because it intended each term to have a particular, nonsuperfluous meaning.”). When read in the context of the entire statute and in conjunction with the Gun Control Act’s legislative history, it is clear that both terms “used in” and “involved in” have particular meanings. A central goal of the Gun Control Act was restricting public access to firearms. It was enacted to “strengthen Federal controls over interstate and foreign commerce in firearms and to assist the States effectively to regulate firearms traffic within their borders.” H.R. Rep. No. 90-1577, at 6 (1968), reprinted in 1968 U.S.C.C.A.N. 4410, 4411. Congressional action was prompted by the “increasing rate of crime and lawlessness and the growing use of firearms in violent crime.” Id. at 7. Additionally, the Gun Control Act amended Title IV of the Omnibus Crime Control and Safe Street Acts of 1968 to include unlawful users of narcotics in the class of individuals whose access to, and possession of, firearms Congress deemed contrary to public interest. Id.; see also Huddleston v. United States, 415 U.S. 814, 824 (1974). This purpose is illustrated by Congressman Celler’s floor statement, entered into the Congressional Record during the Act’s debate, wherein he noted that: [W]e are convinced that a strengthened [firearms control system] can significantly contribute to reduc[ing] the danger of crime in the United States. No one can dispute the need to prevent drug addicts, mental incompetents, persons with a history of mental disturbances, and persons convicted of certain offenses from buying, owning, or possessing firearms. This bill seeks to maximize the possibility of keeping firearms out of the hands of such persons. Huddleston, 415 U.S. at 828 (internal quotation marks & citation omitted). Therefore, § 922(g) was enacted to keep firearms “out of the hands of those not legally entitled to possess them” due to their status of falling into one of § 922(g)’s prohibited categories. Id. at 824 (internal quotation marks & citation omitted).7 In other words, § 922(g) “simply strikes at the possession of firearms by the wrong kind of people.” Scarborough v. United States, 431 U.S. 563, 573 (1977) (internal quotation marks & citation omitted). The regulation interpreting this section of the Gun Control Act defines an unlawful user of a controlled substance as someone who “uses a controlled substance and has lost the power of self-control.” Significantly, under the Senate version of the bill, an amendment removed the prohibition on drug abusers from owning, possessing or receiving firearms or ammunition. H.R. Rep. No. 90-1577, at 30, reprinted in 1968 U.S.C.C.A.N. 4410, 4430. The House version of the bill, however, preserved the broad exclusion and was ultimately adopted by the Conference Committee, passed by both Chambers of Congress and signed into law. Id. Thus, despite a challenge from the Senate, the proscription against unlawful drug users possessing firearms remained intact. 27 C.F.R. § 478.11. Cheeseman’s guilty plea makes plain that he is just such a person. In 1986, Congress passed the Firearms Owners Protection Act (“FOPA”), which amended the Gun Control Act. FOPA was designed to relieve the “burdens” the 1968 Act imposed on lawful firearms users while simultaneously strengthening “the ability of law enforcement to fight violent crime and narcotics trafficking.” H.R. Rep. No. 99-495, at 1 (1986), printed in 1986 U.S.C.C.A.N. 1327, 1327. FOPA also limited the forfeiture provision of the Gun Control Act to firearms or ammunition “particularly named and individually identified as involved in or used in specified violations of law.” Id. at 13 (internal quotation marks & citation omitted). FOPA did not define the term “involved in” in either the definitions portion of the bill or in the accompanying report language. Nor did FOPA remove the prohibition on drug abusers owning, possessing or receiving firearms or ammunition. This legislative history supports our conclusion that our interpretation of “involved in” does not render the “used in” clause superfluous. In Smith, the Supreme Court opined that Congress varied the statutory language in § 924(d)(1) and included the broad term “involved in” to apply to crimes in which the firearm’s involvement in the enumerated offense would not require a use of the firearm. 508 U.S. at 235 (Congress “carefully varied the statutory language [in § 924(d)(1)] in accordance with the guns’ relation to the offense.”). Consequently, the term “involved in” necessarily has a more expansive meaning than the term “use” in order to effectuate Congress’ intention that forfeiture apply to the unique crimes enumerated in § 922, which may be committed without ever using a firearm. Id. In this way, Congress ensured that the class of individuals it deemed should not possess weapons would have their firearms forfeited upon a violation of § 922. As an example, the Smith Court noted that § 922(a)(6) criminalizes “making of a false statement material to the lawfulness of a gun’s transfer.” Id. “Because making a material misstatement in order to acquire . . . a gun is not ‘use’ of the gun even under the broadest definition of the word ‘use,’” the Supreme Court concluded that “Congress carefully expanded the statutory language” by including the term “involved in” in the statute. Id. Therefore, Congress chose such a broad term to ensure forfeiture of firearms for offenses where, as in Cheeseman’s case, “use” is not a necessary - or sometimes even a possible - element of the crime. Thus, when read in context of the entire statute and with Congress’ intent in mind, the terms “involved in” and “used in” retain separate meanings. In sum, we hold that possession of firearms and ammunition is sufficient for a district court to find that the property was “involved in” a § 922(g)(3) offense. This interpretation of “involved in” makes sense in light of Congress’ intent to keep firearms out of the possession of drug abusers, a dangerous class of individuals, and supports a finding that the seized firearms and ammunition were “involved in” Cheeseman’s § 922(g)(3) offense. This conclusion is bolstered by the District Court’s findings that: (1) Cheeseman had unfettered access to the full panoply of weapons located in X-Ring; (2) he used crack cocaine in and around those weapons; and (3) he brought other drug abusers to the store and warehouse to smoke crack. Accordingly, we affirm the District Court’s determination that the specified firearms and ammunition were “involved in” Cheeseman’s § 922(g)(3) violation.8 3. “Knowing” Violation of 18 U.S.C. § 922(g)(3) Cheeseman’s final statutory argument, that he did not knowingly violate § 922(g)(3), also fails. Cheeseman contends that while he pled guilty to violating § 922(g)(3), his guilty plea “does not provide an admission of ‘knowingly’ violating Section 922(g) for purposes of forfeiture.” (Appellant’s Br. 26.) Cheeseman argues, without citation to any supporting case law, that knowledge is especially important in cases, such as his, where the forfeiture is a criminal punishment. (Id. at 27.) This argument is unpersuasive because it discounts firmly established case law construing the term “knowing” to require “only that the act be voluntary and intentional and not [to require] that a person knows he is breaking the law.” United States v. Sokolow, 91 F.3d 396, 408 (3d Cir. 1996) (internal quotation marks & citation omitted). Cheeseman does not contend that his drug use or firearm possession was involuntary or unintentional. In essence, Cheeseman invites the Court to read into § 924(d)(1) a willfulness requirement, which, if applied, would require him to have had actual knowledge that his prohibited conduct was illegal in order for the firearms to be forfeitable. (Appellant’s Br. at 26-27). We reject this argument. “Congress [is] presumed to know the meanings of the words and phrases it uses in drafting statutes.” Pope by Pope v. E. Brunswick Bd. of Educ., 12 F.3d 1244, 1249 (3d Cir. 1993). Here, Congress used For the same reasons that the forfeited firearms and ammunition were “involved in” a knowing violation of § 922(g)(3), the District Court correctly found, pursuant to Federal Rule of Criminal Procedure 32.2, that a sufficient nexus existed between the forfeited property and the offense. the term “knowing” and not “willful,” clearly indicating its preference for the lower scienter. Further undermining Cheeseman’s argument is the fact that Congress included a willful mens rea in another clause of 924(d)(1). Therefore, if Congress intended the first clause of § 924(d)(1) to also contain a heightened scienter, it would have used the term willful instead of knowing. Second, despite his protestations to the contrary, in his plea agreement Cheeseman unambiguously admitted that he was an unlawful user of narcotics who knowingly possessed firearms and ammunition. Prior to enactment of FOPA, courts often considered § 922(g) strict liability crimes. See, e.g., United States v. Capps, 77 F.3d 350, 352 n.2 (10th Cir. 1996). After FOPA became law, however, courts read into § 922(g) a mens rea requirement. Id. While the statute is silent as to its requisite mens rea, the elements of a 18 U.S.C. § 922(g)(3) violation are: (1) that the defendant is an unlawful user or addicted to any controlled substance; (2) who thereafter knowingly possessed a firearm; and (3) the possession was in or affecting interstate commerce. Cf. United States v. Dodd, 225 F.3d 340, 344 (3d Cir. 2000) (reading into the felon-in-possession portion of § 922(g)(1) a “knowing” scienter ); Capps, 77 F.3d at 352 (same). Therefore, because Cheeseman pled guilty to Count One, he admitted that he knowingly violated § 922(g)(3). Third, to the extent that Cheeseman’s argument is based on his contention that he had not been adjudicated an unlawful possessor of firearms at the time he committed the § 922(g)(3) offense, and was therefore not on notice that he was knowingly violating the statute, this argument also fails. This is essentially a variant on the losing argument that ignorance of the law excuses illegal conduct. Cf. United States v. Napier, 233 F.3d 394, 398 (6th Cir. 2000) (“[A] legally relevant status under § 922(g) may arise in the absence of any formal proceeding. For example, § 922(g)(3) prohibits an individual addicted to controlled substances from possessing a firearm, yet an individual attains the status of a drug addict without a court proceeding of any kind.”). Accordingly, we conclude that the firearms and ammunition enumerated in Count One of the indictment are subject to forfeiture because they were “involved in” Cheeseman’s knowing 18 U.S.C. § 922(g)(3) violation. B. Excessive Fines Claim Having concluded that § 924(d)(1) permits forfeiture of Cheeseman’s firearms and ammunition, we must determine whether that forfeiture violates the Eighth Amendment’s prohibition on excessive fines. 1. History of the Excessive Fines Clause The Eighth Amendment provides that: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. There was little debate surrounding the adoption of the Eighth Amendment and no discussion regarding the inclusion within the Amendment of the Excessive Fines Clause. See Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 420 n.9 (3d Cir. 2000). Still, the Excessive Fines Clause traces its roots as far back as the Magna Carta. See United States v. Premises Known as RR No. 1 Box 224, Dalton, Scott Twp. & North Abington Twp., Lackawanna, Pa., 14 F.3d 864, 875 n.12 (3d Cir. 1994) (“Blackstone says that the reasonableness of a fine must be determined by reference to Magna Carta’s prohibition on excessive amercements [a common criminal sanction]. Specifically, Blackstone says ‘no man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear: saving to . . . the trader his merchandize.’”) (citing 4 William Blackstone, Commentaries *372). Thus, at the time of the Framing, the Founders understood “‘fine’ . . . to mean a payment to a sovereign as punishment for some offense.” Bajakajian, 524 U.S. at 327 (internal quotation marks & citation omitted); see also Austin v. United States, 509 U.S. 602, 609 (1993) (“The purpose of the Eighth Amendment . . . was to limit the government’s power to punish.”). In turn, the Excessive Fines Clause restricts “the Government’s power to extract payments, whether in cash or in kind, as punishment for some offense.” Bajakajian, 524 U.S. at 328 (internal quotation marks & citation omitted). The Eighth Amendment is applicable if the forfeiture constitutes a “fine” and is violated only if that fine is “excessive.” See Tillman, 221 F.3d at 420. While the Excessive Fines Clause was initially applied only to in personam actions, the Supreme Court expanded its applicability to civil in rem forfeiture proceedings if the forfeiture constituted, in part, punishment. See Austin, 509 U.S. at 610 (noting that sanctions can serve both a remedial and punitive purpose). This holding was narrowed somewhat by the Supreme Court in Bajakajian, wherein the Court noted that traditional in rem forfeitures were not punitive and would therefore fall outside of the Eighth Amendment’s protections. 524 U.S. at 331. The Court further noted, however, that “[b]ecause some recent federal forfeiture laws have blurred the traditional distinction between civil in rem and criminal in personam forfeiture, we have held that a modern statutory forfeiture is a ‘fine’ for Eighth Amendment purposes if it constitutes punishment even in part, regardless of whether the proceeding is styled in rem or in personam.” Id. at 331 n.6. Thus, while the Court has classified § 924(d)(1) as remedial and therefore a civil sanction, see United States v. One Assortment of 89 Firearms, 465 U.S. 354, 363-65 (1984), forfeiture pursuant to this section nonetheless is subject to Eighth Amendment scrutiny. Here, the Government and Cheeseman agree that the forfeiture is criminal in nature since it is part of his criminal judgment and sentence. A defendant bears the burden of establishing that a forfeiture constitutes an unconstitutional excessive fine. See, e.g., United States v. Jose, 499 F.3d 105, 108 (1st Cir. 2007). 2. United States v. Bajakajian: Gross Disproportionality In Bajakajian, the Supreme Court held that the forfeiture of a sum of money grossly disproportionate to the underlying crime constituted an Excessive Fines Clause violation. Bajakajian involved the forfeiture of $357,144 for failure to report to the United States government sums over $10,000 transported by an individual leaving the country in violation of 31 U.S.C. § 5316(a)(1)(A). See Bajakajian, 524 U.S at 324-25. Bajakajian argued that forfeiture of the entire $357,144 sum involved in the reporting offense ran afoul of the Constitution. Id. at 324. After first determining that the forfeiture was punitive, the Bajakajian Court reasoned that the next step in an Excessive Fines Clause analysis was to ascertain whether it was excessive. According to the Court, the “touchstone of the constitutional inquiry . . . is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.” Id. at 334. The Court further reasoned that because “judgments about the appropriate punishment for an offense belong . . . to the legislature” and because “any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise[,] . . . [b]oth of these principles counsel against requiring strict proportionality between the amount of a punitive forfeiture and the gravity of a criminal offense.” Id. at 336. In turn, the Court adopted a gross disproportionality standard. Id. To analyze proportionality, the Bajakajian Court first examined the nature of the substantive crime, noting that it was solely a reporting offense, unrelated to any other illegal activity, which required a “willful” mens rea for conviction. Id. at 337. Next, the Court opined that Bajakajian did “not fit into the class of persons for whom the statute was principally designed,” i.e., money launderers, drug dealers, or tax evaders. Id. at 338. Third, the Court noted that the six-month maximum sentence and $5,000 maximum fine recommended by the Sentencing Guidelines evidenced a “minimal level of culpability.” Id. at 338-39. The Court also indicated that it was appropriate to compare the amount the government sought to forfeit with the maximum fine permitted under the statute. Id. at 339 n.14. Finally, the Court concluded that the harm Bajakajian caused was minimal since his offense only injured the government in “a relatively minor way.” Id. at 339; see also Premises Known as RR No. 1 Box 224, 14 F.3d at 875 (noting that a reviewing court should evaluate the gravity of the offense, the harshness of the penalty, the sentences imposed on other criminals in the same jurisdiction, the sentences imposed for commission of the same crime in other jurisdictions and the culpability of the offender). After considering all these factors, the Supreme Court ruled the $357,144 forfeiture unconstitutional. 3. The Forfeiture was Not Grossly Disproportionate to Cheeseman’s Crime Applying the factors outlined in Bajakajian, we conclude that the forfeiture of Cheeseman’s firearms and ammunition was not grossly disproportionate to his 18 U.S.C. § 922(g)(3) violation.9 Here, unlike the reporting offense in Bajakajian, the illegal possession of the firearms was not the only illegality associated with Cheeseman’s crime. Rather, in addition to unlawfully possessing firearms, Cheeseman was also abusing illegal narcotics. Though our reasoning differs from that of the District Court, because we review a district court’s interpretation of the Constitution de novo, we may affirm the District Court’s ruling based upon the alternative reasoning discussed in this section. Next, Cheeseman’s protestation that his crime was victimless because he did not possess the firearms as a means to procure drugs is unpersuasive because it demonstrates a misunderstanding of § 922(g)(3)’s purpose. (See Appellant’s Br. at 32.) Cheeseman is exactly the type of individual for whom the statute was designed. Section 922(g)(3) of the Gun Control Act reflects Congress’ view that certain types of individuals, including drug abusers, mental incompetents, and violent felons, should not possess firearms. This is eminently reasonable considering that intoxicated individuals should not have access to, nor possess, firearms because of public safety concerns. Therefore Cheeseman, a crack cocaine addict with unfettered access to an arsenal of weapons and ammunition, who facilitated other crack cocaine addicts’ access to that arsenal, squarely fits within the class of persons whose behavior the statute aims to criminalize. Additionally, Cheeseman’s contention that he legally owned and operated a firearms dealership for many years is disingenuous at best since he was abusing drugs during his ownership of X-Ring. Cheeseman’s misrepresentation on his FFL application further undermines this argument. Finally, even assuming the firearms and ammunition were worth approximately $500,000, this sum is not grossly disproportionate to the crime to which Cheeseman pled guilty. While Cheeseman correctly notes that $500,000 exceeds the fine range of $7,500 to $75,000 recommended by the Sentencing Guidelines, when weighed against the circumstances surrounding Cheeseman’s crime, this factor is not dispositive. In Bajakajian, the amount the government sought to forfeit was $357,144, over seventy times the $5,000 maximum fine authorized by his Guideline. See Bajakajian, 524 U.S. at 337- 38. Here, although $500,000 is roughly seventy times greater than the low end of Cheeseman’s Guideline range, it is less than seven times greater than the high end of his Guideline range. In any event, when considered in light of all the factors that Bajakajian instructs courts to consider, the fact that the worth of the guns is a larger sum than the Guideline fine does not sufficiently outweigh the remaining factors that militate against a finding of unconstitutionality. Furthermore, as noted in Bajakajian, the Guideline fine alone is not dispositive and we may also consider the statutory maximum fine that Cheeseman faced. See id. at 339 n.14. Here, the statutory maximum fine was $250,000. Thus, a forfeiture valued at $500,000 is only two times greater than the maximum fine permitted by the statute. Cf. United States v. Wallace, 389 F.3d 483, 486-87 (5th Cir. 2004) (ruling forfeiture of a $30,000 plane willfully operated without a federal registration by an individual with no criminal history would not violate the Eighth Amendment when the statutory maximum fine was $15,000). Thus, any discrepancy between the value of the firearms and the Guideline fine is not controlling and therefore does not serve as the basis for finding an Excessive Fines Clause violation. In sum, we conclude that the forfeiture of Cheeseman’s firearms and ammunition was not grossly disproportionate to his 18 U.S.C. § 922(g)(3) offense because he was abusing drugs while illegally possessing firearms, he was part of the class of persons whose behavior the statute criminalized, and the value of the firearms was at most two times the maximum penalty imposed by the statute. In turn, forfeiture of Cheeseman’s firearms and ammunition did not violate the Excessive Fines Clause. III. Conclusion For the foregoing reasons, we will affirm the District Court’s Order of Forfeiture. HARDIMAN, Circuit Judge, concurring. I join the Majority’s thoughtful and comprehensive opinion in every respect save one: because I agree with the Majority that the phrase “involved in” as used in 18 U.S.C. § 924(d)(1) is unambiguous, I do not believe recourse to legislative history is necessary or proper. When interpreting a statute, it has long been accepted that courts should only examine legislative history when the statutory text is ambiguous or otherwise unclear. See Ex Parte Collett, 337 U.S. 55, 61 (1949). If the text is clear and unambiguous, our inquiry ends. BedRoc Ltd. v. United States, 541 U.S. 176, 183, 186 (2004); Hay Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404, 406 (3d Cir. 2004). Moreover, we have observed that reliance on legislative history “is to be avoided whenever possible due to the inherent unreliability of using legislative history as a basis for ascertaining legislative intent.” Roe v. Casey, 623 F.2d 829, 842 (3d Cir. 1980). Here, after a convincing analysis of the text of § 924(d)(1), the Majority quite rightly concludes that the plain meaning of the phrase “involved in” authorizes the forfeiture of Cheeseman’s firearms. Maj. Op. Typescript at 14. In rejecting Cheeseman’s request that we apply the rule of lenity, the Majority states: “Nor is the phrase ‘involved in’ ambiguous.” Id. at 15. Despite this conclusion, the Majority expounds upon the legislative histories of the Gun Control Act and the Firearm Owners Protection Act to buttress its textual interpretation of § 924(d)(1). Id. at 16-18. At least six of the sitting Justices of the Supreme Court have counseled against this approach. See, e.g., Boyle v. United States, 129 S. Ct. 2237, 2246 (2009) (Alito, J.) (“Because the statutory language is clear, there is no need to reach petitioner’s remaining arguments based on . . . legislative history . . . .”); Zedner v. United States, 547 U.S. 489, 509-10 (2006) (Scalia, J., concurring in part and concurring in the judgment) (“Here, the Court looks to legislative history even though the remainder of its opinion amply establishes that the [statute] is unambiguous . . . Use of legislative history in this context . . . conflicts . . . with this Court’s repeated statements that when the language of the statute is plain, legislative history is irrelevant.”); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001) (Kennedy, J.) (“As the conclusion we reach today is directed by the text of [the statute], we need not assess . . . legislative history . . . .”); Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994) (Ginsburg, J.) (“[W]e do not resort to legislative history to cloud a statutory text that is clear.”); Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992) (Thomas, J.) (“When the words of a statute are unambiguous, . . . [the] judicial inquiry is complete.”) (internal quotation marks omitted); see also William L. Rudkin Testamentary Trust v. Comm’r, 467 F.3d 149, 152 (2d Cir. 2006) (Sotomayor, J.) (quoting Toibb v. Radloff, 501 U.S. 157, 162 (1991)) (“‘[A]lthough a court appropriately may refer to a statute’s legislative history to resolve statutory ambiguity, there is no need to do so’ if the statutory language is clear.”). For the foregoing reasons, I do not join that portion of the Court’s opinion that delves into legislative history.

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 08-3290 UNITED STATES OF AMERICA Appellant v. RALPH DOUGLAS TRACEY Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 1-08-cr-00126-1) District Judge: Honorable William W. Caldwell Argued September 29, 2009 Before: RENDELL and AMBRO, Circuit Judges and McVERRY,* District Judge * Honorable Terrence F. McVerry, United States District Judge for the Western District of Pennsylvania, sitting by designation. (Opinion filed March 1, 2010 ) Martin C. Carlson United States Attorney Theodore B. Smith, III (Argued) Gordon A.D. Zubrod Assistant United States Attorney Criminal Appeals Office of the United States Attorney 228 Walnut Street, P.O. Box 11754 220 Federal Building and Courthouse Harrisburg, PA 17108-0000 Counsel for Appellant Steve Rice, Esquire (Argued) 18 Carlisle Street, Suite 215 Gettysburg, PA 17325 Counsel for Appellee OPINION OF THE COURT AMBRO, Circuit Judge The United States Government appeals the order of the District Court suppressing evidence seized and a statement made during a search conducted pursuant to a warrant. The Court held that the warrant was general and not cured by the affidavit of probable cause because it was not incorporated into the warrant. The Court also concluded that a reasonably objective police officer would have recognized that the warrant was defective, and thus the good faith exception to the exclusionary rule did not apply. On appeal, the Government argues that the warrant was not general because it incorporated the narrower affidavit, that the search was limited to the scope of that affidavit, and that, in any event, the good faith exception applies to the circumstances of this case. Relying on our decision in Doe v. Groody, 361 F.3d 232 (3d Cir. 2004), we conclude that the warrant did not incorporate the affidavit of probable cause, and thus the narrower affidavit did not cure the concededly overbroad warrant. We also conclude that the Government waived any arguments based on the exception to the incorporation rule applied in United States v. Leveto, 540 F.3d 200 (3d Cir. 2008), cert. denied, 129 S. Ct. 2790 (2009), by failing to raise them before the District Court. However, we hold that application of the exclusionary rule is not justified because the officers acted in good faith by relying on the validity of the warrant. Accordingly, we reverse the District Court’s order suppressing the evidence seized as a result of the search and the statement made during the search, and remand for further proceedings. I. Factual and Procedural Background After conducting an investigation into the Internet distribution of a video containing images of an adult male having vaginal sex with a minor female, the Chief of the Liberty Township Police Department, James Holler, presented an application for a search warrant to a Magistrate Judge in Adams County, Pennsylvania.1 Holler prepared the application for the warrant and a seven-page affidavit of probable cause that accompanied the application.2 He used a standard form issued by the Administrative Office of Pennsylvania Courts that was titled “Application For Search Warrant And Authorization.” The form included the application and warrant on a single page divided into several sections. Under the block titled “Identify Items To Be Searched For And Seized,” which directs applicants to “be as specific as possible,” Holler wrote: Any items, images, or visual depictions Charges against Tracey were initially filed in the Court of Common Pleas of Adams County, Pennsylvania. Before state prosecution was terminated in favor of federal prosecution, the Court of Common Pleas Judge held preliminary and pretrial hearings and denied the motion to suppress Tracey filed in that Court. In its opinion, the District Court relied on the state court’s factual findings and therefore did not hold an evidentiary hearing. Both documents are appended to this opinion. representing the possible exploitation of children including video tapes or photographs. COMPUTERS: Computer input and output devices to include but not limited to keyboards, mice, scanners, printers, monitors, network communication devices, modems and external or connected devices used for accessing computer storage media. In the block requiring a “Specific Description Of Premises And/Or Person To Be Searched,” Holler included an address and a detailed description of two buildings located at that address. He listed Ralph Douglas Tracey, the defendant, as the owner or occupant of the premises to be searched. The box below the name of the owner of the premises was divided into four partitions. The first and second partitions asked for “Violation of” and the “Date(s) of Violation.” Holler wrote “6312(c),(d) PA Crimes Code” 3 and listed the date of the When the warrant was issued, 18 Pa. Cons. Stat. Ann. § 6312 stated in relevant part: (c) Dissemination of photographs, videotapes, computer depictions and films.– (1) Any person who knowingly sells, distributes, delivers, disseminates, transfers, displays or exhibits to others, or who possesses for the purpose of sale, distribution, delivery, violation as January 9, 2006. Another portion of this box provided three small boxes for an applicant to check. Holler checked all three, indicating that: 1) the warrant application had been approved by the district attorney; 2) additional pages, other than the affidavit of probable cause, were attached; and 3) the affidavit of probable cause was attached. The box pertaining to the probable cause affidavit stated “Probable Cause Affidavit(s) MUST be attached (unless sealed below).” [A 34] It was dissemination, transfer, display or exhibition to others, any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense. (d) Possession of child pornography.– (1) Any person who knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense. 18 Pa. Cons. Stat. Ann. § 6312 (amended 2009). A “prohibited sexual act” was defined as “sexual intercourse . . . , masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.” Id. The statute was amended during the pendency of the appeal, see H.B. 89, 193rd Gen. Assem., Reg. Sess. (Pa. 2009), but the amendments are not material to this case. followed by a sentence requesting that the applicant identify the total number of pages. Holler handwrote “7” in response to this inquiry. Underneath this section, he signed the form, indicating that he swore there was probable cause to believe that “certain property” was evidence of a crime and was located at the “particular premises” described above. In a separate box below Holler’s signature, the Magistrate Judge signed and attached a seal, indicating that the affidavit had been sworn before him on January 30, 2006. On the same page as the application, and immediately below the box containing the Magistrate Judge’s signature, there is a final box, titled “Search Warrant,” containing the following language: WHEREAS, facts have been sworn to or affirmed before me by written affidavit(s) attached hereto, from which I have found probable cause, I do authorize you to search the premises or person described, and to seize, secure, inventory and make return according to the Pennsylvania Rules of Criminal Procedure. The Magistrate Judge indicated when the warrant could be served. Below the date and time, the Magistrate Judge signed the warrant and attached a seal. The seven-page affidavit of probable cause was attached to the application and the warrant, and the bottom of each page of the affidavit included the signature of Holler and the date, along with the signature of the Magistrate Judge, the seal, and the date. The affidavit of probable cause provided detailed information on the investigation of Tracey. According to the affidavit, an officer was investigating the distribution of child pornography on the Internet by using software to recognize and match files known to contain child pornography. The officer found a file name that matched a known movie file. The affidavit included the digital signature of the file and stated that this file was a video of an adult male having vaginal sex with a minor female. The officer downloaded the movie file and confirmed its contents. The officer then determined the Internet Protocol (“IP”) address of the computer distributing the film and sought a court order directing Adelphia, the internet service provider, to provide subscriber information for the IP address along with connection-access logs. Adelphia responded that the account of the IP address was registered to Doug Tracey of Fairfield, Pennsylvania. The Liberty Township Police Department then became involved in the investigation. After confirming the Adelphia account information, Holler visited the address listed on the Adelphia account and observed a house with an attached body shop. The affidavit also included information about the items the officers expected to seize during the search. On page two of the affidavit, Holler stated that he expected to find “within the residence of 2896 Tract Road, Liberty Township, Adams County, PA 17320, items which are/were used to commit the crime of Sexual Abuse of Children, to wit, 18 PA. C.S.A. section 6312(c), (d).” He further stated: Your affiant has delineated the items your affiant expects to find within said location which is captioned under “items to be searched for and seized” and your affiant incorporates that list therein. Possession of these items are either in and of themselves a crime or they are/were utilized to commit a crime, to wit, Sexual [A]buse of [C]hildren, 18 PA. C.S.A. section 6312(c), (d). Additionally, in a section of the affidavit titled “Seizure of Computers and Digital Evidence,” the affidavit described the sort of evidence likely to be associated with crimes involving child pornography, including floppy disks, hard drives, tapes, DVDs, and CD-ROMs, and explained why it was necessary to seize these items and search them offsite. The search also was expected to produce items that showed ownership or use of the computers and ownership of the home. Holler and three other officers served the warrant on the day it was issued. During the search, Holler explained the search warrant to Tracey and his wife, informing them that he was searching for child pornography. Tracey allegedly told Holler that he may have accidentally downloaded one movie containing child pornography. After a search of the defendant’s home and the shop adjoining his home, the officers seized: one working laptop computer, one broken laptop computer, two floppy disks, two computer towers with power cords, one Sony video cassette, four other videotapes, one box of 19 video cassette tapes, and one bag of 19 videotapes. After examining one of the computer towers, officers removed 208 images and 48 movies allegedly containing child pornography. The Commonwealth filed charges against Tracey in state court based on 189 images and 33 movies that it alleged contained child pornography. State prosecution was then terminated in favor of federal prosecution. A federal grand jury in the Middle District of Pennsylvania returned a two-count indictment charging Tracey with receiving and distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Tracey entered a plea of not guilty and was released subject to conditions. Tracey then filed a motion to suppress, arguing that the evidence seized pursuant to the search warrant must be suppressed because the warrant lacked the particularity required by the Fourth Amendment. He also asked that his statement during the search be suppressed as fruits of this illegal search. The Government opposed the motion. The District Court granted the motion to suppress, and the Government filed a timely appeal. II. Discussion The District Court had subject matter jurisdiction over this criminal case pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction under 18 U.S.C. § 3731. We review the District Court’s decision to grant a motion to suppress under a mixed standard of review. See United States v. Crandell, 554 F.3d 79, 83 (3d Cir. 2009). We review its findings of fact for clear error, but exercise plenary review over its legal conclusions. See id.4 A. Did the Warrant Incorporate the Affidavit of Probable Cause? Before the District Court, the Government conceded that the description of the items to be searched for and seized in the application (and therefore the warrant) lacked the particularity Tracey does not contend that a different standard of review applies to the District Court’s factual determinations because that Court relied on the state court’s findings of fact instead of holding an evidentiary hearing, cf. United States v. Wilson, 413 F.3d 382, 385–86 (3d Cir. 2005), and, in any case, the District Court’s factual findings are undisputed. required by the Fourth Amendment unless the affidavit of probable cause was incorporated. On appeal, it contends that Holler did everything he could to incorporate the affidavit into the warrant within the confines of the form and that the standard language on the warrant explicitly incorporated the affidavit. Tracey responds that Holler failed to incorporate the affidavit of probable cause into the warrant, and thus the affidavit does not cure the warrant’s lack of particularity. The Fourth Amendment to the Constitution guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. It directs that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” Id. “The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” Marron v. United States, 275 U.S. 192, 196 (1927). Along with preventing general searches, the particularity requirement serves two other functions. It “memorializes precisely what search or seizure the issuing magistrate intended to permit,” Groody, 361 F.3d at 239, and informs the subject of the search “of the lawful authority of the executing officer, his need to search, and the limits of his power to search,” Groh v. Ramirez, 540 U.S. 551, 561 (2004) (quoting United States v. Chadwick, 433 U.S. 1, 9 (1977)).5 Along with other Courts of Appeals, we have held that an affidavit may be used in determining the scope of a warrant that lacks particularity if the warrant is “accompanied by an affidavit that is incorporated by reference.” United States v. Johnson, 690 F.2d 60, 64 (3d Cir. 1982); see also Groh, 540 U.S. at 557–58 (“[M]ost Courts of Appeals have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant.”). “[T]o take advantage of this principle of interpretation, the warrant must expressly incorporate the affidavit,” and the incorporation must be “clear.” Groody, 361 F.3d at 239; see also Bartholomew v. Pennsylvania, 221 F.3d 425, 428–29 & n.4 (3d Cir. 2000). As with the particularity requirement, the primary purposes of this incorporation rule are to “limit the [officers’] discretion as to what they are entitled to seize” and “inform the subject of the search what can be seized.” Bartholomew, 221 F.3d at 429. The issue, then, is whether the warrant incorporated the affidavit. We are guided in this regard by Doe v. Groody. Of course, the Fourth Amendment does not require the officer to provide a copy of the warrant to the subject before he conducts the search. See United States v. Grubbs, 547 U.S. 90, 98–99 (2006); Groh, 540 U.S. at 562 n.5. There, a mother and daughter brought a § 1983 action against officers who searched them during a search of their home. 361 F.3d at 236–37. Although the officers searched pursuant to a warrant, the face of the warrant only authorized the officers to search the home and the male resident of the home. Id. at 236, 239. The officers, recognizing that the face of the warrant did not authorize them to search the females, argued that the scope of the warrant should be construed with reference to the accompanying affidavit, which did request permission to search all occupants of the house. Id. at 239. We held that the warrant had not “expressly incorporate[d]” the affidavit so as to permit this construction of the warrant. Id. The warrant specifically referred to the affidavit in response to the questions about the date of the violation and the supporting probable cause, but did not mention the affidavit in response to the question concerning the premises or people to be searched. Id. at 239. That the affidavit was expressly referenced in certain sections “demonstrate[d] that where the face sheet was intended to incorporate the affidavit, it said so explicitly.” Id. Thus, “the absence of a reference to the affidavit” in the section describing the premises and persons to be searched “negat[ed] any incorporation of that affidavit.” Id. at 240. In contrast, we have held that including the statement “see Exhibit A sealed by Order of the Court” in the items-to-be- seized section of the warrant incorporated that exhibit containing a list of items to be seized. See Bartholomew, 221 F.3d at 429; see also Bartholomew v. Pennsylvania, No. 97- 5684, 1999 WL 415406, at *1 (E.D. Pa. June 23, 1999), rev’d, 221 F.3d 425.6 Similarly, we held an affidavit was incorporated where the warrant “direct[ed] the police officers to search the defendant’s premises ‘for . . . evidence which is specified in the annexed affidavit.’” United States v. Johnson, 690 F.2d at 64.7 Other Courts of Appeals have accepted phrases such as “attached affidavit which is incorporated herein,” “see attached affidavit,” and “described in the affidavit,” as suitable words of incorporation. See, e.g., United States v. Waker, 534 F.3d 168, 172 n.2 (2d Cir. 2008); United States v. McGrew, 122 F.3d 847, 849 (9th Cir. 1997); United States v. Curry, 911 F.2d 72, 76–77 (8th Cir. 1990). However, because Exhibit A was sealed, the Court concluded that it could not be used to construe the scope of the warrant. See id. at 429–30. In that context, the warrant lacked the particularity required by the Fourth Amendment. See id. We have required incorporation to be explicit when officers seek to use the affidavit either to broaden the warrant or to narrow it. See Groody, 361 F.3d at 239–40 (broadening); Johnson, 690 F.2d at 64–66 (narrowing). We have not indicated that there would be reason to apply a less exacting standard when the officers seek to use the affidavit to narrow the scope of the warrant. Here, we agree with the District Court—albeit for different reasons—that the warrant did not adequately incorporate the affidavit of probable cause. The face sheet of the application and the warrant do not contain any explicit words of incorporation. More importantly, the description of the items to be searched for and seized does not incorporate the affidavit. The first reference to the affidavit on the application and warrant requires that the affidavit be attached to the application and asks for the total number of pages. The box is checked and “7” is handwritten in the blank. However, these markings do not suggest that the description of the items to be seized is to be read in conjunction with the affidavit. The second reference appears in the Search Warrant section of the form, where preprinted words state that the Magistrate Judge has found probable cause from the “facts [that] have been sworn to or affirmed before me by written affidavit(s) attached hereto.” Again, this statement gives no indication that the items-to-be- seized section is to be read with reference to the affidavit. See Groh, 540 U.S. at 555 (rejecting a similar statement as insufficient to incorporate the application or affidavit of probable cause into the warrant); see also Curry, 911 F.2d at 76–77 (finding the following language insufficient to incorporate the affidavit: “Whereas, the application and supporting affidavit of Det. Ross Swanson [were] duly presented and read by the Court, and being fully advised in the premises . . . .”). Thus the only two references to the affidavit fail to incorporate expressly the affidavit into the warrant’s description of the items to be searched for and seized if found. The Government argues that Holler did all he could to incorporate the affidavit by checking the box, writing in the number of pages, attaching it to the application and warrant, and signing below the preprinted language. But if Holler intended to incorporate the affidavit into the description of items to be seized, he could have written “see affidavit,” “as further described in the affidavit,” or any other words of incorporation. This requirement is not difficult, yet it went unmet in this case. The Government’s other arguments regarding incorporation are unpersuasive. It correctly argues that this case is distinguishable from Groh because the warrant there contained no words of incorporation and neither the application nor the affidavit accompanied the warrant. 540 U.S. at 557–58. But this argument does not help the Government — our Court requires clear words of incorporation to cure a warrant lacking particularity. The Government also contends that the District Court failed to recognize that the application and warrant are one document pursuant to the Pennsylvania Rules of Criminal Procedure. The Government argues that, under Pennsylvania practice, the description of the items to be seized is to be listed in the affidavit, not the application, and the affidavit must be served with the warrant. See Pa. R. Crim. P. 205 and 206. It posits that this practice serves the purpose of the incorporation rule by providing the agents and the subject with notice of the limits of the search. This argument ignores that the Pennsylvania Rules, in accordance with the federal Constitution, also require that the search warrant itself “identify specifically the property to be seized” and “describe with particularity the person or place to be searched.” See Pa. R. Crim. P. 205. Accordingly, we hold that for an affidavit to cure a warrant’s lack of particularity, the words of incorporation in the warrant must make clear that the section lacking particularity is to be read in conjunction with the attached affidavit.8 Merely referencing the attached affidavit somewhere in the warrant without expressly incorporating it does not suffice. In this case, a reader of the warrant would know that an affidavit is attached, but would have no indication that the attached affidavit limits the officers in their search. Because the warrant did not explicitly incorporate the affidavit of probable cause into the description of the items to be searched for and seized, the warrant’s lack of particularity is not cured by the affidavit. B. The Scope of the Actual Search The Government’s alternative argument is that, even if the affidavit were not incorporated into the warrant, its lack of particularity was cured because the affidavit accompanied the These words of incorporation need not be included in the section lacking particularity, as long as the words of incorporation in the warrant make clear that the section is to be read with reference to the affidavit. warrant, and the search was confined to the narrower scope of the affidavit. See, e.g., Leveto, 540 F.3d at 211. However, the Government waived this argument by failing to raise it before the District Court. A suppression argument raised for the first time on appeal is waived unless good cause is shown. See United States v. Rose, 538 F.3d 175, 182 (3d Cir. 2008). Thus we must first determine if the argument was raised before the District Court or, in the alternative, if the Government has shown good cause for failing to raise the argument earlier. In Groody we recognized that other Courts of Appeals allow two exceptions to the general rule requiring that the affidavit be incorporated into the warrant. 361 F.3d at 240. The first exception allows a court to reference an unincorporated affidavit when the warrant contains “an ambiguity” or a clerical error that could be clarified by the affidavit. Id. The second exception provides that an unincorporated affidavit can cure an overly broad warrant if the actual search is restricted to the narrower scope of the affidavit. Id. We declined to apply the second exception in Groody because the case involved an affidavit and an actual search that were broader in scope than the terms of the warrant. Id. at 241. We emphasized the distinction between allowing an unincorporated affidavit to broaden, rather than limit, the scope of the search permitted by the warrant. Id. (“[T]he officers seek to use the affidavit to expand, rather than limit, the warrant. That makes all the difference . . . . [I]t is one thing if officers use less than the authority erroneously granted by a judge. It is quite another if officers go beyond the authority granted by the judge.” (emphases in original)). But in our case, the Government did not argue before the District Court that the warrant could be cured by the narrower affidavit and the actual search even if the affidavit were not incorporated into the warrant. A footnote in the District Court’s memorandum opinion shows that the Court did not believe this argument was before it. See United States v. Tracey, No. 1:08- 126, 2008 WL 2622908, at *4 n.4 (M.D. Pa. June 30, 2008) (“We do not explore whether Ortega-Jimenez and cases like it might allow us to rely on the unincorporated affidavit[,] as the government does not argue that incorporation is not necessary, preferring instead to contend that incorporation in the application is all that is needed.”). This argument is thus waived unless the Government can show good cause for its failure to raise it. See Rose, 538 F.3d at 182. The Government argues that it had good cause because United States v. Leveto — the first decision in our Court upholding the use of the second exception discussed in Groody — was filed after the District Court’s opinion in Tracey. See Leveto, 540 F.3d at 211–12. However, the Government easily could have distinguished Groody in its argument to the District Court before Leveto was issued. Even a cursory review of Groody reveals that it recognized the exception at issue, but concluded that it could not be applied to expand the scope of a warrant. See 361 F.3d at 240–41. Our opinion in Groody provided the Government with the authority it needed to make this argument, but it failed to do so. The Government has not shown a good reason for this failure, and, accordingly, its argument is waived on appeal. See Rose, 538 F.3d at 182. C. The Good Faith Exception Before the District Court, the Government conceded that the description of the items to be seized on the face of the warrant did not meet the Fourth Amendment’s particularity requirement unless it was construed with reference to the narrower affidavit. In the event that the District Court concluded that the warrant did not incorporate the affidavit, the Government contended that the good faith exception to the exclusionary rule applied.9 The Court rejected this argument, Tracey argues that the Government did not make certain arguments in favor of the good faith exception before the District Court, and thereby also waived them on appeal. Before that Court, however, the Government contended that the good faith exception applied because excluding the seized evidence in this case would not deter misconduct where Holler could have reasonably relied on the validity of the warrant, believing that he had incorporated the attached affidavit into the warrant. Accordingly, the good faith argument was not waived and will be addressed on the merits. holding that the good faith exception did not apply because the warrant was general and the description of the items to be searched for and seized was “so facially defective that no reasonable police officer should have relied on it.” Tracey, 2008 WL 2622908, at *5. In United States v. Leon, the Supreme Court recognized that the purpose of the exclusionary rule — to deter police misconduct — would not be furthered by suppressing evidence obtained during a search “when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope.” 468 U.S. 897, 919–20 (1984). The Court explained that “[i]n the ordinary case, an officer cannot be expected to question the magistrate’s probable- cause determination or his judgment that the form of the warrant is technically sufficient.” Id. at 921; see also Massachusetts v. Sheppard, 468 U.S. 981, 988–90 (1984) (holding that the good faith exception applied in a case where the warrant lacked particularity because the officers reasonably believed the warrant was valid). Thus “evidence should be suppressed ‘only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.’” Herring v. United States, 129 S. Ct. 695, 701–02 (2009) (quoting Illinois v. Krull, 480 U.S. 340, 348–49 (1987)). Accordingly, a determination that the Fourth Amendment has been violated does not necessarily require application of the exclusionary rule. Id. at 700; see also Leon, 468 U.S. at 919–20. It applies when it serves “to safeguard Fourth Amendment rights . . . through its deterrent effect.” United States v. Calandra, 414 U.S. 338, 348 (1974). To determine whether to apply the rule in a particular case, we weigh the benefits of the rule’s deterrent effects against the costs of exclusion, which include “letting guilty and possibly dangerous defendants go free.” Herring, 129 S. Ct. at 700, 701. Because of the high social costs of excluding evidence in a criminal case, the Supreme Court has instructed that the exclusionary rule should only be applied when “police conduct [is] . . . sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id. at 702. Accordingly, we apply the rule when police conduct is “deliberate, reckless, or grossly negligent,” or when it will deter “recurring or systemic negligence.” Id. Put another way, isolated negligent acts on the part of the police do not warrant application of the exclusionary rule. See id. We have previously recognized that the good faith exception does not apply in four limited circumstances: 1) where the magistrate judge issued the warrant in reliance on a deliberately or recklessly false affidavit; 2) where the magistrate judge abandoned his or her judicial role and failed to perform his or her neutral and detached function; 3) where the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or 4) where the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized. United States v. Zimmerman, 277 F.3d 426, 436–37 (3d Cir. 2002) (quoting United States v. Hodge, 246 F.3d 301, 308 (3d Cir. 2001)). These limited exceptions are consistent with the approach taken in Herring because each of these circumstances involve conduct that is “deliberate, reckless, or grossly negligent,” and thus the benefits of deterring future misconduct “outweigh the costs” of excluding the evidence. Herring, 129 S. Ct. at 700, 702. In this case, the District Court determined that the fourth exception applied because the warrant failed to particularize the items to be seized. We part paths here. The description of the items to be searched for and seized was as follows: Any items, images, or visual depictions representing the possible exploitation of children including video tapes or photographs. COMPUTERS: Computer input and output devices to include but not limited to keyboards, mice, scanners, printers, monitors, network communication devices, modems and external or connected devices used for accessing computer storage media. The Government conceded that the phrase “possible exploitation of children” was overly broad. However, in the attached affidavit, Holler wrote that he “expect[ed] to find within the residence . . . items which are/were used to commit the crime of Sexual Abuse of Children, to wit, C.S.A. section 6312 (c), (d).” The detailed affidavit also included the specific digital signature of the video of an adult male having vaginal sex with a minor female, and explained why seizure of the computer equipment was necessary. When read with reference to the attached affidavit, it is clear that the warrant authorized the officers to search for evidence of violations of 18 Pa. Cons. Stat. Ann. § 6312(c) and (d). The attached affidavit, therefore, provides the particularity necessary to satisfy the Fourth Amendment.10 We recognize, as the District Court did, that Holler incorporated the problematic description in the warrant into the affidavit. However, the words of incorporation in the affidavit are succeeded by the following sentence: “Possession of these items are either in and of themselves a crime or they are/were utilized to commit a crime, to wit, Sexual abuse of children, 18 PA.C.S.A. section 6312(c), (d).” Reading the sentences together, the description incorporated from the warrant is limited by the language indicating that the officers were seeking Though the Government conceded that the lack of particularity on the face of the search warrant violated the Fourth Amendment, we believe that Holler could have reasonably relied on the warrant because a reasonable officer in his position would assume that the warrant incorporated and would be construed with the attached affidavit. As noted above, in Groody we held that a warrant must “expressly incorporate” an affidavit in order for the warrant to be construed with reference to the affidavit. 361 F.3d at 239. Here, Holler checked the box indicating that the probable cause affidavit was attached and handwrote the number “7” to indicate the total number of pages. Notably, this language required the affidavit to be attached unless it was sealed. Next, Holler and the Magistrate Judge signed and the Magistrate Judge sealed each page of the seven-page affidavit, which was attached to the warrant. Given the format of the Pennsylvania form Holler used, a reasonable police officer in Holler’s position might assume that he had in fact “expressly” incorporated the affidavit by checking the boxes regarding the affidavit and attaching the affidavit to the warrant. Even though we conclude these efforts were not legally sufficient because the warrant does not clearly permission to search for and seize evidence of violations of a specific statute’s subsections. Accordingly, the affidavit particularly described the items to be searched for and seized. indicate that the items-to-be-seized section is to be read with reference to the attached affidavit, an officer could understandably believe that he had met the requirements of the Fourth Amendment.11 See United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985) (“[I]t must . . . be remembered that the knowledge and understanding of law enforcement officers and their appreciation for constitutional intricacies are not to be judged by the standards applicable to lawyers.”). Our cases recognize that an incorporated affidavit may narrow the scope of a warrant, and it would be reasonable for an officer in Holler’s position to believe the affidavit was properly incorporated and, therefore, the warrant was valid. See United States v. Hamilton, 591 F.3d 1017, 1026, 1028–29 (8th Cir. 2010) (finding that the good faith exception applied even though the face of warrant lacked particularity, and it was unclear whether the affidavit was incorporated into the description of the items to be seized, because the officer had an objectively reasonable belief that the warrant and its reference to the affidavit authorized the search). In addition to holding a reasonable belief that the warrant incorporated the narrower affidavit, Holler’s use of the The reasonableness of Holler’s belief is supported by the fact that the Court of Common Pleas Judge, who ruled on Tracey’s pretrial motions in state court, concluded that the description of the items to be seized in the warrant must be read with reference to the affidavit of probable cause. phrase “possible exploitation of children” on the face of the warrant does not make it “so facially deficient” that no reasonable officer could rely on it. The section below the description of the items to be seized and the premises to be searched is titled “Violation of,” and directs the applicant to “[d]escribe conduct or specify statute.” In response, Holler wrote in “6312(c),(d) PA Crimes Code,” identifying the Pennsylvania statute criminalizing the dissemination and possession of media containing depictions of “a child under the age of 18 years engaging in a prohibited sexual act.” See 18 Pa. Cons. Stat. Ann. § 6312. The warrant also identifies the date of the violation as January 9, 2006 — the day the officer found the video of an adult male having vaginal sex with a minor female by searching the peer-to-peer networks. In this context, a reasonable officer could rely on the validity of the warrant if he believed that the phrase “possible exploitation of children” would be read in conjunction with the statute, and thus the type of exploitation of children they were authorized to search for was limited to sexual abuse of children in violation of § 6312(c) and (d). A reasonable officer would also have confidence in the validity of the warrant after presenting it and having it approved by a district attorney and the Magistrate Judge, as occurred here. See, e.g., United States v. Otero, 563 F.3d 1127, 1134–36 (10th Cir. 2009), cert. denied, 130 S. Ct. 330 (2009) (holding that the good faith exception applied to a warrant that lacked particularity, in part because the agent consulted with the Assistant United States Attorney, who informed her it met legal requirements); cf. United States v. Hallam, 407 F.3d 942, 947 (8th Cir. 2005) (concluding that the good faith exception applied where the officer relied on the prosecutor’s determination that the affidavit provided probable cause). We also note that the application of the good faith exception is appropriate because Holler, who drafted the narrower affidavit and was aware of its limits, led the search team at Tracey’s home. In accordance with the narrower affidavit, Holler informed Tracey and his wife that he was searching for child pornography when the officers arrived at Tracey’s home. Indeed, all of the items seized from Tracey’s home were video or computer equipment, and the 208 images and 48 movies taken from one of the computers all allegedly contained child pornography — consistent with the scope of the narrower affidavit. These facts support our good faith determination and demonstrate that the primary purposes of the Fourth Amendment’s particularity requirement — limiting the officers’ discretion and notifying the subjects of the scope of the authorized search and seizure — were achieved in this case. See United States v. Riccardi, 405 F.3d 852, 861–64 (10th Cir. 2005) (holding that the good faith exception applied where the warrant lacked particularity, but the affidavit limited the scope of the search, the officers were aware of the affidavit, and the search was limited to that permitted by the affidavit). Tracey urges that the good faith exception does not apply because the warrant is “general,” and that good faith cannot save a general warrant. Appellee’s Br. 26 (citing United States v. Yusuf, 461 F.3d 374 (3d Cir. 2006)). We reject Tracey’s argument that the warrant was “general” such that it “vest[ed] the executing officers with unbridled discretion to conduct an exploratory rummaging through [a defendant’s] papers in search of criminal evidence.” United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d 137, 149 (3d Cir. 2002) (quoting United States v. Christine, 687 F.2d 749, 753 (3d Cir. 1982)). Examples of general warrants are those authorizing searches for and seizures of such vague categories of items as “‘smuggled goods,’” “‘obscene materials,’” “‘books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas,’” “‘illegally obtained films,’” and “‘stolen property.’” Id. (citations omitted). In Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d at 146, a case involving illegal money laundering, we considered whether a warrant authorizing a search for the following items constituted a “general” warrant: 1. Receipts, invoices, lists of business associates, delivery schedules, ledgers, financial statements, cash receipt, disbursement, . . . sales journals, and correspondence. 2. Computers, com puter peripherals, related instruction manuals and notes, and software in order to conduct an off-site search for electronic copies of the items listed above. Id. at 149. Despite the breadth of the warrant, which imposed virtually no limitation on the types of business records subject to seizure, and which authorized a search for “correspondence” generally, then-Judge Alito wrote for the majority that the warrant was not “general”: “The warrant thus ‘describ[ed] in . . . inclusive generic terms what is to be seized.’ It did not vest the executing officers with ‘unbridled discretion’ to search for and seize whatever they wished. It was indubitably broad, but it was not ‘general.’” Id. at 149 (internal citation omitted). Here, the warrant directs officers to search for items representing the “possible exploitation of children,” but specifically cites on its face the statutory provision criminalizing possession and distribution of images of children engaged in prohibited sexual acts. Read as a whole, this warrant did not authorize an exploratory rummaging. Therefore, it was not a general warrant, and a reasonable officer could rely on it. The officer’s failure to incorporate the affidavit — a task that could be accomplished by simply adding ‘see attached affidavit’ in the appropriate section — and use of the phrase “possible exploitation of children” do not amount to “deliberate, reckless, or grossly negligent conduct” that justifies the application of the exclusionary rule. Nor has Tracey presented evidence that this violation is an example of “recurring or systemic negligence.” See Herring, 129 S. Ct. at 702. Instead, Holler and other officers undertook a thorough investigation, as detailed in the affidavit, and the Magistrate Judge found probable cause and issued the warrant. See Sheppard, 468 U.S. at 989 (holding that the good faith exception applied where “[t]he officers . . . took every step that could reasonably be expected of them”). The officers had good reason to believe in the warrant’s validity. Accordingly, application of the exclusionary rule is not justified. * * * * * Holler did not explicitly incorporate the affidavit of probable cause into the search warrant, and therefore the affidavit cannot be used to narrow the terms of the concededly overly broad warrant. Because the Government lacked good cause for its failure to argue before the District Court that the warrant’s lack of particularity could be cured when the affidavit was attached to the warrant and the actual search was limited to the terms of the narrower affidavit, this argument was waived. However, under these circumstances the good faith exception applies and exclusion of the evidence is not justified. Accordingly, the order of the District Court suppressing the evidence seized, along with the statement made during the search, is reversed, and this case is remanded for further proceedings. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 08-3290 UNITED STATES OF AMERICA Appellant v. RALPH DOUGLAS TRACEY APPENDIX

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Nos. 04-4164, 05-3879, 08-1569 UNITED STATES OF AMERICA v. FRANKLIN C. BROWN, Appellant On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 02-cr-00146-2) Honorable Sylvia H. Rambo, District Judge Argued December 16, 2009 BEFORE: SLOVITER, JORDAN, and GREENBERG, Circuit Judges (Filed: February 23, 2010) Nathan Dershowitz (argued) Amy Adelson Dershowitz, Eiger & Adelson 220 Fifth Ave., suite 300 New York, NY 10001 Peter Goldberger (argued) Pamela A. Wilk 50 Rittenhouse Place Ardmore, PA 19003-2276 Attorneys for Appellant Martin C. Carlson United States Attorney Kim Douglas Daniel (argued) Assistant United States Attorney 228 Walnut Street, P.O. Box 11754 220 Federal Building and Courthouse Harrisburg, PA 17108-0000 Attorneys for Appellee OPINION OF THE COURT GREENBERG, Circuit Judge I. INTRODUCTION........................................................3 II. BACKGROUND..........................................................4 III. JURISDICTION...........................................................8 IV. DISCUSSION...............................................................8 A. The Rule 33 Motion.............................................9 1. The Receipt of the Noonan Tapes..........9 2. Allen’s Preliminary Report...................12 3. The Evidence at Trial...........................13 4. Owen’s Report......................................15 5. The Motion under the All-Writs Act....16 6. The Initial Motion for a New Trial.......18 7. The Renewed Motion for a New Trial..19 8. The District Court Did Not Abuse its Discretion.............................................26 B. The Pre-Trial Suppression Motion..................33 C. The Plea Agreement........................................39 1. The Terms of the Agreement................40 2. Judge Rambo’s Letter...........................41 3. The Chambers Meeting........................42 4. Application of Rule 11(c)(1)................45 5. Abuse of Discretion Standard...............50 D. The Sentence....................................................54 1. The Sentencing Proceedings.................55 2. Post-Booker Sentencing Requirements........................................60 3. Unreasonableness of Sentence..............61 V. CONCLUSION...........................................................63 I. INTRODUCTION This matter comes on before this Court on Franklin Brown’s consolidated appeals from: (1) a judgment of conviction and sentence entered by the District Court on October 15, 2004, reflecting the sentence the Court imposed on October 14, 2004; (2) an order denying Brown’s motion for a new trial entered by the District Court on August 10, 2005; and (3) an order denying Brown’s renewed motion for a new trial or for dismissal of the indictment entered by the District Court on February 22, 2008. For the reasons that follow, we will affirm the judgment of conviction and the orders denying Brown’s motion for a new trial or dismissal of the indictment, but will remand the case for Brown’s resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). II. BACKGROUND Brown worked for the Rite Aid Corporation, the operator of a chain of retail drug stores, for more than 30 years, eventually rising to become one of its top executive officers, before resigning in 2000. From 1995 until 1999, while Brown was serving as Rite Aid’s Chief Legal Counsel and then as a Vice Chairman of its Board of Directors, Martin Grass was Rite Aid’s Chief Executive Officer. Under Grass’s leadership, Rite Aid aggressively expanded its operations by acquiring and building hundreds of drugstores throughout the United States. This expansion seemingly was rewarded with soaring profits, and Rite Aid’s stock price rose by more than 300% between the date that Grass assumed control of the company and the beginning of 1999. Troubles within Rite Aid surfaced, however, when it released a statement in March 1999 revealing significantly lower than expected earnings and higher than expected expenses, resulting in its stock losing more than half of its value in a single day. After the value of Rite Aid stock continued to slide over the next several months, the Rite Aid Board of Directors on October 18, 1999, issued a press release announcing that Grass was resigning as CEO and that Rite Aid intended to restate its income negatively for fiscal years 1997-1999. Rite Aid’s new leadership then launched an internal investigation that culminated on July 11, 2000, in a restatement of income of more than one billion dollars for fiscal years 1998, 1999, and the first quarter of fiscal year 2000.1 When Rite Aid made the July 11, 2000 restatement it was the largest restatement of corporate income in United States history. The Rite Aid problems naturally triggered public investigations. Thus, the Securities & Exchange Commission commenced a civil probe into Rite Aid’s accounting practices and the Federal Bureau of Investigation, in conjunction with the United States Attorney’s Office for the Middle District of Pennsylvania, launched a criminal investigation. FBI agent George Delaney and Assistant United States Attorney (“AUSA”) Kim Douglas Daniel led the criminal investigation. As the criminal investigation progressed, Brown retained counsel and notified the government of this representation. On February 12, 2001, AUSA Daniel contacted Brown’s counsel and arranged a meeting between government representatives and Brown for April 4, 2001. On Rite Aid did not restate its earnings for fiscal year 1997. March 28, 2001, AUSA Daniel faxed Brown’s counsel an agenda letter setting forth the topics to be discussed at the April 4 meeting. Brown, however, became unwilling to meet with the government, a change in position that led Brown’s counsel on or about March 30, 2001, to inform AUSA Daniel that Brown would not consent to participate in the interview. During the time that the government was communicating with Brown, it also was in contact with Timothy Noonan, Rite Aid’s President and Chief Operating Officer during Grass’s tenure as CEO. Noonan informed the government that, in response to Brown’s request, he had agreed to meet Brown on March 13, 2001. Noonan agreed to act as a confidential informant for the government and surreptitiously record his conversation with Brown. Agent Delaney instructed Noonan to steer the conversation towards the topics listed in the agenda letter that AUSA Daniel had sent to Brown’s counsel. Noonan attached a hidden microphone to his body, met with Brown as planned, and recorded their conversation. Pursuant to Noonan’s request, Brown and Noonan met again on March 30, 2001, and Noonan again recorded their conversation. In order to focus the conversation on topics related to the government’s investigation, Noonan brought a letter addressed to Noonan’s counsel signed by AUSA Daniel to the March 30 meeting. The government created the letter solely for use at that meeting and it purported to set forth a discussion agenda for an upcoming meeting between Noonan and the government. This fictitious letter listed topics of discussion similar to those in the letter that AUSA Daniel had sent to Brown on March 28, 2001. Noonan also recorded conversations with Brown on April 1, 2001, April 27, 2001, and May 21, 2001, as well as his conversation with Grass and Brown on May 2, 2001. Furthermore, an FBI surveillance team made video tape recordings of each of Noonan’s conversations with Brown during this period except for that on April 27. On June 21, 2002, a grand jury in the Middle District of Pennsylvania returned a multi-count indictment against Grass, Brown, Franklyn Bergonzi, and Eric Sorkin arising from the Rite Aid investigation. Bergonzi and Sorkin, respectively, had served as Rite Aid’s Chief Financial Officer and Vice President in Charge of Pharma Purchasing. The indictment charged Brown with numerous counts of conspiracy, fraud, making false statements to the SEC, obstruction of justice, and witness tampering. Brown was convicted at an ensuing jury trial of conspiracy to commit accounting fraud, filing false statements with the SEC, conspiracy to obstruct justice, obstruction of grand jury proceedings, obstruction of government agency proceedings, and witness tampering. In particular, the jury found that Brown had conspired to inflate Rite Aid’s reported earnings for fiscal year 1999, had conspired to create backdated severance letters awarding Brown and other executives millions of dollars in compensation, and had interfered with the government’s investigation of Rite Aid in a variety of ways. The District Court sentenced Brown to ten years in prison followed by two years of supervised release. Brown has surrendered to the Bureau of Prisons and presently is incarcerated.2 III. JURISDICTION The District Court had jurisdiction over this federal criminal action pursuant to 18 U.S.C. § 3231, and we have jurisdiction to review the judgment of conviction and sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. IV. DISCUSSION On this appeal, Brown puts forward a panoply of reasons that he claims require us either to dismiss his indictment, grant him a new trial, or remand his case to the District Court for resentencing though, interestingly, he does not suggest that the evidence at the trial was insufficient to support his convictions. Specifically, Brown maintains that the District Court: (1) abused its discretion when it denied his Rule 33 motion based on newly discovered evidence; (2) improperly denied his pre-trial suppression motion; (3) abused its discretion and committed plain error by interfering in the plea negotiation process; and (4) abused its sentencing Grass, Bergonzi, and Sorkin were not tried as they all pleaded guilty to certain charges pursuant to agreements with the government. discretion in a variety of ways. We address each contention in turn. A. The Rule 33 Motion Brown first argues that we should dismiss his indictment or grant him a new trial because forensic evidence suggests that the government tampered with the audio and video tape recordings of Brown’s conversations with Noonan prior to disclosing those recordings to Brown and presenting the altered recordings as evidence at his trial.3 1. The Receipt of the Noonan Tapes The government on July 24, 2002, shortly after Brown’s arraignment, sent the attorneys representing Brown and his co-defendants audio tapes containing copies of the six surreptitiously recorded Noonan conversations (March 13, The District Court painstakingly set forth the technical details with respect to the recordings’ authenticity in its comprehensive opinion denying Brown’s renewed motion for a new trial. See United States v. Brown, No. 1:02-CR-00146-2, 2008 WL 510126 (M.D. Pa. Feb. 22, 2008). We do not restate those details except as necessary for our determination of whether the District Court’s denial of Brown’s motion challenging the recordings constituted an abuse of discretion. 2001; March 30, 2001; April 1, 2001; April 27, 2001; May 2, 2001; and May 21, 2001),4 transcripts of each conversation except that of March 30, and a composite video tape consisting of footage taken by an FBI surveillance team of four of the six Noonan conversations (March 30, 2001; April 1, 2001; May 2, 2001; and May 21, 2001). In the letter enclosing these recordings, the government stated that the poor audio quality of the March 30 tape prevented the production of a complete transcript at that time.5 Then on July 30, 2002, the government sent the defense lawyers an FBI surveillance videotape of the March 13 conversation, and We at times will refer to the audio tapes of the Noonan conversations the government sent Brown on July 24, 2002, as the “July 2002 copies.” The letter from the FBI states that the March 13 conversation could not be transcribed, but Brown and the government agree that a transcript of the March 13 conversation was disclosed, and that the missing transcript was that of the March 30 conversation. a 28-page rough transcript of the March 30 conversation.6 According to Brown, after he reviewed these tapes and transcripts, he “immediately recognized that there were radical differences between what [he] observed and heard on the tapes and what [he] recollected of the conversations.” App. at 888. Though Brown considered retaining an expert to examine the tapes, his trial counsel initially discouraged him from taking that action, but on or about August 31, 2002, Brown nevertheless brought three of the six tapes to Bruce E. Koenig, an audio-forensic expert the FBI formerly employed, for examination. After Koenig listened to the tapes for several hours, he advised Brown that they were less than ideal samples because they were not originals or first-generation copies, but that Brown should not “waste [his] money” pursuing further examination of the tapes because, according to Koenig, the FBI never tampers with tape-recorded evidence. App. at 889. In order to produce this rough transcript, the government sent the tape of the March 30 conversation to an FBI laboratory to be enhanced. As we discuss below, the government claims it did not attempt to produce a more thorough transcript of the March 30 conversation because of the extremely poor audio quality of the tape and because the government believed the subject matter of the March 30 conversation to be redundant of the other recorded conversations. 2. Allen’s Preliminary Report Although Brown claims that he remained convinced that there were substantial irregularities on the tapes, so far as we are aware he did not make any further investigation into the circumstances leading to their preparation to determine whether his belief was correct until approximately one year later when in August 2003 he retained forensic expert Stuart Allen to examine the audio tapes of the March 13 and March 30 conversations. After conducting a digital examination of the tapes, Allen provided Brown with a “Preliminary Forensic Examination Report,” dated September 17, 2003, containing the following preliminary conclusions with respect to the tapes of both conversations: Preliminary digital findings indicate that the audiocassettes examined in our laboratory were copies made from a digital original and contain anomalies of unknown origin. . . . The preliminary forensic examination of this subject tape identified several anomalies of unknown origin, however the results are inconclusive, since the examination was performed on a copy as previously stated and not the original. The anomalies observed may have been the result of a faulty duplication process or some other unknown process yet to be identified. Therefore it is the professional opinion of this examiner that the original recording device and the original media associated with the subject recording, be produced and delivered for non- destructive forensic examination at this laboratory. App. at 1165, 1167, 1168 (emphasis in original). Shortly after receiving Allen’s report and three days prior to the date that jury selection was set to begin in Brown’s trial, one of his lawyers sent an email message to AUSA Daniel inquiring whether it would be possible for Allen to examine the original tapes of the March 13 and March 30 conversations at Allen’s place of business.7 AUSA Daniel responded the next business day, September 22, 2003, stating “you gotta be kidding,” and asking Brown’s attorney to call him to discuss the request. App. at 1169. We are uncertain of AUSA Daniel’s reason for taking that approach to Brown’s request, though it may have reflected exasperation at the timing of the request. 3. The Evidence at Trial As we explain below the trial had been scheduled to start in June 2003 but was delayed because of circumstances surrounding an attempt to reach a plea agreement. The District Court empaneled Brown’s jury on September 25, 2003, and the presentation of evidence began the next day. The trial transcript indicates that early in the proceedings Brown’s defense counsel stated to the Court that Brown had “some nagging concerns about the technical aspects of the tapes,” but acknowledged that the defense had raised these concerns with the government, and that “[t]he government has been completely cooperative in terms of providing [the defense] with what [it] need[s].” App. at 463. Defense counsel then agreed with the government that the Court should admit the tapes provisionally subject to Brown’s right to object to technical aspects of the tapes if an expert examination of them later provided a ground for the objection. During the government’s case-in-chief, it displayed to the jury a presentation consisting of a video display of portions of the recorded Noonan conversations, synchronized with the matching audio recordings and a rolling transcript of the conversation projected across the screen (the “jury presentation”). The government had provided digital copies of the jury presentation to defense counsel several months in advance of trial. At the close of the prosecution’s case, the government moved to admit into evidence the audio and video tapes of the Noonan conversations on which the government based its jury presentation. In so doing, the government noted that it had not shown the actual tapes to the jury but, instead, had shown it a computerized presentation generated from the tapes. According to the government, it did not rely on or move to admit a tape of the March 30 conversation because the recording from that date was largely inaudible, and, in any event, the subject of the March 30 conversation was duplicative of the other recorded Noonan conversations. The defense stated the government had given it an opportunity to review the tapes along with the digital presentation, and the defense agreed that they were accurate representations of the events recorded. The defense did not voice any objection to the tapes being admitted into evidence, but again reserved the right to object later to technical aspects of the tapes. The District Court admitted the tapes into evidence. 4. Owen’s Report During the trial, the FBI transported the original reel- to-reel analog tapes of the March 13, March 30, and May 21 conversations to its office in Harrisburg, Pennsylvania, where an FBI agent met with defense expert Tom Owen and allowed Owen to inspect, photograph, and download copies of the tapes onto Owen’s laptop.8 After conducting a physical and electronic inspection of the downloaded copies that consisted of “[c]ritical listening, tape enhancement, spectrum analysis, [and] speed correction,” Owen issued a final report dated We at times will refer to the tapes of the March 13, March 30, and May 21 conversations that the government made available to Owen at the FBI’s Harrisburg office as the “Harrisburg tapes.” We sometimes will refer to the copies of the Harrisburg tapes that Owen downloaded onto his laptop as the “Owen laptop copies.” October 12, 2003, concluding that the recordings of the three conversations he examined were “original and authentic within the conversation, but contain some very questionable recording procedures and anomalies.” App. at 1204, 1206. Owen’s report indicated that both the March 13 and March 30 tapes had been started and stopped a number of times before the actual recording began, but that the internal integrity of the recorded conversations was intact. The report also noted that the conversation recorded on the March 30 tape was at times unintelligible. 5. The Motion under the All-Writs Act Brown did not call an audio forensic expert as a witness during his trial to challenge the authenticity of the Noonan tapes, and he did not object to the tapes being admitted into evidence. Nevertheless, following his conviction on October 17, 2003, Brown, aided by a new team of attorneys, continued to examine the tapes of the Noonan conversations for signs of hidden edits or inaccuracies. On July 7, 2004, Brown filed a motion under the All Writs Act, 28 U.S.C. § 1651, to place under seal and compel the examination and review of the original audio and video recordings of the Noonan conversations.9 In his motion, Pursuant to the All Writs Act, “[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § Brown argued that further examination, made subsequently to the trial, of the Owen laptop copies had “uncovered significant anomalies (suspicious acoustic events) which call into question the authenticity and originality of these tapes.” App. at 636. In support of his motion, Brown attached reports from Allen and Owen and an affidavit from James Reames, a former FBI forensic technician.10 In a Memorandum and Order dated August 16, 2004, the District Court denied Brown’s motion because (1) the Court found the timing of the motion suspect, (2) Brown did not make any suggestion that there were anomalies in the jury presentation, which was the only evidence actually considered by the jury, and (3) Brown’s experts contended that only the third-generation copies—i.e., copies of the Owen laptop copies—contained anomalies in the conversation portion of the tapes. Because Owen’s initial examination of the Owen laptop copies revealed anomalies only at the beginning of the tapes before the conversations began, the Court concluded that anomalies found in the conversation portions of later generation copies were a product of duplication error. 1651. It is unclear from the record whether Allen’s and Owen’s reports submitted in support of Brown’s motion are those of September 17, 2003, and October 12, 2003, respectively. But we are not concerned with this uncertainty because Brown is not appealing from the District Court’s denial of his motion under the All Writs Act. 6. The Initial Motion for a New Trial Even though he had been convicted and the Court had denied his motion under the All Writs Act, Brown continued to employ Owen, Allen, and Reames to test the Owen laptop copies and the jury presentation. On May 31, 2005, Brown filed a motion pursuant to Rule 33 of the Federal Rules of Criminal Procedure for a new trial based on newly discovered evidence, or in the alternative, for (1) an order directing the government to produce to the defense for testing the original Nagra recorder and original Nagra SNST reel-to-reel audio tapes,11 and the original VHS camcorder and VHS video tapes of conversations between Brown and Noonan, and (2) an evidentiary hearing.12 In support of this motion, Brown averred that his defense experts, “meticulously” had tested the Owen laptop copies and the jury presentation, and had concluded after “painstaking, time-consuming work” that the The audio tapes of the Noonan conversations originally were recorded onto an analog recording device known as a Nagra SNST recorder. Federal law prohibits the possession of such recorders by private persons. See 18 U.S.C. § 2512(1)(b); App. at 1565. Although we refer to the May 31, 2005 motion as the initial motion for a new trial, Brown had filed an earlier motion for a judgment of acquittal pursuant to Fed. R. Crim. P. 29 and a new trial pursuant to Fed. R. Crim. P. 33 on more conventional grounds than those we discuss here. The District Court denied that motion on May 6, 2004, and Brown does not appeal from that order. Therefore we do not discuss that motion further. Harrisburg tapes proffered to Owen at the FBI offices were not original recordings, and that anomalies associated with computerized editing found in the Owen laptop copies and the jury presentation suggested that the government had edited both the Harrisburg tapes and the jury presentation. Consequently, Brown believed that the Harrisburg tapes and the jury presentation could not be deemed true and accurate records of the events that took place on the dates in question. The government and the defense subsequently entered into an agreement, memorialized in an August 8, 2005 letter from defense counsel to AUSA Daniel, in which it agreed to provide the defense with the original audio and video tapes of the March 13, March 30, and May 21 Noonan conversations, a new set of FBI created first-generation duplicates of these recordings, the original Nagra SNST recorder on which the audio recordings of the conversations initially were made, and an additional working Nagra recorder. The letter agreement expressed the government’s belief that the process of production should take no more than two weeks. On August 10, 2005, after being notified of the agreement, the District Court denied Brown’s motion as moot, noting it also would be premature to rule on the motion at that time because Brown still was determining what, if any, newly discovered evidence existed. 7. The Renewed Motion for a New Trial The government on November 9, 2005, released to the defense the original tapes of the March 13, March 30, and May 21 conversations, as well as a set of first-generation digital copies of those tapes that the FBI made.13 After extensive examination, testing, and comparison by Brown’s experts of the July 2002 copies, the Owen laptop copies, the November 2005 tapes, the FBI archive copies, the original Nagra SNST recorder, and the video tapes used to create the jury presentation, Brown presented his experts’ findings in support of a renewed Rule 33 motion for a new trial that he filed with the District Court on September 28, 2006. According to Brown, these findings “confirmed what [he] suspected all along: the government intentionally withheld exculpatory material from the defense and misrepresented the authenticity of the tapes furnished to the defense and incorporated in the Jury Presentation.” App. at 1231. Specifically, Brown contended that the government took the original analog recordings of the Noonan conversations, recorded them onto a digital format, deleted material exculpatory to Brown, and recorded the edited versions of the conversations from the digital format back onto the original analog reels. The government then presented modified analog tapes to the defense as originals (the Harrisburg tapes and the November 2005 tapes) or as the source of the generational copies that were presented to the defense (the July 2002 tapes and the FBI Archive copies) and used to create the jury presentation. Additionally, Brown We at times will refer to the original tapes that the government released to the defense on November 9, 2005, as the “November 2005 tapes” and the first-generation digital copies released on the same date as the “FBI Archive copies.” averred in his motion that the November 2005 tape of the March 30 conversation “is far more audible” than previously disclosed recordings of the conversation, and that the newly audible portions of that conversation contained exculpatory material. App. at 1231-32. Brown alleged that the government violated his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963),14 and the Jencks Act, 18 U.S.C. § 3500,15 by failing to disclose a full transcript or an audible version of the March 30 conversation. The Supreme Court held in Brady that “the 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 of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196-97. “The Supreme Court has outlined a three-part test to determine if a Brady violation has occurred: ‘The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’” Lewis v. Horn, 581 F.3d 92, 108 (3d Cir. 2009) (quoting Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 1272 (2004)). 18 U.S.C. § 3500(b) provides that “[a]fter a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to provide any statement . . . of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. . . .” In support of his renewed motion, Brown submitted new reports and affidavits from Reames, Allen, Owen, and a forensic video expert, Grant Fredericks. These submissions included two new transcriptions of the March 30 conversation, one prepared by Reames (the “Reames transcript”) and another prepared by Allen (the “Allen transcript”). Brown claimed these transcripts revealed exculpatory material not disclosed previously. Specifically, Brown argued that both transcripts revealed statements contradicting Noonan’s trial testimony about a computer the SEC subpoenaed that allegedly had been used to create backdated severance letters. At trial, Noonan testified that Brown had stated in the March 30 conversation that the SEC “will never get [the] computer now. It is in the Atlantic.” App. at 1249. In the Reames and Allen transcripts, however, this statement does not appear and it is Noonan who first mentions the Atlantic Ocean. Reames transcribed the relevant exchange as follows: FRANKLIN BROWN: There are [. .] [. .] working on it. TIMOTHY NOONAN: In the Atlantic Ocean, huh? FRANKLIN BROWN: That was just an expression on his part . . TIMOTHY NOONAN: I understand that. App. at 1426. The conversation is transcribed similarly in the Allen transcript: TIMOTHY: OK Gottcha. (inaudible) FRANKLIN: Wo’ What (inaudible) TIMOTHY: It’s in the Atlantic Ocean!!! --- (pause). FRANKLIN: That was just an expression on his part. That’s the equivalent .. (inaudible) TIMOTHY: I understand that App. at 2633. Brown also claimed that the Reames transcript contained Brown’s previously undisclosed statements encouraging Noonan to be forthright in his discussions with the government. On appeal, however, Brown appears to concede that these statements were urging Noonan to be candid with Noonan’s defense attorney, and at least were not urging Noonan directly to be candid with the government investigators. See Appellant’s Op. Br. at 61. In Allen’s reports and affidavits submitted with Brown’s motion, Allen explained his testing methodology and noted a number of anomalies on the different recordings. Allen’s findings left him unable to “eliminate the possibility” that the November 2005 tapes were not recorded contemporaneously with the events taking place in them, or that the recordings originated from a digital source instead of the analog recording device that the government purportedly used. App. at 1272-73; App. at 2571. Additionally, Allen concluded “with a high degree of certainty” that the July 2002 copies and the Owen laptop copies differed considerably from the November 2005 tapes and the FBI archive copies, such that it would be “reasonable” to conclude that the November 2005 and FBI archive copies were, in fact, different recordings than the earlier disclosed copies. App. at 1273-74; App. at 2572-73. Owen’s materials contained similar findings. He concluded that the November 2005 tapes showed evidence of previous digitization inconsistent with an analog recording. Owen also was “not able to eliminate the possibility” that the Owen laptop copies and FBI archive copies originated from different sources. App. at 2675. Allen and Owen also concluded that the video tapes that the government provided of the Noonan conversations contained evidence of editing. Fredericks, in his affidavit, concluded that the video tapes the government provided to the defense were accurate originals, but that they had been converted into digital files and edited in order to create the jury presentation in such a manner that the resultant product was an “inaccurate and visually impaired reproduction” of the original video tapes. App. at 1468. Fredericks also concluded that the “[a]udio to video alignment of the DVD Jury Presentation was misaligned to such a degree that when the mouths of the men were moving, what was being heard by the jury, was not what they were actually saying at that exact time.” App. at 1468. The District Court held an evidentiary hearing on Brown’s renewed Rule 33 motion on May 14 and 15, 2007. Over these two days, the District Court heard testimony from defense experts Owen and Allen, the government’s FBI expert David Snyder, as well as from other persons including FBI case agents who had worked on the Rite Aid investigation. The government then sought an adjournment to seek discovery of the defense experts’ test results and the District Court adjourned the hearing to allow additional discovery. The hearing resumed on August 13 and 14, 2007, and at that time the District Court again heard testimony from witnesses including Owen, Allen, Snyder, and Paul Ginsberg, a forensic audio consultant, who presented expert testimony on behalf of the government. Over the course of the four days of hearings, the District Court heard testimony from a total of nine witnesses and accepted 27 exhibits into evidence. On February 22, 2008, the District Court entered an order denying Brown’s renewed motion for a new trial. In its comprehensive accompanying Memorandum, the Court detailed the history of the various recordings made of the Noonan conversations as well as the evidence the numerous experts proffered, and concluded that the tapes the government provided were authentic, and that the government did not submit false evidence or perjured testimony to the jury. The Court also found that the Reames and Allen transcripts of the March 30 conversation did not contain exculpatory or impeaching information, and it therefore held that the government had not committed a Brady or Jencks Act violation in delaying the delivery of an audible recording or transcript of that conversation. The Court also concluded that a new trial was unwarranted because Brown’s supposed “new evidence”—a transcript of the previously inaudible March 30 statements—was not in fact newly discovered. See United States v. Brown, No. 1:02-CR-00146-2, 2008 WL 510126, at *28 (M.D. Pa. Feb. 22, 2008). 8. The District Court Did Not Abuse its Discretion We will reverse a denial of a Rule 33 motion for a new trial based on newly discovered evidence only if we conclude that the district court abused its discretion in denying the motion. United States v. Saada, 212 F.3d 210, 215 (3d Cir. 2000). We have explained that “a district court abuses its discretion if its decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (internal quotation marks and citation omitted). Federal Rule of Criminal Procedure 33 provides that “[u]pon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Our precedents instruct that five requirements must be met before a district court may grant a new trial on the basis of newly discovered evidence: (a) the evidence must be in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal. United States. v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006) (quoting United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir. 1976)). A movant seeking a new trial on the basis of newly discovered evidence bears a “heavy burden” in proving each of these requirements. Id. (citing Saada, 212 F.3d at 216). We find no basis to conclude that the District Court abused its discretion in denying Brown’s Rule 33 motion. Even if we assume for the sake of argument that Brown through his epic efforts after the trial satisfied the first four Iannelli factors listed above, in light of the Court’s properly found facts, Brown failed to prove that his newly discovered evidence probably would result in his acquittal at a new trial.16 After considering voluminous amounts of briefing, expert reports, and live testimony, the District Court made a factual finding that the various tapes of the Noonan conversations had not been “edited, altered, digitized, or manipulated by the government at any time,” and that, accordingly, “[t]hey [were] authentic recordings.” Brown, 2008 WL 510126, at *25. Brown claims that this finding of authenticity was clearly erroneous because (1) the Court based the finding solely on Ginsburg’s expert testimony and the Court should not have allowed Ginsburg to testify, (2) even considering Ginsburg’s testimony, the evidence did not support the finding of authenticity, and (3) evidence of breaks in the tapes’ chain-of-custody further undermined the finding of authenticity. Actually it is questionable whether the evidence Brown presents in his attempt to show that the tapes had been altered is “newly discovered,” and whether he was diligent in seeking it before the trial. If there had been alterations in the tapes as Brown believes, he should have known of them when he first heard the tapes and, indeed, he contends that he suspected from the outset that the tapes were inaccurate. Thus, he could have and should have developed his expert testimony before the trial. Instead, based on the advice of counsel, he did not take steps prior to trial to demonstrate that the tapes contained alterations of the sort allegedly discovered following his conviction. Brown argues with respect to the first point that the government’s request for an adjournment of the evidentiary hearing and subsequent use of Ginsburg as an expert was part of “a subterfuge seemingly designed to avoid having an FBI agent testify under oath that the tapes had not been altered,” and that the District Court abused its discretion by allowing the government to engage in this subterfuge. Appellant’s Op. Br. at 40. We are perplexed by this argument because, as the District Court found, there was testimony from FBI agents that the tapes had not been altered. In any event, the government claims that it sought the adjournment to obtain the test results from Owen and Allen in order to cross- examine them effectively, and that it based its decision to use Ginsburg on a perceived need to counter Brown’s evolving allegations of evidence tampering with testimony from an independent expert, as opposed to testimony from a government employee (i.e., Snyder). Ultimately, the Court granted the adjournment to allow additional discovery, required Snyder to testify, and allowed Ginsburg to testify. The Court went to great lengths to consider all the evidence relevant to the issues before it, and we cannot conclude that the Court abused its discretion in making its determination to allow Ginsburg’s testimony over Brown’s objection, in addition to that of Snyder, Owen, Allen, and the other witnesses. We also are unable to find any error in the District Court’s conclusion that the tapes were authentic. As the Court noted, Brown’s experts’ detailed findings led them only to the lukewarm conclusions that it would be “reasonable” to believe that earlier disclosed recordings of the Noonan conversations came from a different source than the November 2005 tapes, and that the possibility the recordings were inauthentic could not be eliminated. While a different fact-finder might have reached a conclusion contrary to the one the Court reached, the record by no means compels a conclusion that the tapes were inauthentic. Given the history of the proceedings and the conflicting expert testimony, both between the government and defense experts and among the defense experts themselves, we cannot conclude that the Court clearly erred by finding the challenged tapes were authentic.17 It also is important to consider that, as the District Court explained, it had evidence “from the FBI agents, that they did not themselves, or cause another person to, edit, alter, or modify the original tapes except to attempt enhancement” and that this testimony “was credible.” Brown, 2008 WL 510126, at *25. Certainly in the face of somewhat conflicting expert testimony this lay evidence was important and the Court could rely on it. Even were we to reject the District Court’s finding and hold the tapes inauthentic, Brown does not demonstrate, or even seriously contend, that any of the conversations allegedly removed by the government from the Noonan tapes actually was exculpatory, much less that their admission as trial evidence probably would have resulted in his acquittal. We see no reason with respect to the chain-of-custody issues Brown raises to second-guess the District Court’s determination that the testimony of the government’s witnesses on this point was credible. Moreover, even if we presumed that the government would not expend the effort to tamper with evidence in the manner ascribed to it by Brown to remove statements that were not exculpatory, Brown still bears the “heavy burden” of demonstrating that his newly discovered evidence probably would result in his acquittal at a new trial, and he simply did not meet this burden. Assuming Brown’s argument to be that if we make a finding that the tapes were inauthentic the consequence would be the suppression of all of the video and audio recordings of the Noonan conversations, it does not follow a fortiori that a new trial without the recordings probably would result in Brown’s acquittal, or that the original trial would have had a different outcome if the video and audio recordings had been excluded from evidence at that trial. As the District Court noted, Noonan testified at trial about his conversations with Brown, and “was cross examined thoroughly, on all topics that might impugn his credibility.” Brown, 2008 WL 510126, at *28. The Court described the evidence at trial of Brown’s guilt to be “concrete, credible, and more than sufficient to sustain his conviction.” Id. On appeal, Brown fails to challenge this observation and plausibly explain how the absence of the Noonan tapes would have rendered the evidence at his original trial or would render the evidence at a new trial less than sufficient to sustain his conviction. We agree with the District Court’s conclusion with respect to the allegedly exculpatory statements in the Reames and Allen transcripts of the March 30 conversation that the statements were, at best, neutral as to Brown’s guilt or innocence and not exculpatory. The statements regarding the Atlantic Ocean do not contradict substantially Noonan’s testimony on which Brown’s counsel thoroughly cross- examined him at the trial. Moreover, we disagree with Brown’s argument that because attorneys have ethical obligations not to suborn perjury, see Nix v. Whiteside, 475 U.S. 157, 171-74, 106 S.Ct. 988, 996-97 (1986), Brown’s statement urging Noonan to be candid with Noonan’s lawyer is akin to a statement urging Noonan to confess wrongdoing at Rite Aid to the government. Therefore, even if the government could have produced a more audible version of the March 30 conversation, it is unlikely that the use of this version would have led to Brown’s acquittal at his trial or would lead to his acquittal at a new trial. For the same reason, we agree with the District Court that the government did not commit a Brady violation and that any violation of the Jencks Act amounted to harmless error. Finally, Brown’s evidence with respect to the video tapes and the jury presentation suggests only that the government could have created a more polished presentation if it had the resources of Brown and his experts at its disposal.18 At trial, Brown conceded that the video tapes and jury presentation were accurate representations of the events recorded, and, on appeal, Brown does not offer any evidence which could give rise to an inference that exculpatory material on the video tapes somehow was hidden from him. Accordingly, we will affirm the order denying Brown’s Frequently our review of criminal cases makes it clear that the government’s resources devoted to the trial exceeded those of the defendant. This case does not seem to be within that category. motion for a new trial entered by the District Court on August 10, 2005, and the order denying Brown’s renewed motion for a new trial or for dismissal of the indictment entered by the District Court on February 22, 2008. B. The Pre-Trial Suppression Motion Prior to the trial, Grass and Brown filed a motion to suppress the tapes of the Noonan conversations, arguing that the government had obtained them in violation of the 1998 “McDade Amendment,” the provisions of which we describe below, by reason of AUSA Daniel, a government lawyer, having violated the Pennsylvania Rules of Professional Conduct by using Noonan as his proxy to elicit information from Grass and Brown about the subject matter of the government’s investigation prior to their indictment but at a time when Daniel knew that they were represented by counsel with respect to that investigation. After holding a suppression hearing, the District Court issued an opinion on January 13, 2003, denying Grass’s and Brown’s motion. The Court held that AUSA Daniel had not committed an ethical violation by using Noonan as a confidential informant, and that, even if he had done so, suppression was not an appropriate remedy for the violation. See United States v. Grass, 239 F. Supp. 2d 535, 549 (M.D. Pa. 2003). We review a district court’s denial of a suppression motion for clear error as to the underlying facts, but exercise plenary review with respect to legal findings made in light of the district court’s properly found facts. United States v. Coles, 437 F.3d 361, 365 (3d Cir. 2006) (citing United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003)). At the time of the alleged violations, Rule 4.2 of the Pennsylvania Rules of Professional Conduct, known as the “no-contact rule,” provided: In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. Pa. R. Prof’l Conduct 4.2.19 Rule 8.4(a) provides that an attorney has engaged in misconduct if he violates the Pennsylvania Rules of Professional Conduct through the acts of another. Pa. R. of Prof’l Conduct 8.4. Pursuant to the McDade Amendment an attorney that the federal government employs is subject to the ethical rules in each state where such attorney engages in that attorney’s duties to the same extent and in the same manner as any other attorney in that state. 28 U.S.C. § 530B(a). Accordingly, AUSA Daniel, a federal prosecutor in this Pennsylvania-based prosecution, was bound by Rule 4.2 at all times relevant to this appeal, and he ethically was not permitted to violate Rule 4.2 through the acts of a surrogate. An August 23, 2004 order amended Rule 4.2 to substitute “person” for “party” and “to do so by law or a court order” for “by law to do so.” Pa. R. of Prof’l Conduct 4.2, historical notes. The government does not dispute seriously that at the time the Noonan conversations were recorded, Brown was a “party” within the meaning of Rule 4.2 as that rule is interpreted in Pennsylvania, or that Brown was represented by counsel and AUSA Daniel was aware of that representation. The question before us then is whether AUSA Daniel was “authorized by law” to use a confidential informant to communicate with a represented suspect in the course of a pre-indictment investigation. Relying largely on our decision in United States v. Balter, 91 F.3d 427 (3d Cir. 1996), the District Court answered this question in the affirmative. In Balter, we found that a federal prosecutor did not violate New Jersey’s no-contact rule 20 when he used a confidential informant to contact a represented person in the course of a pre-indictment investigation. We reached that conclusion because the rule did not apply to a criminal suspect prior to the commencement of adversarial proceedings against the suspect, and that even if the rule did apply, “pre-indictment investigation by prosecutors is precisely the type of contact exempted from the Rule as ‘authorized by law.’” See id. at 435-36. After noting that New Jersey case law supported this latter point, we stated: The New Jersey rule provided at the time of Balter that “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless authorized by law to do so.” Balter, 91 F.3d at 435 (quoting N.J. R. of Prof’l Conduct 4.2). Prohibiting prosecutors from investigating an unindicted suspect who has retained counsel would serve only to insulate certain classes of suspects from ordina ry pre-indic tm e nt investigation. Furthermore, such a rule would significantly hamper legitimate law enforcement operations by making it very difficult to investigate certain individuals. Id. at 436. We then observed that decisions of every other court of appeals to have considered a similar case have supported this conclusion except for a decision of the Court of Appeals for the Second Circuit. Id. (citing United States v. Powe, 9 F.3d 68 (9th Cir. 1993); United States v. Ryans, 903 F.2d 731 (10th Cir. 1990); United States v. Sutton, 801 F.2d 1346 (D.C. Cir. 1986); United States v. Dobbs, 711 F.2d 84 (8th Cir. 1983); United States v. Weiss, 599 F.2d 730 (5th Cir. 1979)). The Court of Appeals for the Second Circuit concluded in United States v. Hammad, 858 F.2d 834, 839-40 (2d Cir. 1988), that a federal prosecutor overstepped the boundaries of legitimate pre-indictment investigation by preparing a false grand jury subpoena to aid a confidential informant elicit admissions from a represented suspect. Brown contends that Balter is distinguishable from this case because it dealt with the New Jersey rather than Pennsylvania ethical rules, was decided prior to the enactment of the McDade Amendment, and the government’s conduct in the present case is far more egregious than the government’s conduct in Balter. We find these distinctions unavailing. To begin, New Jersey’s no-contact rule is virtually identical to Pennsylvania’s, and both states have derived their version of the rule from the American Bar Association’s Model Rules of Professional Conduct.21 See Balter, 91 F.3d at 435 n.4. We recognize that Brown correctly points out that we supported our holding in Balter that pre-indictment investigations by prosecutors were “authorized by law” with a citation to a decision from an intermediate New Jersey state appellate court for which there is no analogous Pennsylvania decision. See id. at 436 (citing State v. Porter, 510 A.2d 49, 54 (N.J. Super. Ct. App. Div. 1986)). But our conclusion in Balter did not rest solely on the New Jersey state court decision and we do not believe the absence of an analogous Pennsylvania decision renders any less compelling our observations regarding the negative consequences that would follow from an outcome contrary to that we reach here. We recognize that Congress passed the McDade Amendment in part to combat perceived abuses by federal prosecutors and require them to comply with state no-contact We note that New Jersey’s rule has been interpreted to apply only after the initiation of formal adversarial proceedings, whereas Pennsylvania’s rule is not so limited. See Balter, 91 F.3d at 436 (citing State v. CIBA-GEIGY Corp., 589 A.2d 180, 183 (N.J. Super. Ct. App. Div. 1991)). This distinction in the overall coverage of the two rules, however, has no bearing on the scope of the “authorized by law” exception found in both rules, although in this case the alleged violation took place prior to the initiation of adversarial proceedings. It is worth noting, however, that in New Jersey there would be that additional reason to hold that there had not been an ethical violation in the circumstances of this case. rules. See generally Note, Federal Prosecutors, State Ethics Regulations, and the McDade Amendment, 113 Harvard L. Rev. 2080 (2000). But Congress did not enlarge on the type of conduct that state rules forbid. Our inquiry therefore would be no different if AUSA Daniel had been a state prosecutor and we were entertaining an appeal from a state court conviction. Nevertheless Brown argues that the McDade Amendment “supersedes cases such as Balter by making a particular state’s rules, rather than general principles of ethics, applicable to the conduct of the federal prosecutor,” and that, accordingly, AUSA Daniel ran afoul of Rule 4.2 because of the absence of a Pennsylvania statute or court decision expressly authorizing the conduct in which he engaged. Appellant’s Op. Br. at 69. But we reject his argument because we do not believe the McDade Amendment prohibits federal prosecutors in Pennsylvania from using a well-established investigatory technique simply because the Pennsylvania courts have not considered whether such conduct is permissible. After all, the Pennsylvania courts have not held that such conduct is impermissible.22 Finally, though we acknowledge that the government’s conduct in investigating Brown gives us pause, we do not regard it as so egregious that it falls outside the realm of acceptable pre-indictment investigation. Although the government created a fictitious letter addressed to Noonan’s counsel that Noonan showed to Brown in order to guide the At least Brown has not cited to us any Pennsylvania case so holding and our research has not revealed that there is any such case. topics of the March 30 conversation, Brown voluntarily agreed to the March 30 meeting with Noonan, the government’s letter did not invoke the authority of the District Court or contain any forged signatures, the letter was not addressed to Brown, and the letter in no way purported to compel any action or inaction on Brown’s behalf. Accordingly, we agree with the District Court that AUSA Daniel did not violate Rules 4.2 and 8.4(a) of the Pennsylvania Rules of Professional Conduct. Inasmuch as Brown, or for that matter any other government agent, did not commit an ethical violation in this case with respect to the fictitious letter or the March 30 meeting, the District Court properly denied Brown’s pre-trial suppression motion.23 C. The Plea Agreement Brown next seeks a vacatur of his sentence and a remand for resentencing in accordance with a proposed plea agreement that he reached with the government because of the manner in which the District Court dealt with the agreement. Specifically, Brown argues that the District Court violated We also agree with the District Court’s conclusion that even if there had been an ethical violation, suppression would not have been the appropriate remedy. See, e.g., Hammad, 858 F.2d at 841-42 (although prosecutor had violated New York’s no- contact rule by using “sham” grand jury subpoena to elicit admissions from represented suspect, the district court abused its discretion by ordering suppression as result of violation). Rule 11 of the Federal Rules of Criminal Procedure by participating in the plea discussions between Brown and the government, and that the Court abused its discretion by improperly rejecting the plea agreement. If the Court had accepted the plea agreement the sentence that it could have imposed would have been shorter than the sentence it did impose following Brown’s conviction at trial. 1. The Terms of the Agreement By June 17, 2003, Grass and Bergonzi had entered into plea agreements with the government and agreed to cooperate in its investigation. Pursuant to the agreements, Bergonzi pled guilty to one count of conspiracy, and Grass pled guilty to two counts of conspiracy.24 On June 24, 2003, several days before Brown’s trial was set to begin before Judge Sylvia H. Rambo, Brown also entered into a plea agreement with the government. Under this agreement, Brown agreed to plead guilty to one count of conspiracy to obstruct justice, an offense carrying a maximum term of imprisonment of five years. The government agreed that upon entry of Brown’s guilty plea, it would move to dismiss all of the remaining counts in the indictment against him. The plea agreement further provided that if Brown adequately could demo nstrate his acceptance of responsibility, the government would move at sentencing for Sorkin pled guilty on June 26, 2003. a 3-level reduction in Brown’s offense level under the United States Sentencing Commission Guidelines (the “Sentencing Guidelines” or “Guidelines”) because Brown had “assisted authorities in the investigation and prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate its resources efficiently.” App. at 439. The agreement also took into account Brown’s pledge to cooperate with the government in its ongoing investigation and prosecution of the Rite Aid matter, and raised the possibility that if the government believed Brown had rendered it “substantial assistance,” the government would recommend, pursuant to Section 5K1.1 of the Sentencing Guidelines, that the District Court impose a sentence on Brown below the applicable Guidelines range. 2. Judge Rambo’s Letter After receiving a courtesy copy of Brown’s plea agreement on June 25, Judge Rambo sent a letter to AUSA Daniel, with a carbon copy to Brown’s trial counsel, stating the following: As you are aware, I have decided to reject the proposed plea agreement which has been forwarded to my chambers. However, I will accept Mr. Brown’s plea of guilty to Count 33 [for conspiracy to obstruct justice]. Attached to this letter, you will find a statement of reasons for rejecting the agreement. I am planning on reading this statement in open court tomorrow. If you should have any questions, please contact me. App. at 25. In the attached statement of reasons, Judge Rambo recited that the plea agreement was unacceptably lenient given the diverse range of serious crimes with which Brown was charged. Judge Rambo further found “particularly nauseating” the portion of the agreement indicating that Brown’s timely acceptance of responsibility had allowed the government and the Court to allocate its resources efficiently. Judge Rambo understandably took that view of the acceptance of responsibility provision of the plea agreement because Brown did not agree to plead guilty until almost the eve of trial, i.e., between two and eight years after the conduct at issue took place. After noting that the government’s proposal to drop all the other charges against Brown “essentially caps his prison sentence at 60 months,” Judge Rambo stated that the proposed plea agreement “does nothing to eviscerate” the public’s “perception that white collar defendants are given preferential treatment in our system of justice.” App. at 29-30. Judge Rambo concluded her statement of reasons for rejecting the plea agreement by stating: “I must distance myself and the judiciary from this agreement. I will not accept this plea agreement.” App. at 30. 3. The Chambers Meeting The following morning on June 26, 2003, Judge Rambo held a meeting in her chambers to discuss Brown’s plea situation with Brown’s trial defense team and representatives from the United States Attorney’s Office, including United States Attorney Thomas Marino. Obviously Judge Rambo’s letter with the statement of reasons for rejecting the plea agreement had jolted the attorneys in the case. Brown’s lead trial counsel, Reid Weingarten, began the meeting by explaining that as a result of Judge Rambo’s letter, Brown was unwilling to plead guilty because he no longer believed he had a “fair shot” to argue for leniency in sentencing from the District Court. Id. at 453. Weingarten requested a continuance of the trial “to catch our breath” and attempt to “salvage th[e] deal.” App. at 452. The government joined the defense’s request for a continuance. Over the course of the meeting, Marino made three statements that Brown characterizes as references to an ex parte conversation about Brown’s case that the United States Attorney’s Office had with Judge Rambo June 25, 2003. In one reference, Marino stated, “As an aside, I had a concern when the Court raised an issue — what you said to us yesterday as to was I giving away the farm? Because there is nothing I want more in this case than the Court to say that this is a fair and just agreement.” Id. at 459. Marino then asked whether a “preliminary guideline check” that Judge Rambo stated the Court had made with the Probation Office had resulted in a Sentencing Guidelines calculation different from that the government had provided in the plea agreement. Id. at 458-59. After Judge Rambo indicated that the Probation Office indeed had come up with a different calculation, Marino responded, “That is what I think the problem is. I am hoping that the facts we discussed with the Court yesterday and facts that we may be able to bring to the Court’s attention in the future once we get — if we do get these continuances will resolve that matter.” Id. at 460. Brown’s attorney did not raise any objection to the Court proceedings at the meeting or at any time prior to this appeal on the ground that there had been ex parte or improper contacts between the government and the Court. Following Marino’s statements, Judge Rambo expressed her perception that, based on the facts known to her, Brown and Grass seemed equally to blame for the wrongdoing at Rite Aid, and that she did not understand why the government was treating Brown more favorably than Grass. Judge Rambo continued, “Now if there are facts that you have that you are going to present that wipe away that perception, then fine. I don’t have that.” Id. at 460. Despite Judge Rambo’s reservations, the transcript of the chambers conference suggests that during the period between when she sent the parties her letter and statement of reasons and the following day’s conference, she had become more willing to consider accepting Brown’s plea agreement. On one occasion, Judge Rambo stated she had “no problem accepting the plea” and that even if she did not accept the agreement, Brown would not receive a sentence heavier than he otherwise would receive, so long as the District Court’s Guidelines calculation comported with that arrived at by the government. Id. at 458. On the second occasion, Judge Rambo stated she had “no problem with the plea,” but that she “wanted to see what the guidelines were and then look at the plea in conjunction with the presentence report” as she had done with Grass. Id. at 461. Additionally, Judge Rambo never read aloud her statement of reasons for rejecting the plea agreement even though her June 25 letter indicated her intent to do so. Nevertheless, Weingarten concluded the chambers meeting by reiterating that, in light of Judge Rambo’s June 25 letter and statement of reasons, Brown was unwilling at that point to enter a guilty plea. Several hours after the June 26 meeting, Judge Rambo entered an order granting Brown until July 14, 2003, to notify the Court of his plea decision. Of course, inasmuch as Brown did not plead guilty, the case ultimately proceeded to trial. The record does not reflect that there were any further plea negotiations between Brown and the government following the chambers conference and does not reveal how Brown communicated his decision not to enter a guilty plea to the Court. 4. Application of Rule 11(c)(1) Brown first contends that the District Court violated Rule 11(c)(1)’s prohibition on judicial participation in plea negotiations. That rule allows an attorney for the government to discuss and reach a plea agreement with the defendant’s attorney, but provides that “[t]he court must not participate in these discussions.” Fed. R. Crim. P. 11(c)(1). When a defendant makes a Rule 11 objection for the first time on appeal, a court of appeals reviews the alleged violation on a plain error basis.25 To succeed under this standard of review, a defendant must demonstrate that (1) the asserted violation of Rule 11(c)(1) was error, (2) the error was plain, and (3) the error affected the defendant’s substantial rights; if these three conditions are met, then a court may exercise its discretion to notice the forfeited error, but only if (4) “the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” See United States v. Bradley, 455 F.3d 453, 461 (4th Cir. 2006) (quoting United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 1776 (1993)). Brown claims the District Court violated the “core values” of Rule 11 by holding ex parte discussions with the government on the day that the Court received the plea agreement, and that the Court violated the letter of Rule 11(c)(1) by agreeing at the chambers conference to the government’s proposal to provide further factual information If there is a timely objection in the district court to an alleged Rule 11 violation, a court of appeals exercises plenary review in determining whether there had been a violation. United States v. Ebel, 299 F.3d 187, 190-91 (3d Cir. 2002). Nevertheless, a court of appeals still will consider the record as a whole to determine whether the error affected a defendant’s substantial rights or was merely harmless. See id. at 191; Fed. R. Crim. P. 11(h). We note that the use of the plain error standard is not without its critics. See United States v. Baker, 489 F.3d 366, 371-72 (D.C. Cir. 2007). Here, however, our result would be the same regardless of whether we exercise plain error or plenary review. which might lead the Court to later accept the agreement. Appellant’s Op. Br. at 85. According to the government, the record does not establish that there were any ex parte discussions between the government and the District Court, and that even if there were such discussions, Brown did not raise a contemporaneous objection when he became aware of them, and he cannot establish now that as a result of those discussions there was plain error. The government also contends that the Court did not involve itself improperly in the plea discussions, noting that the Court’s alleged involvement arose after Brown had entered into the plea agreement with the government. The courts have viewed Rule 11’s ban on judicial participation in plea agreements as serving several purposes: First, it diminishes the possibility of judicial coercion of a guilty plea, regardless whether the coercion would actually result in an involuntary guilty plea. Second, the judge’s involvement in the negotiations is apt to diminish the judge’s impartiality. By encouraging a particular agreement, the judge may feel personally involved, and thus, resent the defendant’s rejection of his advice. Third, the judge’s participation creates a misleading impression of his role in the proceedings. The judge’s role seems more like an advocate for the agreement than a neutral arbiter if he joins in the negotiations. United States v. Baker, 489 F.3d 366, 370-71 (D.C. Cir. 2007) (quoting United States v. Cannady, 283 F.3d 641, 644-45 (4th Cir. 2002)). We consider Brown’s Rule 11(c)(1) challenge in light of these purposes. The record, in particular Judge Rambo’s June 25, 2003 letter to AUSA Daniel and Marino’s statements at the chambers conference the next day, permits an inference that the government communicated with the District Court on June 25, 2003—the day it forwarded the plea agreement to the Court and the day before the chambers conference—although the context of these communications if they did occur is not immediately apparent. The government attempts to deny that there were such communications, arguing that the statements in the record are susceptible to multiple interpretations and that it would have been “extremely unlikely” and “foolish” for Marino to mention such conversations in the presence of defense counsel. See Appellee’s Br. at 78-79.26 Assuming that there were ex parte communications, however, Brown’s experienced counsel apparently did not view them as We take the government’s point to be that, since an ex parte communication clearly would have been improper, Marino’s comments could not mean that such communications took place because no one would be inclined to admit to that kind of ethical breach. We do not take the government’s suggestion to be that if it had engaged in improper conduct the wise approach for it thereafter would have been to keep quiet about what had happened. We trust that if the government came to recognize that it had acted improperly in a prosecution, it would reveal the facts and then let the matter proceed to an appropriate outcome. problematic, or at least decided not to object to them if he did view them as improper, as he did not raise any objection either upon receiving Judge Rambo’s June 25 letter or upon hearing Marino’s statements at the chambers conference on June 26 or at any time thereafter.27 After our study of the record of what happened after Judge Rambo sent her June 25 letter, we are satisfied that Judge Rambo did not violate Rule 11(c)(1) as neither the alleged ex parte communications nor Judge Rambo’s statements at the chambers conference took place until after Brown and the government had finalized the plea agreement. See Baker, 489 F.3d at 371 (there is “no room for doubt” that the “purpose and meaning” of Rule 11(c)(1)’s injunction on judicial involvement in plea negotiations “are that the sentencing judge should take no part whatever in any discussion or communication regarding the sentence to be imposed prior to . . . submission to him of a plea agreement”) (quoting United States v. Werker, 535 F.2d 198, 201 (2d Cir. 1976)). Here, by June 25, 2003, the plea negotiations were over and there was no risk that judicial pressure was going to influence the outcome of those negotiations. Moreover, it is unclear how any ex parte conversations would have harmed Brown given the government’s attempt persuade the Court to accept the plea bargain to which Brown had agreed. Rule 11(c)(1) seeks to avoid a situation in which a court places pressure on a defendant to plead guilty Brown’s attorneys on this appeal were not representing him in June 2003. involuntarily. In this case, Judge Rambo’s position led to the collapse of the plea agreement and had the opposite effect. Thus, though Brown may have lost the benefit of his bargain with the government because of Judge Rambo’s position, he did not lose his right to be tried by an impartial jury of his peers and he surely was not coerced to plead guilty. In fact, quite to the contrary, Judge Rambo’s actions caused him to adhere to his previously entered plea of not guilty even though he had been prepared to change his plea to guilty. Accordingly, even if we agreed with Brown that Judge Rambo violated the letter of Rule 11(c)(1) by discussing the plea negotiations at the chambers conference and agreeing to allow the government to provide additional factual information in support of a plea agreement, such error was harmless given that the parties did not reach a subsequent plea agreement. See Fed. R. Crim. P. 11(h). 5. Abuse of Discretion Standard Brown also contends that the District Court improperly rejected the plea agreement by distributing the letter to AUSA Daniel with the attached “statement of reasons” to counsel on June 25, 2003. On this point we first observe that the record by no means is clear that the Court ever rejected the plea agreement. The reality may be that Brown simply abandoned the agreement when he became aware of the Court’s view of it. However, assuming that the letter and statement of reasons constituted a rejection of the plea agreement, we review the District Court’s rejection of Brown’s plea agreement for an abuse of discretion. See United States v. Hecht, 638 F.2d 651, 658 (3d Cir. 1981) (Weis, J., dissenting) (citing Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498 (1971)); see also Government of the Virgin Islands v. Walker, 261 F.3d 370, 375 (3d Cir. 2001) (“A sentencing court can, of course, reject the results of a plea negotiation if it concludes that the resulting agreement is not in the best interest of justice.”). On the question of whether the District Court rejected the plea agreement it is clear that, on its face, Judge Rambo’s June 25 letter and her accompanying “statement of reasons” would lead most reasonable readers to believe that the rejection of Brown’s plea agreement was a foregone conclusion. By the next day, however, Judge Rambo clearly indicated a willingness to consider the plea agreement at the chambers conference. In this regard the record indicates that when Judge Rambo originally read that the plea agreement suggested that Brown’s timely acceptance of responsibility had permitted the Court to allocate its resources efficiently, she reacted negatively, but by the next day she had softened her views. Yet we need not determine if Judge Rambo actually rejected the plea agreement for even if we construe the “statement of reasons” as a formal rejection, she did not abuse her discretion in rejecting the agreement. Brown argues that Judge Rambo in issuing her “statement of reasons” abused her discretion because she displayed a predisposition to find Brown guilty and impose a substantial penalty, and because she improperly based her decision to reject the plea agreement on the circumstance that she and her staff had spent substantial time and effort preparing for Brown’s trial.28 We Brown also makes the novel assertion that once the District Court acknowledged the government’s prerogative to dismiss certain counts in the indictment against Brown—i.e., the counts other than Count 33 for conspiracy to obstruct justice—the plea agreement became a Rule 11(c)(1)(B) agreement that the Court was compelled to accept. See Fed. R. Crim. P. 11(c)(3)(A) (court has discretion to reject agreements under Rule 11(c)(1)(A) and (c)(1)(C)); In re Richards, 213 F.3d 773, 784-89 (3d Cir. 2000) (narrowly construing Rule 48’s requirement that “leave of court” be obtained before a prosecution may be dismissed). With the exception of Richards, which did not involve plea agreements, Brown does not cite authority for this position. In any event, Brown’s argument fails at the outset because, although the Court in its June 25 letter to AUSA Daniel did state it would accept Brown’s guilty plea to Count 33, it did so while expressing its intention to reject all other aspects of the agreement. Moreover, even though the Court at the next day’s chambers conference did seem willing to accept the entire plea agreement, it never acknowledged that the government possessed a unilateral right to dismiss the remaining counts in the indictment because the plea agreement did not grant the government any such right. In the agreement, the government agreed to move to dismiss the remaining counts upon entry of Brown’s guilty plea to the conspiracy count. Dismissal still hinged on the Court’s granting of the government’s motion, which it never could do because the government never filed the motion. Hence, the agreement remained subject to Rule 11(c)(1)(A) and thus the Court had discretion to accept, reject, or defer a decision on the agreement until after its review of the disagree. The grand jury charged Brown with an array of felonies which allegedly resulted in very serious financial harm to the Rite Aid Corporation and its shareholders, as well as obstruction of justice and witness tampering. The indictment charged Brown and Grass equally, and alleged they both were more culpable than Bergonzi and Sorkin. Yet the government in Judge Rambo’s view inexplicably offered Brown a significantly more lenient plea agreement than it did Grass. Although Judge Rambo spoke harshly in describing why she felt Brown’s plea agreement did not serve the interests of justice, if she actually rejected the plea agreement she did not abuse her discretion by so doing. Brown draws our attention to Judge Rambo’s statement that she found “particularly nauseating” the portion of the plea agreement indicating that the government would move for a reduction in Brown’s offense level because Brown’s timely acceptance of responsibility had allowed the government and the District Court to allocate their resources efficiently. Judge Rambo noted that Brown’s decision to enter a plea agreement on almost the eve of trial had by no means prevented the Court and its staff from expending considerable effort preparing for trial. Brown reads these statements to mean that Judge Rambo rejected the plea agreement because of the time the Court had spent on trial preparation. Though we can understand why a district court would be frustrated if, after it expended great efforts to prepare for a trial, the parties in effect settled the case, as the court might wonder why they could not have reached their presentence report. See Fed. R. Crim. P. 11(c)(3)(A). agreement earlier, we agree that ordinarily it would be improper for a court to reject a plea agreement solely because of its annoyance attributable to the parties’ delay in reaching an agreement.29 The record demonstrates, however, that Judge Rambo’s comments regarding timing referred specifically to the proposed Sentencing Guidelines 3-level reduction for Brown’s timely acceptance of responsibility, and not to the acceptability of the plea agreement generally. Judge Rambo’s hostility to this proposed reduction, though expressed harshly, was certainly understandable given the circumstances of the case of which she was well aware. In fact, we, too, cannot understand how the parties seriously can have recited in the plea agreement that Brown’s acceptance of responsibility was timely. After considering all of Brown’s arguments, we find no abuse of discretion in the District Court’s reaction to Brown’s plea agreement. D. The Sentence The District Court sentenced Brown, who was 76 years old, to a ten-year term of imprisonment. Brown argues that he is entitled to a remand for resentencing because this sentence, which the Court imposed after the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004), but before its decision in United States v. We are not suggesting that there never could be a situation in which a court appropriately could not reject a plea agreement on the basis of its untimeliness. Booker, 543 U.S. 220, 125 S.Ct. 738, was unreasonable in a variety of ways. Specifically, Brown contends that the District Court abused its sentencing discretion by (1) failing to consider properly the factors listed at 18 U.S.C § 3553(a) or articulate a statement of reasons for the sentence pursuant to 18 U.S.C. § 3553(c), (2) improperly calculating the loss for which he was responsible under Section 2B1.1 of the Sentencing Guidelines, and (3) wrongly denying his motion for a downward departure based on his medical condition. 1. The Sentencing Proceedings Following Brown’s conviction, the Probation Office submitted a presentence report (“PSR”) to the District Court. The PSR calculated Brown’s base offense level at 6, but then included a 16-level enhancement based on the amount of financial loss for which Brown was responsible, calculated to be $38,113,383; a 2-level enhancement because the offense involved more than minimal planning; a 4-level enhancement because Brown was an organizer and leader of the conspiracy to obstruct justice; a 2-level enhancement for abuse of a position of trust; and a 2-level enhancement for obstruction of justice. Accordingly, the PSR calculated Brown’s total offense level at 32, with a corresponding sentencing range of 121-151 months. Brown filed objections to the PSR on the grounds that the loss calculation was incorrect and that the enhancement for an aggravated role in the offenses was improper. Brown also filed two motions for downward departures based on his extraordinary civic and charitable contributions and on his age and physical condition. After holding two days of evidentiary hearings, the District Court entered a Memorandum Opinion discussing sentencing issues on August 17, 2004. See United States v. Brown, 338 F. Supp. 2d 552 (M.D. Pa. 2004). In that opinion, the District Court concluded that, in light of the Supreme Court’s decision in Blakely, the mandatory application of the Sentencing Guidelines to Brown’s case was unconstitutional. The Court nevertheless used the Sentencing Guidelines as a “measuring point” for its analysis, but stated that it would base its ultimate sentencing determination on an “indeterminate scheme in accordance with the principles set forth” by a decision of the United States District Court for the District of Utah in United States v. Croxford, 324 F. Supp. 2d 1230 (D. Utah 2004).29 Brown, 338 F. Supp. 2d at 555-56. The Court stated it would not issue an “alternative Guidelines sentence,” but it nevertheless addressed Brown’s challenges to the PSR, overruling his objections and denying his motions for downward departure. Id. at 556-62. With respect to the loss calculation, the District The court in Croxford held that application of the Guidelines would be unconstitutional pursuant to Blakely, and thus it approached the sentencing determination “as the courts handled sentencing before the Guidelines-by making a full examination of the relevant evidence and imposing an appropriate sentence within the statutory range set by Congress.” 324 F. Supp. 2d at 1246. The Croxford court nevertheless determined what the sentencing range would be under the Guidelines and looked to that range for guidance. Id. at 1248-49. Court accepted over Brown’s objection the PSR’s use of an “average selling price methodology” for determining the amount of shareholder loss that resulted from Brown’s fraud, noting that other courts had sanctioned this method of loss calculation in recent accounting fraud decisions. Id. at 557 (citing United States v. Snyder, 291 F.3d 1291 (11th Cir. 2002); United States v. Bakhit, 218 F. Supp. 2d 1232 (C.D. Cal. 2002); United States v. Grabske, 260 F. Supp. 2d 866 (N.D. Cal. 2002)). Brown urged reliance on his expert, who conducted “an event study, which measures the out-of-pocket damages to investors by calculating the difference between the fraudulent mis-pricing in the price paid for the security and the inflation in the sales price,” and calculated that there was no shareholder loss attributable to Brown’s fraud. Brown, 338 F. Supp. 2d at 558. As described by the District Court, the average selling price method “attempts to estimate the effect inflated earnings had upon the value of the company’s shares by comparing the average selling price of the stock during the lifetime of the fraud to the average selling price after the fraud was disclosed or corrected via a restatement.” Id. at 557 (citing Bakhit, 218 F. Supp. 2d at 1241). “Once an average loss per share has been established, it is multiplied by the number of harmed shares to estimate the total shareholder loss.” Id. (citing Bakhit, 218 F. Supp. 2d at 1242). To calculate the loss attributable to Brown’s misconduct, the Court’s methodology looked at six-, seven-, and eight-day windows before and after Rite Aid’s October 18, 1999 announcement that it intended to restate its income. The average losses per share over these three time periods then were multiplied by the total number of “innocent shares” (the total number of shares minus those held by the Rite Aid defendants), reduced by the percentage of the total fraud for which Brown was responsible. The separate figures for the six-, seven-, and eight-day windows then were averaged to arrive at the final loss figure.30 Although the District Court accepted the PSR’s methodology, it did disagree with the PSR’s loss calculation in two respects, as it found that the amount of loss attributable to Brown’s fraud should be discounted by a dividend Rite Aid It is unclear why the District Court focused solely on averages of arbitrary multi-day windows surrounding the October 18, 1999 announcement, given that Rite Aid’s stock price was in a period of continuous decline both before and after this date, and that the effect of Brown’s fraud on Rite Aid’s stock price began at least as early as June 1, 1999, when Rite Aid reported its income for fiscal year 1999 to the SEC. Under a typical average selling price approach to loss calculation, sometimes referred to as a “rescissory” or “modified rescissory” approach, a court will calculate the average selling price of the security over the entire life of the fraud (the “average fraud price”) and the average selling price during a period—often several weeks or more—following the fraud’s revelation (the “average post-fraud price”) then subtract the average post-fraud price from the average fraud price. The resulting loss per share then is multiplied by the number of affected shares to derive the total loss figure. See Bakhit, 218 F. Supp. 2d at 1240-42; Kevin P. McCormick, Untangling the Capricious Effects of Market Loss in Securities Fraud Sentencing, 82 Tul. L. Rev. 1145, 1165-66 (2008); Samuel W. Buell, Reforming Punishment of Financial Reporting Fraud, 28 Cardozo L. Rev. 1611, 1635-36 (2007). paid to its shareholders on October 14, 1999, and that the government overestimated the number of shares harmed by Brown’s fraud. After accounting for these adjustments, the Court determined that the amount of loss for which Brown was responsible was $23,170,452. The Court noted that this revision of the loss amount would not affect Brown’s sentencing range under the Sentencing Guidelines, as his overall offense level remained at 32.31 The District Court denied Brown’s motion for a downward departure based on his medical condition because it concluded that Brown “did not meet his burden of establishing that the Bureau of Prisons could not provide appropriate medical care for a person of [Brown]’s age and physical condition.” Brown, 338 F. Supp. 2d at 562. The Court likewise denied Brown’s motion for a downward departure based on his charitable and civic contributions, finding that although Brown was generous in these regards, his contributions were not extraordinary given his financial means. The District Court imposed Brown’s sentence at a hearing on October 14, 2004. At the hearing, the Court Brown also objected to the PSR’s loss calculation including amounts from rebate and settlement agreements that Rite Aid fraudulently had listed as income in its financial disclosures, and to the amount of loss attributable to the backdated severance letters. Additionally, Brown objected to the 4-level offense level enhancement based on his aggravated role. The District Court overruled all of these objections. rejected additional sentencing objections that Brown raised with respect to his vulnerability to abuse and his medical condition. The Court noted with respect to Brown’s medical condition that many defendants have similar problems and, in its experience, the federal prison system was very capable of dealing with defendants in Brown’s situation. The Court also addressed Brown’s charitable deeds, and, although it already had rejected his motion for a downward departure predicated on those deeds, the Court stated that Brown’s “good deeds are very much acknowledge[d] . . . and I believe that is addressed in the sentence that will be given.” App. at 94-95. The Court then sentenced Brown to a term of imprisonment of 120 months, one month below the minium Guidelines range. 2. Post-Booker Sentencing Requirements In considering a challenge to a district court’s sentencing decision, we engage in two levels of review. First, we must ensure that the district court did not commit a significant procedural error in arriving at its decision, “such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.” United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597 (2007)). We review alleged factual errors for clear error but exercise plenary review over “purely legal” errors, such as a misinterpretation of the Guidelines or the governing case law. United States v. Arrelucea-Zamudio, 581 F.3d 142, 145 (3d Cir. 2009). Second, if we determine that there has not been a significant procedural error, we review the ultimate sentence imposed to determine if it was substantively reasonable under an abuse of discretion standard. Wise, 515 F.3d at 218 (citing Gall, 552 U.S. at 51, 128 S.Ct. at 597). As we have indicated, the District Court imposed Brown’s sentence after the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, but prior to its decision in United States v. Booker, 543 U.S. 220, 125 S.Ct 738. In similar circumstances in other cases, we have remanded the case for resentencing unless the district court followed the procedures required after Booker. See United States v. Corley, 500 F.3d 210, 221 (3d Cir. 2007), vacated on other grounds, U.S. , 129 S.Ct. 1558 (2009). We have held that these procedures require that in setting a sentence a district court must (1) calculate the applicable Guidelines range, (2) formally rule on any departure motions, and (3) exercise its post-Booker discretion by considering the factors in 18 U.S.C. § 3553(a) in setting the sentence it imposes regardless whether it varies from the sentence calculated under the Guidelines. United States. v. Olhovsky, 562 F.3d 530, 546-47 (3d Cir. 2009). 3. Unreasonableness of the Sentence Following Blakely, a district court must consider the factors that 18 U.S.C. § 3553(a) enumerates before sentencing a defendant. Those factors include the nature and circumstances of the offense, the history of the defendant, and the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. Additionally, the court must impose a sentence sufficient, but not greater than necessary, to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, afford adequate deterrence to criminal conduct, protect the public from the defendant’s further crimes, and provide the defendant with needed treatment, training, or care. “While sentencing courts need not discuss each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing, where . . . the record strongly suggests that some of the statutorily prescribed sentencing factors were ignored, we cannot conclude that the resulting sentence was reasonable.” Olhovsky, 562 F.3d at 547 (internal quotation marks and citation omitted); see also United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc) (“In the wake of Booker, it is essential . . . that district courts provide courts of appeals with an explanation sufficient for [them] to see that the particular circumstances of the case have been given meaningful consideration within the parameters of § 3553(a).”) (internal quotation marks and citation omitted). Here the District Court, based on the Supreme Court’s reasoning in Blakely, correctly determined that the mandatory application of the Guidelines to Brown’s sentence would be unconstitutional. The Court, however, being conducted by a judge not a prophet, was unable precisely to predict the effect that the Supreme Court’s eventual holding in Booker would have on federal sentencing. Lacking this clairvoyance the Court failed to explain, in the manner now required, how it considered the factors listed in section 3553(a) in imposing Brown’s sentence. For this reason, we must remand the case to the District Court for resentencing. Because we remand for resentencing on this ground, we express no opinion on Brown’s remaining sentencing arguments which, of course, he can advance at his resentencing.32 V. CONCLUSION With respect to the District Court’s loss calculation, however, we note that the legal landscape has changed somewhat since the time of Brown’s sentencing. Notably, two courts of appeals explicitly now have applied the loss calculation principles that the Supreme Court has required in civil securities fraud cases, see Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627 (2005), in the criminal sentencing context, United States v. Rutkoske, 506 F.3d 170, 179-80 (2d Cir. 2007); United States v. Olis, 429 F.3d 540, 546-49 (5th Cir. 2005), another has opined that such an application would be appropriate, United States v. Nacchio, 573 F.3d 1062, 1078-79 (10th Cir. 2009), and a fourth has held that although a sentencing court need not follow Dura Pharmaceuticals’s loss causation approach, it nevertheless must determine “how much of the shareholders’ loss was actually caused by [defendant]’s fraud.” United States v. Berger, 587 F.3d 1038, 1046 (9th Cir. 2009) (emphasis added). For the reasons we set forth above, we will affirm the judgment of conviction but will vacate the sentence entered by the District Court on October 15, 2004, and we will remand the case for resentencing in accordance with this opinion. We will affirm the order denying Brown’s motion for a new trial entered by the District Court on August 10, 2005, and the order denying Brown’s renewed motion for a new trial or for dismissal of the indictment entered by the District Court on February 22, 2008.

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 09-1989 RITE AID OF PENNSYLVANIA, INC. vs. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 1776, Appellant. On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 08-33) District Court Judge: Honorable Christopher C. Conner Argued November 10, 2009 Before: AMBRO, GARTH, and ROTH, Circuit Judges (Opinion Filed: February 16, 2010 ) Andrew W. Allison [ARGUED] Jonathan B. Sprague Darren M. Creasy 1600 John F. Kennedy Blvd. Philadelphia, PA 19103 Counsel for Appellee Nancy B. G. Lassen Laurence M. Goodman [ARGUED] 1845 Walnut Street, 24th Floor Philadelphia, PA 19103 Counsel for Appellant OPINION OF THE COURT GARTH, Circuit Judge: In this appeal, we must decide whether the parties had agreed to arbitrate a labor dispute, thereby rendering it arbitrable under the parties’ collective bargaining agreement. The District Court concluded that they had not, and we will affirm. I. Rite Aid of Pennsylvania, Inc. (“Rite Aid”) operates a chain of drugstores in Pennsylvania. United Food and Commercial Workers, Local 1776 (“the Union”) represents non- managerial employees in Rite Aid’s eastern Pennsylvania stores. Rite Aid and the Union are parties to three separate collective bargaining agreements (CBAs) covering Rite Aid stores in twenty-four Pennsylvania counties.1 In 2007, Rite Aid acquired a chain of drugstores formerly operated by Brooks Eckerd. The employees of the newly- acquired stores were not yet represented by the Union. When Union representatives attempted to enter six of the new stores in September 2007, Rite Aid denied them entry. On November 7, 2007, the Union filed three identical grievances (one under each CBA), asserting that the CBAs conferred upon the Union a right to access newly-acquired or newly-opened stores within each CBA’s geographic jurisdiction. One CBA covers the Northeast Division, which comprises Lehigh, Northampton, Northumberland, Montour (erroneously given as “Monture” in the CBA), Carbon, Wayne, Monroe, Wyoming, Susquehanna, Luzerne, Columbia, Sullivan, Lycoming, Lackawanna, and Pike counties. The Philadelphia Division agreement covers Rite Aid stores in Philadelphia, Delaware, Bucks, Montgomery, and Chester counties. The Reading Division CBA extends to stores in Schuylkill, Lancaster, Berks and Lebanon counties. The parties agree that the three CBAs are identical in all respects relevant to this appeal. For the sake of convenience, we will therefore refer to “the CBA” as though there were a single agreement between Rite Aid and the Union. Rite Aid denied the grievances, citing a policy against solicitation. The Union referred the three grievances to arbitration, where they were consolidated into a single proceeding, and a hearing date was set. Prior to the arbitration hearing, Rite Aid filed an action in the United States District Court for the Middle District of Pennsylvania, seeking a declaratory judgment of the grievances’ non-arbitrability. On July 1, 2008, the parties filed cross- motions for summary judgment. Rite Aid argued that the grievances were not arbitrable in light of Section 11.4 of the CBA, which provides: “No grievance shall be filed by the associate or the Union, nor need the Employer entertain any grievance that does not involve the interpretation of any provision of this Agreement.” (emphasis added). The Union responded by citing three CBA provisions under which it purported to assert its store-access grievances. The Union argued that because its grievances arose under at least one of those provisions, arbitration was required, regardless of the grievances’ merits. On March 31, 2009, the District Court granted Rite Aid’s motion and denied the Union’s motion. The court found that the grievances did not involve the interpretation of any CBA provisions, and that they therefore fell outside the scope of the CBA’s arbitration clause. The Union filed a timely notice of appeal.2 We have jurisdiction pursuant to 28 U.S.C. § 1291. II. The District Court’s decision regarding the applicability and scope of the parties’ arbitration agreement is subject to our plenary review. United Steelworkers of Am. v. Rohm and Haas Co., 522 F.3d 324, 330 (3d Cir. 2008); Harris v. Green Tree Financial Corp., 183 F.3d 173, 176 (3d Cir. 1999).3 In reviewing a District Court ruling on a motion for summary judgment, we apply the same test District Courts are to apply under Fed. Rule. Civ. P. 56(c). Brown v. J. Kaz, Inc., 581 F.3d 175, 179 (3d Cir. 2009). Summary judgment is appropriate if and only if, after the evidence taken as a whole is construed in the light most favorable to the non-moving party, there remains no genuine issue of material fact. Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 286 (3d Cir. 2009). The consolidated grievances remain in arbitration pending the outcome of this appeal. In earlier cases, we had treated a District Court’s arbitrability decision as a finding of fact with respect to the parties’ intent to arbitrate a particular dispute, and reviewed only for clear error. See Lukens Steel Co. v. United Steelworkers of Am., 989 F.2d 668, 672 (3d Cir. 1993); John F. Harkins Co., Inc. v. Waldinger Corp., 796 F.2d 657, 659-60 (3d Cir. 1986). In Rohm and Haas, however, we clarified that this more deferential standard applies only where the relevant documents are ambiguous. See 522 F.3d at 330 n.7. The venerable legal principles guiding the construction and enforcement of arbitration clauses in collective bargaining agreements are well established. We have often recognized the strong federal policy in favor of resolving labor disputes through arbitration. See, e.g., United Parcel Service, Inc. v. Int’l Brotherhood of Teamsters, Local Union No. 430, 55 F.3d 138, 141 (3d Cir. 1995); Laborers’ Int’l Union of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 399 (3d Cir. 1994); Exxon Shipping Co. v. Exxon Seamen’s Union, 11 F.3d 1189, 1196 (3d Cir. 1993). More specifically, the inclusion of a broad arbitration clause in a collective bargaining agreement gives rise to a presumption of arbitrability which may be rebutted only by “the most forceful evidence of a purpose to exclude the claim from arbitration.” AT&T Techs., Inc. v. Comm’s Workers of Am., 475 U.S. 643, 650 (1986) (quoting United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 585 (1960)). The parties agree that the arbitration provisions in the CBA at issue are broad, and that the presumption of arbitrability therefore applies in this case. Notwithstanding that presumption, “arbitration is still a creature of contract and a court cannot call for arbitration of matters outside of the scope of the arbitration clause.” Rohm and Haas Co., 522 F.3d at 332. Unless the parties clearly provide otherwise, the courts, not the arbitrators, are tasked with interpreting agreements in order to determine whether the parties have indeed agreed to arbitrate disputes whose arbitrability is contested. See AT&T Techs., 475 U.S. at 649, 651; Local 827 v. Verizon New Jersey, Inc., 458 F.3d 305, 309 (3d Cir. 2006). In making that determination, a court is not to examine the potential merits of the claim sought to be arbitrated, except as we point out in Part IV, where the claim’s merits and its arbitrability are inextricably intertwined. See Lukens, 989 F.2d at 672. Rather, the court is limited to the construction of the arbitration clause and any contractual provisions relevant to its scope, as well as any other “forceful evidence” suggesting that the parties intended to exclude the disputes at issue from arbitration. See E.M. Diagnostic Sys., Inc. v. Local 169, 812 F.2d 91, 95 (3d Cir. 1987). Where an arbitration clause in a collective bargaining agreement limits arbitration to those disputes which require interpretation of the agreement, as it does here, a grievance is excluded from arbitration unless it arises from a specific provision in the agreement. See Rohm and Haas, 522 F.3d at 332 (“Although we hold that the Bristol CBA’s arbitration clause is broad, the underlying basis for the grievance submitted through the Bristol CBA grievance procedure must still arise from some specific article of the Bristol CBA.”). We may not accept an arbitration proponent’s citation to a particular provision of the CBA and its claim that the grievance arises thereunder without critical examination. Unquestioning acceptance of the Union’s characterization of its claims is inconsistent with our duty to determine arbitrability because it “leaves the scope of the arbitration clause subject to the unilateral and unfettered discretion of the Union.” E.M. Diagnostic, 819 F.2d at 95. We must determine whether indeed “the subject matter of the grievance is one that is within the zone of interests that have received protection in the collective bargaining agreement” and one that the parties have agreed to arbitrate. Id. Having outlined the controlling principles, we turn now to their application to the grievances and arbitration clause in the present case. III. Article 11 of the CBA creates a procedure under which the Union or one of its members may file grievances with Rite Aid. The CBA provides for review of the grievance by progressively higher levels of Rite Aid management and, if the dispute is not amicably resolved, ultimately for resolution of the dispute by an arbitrator.4 As noted supra, the scope of the arbitration provision in the CBA is broad but not unbounded. Section 11.4 of the CBA provides: “No grievance shall be filed by the associate or the Union, nor need the Employer entertain any grievance that does not involve the interpretation of any provision of this Under Sections 11.1 and 11.2 of the CBA, grievances are first to be filed with the store manager, and if not resolved within two days, next submitted to a Rite Aid Human Resources Manager. If the dispute is not resolved in the following three days, it is presented to Rite Aid’s Director of Labor Relations. If the matter is still unresolved three days after that, the grievance is referred to arbitration. Under Section 11.3.1 (labeled Section 11.3 in the Philadelphia Division CBA), the arbitrator is selected jointly by the parties or, in the event the parties cannot agree, selected pursuant to the rules of the American Arbitration Association. Agreement.” (emphasis added). Thus, the plain language of the CBA indicates that the parties have agreed to arbitrate only those disputes which genuinely implicate one or more provisions of the CBA. Our task is therefore to decide whether the Union’s store-access grievance falls within the scope of the arbitration clause by raising a legitimate question of the CBA’s interpretation. The Union points to three provisions of the CBA, contending that each provides a basis for its claim that Union representatives are entitled to access Rite Aid’s newly-acquired stores and their employees. We examine each in turn. A. Recognition Clause Section 2.1 of the CBA reads: The Employer recognizes the Union as the sole and exclusive bargaining agent for the purpose of bargaining in the Bargaining Unit in respect to rates of pay, wages, hours of employment, and other conditions pertaining to employment . . . . The Union argues that its interpretation of this clause gives rise to its access grievance. We are not persuaded by the argument the Union advances based on the decision of the National Labor Relations Board (NLRB) in Houston Div. of the Kroger Co., 219 N.L.R.B. 388 (1975). In Kroger the NLRB held that a recognition clause similar to the one at issue in this case waives an employer’s right to demand an election in a new or after-acquired store, but that the union is nevertheless required to demonstrate majority support among employees of those stores before it can be recognized. Id. at 389. However, the NLRB did not specify the means by which unions are to demonstrate majority support in this situation. The Union here argues that the CBA at least arguably grants it a right of store access, and it is therefore entitled to present that claim to an arbitrator. This strikes us as a non sequitur. The NLRB’s failure to specify the means of establishing majority support in cases where the employer has waived its right to an election simply does not suggest that the Union must be allowed access to newly-acquired stores. The Union has not explained why any of the methods that might meet the NLRB’s approval would require its organizers to enter the store. If there is ambiguity in Kroger, it does not translate to ambiguity in the instant CBA. The Union points to several arbitration decisions recognizing a right of access to newly-acquired stores, and contends that its present grievance must indeed involve interpretation of the recognition clause, since that interpretation has in fact been accepted by several arbitrators.5 We find it rather curious that the Union charges the District Court with reaching the merits of the instant dispute in the course of declaring it non-arbitrable (see infra Part IV), while simultaneously urging us to consider favorable (to the Even were we to consider them, the merits decisions relied upon by the Union would not persuade us that the grievance is arbitrable. The Union calls our attention to a decision from the District of Oregon confirming an arbitration award under a CBA that included a provision specifically providing for the applicability of the CBA to new stores. The CBA in that case included the following provision: “The Employer agrees then if the Employer should establish a new retail food store or stores located in Clark County, Washington, and in the jurisdiction of Local 555, that as of the time such store is established this Agreement shall apply to all employees in job classifications set forth herein.” Albertson’s, Inc. v. Local 555, Civil No. 97-977-JO, slip op. at 4 (D. Or. 1998) (emphasis added). The CBA in the instant case contains no such provision.6 Union) merits decisions as evidence of the dispute’s arbitrability. The merits and arbitrability questions are distinct, and a court must limit itself to addressing the latter, regardless of whether the merits appear favorable or unfavorable to an arbitration proponent. Another recent case submitted by the Union pursuant to Fed. R. App. P. 28(j), PPG Indus. v. Int’l Chemical Workers Union Council, 587 F.3d 648 (4th Cir. 2009), is inapposite. In PPG, the employer sought to vacate an arbitration award involving the interpretation of a term in a bonus plan that had been expressly incorporated into a CBA with a mandatory arbitration clause. Both parties agreed in PPG that the bonus To the extent that decisions of other arbitrators have found in favor of unions relying on the analysis of Kroger and the theory referred to above, we simply do not find them persuasive. In our view, a right of Union access to newly acquired stores simply cannot be plausibly derived from the recognition clause. The recognition clause merely establishes the Union’s position as Rite Aid’s employees’ exclusive bargaining agent and defines the range of matters subject to bargaining. It does not describe or purport to include anything resembling the Union’s claimed right to access newly-acquired stores. The District Court correctly concluded that the recognition clause is not susceptible of an interpretation which would yield such a right. B. Observation Clause The Union next relies on Section 5.1 of the CBA, which plan was subject to the CBA’s arbitration provisions; the employer merely disagreed with the arbitrator’s interpretation of what the employer termed the “plain language” of the plan. The District Court vacated the arbitration award, but the Fourth Circuit reversed, writing that “[t]he Company’s argument simply constitute an attack on the correctness of the arbitrator’s decision. A court has no warrant to determine the correctness of the arbitrator’s award.” Id. at 653. By contrast, in the instant case Rite Aid challenges only whether the Union’s grievance is arbitrable inasmuch as neither Rite Aid nor the Union ever agreed to arbitrate the access issue. provides in relevant part: It is agreed that the Union duties and activities will not be carried on during work. This shall not prevent the Union officials from entering the Employer’s establishments to satisfy that this Agreement is being observed, provided that same shall not interfere with the normal operations or business of the store. The Union argues that its grievance is arbitrable because it alleges that the Union’s exclusion from the newly-acquired Eckerd stores violated this provision of the CBA. We question the Union’s reading of this provision, and its argument. The CBA cannot apply to the newly-acquired stores or to their employees because the Union does not presently represent those stores’ employees. (This is, of course, the very reason the Union seeks access to the stores.) We agree with the District Court that it is not possible for the Union to ensure compliance with the instant CBA at stores to which the CBA does not apply. Accordingly, the Union’s store-access grievance does not require interpretation of Section 5.1, the observation clause, and arbitration is not properly invoked by reliance on this provision. C. Privileges Clause Finally, the Union relies on Section 15.3, which provides: Only privileges which have been granted by the present Employer since its acquisition of the establishments covered by this Agreement shall be continued. The Union alleges that before the acquisition of the Brooks Eckerd stores, Rite Aid had permitted it to enter other new stores. Thus, according to the Union, the right of access is a privilege that “shall be continued” under the CBA – or, at the least, this interpretation is sufficiently plausible to conclude that the Union’s grievances indeed arise from an interpretation of the CBA. A right of access cannot be considered one of the “privileges” referenced in Section 15.3 unless the clause’s context and provisions are entirely ignored. Article 15 is titled “Miscellaneous Working Conditions,” and all of its provisions deal with the rights and responsibilities of employees covered by the CBA. The privileges to which the CBA refers are not privileges of the Union. For example, Section 15.4 establishes the rules under which worked time is recorded; Section 15.5 requires Rite Aid to furnish employees’ uniforms; Section 15.6 sets out the circumstances under which employees are to be held liable for cash shortfalls; Section 15.8 permits associates to transfer between the front end and pharmacy departments “in accordance with seniority and ability,” and so forth. The Union argues that this contextual analysis intrudes into territory reserved for the arbitrator. However, our recent precedent confirms our ability to consider the context of a CBA provision in order to determine whether it is sufficiently implicated by a grievance that one party seeks to arbitrate. In Rohm & Haas, supra, the parties contested the arbitrability of a denial of disability benefits. Management and the employee’s union had negotiated a Collective Bargaining Agreement containing an arbitration clause, but disability benefits were provided only under a separate ERISA plan lacking any arbitration provisions. The employee argued, inter alia, that his denial-of-benefits grievance arose under the Agreement because one provision of the agreement made reference to the ERISA benefits plan in describing the procedures to be followed in case of a disagreement over whether an employee should be considered physically incapable of working. 522 F.3d at 328-29. We rejected this argument after examining the context, which revealed that the provision “contemplates a situation where an employee seeks to continue working in spite of a potential disability.” Id. at 334. Because the employee did not propose to continue working, we found that the Agreement did not apply to the employee’s grievance, and the denial-of- benefits claim was therefore not arbitrable. We concluded: “We do not find any ambiguity in the [CBA] that would permit it to be reasonably interpreted to provide for disability benefits or to provide for arbitrating a plan administrator’s denial of such benefits arising from a separate ERISA plan.” 7 Id. Rohm & Haas is a recent opinion of this Court. As my dissenting colleague concedes, this Court was required to consider “substantive provisions of the collective bargaining Similarly here, the entire context of Section 15.3 makes clear that the “privileges” discussed in Article 15 pertain to Rite Aid’s employees’ working conditions. Article 15 has nothing to do with the Union’s right to organize or to be recognized in newly-acquired stores. The Union’s grievances as to store access simply do not involve an interpretation of Section 15.3, and thus do not come within the scope of the CBA’s arbitration clause. In sum, Section 11.4 of the CBA, which provides that “[n]o grievance shall be filed by the associate or the Union, nor need the Employer entertain any grievance that does not involve the interpretation of any provision of this Agreement,” constitutes “forceful evidence,” particularly in light of the context that we have analyzed, that the parties intended to exclude from arbitration claims which arise wholly outside the scope of the CBA. The Union’s store-access grievance does not agreement to determine whether, as the union argued, ‘“disability benefits” are considered “working conditions” [under the collective bargaining agreement].’” Dissent at n.18 (emphasis added). This being so, it is obvious that the merits may be considered when necessary to determine arbitrability. The dissent does not take issue with Rohm & Haas, as it cannot, because Rohm & Haas is a precedential opinion of this Court. Indeed, the dissent does not attempt to explain why we should not be bound by this very recent binding precedent. The dissent's discussion of Rohm & Haas, significant though it is, is confined to a single footnote. We are content to rely upon Rohm & Haas as a precedent in this Circuit. fall within the scope of the CBA’s arbitration clause because it does not require the interpretation of any of the CBA’s provisions.8 IV. The Union additionally argues that the District Court impermissibly considered the merits of its grievance in making its arbitrability determination. We cannot agree. Decisions of the Supreme Court and Courts of Appeals have made clear that where the merits and arbitrability questions are inextricably intertwined, a court’s arbitrability decision may, of necessity, touch incidentally on the merits. In Litton Financial Printing Div. v. NLRB, 501 U.S. 190 (1991), the union representing Litton’s employees sought to arbitrate a dispute over layoffs of ten workers, including Litton’s six most senior employees. Like the CBA in this case, the Agreement contained an arbitration provision whose scope was We observe as did the District Court that Article 25 of the CBA provided Rite Aid with the right to “open new establishments of any kind.” The Philadelphia Division version of the CBA also contained a Section 2.3, which required Rite Aid to “notify the Union of any new store openings or acquisitions within the five (5) county Philadelphia area.” If the parties had intended a right of access to be encompassed by the CBA’s arbitration clause, it surely would have appeared in the CBA in the context of these provisions. No such provision appears anywhere in the CBA. limited to disputes “regarding [the] Agreement and any alleged violations of the Agreement, [and] the construction to be placed on any clause or clauses of the Agreement.” Id. at 194. The Litton CBA provided that, “in case of layoffs, lengths of continuous service will be the determining factor if other things such as aptitude and ability are equal.” Id. However, because the agreement had expired nearly a year before the layoffs occurred, Litton contested the grievance’s arbitrability. The union argued that the seniority provision created a vested right which survived the expiration of the agreement, and thus the layoffs constituted violations of the agreement notwithstanding that they had occurred after expiration. The Supreme Court ruled for Litton and held the grievance non-arbitrable. It noted that “[o]nly where [factors such as aptitude and ability] were equal was the employer required to look to seniority.” Id. at 210. The Court reasoned: “The important point is that factors such as aptitude and ability do not remain constant, but change over time. They cannot be said to vest or accrue or be understood as a form of deferred compensation. . . . We cannot infer an intent on the part of the contracting parties to freeze any particular order of layoff or vest any contractual right as of the Agreement’s expiration.” Id. Only after it construed the disputed provision and determined that no rights were vested was the Court able to conclude that the grievance did not arise under the Agreement, and was thus non-arbitrable. The Union in this case characterizes Litton as inapplicable because this case does not involve an expired CBA, but Litton is not so easily distinguished. Because the Agreement limited the scope of arbitration to matters regarding the agreement or its construction, the Supreme Court in Litton found it necessary to interpret the agreement in order to properly determine the question of arbitrability. The Union here would argue that the Supreme Court had accordingly reached the merits, but because the merits and arbitrability issues were inextricably intertwined in Litton, the Supreme Court found it necessary to refer to the merits in order to determine what the parties had agreed to arbitrate. We are presented with a similar situation in this case. In the words of the Supreme Court, “we must determine whether the parties agreed to arbitrate this dispute, and we cannot avoid that duty because it requires us to interpret a provision of a bargaining agreement,” even if we trench to some extent upon the merits. Id. at 209. We are not the first Court of Appeals to read Litton this way, or to employ an analysis recognizing the entwining of the merits and agreed-upon arbitrability questions. Int’l Brotherhood of Elec. Workers v. GKN Aerospace N. Am., Inc., 431 F.3d 624 (8th Cir. 2005), involved a dispute over whether an employee who had been promoted to a supervisory position had a right to return to the bargaining unit. Because the arbitration provision was limited to matters related to the collective bargaining agreement, the Eighth Circuit held that the arbitrability determination required it to interpret various clauses of the agreement. See id. at 629-30. The court understood Litton to mean that “the judicial responsibility to determine arbitrability takes precedence over the general rule to avoid consideration of the merits of a grievance.” Id. at 628. In Independent Lift Truck Builders Union v. Hyster Co., 2 F.3d 233 (7th Cir. 1993), another case limiting arbitration to disputes arising out of a collective bargaining agreement, the Seventh Circuit observed that “a court cannot address the arbitrability question without at the same time addressing the underlying merits of the dispute.” Id. at 236. After discussing Litton, the court concluded: “If the court must, to decide the arbitrability issue, rule on the merits, so be it.” Id. Indeed, both this court and our sister courts had conducted a similar analysis even before Litton. See E.M. Diagnostic, 812 F.2d at 95; United Steelworkers Local No. 1617 v. Gen. Fireproofing Co., 464 F.2d 726, 729 (6th Cir. 1972) (“In order to determine then whether the parties have agreed to arbitrate [the matter at issue], we must examine the collective bargaining agreement . . . to see if, under any reasonable interpretation, agreement to arbitrate can be found.”); Peerless Pressed Metal Corp. v. Int’l Union of Electrical, Radio and Machine Workers, 451 F.2d 19, 21 (1st Cir. 1971) (holding a dispute arbitrable because it arose under a construction of an agreement that, while “weak,” was not “impossible” or “inconceivable”). V. We will affirm the District Court’s judgment dated March 31, 2009, that the parties had not agreed to arbitrate the issue of access to the Eckerd stores and their employees. AMBRO, Circuit Judge, dissenting The Majority concludes that the Union’s grievances are not arbitrable based on its assessment of the merits of the Union’s claims. Because I do not believe that analysis is authorized by either Supreme Court precedent or our own precedent, I respectfully dissent. I. Background To review, United Food and Commercial Workers Union, Local 1776 (the “Union” or “Local 1776”), has represented Rite Aid employees in 24 Pennsylvania counties for several decades. In June 2007, Rite Aid acquired a drugstore chain formerly operated by Brooks Eckerd. Several of these stores are located in counties covered by a collective bargaining agreement (the “CBA”)9 between Ride Aid and Local 1776. During September and October 2007, representatives of Local 1776 attempted to enter six of these stores to solicit employee interest in joining the Union. Rite Aid barred these representatives from entering the stores. In November 2007, Local 1776 Executive Vice President Nicholas Farina filed three identical grievances with Niels Hansen—Rite Aid’s Director of Labor Relations—alleging that Rite Aid had interfered with the Union’s “exercise of [its] visitation rights as prescribed under the [CBA].” Mr. Hansen Like the Majority, I refer to the parties’ collective bargaining agreements as a single “CBA.” Maj. Op. at 3 n.1. denied the grievances, relying on Rite Aid’s “no solicitation” policy. That policy—for which the effective date is unknown—prohibits the “[s]olicitation for any cause or distribution of material . . . if one or more of the Rite Aid Associates engaged in the interaction is on working time.” The policy does not reference Union activities, but purports to apply to “associate and non-associate activity on behalf of any cause or organization, with the exception of Company-sponsored charity events.” When Local 1776 advised Rite Aid of its intent to submit the grievances to arbitration, Rite Aid filed a complaint in the federal District Court for the Middle District of Pennsylvania seeking a declaratory judgment that the Union’s grievances were not arbitrable.10 The parties filed cross-motions for summary judgment with supporting declarations.11 In March 2009, the I note that at least two other courts have rejected Rite Aid’s attempts to bypass arbitration of similar disputes. See Rite Aid of N.Y., Inc. v. United Food and Commercial Workers Int’l Union Local One, No. 07-cv-708, 2009 WL 185764 (W.D.N.Y. Jan. 23, 2009); 1199 SEIU, United Healthcare Workers East v. Rite Aid Corp., No. 07-cv-4816, 2008 WL 762090 (S.D.N.Y. Mar. 24, 2008). The Union submitted the declaration of Executive Vice President Farina, in which he averred that: (1) prior to the current dispute, he was “not aware that Rite Aid had a [n]on-solicitation policy at any of its retail stores” within the counties covered by the CBA; and (2) Rite Aid “had, for decades, permitted [Union] representatives . . . to have access District Court granted Rite Aid’s motion and denied the Union’s motion. This appeal followed. II. The Steelworkers Principles Fifty years ago, the Supreme Court decided three cases, collectively known as the “Steelworkers Trilogy,” which establish the principles that guide our determination of whether a grievance is arbitrable. See United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564 (1960); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593 (1960). As the Supreme Court has observed, “[t]hese precepts have served the industrial relations community well, and have led to continued reliance on arbitration . . . as the preferred to both newly acquired and newly opened Rite Aid stores within the geographic jurisdiction of [the] CBA[], for the purpose of soliciting Rite Aid’s employees for membership in [the Union].” Rite Aid submitted the declaration of Human Resources Manager Mark Firment—who has been employed by Rite Aid since February 2000—in which he averred that, “[t]o the best of [his] knowledge, information and belief, Rite Aid’s [n]on-solicitation [p]olicy has been and continues to be consistently enforced throughout all of Rite Aid’s stores, including, but not limited, to [the six Brooks Eckerd stores that Union members attempted to enter].” Mr. Firment’s declaration did not address whether the policy has ever been applied to Union representatives seeking to enter Rite Aid stores to solicit membership. method of resolving disputes arising during the term of a collective-bargaining agreement.” AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648 (1986). Those precepts are as follows. (1) “[A]rbitration is a matter of contract[,] and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Warrior & Gulf, 363 U.S. at 582. (2) Unless the parties “clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator.” AT&T Techs., 475 U.S. at 649 (citing Warrior & Gulf, 363 U.S. at 582–83). (3) In deciding whether the parties have agreed to arbitrate a particular grievance, courts may “not . . . rule on the potential merits of the underlying claims.” Id. The Supreme Court has stated this prohibition in forceful terms: Whether “arguable” or not, indeed even if it appears to the court to be frivolous, the union’s claim that the employer has violated the collective-bargaining agreement is to be decided, not by the court asked to order arbitration, but as the parties have agreed, by the arbitrator. “The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious.” Id. at 649–650 (quoting Am. Mfg. Co., 363 U.S. at 568) (emphasis added). Thus, where the parties have agreed to “submit all questions of contract interpretation to the arbitrator,” the court’s function is “very limited”; “[i]t is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract.” Am. Mfg. Co., 363 U.S. at 567–68. This principle implements the “federal policy of settling labor disputes by arbitration[, which] would be undermined if courts had the final say on the merits” of a grievance. Enter. Wheel & Car Corp., 363 U.S. at 596. Accordingly, “[a] court should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provisions of a labor agreement, even through the back door of interpreting the arbitration clause, when the alternative is to utilize the services of an arbitrator.” Warrior & Gulf, 363 U.S. at 585. (4) A presumption of arbitrability applies where a collective bargaining agreement contains an arbitration provision. This presumption is “particularly applicable” where, as here, the arbitration provision is broad. AT&T Techs., 475 U.S. at 650 (arbitration provision that provided for arbitration of “any differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder” was broad); see also Warrior & Gulf, 363 U.S. at 576 (arbitration provision that provided for arbitration of “differences . . . as to the meaning and application of the provisions” of the collective bargaining agreement was broad). “In such cases, ‘[i]n the absence of any express provision excluding a particular grievance from arbitration, . . . only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail.’” AT&T Techs., 475 U.S. at 650 (quoting Warrior & Gulf, 363 U.S. at 584–85) (emphasis added) (alteration in original). III. Discussion We have identified three questions to guide our application of the Steelworkers principles where the bargaining agreement’s arbitration provision is broad and the presumption of arbitrability applies: (1) Does the present dispute come within the scope of the arbitration clause?[;] (2) does any other provision of the contract expressly exclude this kind of dispute from arbitration?[;] and (3) is there any other ‘forceful evidence’ indicating that the parties intended such an exclusion? E.M. Diagnostic Sys., Inc. v. Local 169, Int’l Bhd. of Teamsters, 812 F.2d 91, 95 (3d Cir. 1987); accord United Steelworkers of Am. v. Rohm and Haas Co., 522 F.3d 324, 331 (3d Cir. 2008). I address these questions in turn. A. The Union’s Grievances Come Within The Scope Of The Arbitration Provision The parties’ CBA contains a provision governing the procedure for the filing and arbitration of grievances, which states that “[n]o grievance shall be filed by . . . the Union, nor need [Rite Aid] entertain any grievance that does not involve the interpretation of any provision of this Agreement.” This provision thus limits the grievances that the Union may file—and, if rejected by Rite Aid, refer to arbitration—to those that “involve the interpretation of any provision of” the CBA. The Union’s asserted right to enter Rite Aid stores for the purpose of soliciting membership is founded on its interpretation of three provisions of the CBA—the “Recognition,” “Observation,” and “Privileges” Provisions. Accordingly, the Union argues that its grievances fall within the “scope” of the CBA’s arbitration mandate because it has made a claim which “on its face is governed by the [CBA],” Am. Mfg. Co., 363 U.S. at 567–68—that is, on its face Local 1776’s asserted right of store access “involve[s] the interpretation” of provisions of the CBA. 1. The Distinction Between The Subject Matter And The Merits Of A Grievance The Union’s characterization of its grievances is not the end of the matter. As the Majority points out, “[u]nquestioning acceptance of the Union’s characterization of its claims” would “‘leave[] the scope of the arbitration clause subject to the unilateral and unfettered discretion of the Union.’” Maj. Op. at 7 (quoting E.M. Diagnostic, 812 F.2d at 95). The concern is that an arbitration proponent could achieve arbitration of a grievance—the subject matter of which is wholly outside the scope of the collective bargaining agreement—simply by “cit[ing] to a particular provision of the CBA,” claiming that its “grievance arises thereunder,” and contending that a court would be impermissibly reviewing the merits if it were to reject the Union’s characterization. Id. We addressed this concern in E.M. Diagnostic, where we considered the arbitrability of a grievance challenging a company’s decision to subcontract work to an agency that did not employ members of the union. 812 F.2d at 92. Because the arbitration provision was broad,12 we applied the presumption of arbitrability and concluded that the grievance was arbitrable, even though (1) the collective bargaining agreement there explicitly granted the company the right to subcontract, and (2) the grievance simply alleged that the employer’s decision to subcontract was “unfair” and “a clear case of violating the contract.” Id. Despite our concluding that the grievance was arbitrable, we rejected the union’s argument that its bare claim of a “violation” of the collective bargaining agreement was alone sufficient to make the dispute arbitrable, as “[s]uch an The collective bargaining agreement at issue in E.M. Diagnostic provided for arbitration of “[a]ny dispute arising out of a claimed violation of [the collective bargaining agreement].” Id. at 92. interpretation . . . leaves the scope of the arbitration clause subject to the unilateral and unfettered discretion of the Union.” Id. at 95. Instead, we adopted the following test for determining whether a grievance comes within the “scope” of an arbitration provision: It will suffice for present purposes to hold that a claimed contract violation comes within the scope of an arbitration clause of this character when the subject matter of the grievance is one that is within the zone of interests that have received protection in the collective bargaining agreement. To require more, we believe, would infringe upon territory reserved for arbitrators in AT&T Technologies. Id. (emphasis added). Applying this test, we had “no difficulty” concluding that the union’s subcontracting grievance fell within the “zone of interests” protected by the collective bargaining agreement. Id. at 96. We reasoned that though the agreement granted the company the right to subcontract, there must be “implicit” limits on that right; otherwise, the company could subcontract all work in the bargaining unit, which would be “inconsistent with the [collective bargaining] agreement’s recognition of the Union as the bargaining agent for the Company’s employees.” Id. Underlying our decision in E.M. Diagnostic is the crucial distinction between two inquiries: (1) whether a grievance comes within the “scope” of the arbitration provision (i.e., whether its subject matter falls within “the zone of interests that have received protection” in the collective bargaining agreement); and (2) whether the grievance itself has merit. In my view, distinguishing between these questions is critical to ensuring that we do not overstep our “very limited” role in determining whether a grievance must be arbitrated. Am. Mfg. Co., 363 U.S. at 567. To demonstrate, imagine a collective bargaining agreement that requires the employer to pay employees overtime wages for work in excess of 35 hours a week. Imagine further that the Union files a grievance challenging the employer’s refusal to pay overtime wages for work in excess of 30 hours a week. In such a circumstance, we could rightfully characterize the Union’s grievance as “frivolous,” given the agreement’s express language to the contrary. We could not, however, say that the “subject matter” of the grievance—i.e., the circumstances in which the employer is required to pay overtime wages to its employees—falls outside the “zone of interests” that have received protection in the agreement. Rather, we are compelled to call for arbitration of the dispute because, although the grievance “appears . . . to be frivolous, the union’s claim that the employer has violated the collective bargaining agreement is to be decided, not by the court asked to order arbitration, but as the parties have agreed, by the arbitrator.” AT&T Techs., 475 U.S. at 649–50. Indeed, a contrary position would “reduce[] to an assertion” that the obligation to pay overtime wages only for work in excess of 35 hours a week “is so clear on the face of the agreement that there is no need for arbitration,” which is “but another way of saying that the Union’s grievance is frivolous.” E.M. Diagnostic, 812 F.2d at 97. Contrast that situation with a grievance that, in addition to appearing frivolous, involves a subject matter wholly outside the scope of the collective bargaining agreement. For example, a grievance challenging an employer’s “decision to terminate the distribution of Christmas turkeys to its employees,” in the context of an arbitration provision that applies only to grievances involving “the interpretation and application of . . . specific provisions of [the collective bargaining agreement]” (which do not include a provision even remotely applicable to the employer’s prior practice of distributing Christmas turkeys), is rightly regarded as being outside the “scope of . . . arbitrable matter[s],” in addition to being frivolous. Boeing Co. v. Int’l Union, UAW, 349 F.2d 412, 413 (3d Cir. 1965); see also E.M. Diagnostic, 812 F.2d at 96 n.2 (describing Boeing Co. as a case where “the subject matter of the union’s grievance was whol[]ly unrelated to any interest protected by the collective bargaining agreement”). 2. The Subject Matter Of The Union’s Grievances Comes Within The “Zone Of Interests” Protected By The CBA Rather than explaining why the Union’s grievances do not satisfy the “zone of interests” test, Maj. Op. at 7, the Majority asks whether (1) the Union’s grievances “genuinely” or “sufficiently implicate[]” any provision of the CBA, id. at 9, 14–15; (2) the grievances “rais[e] a legitimate question of the CBA’s interpretation,” id. at 9; (3) the Recognition, Observation, and Privileges Provisions are “susceptible of [the] interpretation” the Union advances, id. at 12; and/or (4) the right of store access the Union seeks to enforce can be “plausibly derived” from these provisions, id. In so doing, I believe the Majority strays from permissibly determining whether the Union’s grievances “come within the scope” of the arbitration provision, E.M. Diagnostic, 812 F.2d at 95, to impermissibly determining “whether there is particular language in the [CBA] which will support the [Union’s] claim.” Am. Mfg. Co., 363 U.S. at 568. I express no view on the ultimate merits of the Union’s grievances or its interpretations of the Observation, Recognition, or Privileges Provisions. I conclude, however, that (1) at least one of these provisions— the Recognition Provision—sufficiently demonstrates that the Union’s asserted right of store access falls within the “zone of interests” that have received protection in the CBA; and (2) the Union’s interpretation of the Recognition Provision is not nearly as implausible as the Majority suggests. The CBA’s Recognition Provision provides, in pertinent part (and with emphasis added): [Rite Aid] recognizes the Union as the sole and exclusive bargaining agent for the purpose of bargaining in the Bargaining Unit in respect to rates of pay, wages, hours of employment, and other conditions pertaining to employment for . . . [a]ll full time and part time selling and non- selling associates employed at [Rite Aid] stores [within the counties identified in the CBA]. This provision does not distinguish between existing and newly acquired stores; rather, it applies to “all” employees “employed at [Rite Aid] stores” within the counties covered by the CBA. Accordingly, under a literal reading, it requires Rite Aid to recognize the Union as the “sole and exclusive bargaining agent” for all employees in Rite Aid stores, whether existing at the time the CBA was entered or acquired thereafter. In 1974, the National Labor Relations Board (“NLRB”) ruled that provisions of this character—also referred to as “additional stores” provisions—are unlawful because, when read literally, they purport to make the Union automatically the “exclusive bargaining agent” for employees in newly acquired or opened stores, without a Board-directed election or other demonstration of majority support. See Houston Div. of the Kroger Co. (Kroger I), 208 N.L.R.B. 928, 929 (1974) (“We will not permit parties to include employees in a newly created presumptively appropriate unit into a larger unit without a proper assessment of employee sentiment as to representation.”). A year after Kroger I, the Court of Appeals for the D.C. Circuit disagreed with the Board’s conclusion regarding the invalidity of such provisions, and concluded that they must “be interpreted to mean that the employer waives its right to a Board ordered election.” Retail Clerks Int’l Ass’n Local No. 455 v. NLRB, 510 F.2d 802, 806 (D.C. Cir. 1975); see also NLRB v. Retail Clerks Local 588, 587 F.2d 984, 986 n.2 (9th Cir. 1978) (agreeing that such provisions “waive the employer’s absolute right to demand an election; instead the employer must accept alternative methods of proving majority support”). The Court noted, however, that “[t]he specific non-election recognition procedures which the clauses permit is a matter for the parties to consider in the first instance,” and “express[ed] no opinion whether authorization cards [i.e., cards that designate the union as the employee’s bargaining agent] or other procedures may be utilized or objected to consistent with the[se] clauses.” Retail Clerks, 510 F.2d at 806. On remand, the NLRB adopted the D.C. Circuit Court’s interpretation, agreeing that such provisions are valid to the extent they operate as “contractual commitments by the Employer to forgo its right to resort to the use of the Board’s election process in determining the Unions’ representation status in . . . new stores.” Houston Div. of the Kroger Co. (Kroger II), 219 N.L.R.B. 388, 389 (1975). The Union argues that, in light of Kroger I and Kroger II, the Recognition Provision is ambiguous because it cannot mean what it literally says—i.e., it purports to make the Union automatically the “sole and exclusive bargaining agent” for employees in newly-acquired stores, despite the requirement of some showing of majority support as a prerequisite for such status. Moreover, the argument continues, although the Recognition Provision operates as a waiver of Rite Aid’s right to demand a Board-ordered election, neither the Recognition Provision nor any other provision of the CBA sets out the “specific non-election recognition procedures” by which the Union may show majority support in newly acquired stores, Retail Clerks, 510 F.2d at 806, including whether Union representatives may enter newly acquired stores for the purpose of obtaining such majority support. Accordingly, the Union seeks the opportunity through arbitration to demonstrate, based on the parties’ past practices and/or custom, that they understood the Recognition Provision to grant the Union the right to enter newly acquired stores for the purpose of soliciting membership.13 See, e.g., Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 311 (1989) (explaining that “collective-bargaining agreements may include implied, as well as express, terms,” and that “it is well established that the parties’ practice, usage and custom [are] of significance in interpreting their agreement”) (internal quotation marks omitted); see also Warrior & Gulf, 363 U.S. at 581–82 (“The labor arbitrator’s source of law is not confined to the express provisions of the contract, as the industrial common law—the practices of the industry and the shop—is equally a part of the collective bargaining agreement although not expressed in it.”). Is the Union’s position far-fetched? Hardly. For though the Majority dismisses that position as “unpersuasive,” Maj. Op. The Majority dismisses the relevance of the Kroger decisions, reasoning that any “ambiguity in Kroger . . . does not translate to ambiguity in the instant CBA.” Maj. Op. at 10. I believe my colleagues misperceive the Union’s argument: it is not that Kroger II is ambiguous, but that it results in ambiguity in the CBA. Because Rite Aid has waived its right to require the Union to show majority support through an NLRB election, it must accept some alternative means by which the Union can make that showing. It is entirely possible that the parties resolved this issue by adopting a practice—even if it not explicitly memorialized in the CBA—of allowing Union representatives to enter Rite Aid stores for such purposes; i.e., entering newly acquired stores to distribute authorization cards. at 12, the Union has submitted an arbitration decision reaching in a similar case the very result it asks for, see 2005 AAA LEXIS 383 (2005) (Shaw, Arb.),14 as well as a decision by the federal District Court for the District of Oregon enforcing a similar arbitration decision. See Albertson’s Inc. v. Local 555, No. 97-977-JO, slip op. (D. Or. Mar. 16, 1998).15 Both of these arbitrations concerned a grievance challenging an employer’s refusal, purportedly pursuant to a non-solicitation policy, to permit union representatives to enter new stores to solicit membership. See 2005 AAA LEXIS 383, at *1; Albertson’s, The docket number and the parties’ names were redacted from the arbitrator’s written opinion. Although not themselves in the record on appeal, in her opinion the arbitrator cited five additional arbitration decisions that apparently reached the same result. Id. at *23–24. The Majority seeks to distinguish this decision on the ground that the collective bargaining agreement at issue in Albertson’s, unlike the Rite Aid CBA, included “a provision specifically providing for the applicability of the CBA to new stores.” Maj. Op. at 11. However, the NLRB has ruled that the effect of a recognition provision worded similarly to the Rite Aid Recognition Provision is the same—it “purport[s] to add after-acquired stores to the existing [bargaining] units.” Kroger I, 208 N.L.R.B. at 929 (considering recognition provision that provided that “[t]he Union shall be the sole and exclusive bargaining agent for all employees employed by the [employer] in stores operating in the state of Texas”). Hence, the differently worded recognition provision in Albertson’s is not a basis for distinguishing that decision. No. 97-977-JO, slip op. at 14–15. And in both the arbitrator—relying on the ambiguity in the parties’ recognition provisions resulting from the Kroger decisions—determined that the parties’ past practices demonstrated that they understood the bargaining agreement to grant the union the right to enter new stores to solicit membership. See 2005 AAA LEXIS 383, at *45–46; Albertson’s, No. 97-977-JO, slip op. at 14. These decisions serve only to underscore that the Union’s asserted right of store access is, at the least, “not so plainly unreasonable that [it] must be regarded as nonarbitrable because it can be seen in advance that no award to the Union could receive judicial sanction.” 16 John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 555 (1964) (citing Warrior & Gulf, 363 U.S. at 582–83). Moreover, the Union’s grievances present at least as strong a case for arbitrability as the grievance in E.M. Diagnostic, where we relied on “implicit” limits on the company’s explicit right to subcontract to conclude that the grievance was arbitrable. 812 F.2d at 96. Just as the company’s subcontracting all work in the bargaining unit would have been “inconsistent with the [collective bargaining] agreement’s The Majority finds it “rather curious” that the Union has “urg[ed] us to consider favorable . . . merits decisions as evidence of the dispute’s arbitrability,” given that the “merits and arbitrability questions are distinct.” Maj. Op. at 10 n.5. In light of the District Court’s and the Majority’s conclusion that the merits and the question of arbitrability are “inextricably intertwined” in this case, I see nothing curious about the Union’s submission of these decisions. recognition of the Union as the bargaining agent for the Company’s employees,” id., Rite Aid’s refusal to allow Union representatives to enter newly acquired stores to solicit Union membership and distribute authorization cards—the obvious alternative to initiating an NLRB-directed election (the right to which Rite Aid has waived by virtue of Kroger II)—is inconsistent with the Recognition Provision. Indeed, it would be anomalous if Rite Aid could avoid the apparent intent of the Recognition Provision—i.e., recognizing the Union as the bargaining agent for employees in newly acquired stores without requiring the parties to go through an NLRB-directed election—by preventing the Union from showing majority support through this alternative procedure. In sum, I believe the Recognition Provision sufficiently demonstrates that the subject matter of the Union’s grievances falls within the zone of interests that have received protection in the CBA,17 and thus falls within the scope of the CBA’s broad Further supporting this conclusion is the fact that the CBA expressly provides that Union representatives may enter Rite Aid stores for at least one purpose: the Observation Provision authorizes Union representatives to enter Rite Aid stores “to satisfy themselves that [the CBA] is being observed.” Regardless of the merits of the Union’s position that this provision should be interpreted as authorizing it to enter newly acquired stores to solicit membership, the Observation Clause confirms that the subject matter of the Union’s grievances—i.e., the circumstances in which Union representatives may enter Rite Aid stores—falls within the “zone of interests” that have arbitration clause. In seeking to compel arbitration, the Union is not attempting to enforce a right that is “wholly outside the scope of the CBA,” Maj. Op. at 16, such as forcing Rite Aid to distribute Christmas Turkeys to its employees, Boeing Co., 349 F.2d at 413. Rather, the Union seeks to enforce, by arbitrating the meaning of an ambiguous provision of the CBA, an asserted right that implicates a fundamental aspect of the parties’ ongoing relationship under that agreement. With scant evidence of the parties’ past practices, understandings, prior agreements, or bargaining history, we are ill-equipped to decide whose interpretation of the Recognition Provision is correct. Rather, that function is properly fulfilled by an arbitrator, as the parties received protection in the CBA. The Majority, like the District Court, concludes that the Observation Provision is irrelevant to the Union’s grievances, as “[t]he CBA cannot apply to the newly-acquired stores or to their employees because the Union does not presently represent those stores’ employees.” Maj. Op. at 13. Of course, the Majority’s conclusion only makes sense in light of Kroger II; when read literally, the Recognition Provision purports to do exactly that (i.e., make the Union automatically the bargaining agent for employees in newly acquired stores). Thus, although the Majority concludes that the Recognition Provision is not ambiguous (in rejecting the Union’s interpretation of that provision), it nonetheless relies on the ambiguity in the Recognition Provision that results from Kroger II in rejecting the Union’s interpretation of the Observation Provision. 1 8 h a v e a g r e e d . Because the Recognition Provision sufficiently demonstrates that the Union’s grievances come within the “scope” of the CBA’s arbitration provision, I need not address the Union’s argument regarding the Privileges Provision. I note, however, that our decision in United Steelworkers of America v. Rohm and Haas Co., 522 F.3d 324 (3d Cir. 2008)—on which Rite Aid relies almost exclusively in its brief—does not, as the Majority contends, broadly authorize courts to interpret substantive provisions of a collective bargaining agreement to determine whether they are “sufficiently implicated by a grievance that one party seeks to arbitrate.” Maj. Op. at 14–15. The collective bargaining agreement in Rohm and Haas contained an arbitration provision that, unlike the Rite Aid CBA’s arbitration provision, applied only to specific subjects—i.e., “[s]uch questions arising under [the] Agreement as involve wages . . . , individual base rates, hours of employment and working conditions.” 522 F.3d at 328 (first alteration in original). After their claims for disability benefits under the parties’ ERISA plan (which lacked an arbitration provision) were denied by the plan administrator, union employees sought to arbitrate those claims under the parties’ collective bargaining agreement. In light of the arbitration provision’s express subject matter limitations, we reasoned that, “[a]lthough . . . the . . . arbitration clause [was] broad, the underlying basis for the [union’s] grievance . . . must still arise from some specific article” of the collective bargaining agreement. Id. at 332. Accordingly, we considered substantive Cf. United Steel Workers Int’l Union v. TriMas Corp., 531 F.3d provisions of the collective bargaining agreement to determine whether, as the union argued, “disability benefits are considered ‘working conditions’” [under the collective bargaining agreement],” and thus “within the range of arbitrable subject matter.” Id. We concluded the answer was clearly no. The Majority suggests that I dismiss Rohm and Haas (on which I was on the panel that decided it) without explaining why “we should not be bound by this very recent binding precedent.” Maj. Op. at 15 n.7. I do not question the binding nature of Rohm and Haas, but conclude that it is simply not on point. In Rohm and Haas, it was obvious that the subject matter of the union’s grievances—entitlement to disability benefits under a completely separate ERISA plan—fell wholly outside the scope of the collective bargaining agreement. ERISA benefits on their face simply are not “working conditions.” To be sure of this, we considered the union’s arguments that certain provisions of the bargaining agreement could be construed as referring to or incorporating the disability benefits provided for under the ERISA plan. In so doing, however, we did not broadly hold that “the merits may be considered when necessary to determine arbitrability.” Id. Indeed, we had no reason to consider the merits of whether the employees were entitled to disability benefits under the ERISA plan, and did not, as the Majority does, rely on Litton Financial Printing Division v. National Labor Relations Board, 501 U.S. 190 (1991), to justify our analysis. Accordingly, I cannot agree that Rohm and Haas is the watershed decision my colleagues apparently believe it is. 531, 536 (7th Cir. 2008) (“If the parties have in fact agreed to arbitrate their dispute, then they have bargained for the arbitrator’s interpretation of their contract—not ours. . . . If we were to weigh in on the merits of their case, we would be denying them the benefit of that bargain.”) (emphasis in original) (internal citation omitted). 3. The Merits And The Issue Of Arbitrability Are Not “Inextricably Intertwined” The Majority, like the District Court, also relies on Litton Financial Printing Division v. National Labor Relations Board, 501 U.S. 190 (1991), to justify its consideration of the merits of the Union’s grievances. The Majority concludes that (1) Litton authorizes courts to consider the merits of grievances whenever “the merits and arbitrability questions are inextricably intertwined,” Maj. Op. at 17; and (2) these questions are necessarily “intertwined” where a collective bargaining agreement “limit[s] the scope of arbitration to matters regarding the agreement or its construction,” id. at 19. Litton does not support either of these conclusions. In Litton, the Supreme Court considered the arbitrability of grievances filed on behalf of employees who were laid off almost one year after the parties’ collective bargaining agreement had expired. To determine whether the grievances were arbitrable, the Court first sought to interpret its decision in Nolde Brothers, Inc. v. Local No. 358, Bakery & Confectionary Workers Union, 430 U.S. 243 (1977), which announced a presumption in favor of post-expiration arbitration unless “negated expressly or by clear implication,” and held that, in determining whether a post-expiration grievance is arbitrable, courts should determine whether the grievance “arises under” the expired agreement. Id. at 253, 255. The Litton Court explained that, to “arise under” an expired collective bargaining agreement, the grievance must “involve[] facts and occurrences that arose before expiration, where an action taken after expiration infringes a right that accrued or vested under the agreement, or . . . , under normal principles of contract interpretation, [involves] [a] disputed contractual right [that] survives expiration of the remainder of the agreement.” Litton, 501 U.S. at 206. Applying this rule, the Court determined that the seniority rights the employees sought to enforce did not “arise” out of the expired collective bargaining agreement because “factors such as aptitude and ability”—on which application of the seniority provision was dependent—“do not remain constant, but change over time.” Id. at 210 (“We cannot infer an intent on the part of the contracting parties to freeze any particular order of layoff or vest any contractual right as of the Agreement’s expiration.”). The Litton Court acknowledged that, in determining that seniority rights did not “arise” under the expired agreement, it had (1) interpreted a substantive provision of the collective bargaining agreement (the seniority provision), and (2) necessarily reached the merits of the grievances. See id. at 208–09. The Court explained, however, that the presumption of arbitrability should not apply with its usual force in the context of post-expiration grievances: We acknowledge that where an effective bargaining agreement exists between the parties, and the agreement contains a broad arbitration clause, “there is a presumption of arbitrability in the sense that ‘[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’” But we refuse to apply that presumption wholesale in the context of an expired bargaining agreement, for to do so would make limitless the contractual obligation to arbitrate. Although “[d]oubts should be resolved in favor of coverage,” we must determine whether the parties agreed to arbitrate this dispute, and we cannot avoid that duty because it requires us to interpret a provision of a bargaining agreement. Id. at 209 (quoting AT&T Techs., 475 U.S. at 650) (emphasis added). The Majority interprets Litton as follows: “Because the Agreement limited the scope of arbitration to matters regarding the agreement or its construction,19 the Supreme Court in Litton The arbitration provision in the expired collective bargaining agreement at issue in Litton provided: “Differences that may arise between the parties hereto regarding this Agreement and any alleged violations of the Agreement, [and] the construction to be placed on any clause or clauses of the Agreement[,] shall be determined by arbitration . . . .” Id. at 194. found it necessary to interpret the agreement in order to properly determine the question of arbitrability.” Maj. Op. at 18–19. I believe this is incorrect. The Litton Court did not justify its consideration of the merits based on the language of the parties’ arbitration provision, but rather on its concern that applying the presumption of arbitrability “in the context of an expired bargaining agreement . . . would make limitless the contractual obligation to arbitrate.” Litton, 501 U.S. at 209 (emphasis added). Indeed, in refusing to apply the presumption of arbitrability “wholesale” in this context, id., the Court seems to have assumed that applying the presumption with its normal force would have required arbitration (in light of the collective bargaining agreement’s broad arbitration provision). To support its reading of Litton, the Majority relies on two decisions from our sister circuits applying Litton outside the context of post-expiration grievances. However, these cases involved a similarly narrow issue: whether grievances brought on behalf of individuals who had either been elevated to supervisory positions, or had retired, were covered under bargaining agreements that applied only to “employees.” See Int’l Bhd. of Elec. Workers, Local 1 v. GKN Aerospace N.A., Inc., 431 F.3d 624, 629 (8th Cir. 2005) (where arbitration provision applied only to grievances submitted by “employees,” supervisor’s grievance was not arbitrable because “a plain reading” of the collective bargaining agreement did “not permit the possible inference that [the supervisor] ha[d] a right to return to the bargaining unit”); Indep. Lift Truck Builders Union v. Hyster Co., 2 F.3d 233, 235–36 (7th Cir. 1993) (district court erred in compelling arbitration of retired employee’s grievance without deciding whether “the collective bargaining agreement covers retired employees,” because, in so doing, the court had “order[ed] the dispute to arbitration without first determining that it was arbitrable”); see also United Steelworkers of Am., Local No. 1617 v. Gen. Fireproofing Co., 464 F.2d 726, 729 (6th Cir. 1972) (holding, pre-Litton, that supervisor’s grievance was not arbitrable because the “plain meaning” of the collective bargaining agreement’s arbitration provision was “that the Company has agreed to process any and all disputes involving its ‘employees’ through the grievance procedures (including arbitration), but that disputes concerning supervisory personnel are not included”).20 In this context, these courts reasoned that the merits of the grievances and the question of arbitrability were “intertwined,” GKN Aerospace, 431 F.3d at 627, or “collaps[ed] into the same inquiry,” Hyster, 2 F.3d at 235, Although cited by the Majority, the First Circuit Court’s decision in Peerless Pressed Metal Corporation v. International Union of Electrical, Radio and Machine Workers, 451 F.2d 19 (1st Cir. 1971)—issued two decades before the Supreme Court’s decision in Litton—does not support the Majority’s analysis. Indeed, in concluding that grievances lodged by a supervisor were arbitrable—even though the argument that supervisors were covered under the collective bargaining agreement was “weak” (but not “impossible”), id. at 21—Peerless cautioned that courts may not “inquire into the merits on the theory that they are enforcing a clause limiting arbitration to disputes requiring an interpretation of the agreement.” Id. at 20. because, in determining that the grieving employee was not covered by the collective bargaining agreement, the court was necessarily determining that the employee was not entitled to relief under that agreement. For example, in Hyster the Seventh Circuit Court reasoned that three questions—“whether the Union has standing to file a grievance on behalf of retired employees, whether the grievance is arbitrable, and whether the grievance has merit—all collapse[d] into the same inquiry: whether the collective bargaining agreement covers retired employees.” 2 F.3d at 235. The GKN Aerospace and Hyster Courts were thus presented with the threshold issue of whether the individuals attempting to arbitrate a grievance under the collective bargaining agreement’s grievance procedure were authorized to do so—or, using the language of E.M. Diagnostic, whether the interests these individuals sought to enforce came within the “zone of interests” protected under the agreement. This issue went directly to the jurisdiction of the arbitrator to hear the grievance in the first place. Cf. Terre Haute Newspaper Guild, Local No. 46 v. Thomson Newspapers, Inc., 68 F. Supp. 2d 1028, 1033, 1037 (S.D. Ind. 1999) (discussing Litton and Hyster, and reasoning that “it is the Court’s responsibility to determine whether the . . . employees may be covered [under the collective bargaining agreement] before it can send the question to the arbitrator”). Stated another way, these Courts believed they were required to determine, as a threshold matter, whether the employees were authorized to bring grievances under the respective collective bargaining agreement regardless of whether, had they been so authorized, those grievances would have been meritorious. In our case, the merits of the Union’s grievances and the issue of arbitrability are not “intertwined” in a similar sense: it is undisputed that the CBA remains in force and that the Union is authorized to bring grievances under it. At bottom, the Majority’s conclusion that the merits and the issue of arbitrability are “inextricably intertwined” reduces to the conclusion that the Union’s grievances do not actually “involve the interpretation” of the CBA because they are not meritorious. As I have explained, the Steelworkers principles prohibit this line of inquiry, and I cannot discern from Litton any intention on the part of the Supreme Court to jettison those principles in all contexts.21 B. The Union’s Dispute Is Not Expressly Excluded From Arbitration, And There Is No “Forceful Evidence” Of An Intention To The Contrary The Majority’s reliance on Litton is ironic, given the lengths our Court has gone to avoid reaching the merits even in the context of grievances arising under expired collective bargaining agreements. See Luden’s Inc. v. Local Union No. 6 of the Bakery Workers’ Int’l Union of Am., 28 F.3d 347, 354 (3d Cir. 1993) (declining to answer whether Litton “impliedly overruled the portion of Nolde holding that a court answering the arbitrability question is not to look to the merits of the underlying claim,” and instead holding that the duty to arbitrate arose as a term of an implied-in-fact collective bargaining agreement after the prior agreement had lapsed). Because the Union’s grievances come within the scope of the CBA’s arbitration provision, I conclude that we are required to compel arbitration. It is undisputed that the CBA’s arbitration provision is broad, and that the presumption of arbitrability applies. Accordingly, the Union’s dispute is arbitrable unless (1) the CBA contains an “express provision excluding it” from arbitration, or (2) Rite Aid (the party opposing arbitration) produces “the most forceful evidence” to this effect from the bargaining history. AT&T Techs., 475 U.S. at 650 (quoting Warrior & Gulf, 363 U.S. at 584–85). Neither is true here: (1) the CBA contains no arbitration exclusion for disputes over the circumstances in which Union representatives may enter Rite Aid stores,22 and (2) Rite Aid has submitted no “forceful evidence” from the parties’ bargaining history suggesting an intention to exclude such disputes from arbitration.23 Thus, we must order the parties to arbitrate the The CBA expressly excludes only one topic from the grievance procedure: an alleged breach of the no-strike clause. The Majority appears to suggest that such “forceful evidence” exists because the CBA includes other provisions addressing new stores—i.e., a provision recognizing Rite Aid’s right to “open new establishments of any kind,” and requiring Rite Aid to “notify the Union of any new store openings or acquisitions within” the counties covered by the CBA. Because these provisions confirm that the parties bargained with respect to Rite Aid’s right to open new stores, the Majority concludes that “[i]f the parties had intended a right of access to be encompassed by the CBA’s arbitration clause, it surely would grievances even if the Union’s interpretations of the Recognition, Observation, and/or Privileges Provisions are have appeared in the CBA.” Maj. Op. at 17 n.8. This observation might be relevant to the merits of the Union’s underlying grievances, but it reveals nothing about the parties’ intent to exclude from arbitration disputes over the circumstances in which Union representatives may enter new Rite Aid stores. Indeed, we rejected a similar argument in E.M. Diagnostic, where the employer argued that the union’s subcontracting grievance was not arbitrable based on evidence from the bargaining history that (1) although “the Union sought to negotiate a specific limitation on the Company’s right to subcontract work,” the executed bargaining agreement contained no such provision, and (2) a union representative had acknowledged the employer’s unfettered right to subcontract during negotiations. 812 F.2d at 97 (“However relevant [those facts] might be to the merits of the Company’s case on the subcontracting issue, it does not enlighten us on whether the parties agreed to limit the arbitration clause of the agreement to less than its apparent scope.”); accord Lukens Steel Co. v. United Steelworkers of Am., 989 F.2d 668, 674 (3d Cir. 1993) (grievance regarding the timing of recall of employees following a strike was arbitrable, despite evidence from the parties’ bargaining history that the timing issue was “left outside the contract [subject] to [the employer’s] unilateral determination,” because “even if the parties agreed that [the employer] had the right to set the timing of the recall, it would not necessarily follow that disputes over the timing of the recall were not arbitrable”). “frivolous,” as engaging in a substantive interpretation of these provisions would involve an impermissible review of the merits.24 * * * * * “Decisions on the merits, whether easy or difficult, must be left to the arbitrator.” E.M. Diagnostic, 812 F.2d at 97. The Majority essentially concludes that the merits question of whether the Union has a right of store access to solicit membership is so “easy” to answer that arbitration is not called for. Although the Majority reaches this conclusion under the guise of enforcing the parties’ agreement to arbitrate only those disputes that “involve the interpretation” of the CBA, it conflates that question with whether the Union’s interpretation of the CBA is correct. In my view, such analysis veers impermissibly into the merits of the underlying grievances, and fails to heed the Supreme Court’s warning that courts not “become entangled in the construction of the substantive The Majority suggests that the CBA’s arbitration provision itself constitutes “forceful evidence” that the parties “intended to exclude from arbitration claims which arise wholly outside the scope of the CBA.” Maj. Op. at 16. I do not believe such a conclusion follows under the Steelworkers principles—i.e., those principles do not contemplate that a court may substitute its own interpretations of substantive provisions of a bargaining agreement for “forceful evidence” from the bargaining history of an intention to exclude a dispute from arbitration. provisions of a labor agreement, even through the back door of interpreting the arbitration clause.” Warrior & Gulf, 363 U.S. at 585. I fear the Majority’s holding will significantly undercut the force of the presumption of arbitrability in cases involving similar arbitration provisions. In such cases, courts in our Circuit will presumably conclude that they may examine the merits of every grievance and, upon determining that the arbitration proponent’s interpretation of the bargaining agreement is not sufficiently “plausible,” refuse to compel arbitration. I do not believe the Steelworkers Courts envisioned such a screening role for courts, nor do I believe the Litton Court intended to announce an exception to the presumption of arbitrability that would effectively swallow the presumption itself. For these reasons, I respectfully dissent.

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ Nos. 09-1205 ___________ UNITED STATES OF AMERICA v. PAUL SHENANDOAH, Appellant _____________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-07-cr-00500-001) District Judge: The Honorable Christopher C. Conner ___________ Submitted Under Third Circuit LAR 34.1(a) October 2, 2009 BEFORE: McKEE, CHAGARES, and NYGAARD, Circuit Judges. (Filed : February 9, 2010) ___________ Frederick W. Ulrich, Esq. Thomas A. Thornton, Esq. Office of the Federal Public Defender 100 Chestnut Street, Suite 306 Harrisburg, PA 17101 Counsel for Appellant Martin C. Carlson, Esq. Theodore B. Smith, III, Esq. Office of the United States Attorney 228 Walnut Street, PO Box 11754 220 Federal Building and Courthouse Harrisburg, PA 17108 Counsel for Appellee ___________ OPINION OF THE COURT ___________ NYGAARD, Circuit Judge. Paul Shenandoah was indicted in December of 2007 for failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(1) and (2) and 42 U.S.C. § 14072(i)(1). He was also charged with two counts of knowingly and willfully providing false information to law enforcement officials regarding his federal sex offender registration offenses, in violation of 18 U.S.C. §§ 1001 and 1512(b)(3). He pleaded not guilty and asked the District Court to dismiss the indictment, arguing that SORNA violated the Non- Delegation Doctrine, the Administrative Procedure Act, the Ex Post Facto Clause, the Due Process Clause, the Commerce Clause, the Tenth Amendment and his right to travel. The District Court denied the motion. United States v. Shenandoah, 572 F.Supp.2d 566 (M.D. Pa. 2008). Shenandoah then pleaded guilty to failing to register as a sex offender under SORNA, but reserved his right to appeal the order refusing to dismiss the indictment. See F ED.R.C RIM.P. 11(a)(2); United States v. Zudick, 523 F.2d 848, 852 (3d Cir. 1975). I. The factual and procedural background of this appeal is straightforward and undisputed. An abbreviated recitation will suffice. Shenandoah, a New York resident, was convicted of third degree rape in February of 1996.1 He executed a New York state sexual offender registration form when he was paroled in February of 2002. This form requires, among other things, that he apprise New York of any changes in his home address and place of employment. Some time in August of 1. Under New York state law, third degree rape is, essentially, a form of statutory rape which involves, inter alia, sexual intercourse with another person less than seventeen years of age. See New York Penal Law § 130.25 (McKinney 2001). 2007, Shenandoah’s employment as an iron worker required that he travel to, and relocate in, York County, Pennsylvania. He failed, however, either to register as a sex offender in Pennsylvania, or to modify his New York registration to reflect his change of residence and employment, leading to his indictment. II. The Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587, was enacted to close the loopholes in previous sex offender registration legislation and to standardize registration across the states.2 See United States v. Ensminger, 567 F.3d 587, 588 (9th Cir. 2009). The Adam Walsh Act is divided into seven titles, the first of which contains SORNA. SORNA creates a national sex offender registry with the goal of eliminating inconsistencies among state laws. Id. SORNA applies to a broadly-defined class of “sex offenders,” 2. In 1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, as amended, 42 U.S.C. § 14071, which conditions federal law enforcement funding on states' adoption of mandatory sex offender registration laws. Smith v. Doe, 538 U.S. 84, 89-90 (2003). By 1996, every state and the District of Columbia had enacted some version of the Act, which is commonly termed a “Megan's Law.” Id. which includes persons convicted of child pornography offenses as well as almost all offenses involving illegal sexual conduct. See 42 U.S.C. § 16911. SORNA sets forth requirements for offenders who must initially register, and for those offenders who are already registered, but must update their registration: (a) In general A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence. (b) Initial registration The sex offender shall initially register- (1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or (2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment. (c) Keeping the registration current A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register. (d) Initial registration of sex offenders unable to comply with subsection (b) of this section The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section. (e) State penalty for failure to comply Each jurisdiction, other than a Federally recognized Indian tribe, shall provide a criminal penalty that includes a maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply with the requirements of this subchapter. 42 U.S.C. § 16913. SORNA provides for criminal penalties for failing to comply with its registration requirements. Section 2250(a) states as follows: Whoever- (1) is required to register under the Sex Offender Registration and Notification Act; (2) (A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or (B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and (3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act; shall be fined under this title or imprisoned not more than 10 years, or both. 18 U.S.C. § 2250(a). The Attorney General is also directed to “maintain a national database . . . for each offender.” 42 U.S.C. § 16919(a). SORNA requires states to implement the statute or lose “10 percent of the funds that would otherwise be allocated” to the state under the Omnibus Crime Control and Safe Streets Act of 1968 for a given year. 42 U.S.C. § 16925(a). States are required to “maintain a jurisdiction-wide sex offender registry conforming to the requirements of [SORNA],” 42 U.S.C. § 16912(a); “provide a criminal penalty” for a sex offender’s failure to register, 42 U.S.C. § 16913(e); and “immediately . . . provide the information into the registry” about an offender who has registered or updated a registration to other entities, including the Attorney General, local law enforcement agencies and certain social service and volunteer organizations that work with children. 42 U.S.C. § 16921(b). Responding to the directive contained in § 16913(d), the Attorney General initially announced an interim rule that became effective on February 28, 2007. See 72 F ED. R EG. 8894 (Feb. 28, 2007). Pursuant to this rule, the Attorney General declared that SORNA's requirements applied “to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of [SORNA].” 28 C.F.R. § 72.3 (2007). The Attorney General then followed up with more detailed proposed guidelines that were subject to notice and comment. See 72 F ED. R EG. 30210 (May 30, 2007). The Attorney General's final regulations on the interpretation and implementation of SORNA became effective on July 2, 2008, one week after Shenandoah filed his Motion to Dismiss. See 73 F ED. R EG. 38030 (July 2, 2008). III. Shenandoah raises numerous challenges to SORNA. He asserts that SORNA did not apply to him since neither New York nor Pennsylvania have implemented the law. Further, he argues that his prosecution under SORNA violates due process because it was impossible for him to comply with the statute’s dictates and because he did not receive any notice of his duty to register. Shenandoah also asserts that SORNA violates the Commerce Clause, the Tenth Amendment and his constitutional right to travel. Finally, he maintains that SORNA violates the Nondelegation Doctrine and the Administrative Procedure Act. There have been hundreds of similar challenges to the statute filed in federal courts around the nation, each raising constitutional challenges to SORNA. To date, the Courts of Appeal for the Fourth, Fifth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits have all rejected various constitutional challenges to SORNA. See United States v. George, 579 F.3d 962 (9th Cir. 2009); United States v. Whaley, 577 F.3d 254 (5th Cir. 2009); United States v. Gould, 568 F.3d 459 (4th Cir. 2009); United States v. Ambert, 561 F.3d 1202 (11th Cir. 2009); United States v. Dixon, 551 F.3d 578 (7th Cir. 2008); United States v. Lawrance, 548 F.3d 1329 (10th Cir. 2008); United States v. May, 535 F.3d 912 (8th Cir. 2008). Traditionally, when reviewing a motion to dismiss an indictment, our standard of review is mixed, employing plenary or de novo review over a district court’s legal conclusions, and reviewing any challenges to a district court’s factual findings for clear error.” United States v. Nolan-Cooper, 155 F.3d 221, 229 (3d Cir. 1998); see also United States v. Barbosa, 271 F.3d 438, 469 (3d Cir. 2001). However, Shenandoah does not challenge the District Court’s factual determinations. We are, therefore, reviewing de novo the District Court’s legal conclusions.3 We will affirm. A. Applicability of SORNA As a threshold argument, Shendandoah contends that SORNA does not apply to him because neither Pennsylvania 3. The District Court had jurisdiction under 18 U.S.C. § 3231. Our jurisdiction is found in 28 U.S.C. § 1291. nor New York have implemented the Act. Because Shenandoah was already a registered sex offender when SORNA was enacted, SORNA required only that he keep his registration current on and after July 27, 2006. The allegations in the indictment, to which Shenandoah provisionally pleaded guilty, clearly pertain to his failure to keep his registration current and, as such, are covered by 42 U.S.C. § 16913(a) & (c). See, e. g., United States v. May, 535 F.3d 912, 918-19 (8th Cir. 2008). Under these subsections of the statute, Shenandoah was required to keep his registration current in each jurisdiction in which he resided and, not later than three business days after each change of residence, to appear in person in at least one jurisdiction and inform that jurisdiction of all changes in the information required in the sex offender registry. See 42 U.S.C. § 16913(a) & (c). SORNA defines a “sex offender registry” as “a registry of sex offenders, and a notification program maintained by a jurisdiction.” 42 U.S.C. § 16911(9). A registry that is operated by a state — like those operated by New York and Pennsylvania — and maintained after the effective date of SORNA satisfies this definition. Inasmuch as New York and Pennsylvania had sex offender registries in place after SORNA’s enactment, SORNA demanded that Shenandoah update his registration by registering in Pennsylvania and informing New York of his change of address and employment. Nothing in this record demonstrates that this was impossible for Shenandoah to do. Furthermore, the directive found in 42 U.S.C. § 16913(a) applies to sex offenders — not to states. When combined with SORNA’s enforcement provision, 18 U.S.C. § 2250(a), an independent and federally enforceable duty is placed on sex offenders to register. New York and Pennsylvania may never implement SORNA, choosing, for whatever reason, to forego a portion of their federal funding. This failure to implement a federal law, however, does not give sex offenders a reason to disregard their federal obligation to update their state registrations. When a sex offender travels in interstate commerce and disobeys the federal command to keep his or her registration current, as required by SORNA, he or she is subject to prosecution. 18 U.S.C. § 2250(a); see also May, 535 F.3d at 921. Shenandoah’s reliance on the Attorney General’s SORNA Guidelines, 72 F ED.R EG. 30210 (May 30, 2007), is misplaced. In May 2007, the Attorney General issued proposed Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART”) Guidelines ostensibly to provide assistance to those states implementing SORNA. 72 F ED.R EG. at 30210. Shenandoah maintains that one of these SMART guidelines plainly instructs that convicted sex offenders have a duty to register only after a jurisdiction implements SORNA: With respect to sex offenders with pre-SORNA [enactment] or pre-SORNA implementation convictions who remain in the prisoner, supervision, or registered sex offender populations at the time of implementation . . . jurisdictions should endeavor to register them in conformity with SORNA as quickly as possible. 72 Fed.Reg. 30210, 30228 (May 30, 2007). Shenandoah argues that this language shows that SORNA was not intended to be enforced until after the states had implemented the law's requirements. We disagree. The plain language of SORNA requires an offender to update their state registration, independent of any construction of the statute by the Attorney General. Shenandoah’s obligation to register was triggered by the enactment of the statute; it is not contingent upon a green light from the Attorney General. Moreover, in 72 F ED. R EG. 30210, also issued in May 2007, the Attorney General explicitly stated that the applicability of SORNA is not limited to sex offenders who committed the predicate sex crime after a jurisdiction's implementation of a conforming registration program; rather, SORNA’s requirements are applicable to all sex offenders. The regulation states that “registered sex offender populations” should be registered under SORNA’s requirements. This suggests that, even before full implementation of SORNA, the obligation to register with the state applies. Instead of indicating that no obligation to register applies until SORNA is implemented, the regulation conveys that sex offenders should be registered at all times. Shenandoah was a “sex offender” under SORNA and as of July 27, 2006, he was required to — and capable of — registering and keeping his registration current in the jurisdiction in which he resided. New York and Pennsylvania both had registration processes Shenandoah could have employed in order to comply with § 16913(a) prior to either state's implementation of SORNA. Nothing in SORNA or its guidelines indicates that a jurisdiction’s failure to comply with SORNA relieves offenders of the obligation to register in that jurisdiction. We reject, therefore, Shenandoah’s arguments that he was unable to register under SORNA or that SORNA did not apply to him because neither New York nor Pennsylvania had implemented the law. B. Ex Post Facto Clause The Ex Post Facto Clause of the Constitution forbids any law that “changes the punishment, and inflicts a greater punishment” for pre-existing conduct. Hameen v. State of Delaware, 212 F.3d 226, 235 (3d Cir. 2000) (citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798)). Shenandoah argues that subjecting him to punishment for failing to register under SORNA — a law not yet enacted when he was discharged from prison in New York — would violate the Ex Post Facto Clause of the Constitution. We need not dwell long on this issue. Specifically, SORNA’s criminal provision is violated when an offender who was (1) required to register in some jurisdiction; (2) knowingly failed to register or update a prior registration; and (3) traveled in interstate commerce. 18 U.S.C. § 2250(a). SORNA is not being applied retroactively. Instead, SORNA’s focus is prospective. It creates a new punishment for a new offense, this new offense being traveling in interstate commerce and failing to register as a sex offender under SORNA after July 27, 2006. See United States v. Zuniga, 579 F.3d 845, 849 (8th Cir. 2009). Shenandoah was required by law to update his registration as a sex offender. He failed to do so when he traveled from New York to Pennsylvania. His travel took place in August of 2007, after the enactment of the statute. Neither SORNA nor Shenandoah’s conduct implicate the Ex Post Facto clause because neither contemplate retroactive events. Congress created a new law. Shenandoah committed a new crime. Furthermore, the Ex Post Facto Clause would protect Shenandoah only if all the acts required for criminal punishment occurred before 18 U.S.C. § 2250 took effect. If any act took place later, the clause does not apply. United States v. Dixon, 551 F.3d 578, 584-85 (7 th Cir. 2008). As just noted, Shenandoah was and is obliged to keep a current registration as a sex offender under SORNA and he had a reasonable opportunity to do so after enactment of the statute. Indeed, when he left prison, Shenandoah was properly registered under New York law, as required by SORNA. More than five years later (and more than a year after the enactment of SORNA), Shenandoah traveled interstate and then failed to update his registration. The Ex Post Facto Clause has no application to his situation.4 C. Notice Arguments Shenandoah next claims that he had no duty to register under SORNA because the Government failed to notify him of these new requirements. He argues that without this notification, he could not “knowingly fail to register.” See 18 U.S.C. § 2250(a)(3). A provision of SORNA, 42 U.S.C. § 16917(a), requires that offenders being discharged from prison, be advised of their duty to register. Of course, because Shenandoah was released from prison before SORNA was enacted, it follows that he could not have been informed of the federal registration requirement upon release from custody as described in § 16917(a). Shenandoah argues therefore, that because 18 U.S.C. § 2250(a) requires a knowing violation as an element of the offense, the Government did not allege a prima facie violation of § 2250(a). We disagree. 4. Shenandoah also raises a Due Process Clause argument, which we find baseless. He argues that it violates due process to criminalize his failure to do something that is impossible. He maintains it was “impossible” for him to satisfy SORNA’s requirements because neither Pennsylvania nor New York had implemented the Act. However, we have previously determined that it was not impossible for Shenandoah to comply with SORNA’s requirements. As the District Court correctly determined here, “A state’s failure to update its registration system to conform with SORNA does not alter a sex offender’s independent duty to register all information that is required by then-existing state law. United States v. Shenandoah, 572 F.Supp.2d 566, 578 (M.D. Pa. 2008). Overlooked in this argument is the fact that SORNA’s criminal provision is not a specific intent law. See United States v. Gould, 568 F.3d 459, 468 (4 th Cir. 2009). As set out in 18 U.S.C. § 2250(a), “knowingly” modifies “fails to register.” As the Court of Appeals for the Fourth Circuit held, “[t]here is no language requiring specific intent or a willful failure to register such that he must know his failure to register violated federal law.” Id., citing Bryan v. United States, 524 U.S. 184, 192-93 (1998) (noting that “the term ‘knowingly’ does not necessarily have any reference to a culpable state of mind or to knowledge of the law” and that “the term ‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense”). Receipt of notice by a sex offender under 42 U.S.C. § 16917 is not an element of the federal offense with which Shenandoah was charged. It is axiomatic that ignorance of the law does not provide a defense, for it is presumed that every person knows the law. See Cheek v. United States, 498 U.S. 192, 199 (1991); see also United States v. Carbo, 572 F.3d 112, 116 (3d Cir. 2009). Shenandoah argues further that even in the absence of actual notice of criminal liability, due process requires that a statute not criminalize “wholly passive conduct.” Relying on the Supreme Court’s decision in Lambert v. California, 355 U.S. 225, 228 (1957), Shenandoah claims that he is being prosecuted for wholly passive conduct, namely his failure to register. In Lambert, when considering a city ordinance that required all felons to register, the Supreme Court noted that “circumstances which might move [a felon] to inquire as to the necessity of registration are completely lacking” with respect to such a law. Id. at 229. Unlike an isolated city ordinance that requires all members of the broad class of all felons to register, SORNA instead criminalizes the failure to register of a much more narrowly targeted class of persons in a context where sex-offender registration has been the law for years and Shenandoah knew that. It is undisputed that Shenandoah knew that he was required to register under New York law, which mandated that he update his registration if he traveled or moved out of state and that he register in the new state. The registration form that Shenandoah signed notified him of his legal obligations as a sex offender even though he was not, and could not have been, notified of his duty under federal law. When SORNA was enacted, every State had registration requirements for sex offenders. These circumstances do not permit us to conclude that Shenandoah’s due process rights, based on lack of notice, were violated. See May, 535 F.3d 912, 921 (8th Cir. 2008) (holding that notice of the duty to register under state law provides notice of the duty to register under SORNA); United States v. Hinckley, 550 F.3d 926, 938-39 (10th Cir. 2008) (same). We can find no reason to hold that SORNA’s notice provision was intended to dilute the effect of state notice requirements. We conclude that Shenandoah had notice of his registration obligations based on the information provided him in the New York registration forms, even if that notice did not explain that a consequence of failing to register would be a violation of federal law and state law. IV. Shenandoah also brings several other broader Constitutional challenges to SORNA. He argues that the statute violates the Commerce Clause and the Tenth Amendment of the Constitution. He also argues that SORNA violates his constitutional right to interstate travel. A. Commerce Clause Shenandoah contends that Congress exceeded its commerce clause authority when it passed SORNA because the statute, he argues, contains neither a sufficient nexus to commerce, nor a substantial effect on interstate commerce. Although we have not had occasion to address this issue, we now join the other courts of appeals that have done so, and hold SORNA to be a proper regulation under Congress’ commerce power. See, e.g., May, 535 F.3d at 921-22; United States v. Howell, 552 F.3d 709, 713 (8 th Cir. 2009); Hinckley, 550 F.3d at 939-40; United States v. Lawrance, 548 F.3d 1329, 1336-37 (10 th Cir. 2008); United States v. Ambert, 561 F.3d 1202, 1210- 11 (11 th Cir. 2009). Congress’ commerce clause power is derived from Article I, section 8 of the United States Constitution, which provides that “[t]he Congress shall have Power ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cls. 1 & 3. Congress may regulate intrastate activity so long as the means employed by Congress are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See United States v. Darby, 312 U.S. 100, 121 (1941). The Supreme Court in United States v. Lopez, 514 U.S. 549 (1995), synthesized and articulated the boundaries of this power. In Lopez, the Court addressed the constitutionality of the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), which prohibited possession of a firearm within a thousand feet of a school. The Supreme Court struck down the statute, identifying three categories of activity that Congress may regulate under its commerce power: (1) “Congress may regulate the use of the channels of interstate commerce;” (2) “Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities;” and (3) “Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.” Id. at 558-59 (internal citations omitted). SORNA requires the government to prove that Shenandoah traveled in interstate or foreign commerce, and thereafter failed to register as required by SORNA. See 18 U.S.C. § 2250(a)(2)(B); May, 535 F.3d at 921. SORNA thus derives its authority from each prong of Lopez, and most specifically, the ability to regulate “persons or things in interstate commerce” and “the use of the channels of interstate commerce.” Shenandoah was undeniably a “person ... in interstate commerce” in that he traveled and relocated between New York and Pennsylvania. Shenandoah did so via the “use of the channels of interstate commerce.” It has been long established that Congress may forbid or punish use of interstate commerce “as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other states from the state of origin.” May, 535 F.3d at 922 citing Brooks v. United States, 267 U.S. 432, 436 (1925); see also Gould, 568 F.3d at 470. Congressional regulation of the channels of interstate commerce has also been upheld when the punishment “was intended to prevent the use of interstate commerce to facilitate ... forms of immorality.” Brooks, 267 U.S. at 437 (citation omitted). SORNA contains a sufficient nexus to interstate commerce. We conclude that SORNA is a proper regulation of commerce under the Lopez categories because it not only regulates persons or things in interstate commerce, but also regulates the use of channels of interstate commerce and the instrumentalities of interstate commerce.5 B. Tenth Amendment Shenandoah argues that SORNA is unconstitutional because it compels New York law enforcement to accept registrations from federally-mandated sex offender programs in violation of the Tenth Amendment, which provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend X. We need not tarry long on this argument, because Shenandoah lacks standing to raise this issue. See United States v. Hacker, 565 F.3d 522, 525-26 (8th Cir. 2009). A “private party does not have standing to assert that the federal government is encroaching on state sovereignty in violation of the Tenth Amendment absent the involvement of a state or its instrumentalities.” Id.; see also Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 234-36 (2d Cir. 2006); Medeiros v. Vincent, 431 F.3d 25, 33-36 (1st Cir. 2005); United States v. Parker, 362 F.3d 1279, 1284 (10th Cir. 2004). Here, just as in Hacker, Shenandoah is challenging SORNA in his individual capacity, and he does not assert the 5. In so holding, we join those courts that have found SORNA to derive its authority under the various Lopez categories. See, e.g., Gould, 568 F.3d 459 (channels and instrumentalities); Ambert, 561 F.3d 1202 (channels and instrumentalities); United States v. Hinckley, 550 F.3d 926 (10th Cir.2008) (channels and instrumentalities); May, 535 F.3d 912 (8th Cir.2008) (channels and instrumentalities); United States v. Dixon, 551 F.3d 578 (7th Cir.2008) (Commerce Clause challenge rejected outright); United States v. Lawrance, 548 F.3d 1329 (10th Cir.2008) (channels and instrumentalities). “involvement of a state or its instrumentalities.” Hacker, 565 F.3d at 526. Shenandoah has not argued that his interests are aligned with any state’s interest. Because Shenandoah is a private party, he lacks standing to raise a Tenth Amendment challenge to SORNA. C. Right to Travel Shenandoah next argues that 18 U.S.C. § 2250(a) impermissibly infringes upon his constitutional right to travel because it punishes him for traveling to another state. He further argues that SORNA subjects sex offenders who travel to another state to a harsher penalty than sex offenders who remain in one state. Neither argument is persuasive. “[T]he ‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence.” Saenz v. Roe, 526 U.S. 489 (1999) (quoting United States v. Guest, 383 U.S. 745, 757 (1966)). There are several constitutional bases for the right to travel, including general constitutional principles, see, e.g., United States v. Guest, 383 U.S. 745 (1966); the Privileges and Immunities Clause of Article IV, § 2 of the Constitution; Hess v. Pawloski, 274 U.S. 352 (1927); the Privileges or Immunities Clause of the Fourteenth Amendment, Twining v. State of N.J., 211 U.S. 78 (1908); and the Due Process Clause of the Fifth Amendment; State v. Barker, 252 Kan. 949, 850 P.2d 885 (Kan.1993). In Saenz v. Roe, the Supreme Court struck down a California law that limited welfare benefits for new residents. 526 U.S. 489 (1999). The Supreme Court held that the Constitution protects the rights of United States citizens to choose where they live and not be treated differently than long-term residents. Id. at 500. This right to travel “protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” Id. at 500. Most right to travel cases, however, focus on the Constitutionality of a particular state statute that may treat a state’s citizens in a preferred manner as compared to newly arrived migrants. See e.g. Doe v. Pa. Bd. Probation and Parole, 513 F.3d 95 (3d Cir. 2008). Here Shenandoah insists: “SORNA penalizes a distinct group of sex offenders for exercising their right to travel because they are then subject to federal prosecution for failing to register as a sex offender where individuals who do not travel interstate are not so penalized.” This is true, but meaningless. Shenandoah may travel interstate, but when he does, must register in the new state, while a convicted sex offender who remains within a state need only remain properly registered therein. There is simply no Constitutional violation. Moreover, moving from one jurisdiction to another entails many registration requirements required by law which may cause some inconvenience, but which do not unduly infringe upon anyone’s right to travel. The essential part of the charged crime in this matter is the failure to register; Shenandoah’s right to travel is incidental to this obligation, and not constitutionally offended. Finally, it is worth noting that the Constitutional right of interstate travel is not an absolute right, and the burden imposed upon Shenandoah is necessary to achieve a compelling interest. Sex offender registration requirements may be burdensome, and the consequences may interfere with a registrant's freedom. However, society, through its legislative processes, has decided again and again that it has a compelling and strong interest in preventing future sex crimes. We conclude that this interest outweighs any burden imposed. See also Ambert, 561 F.3d at 1210 (“The requirement to update a registration under SORNA is undoubtedly burdensome; however, the government's interest in protecting others from future sexual offenses and preventing sex offenders from subverting the purpose of the statute is sufficiently weighty to overcome the burden. This statute does not violate Ambert's right to travel.”). Any impediment on Shenandoah’s travel does not reach the Constitutional threshold of his right to travel interstate. V. Shenandoah additionally argues that Congress’ delegation of authority to the Attorney General under 42 U.S.C. § 16913(d) violates the nondelegation doctrine. He also maintains that the Attorney General’s Interim Rule of February 28, 2007, violated the Administrative Procedures Act, 5 U.S.C. § 553, by failing to provide a public notice and comment period. We do not reach these issues. The allegations contained in the indictment here do not establish a record of Shenandoah’s failure to comply with the initial registration requirements discussed in 42 U.S.C. § 16913(b) & (d). Since Shenandoah was already a registered sex offender when SORNA was enacted, SORNA only required him to keep his registration current on and after July 27, 2006. To the extent that he argues that the passage of SORNA should be construed to mean that all registered sex offenders are once again required to initially register pursuant to § 16913(b) & (d), we disagree. Such a reading of the statute is not warranted by the statutory language or common sense. While subsections (b) and (d) when read together seem to contemplate the need for clarification as to “initial registrations” by persons convicted of qualifying sex offenses prior to July 27, 2006, that need for clarification applies to a limited class of persons who, for various reasons, did not have a registration requirement prior to the passage of SORNA but nonetheless were subject to sex offender registration requirements after SORNA became law on July 27, 2006. Shenandoah does not fall within this class of persons. The allegations in this case clearly pertain to Shenandoah’s failure to keep his registration current and, as such, are covered by 42 U.S.C. § 16913(a) & (c). See May, 535 F.3d at 918-19. Under these subsections, Shenandoah was required to “keep [his] registration current, in each jurisdiction” in which he resided and “not later than 3 business days after each change of . . . residence . . . appear in person in at least 1 jurisdiction . . . and inform that jurisdiction of all changes in the information required . . . in the sex offender registry.” 42 U.S.C. § 16913(a) & (c). The regulations promulgated by the Attorney General pursuant to § 16913(d) do not apply here and we express no opinion on their validity. The manner in which these regulations were promulgated pursuant to the delegation contained in § 16913(d), is likewise irrelevant since we have concluded that the allegations against Shenandoah do not involve an “initial registration” pursuant to § 16913(b). See May, 535 F.3d at 916-19. Because Shenandoah had already initially registered as a sex offender under state law when SORNA was enacted, subsection (d) of Section 16913 did not apply to him. He was required to keep his registration current under subsections (a) and (c). He did not do so. Shenandoah was then charged under the congressionally-defined crime in 18 U.S.C. § 2250 and in particular for failing to update his registration. The Attorney General’s interim rule as to initial registrations simply does not apply. Shenandoah, therefore, does not have standing to challenge the rule or the manner in which it was promulgated. VI. The judgment of the District Court will be affirmed.

JUDICIAL COUNCIL OF THE THIRD CIRCUIT _______________ J.C. No. 03-08-90050 _______________ IN RE: COMPLAINT OF JUDICIAL MISCONDUCT ___________________________ ORIGINAL PROCEEDINGS UNDER 28 U.S.C. § 351 TRANSFERRED FROM JUDICIAL COUNCIL OF THE NINTH CIRCUIT (J.C. No. 09-08-90035) ___________________________ MEMORANDUM OPINION ___________________________ (Filed: June 5, 2009) Present: SCIRICA, Chief Judge, SLOVITER, McKEE, RENDELL, BARRY, AMBRO, AMBROSE, BROWN, BARTLE, KANE, and SLEET, Members of the Judicial Council. SCIRICA, Chief Judge. A Complaint of judicial misconduct was identified under 28 U.S.C. § 351(b) against Chief Judge Alex Kozinski1 of the United States Court of Appeals for the Ninth Circuit. The identified Complaint was transferred by the Chief Justice of the United States to the Judicial Council of the Third Circuit from the Judicial Council of the Ninth Circuit. This opinion sets forth the unanimous findings and conclusions of the Judicial Council of the Third Circuit. The Judicial Council of the Third Circuit has determined that the name of the Judge will be disclosed in this Memorandum Opinion. The Judicial Conduct and Disability Act, 28 U.S.C. §§ 351–364, and the Rules for Judicial-Conduct and Judicial-Disability Proceedings govern this proceeding. All Rules cited in this Memorandum Opinion are the Rules for Judicial-Conduct and Judicial- Disability Proceedings. I. A. Jurisdiction and Procedural History On June 11, 2008, the Los Angeles Times published on its website an article entitled “9th Circuit’s Chief Judge Posted Sexually Explicit Matter on His Website.” The article reported, among other things, that the Judge, “who is currently presiding over an obscenity trial in Los Angeles, has maintained a publicly accessible website featuring sexually explicit photos and videos.” In response to the article’s publication, the Judge, who was sitting by designation as a district judge for the purpose of the obscenity trial, suspended the trial to permit exploration of a potential need for his recusal. The next day, the Judge issued a request that the Judicial Council of the Ninth Circuit initiate proceedings under Rule 26 with regard to allegations about him contained in the June 11, 2008, Los Angeles Times article.2 The Judge then declared a mistrial in the obscenity trial The Judge’s June 12, 2008, announcement stated in full: “I have asked the Judicial Council of the Ninth Circuit to take steps pursuant to Rule 26, of the Rules Governing Judicial Conduct and Disability, and to initiate proceedings concerning the article that appeared in yesterday’s Los Angeles Times. I will cooperate fully in any investigation.” and recused himself from the case. B. The Complaint and Transfer by the Chief Justice of the United States The Judicial Council of the Ninth Circuit construed the Judge’s June 12, 2008, announcement as the identification of a complaint of judicial misconduct based on the allegations in the June 11, 2008, article. See 28 U.S.C. § 351(b); Rule 5. The Judicial Council of the Ninth Circuit asked the Chief Justice of the United States to transfer the identified Complaint to the judicial council of another circuit pursuant to Rule 26. On June 16, 2008, the Chief Justice granted the request and selected the Judicial Council of the Third Circuit to exercise jurisdiction over the Complaint. See Rule 26. C. The Special Committee On June 20, 2008, the Honorable Anthony J. Scirica, Chief Judge of the United States Court of Appeals for the Third Circuit and Chair of the Judicial Council of the Third Circuit, entered an order appointing a Special Committee to investigate the Complaint against the Judge. See 28 U.S.C. § 353(a)(1); Rule 11(f). The members of the Special Committee were: Chief Judge Scirica, presiding; Marjorie O. Rendell, Circuit Judge, United States Court of Appeals for the Third Circuit; Walter K. Stapleton, Senior Circuit Judge, United States Court of Appeals for the Third Circuit; Garrett E. Brown, Jr., Chief Judge, United States District Court for the District of New Jersey; and Harvey Bartle III, Chief Judge, United States District Court for the Eastern District of Pennsylvania.3 II. A. The Allegations In its June 16, 2008, order, the Judicial Council of the Ninth Circuit stated that the “identified complaint” of misconduct against the Judge “is based on allegations in [the] June 11, 2008, Los Angeles Times article.” 4 The primary focus of the June 11, 2008, article was the Los Angeles Times’s assertion that the Judge “maintained a publicly accessible website featuring sexually explicit photos and videos.” According to the article, the “website” — http://alex.kozinski.com — included “a photo of naked women on all fours painted to look like cows,” “a video of a half-dressed man cavorting with a sexually aroused farm animal,” and “a graphic step-by-step pictorial in which a woman is seen shaving her pubic hair.” Regarding the alleged public accessibility of the “website,” the article reported that the Judge “said that he thought the site was for his private storage and that he was not aware the images could be seen by the public, although he also said Chief Judge Scirica notified the Judge of the June 20, 2008, order appointing the Special Committee. See 28 U.S.C. § 358(b)(1); Rule 11(g)(1). The June 16, 2008, order of the Judicial Council of the Ninth Circuit cited as the basis for the identified Complaint the article entitled “9th Circuit’s Chief Judge Posted Sexually Explicit Matter on His Website,” which appeared on latimes.com on June 11, 2008. An expanded and revised version of the article appeared, under a different headline, in the Los Angeles Times print edition on June 12, 2008. he had shared some material on the site with friends.” The article noted that the Judge was presiding over the obscenity trial in United States v. Isaacs and questioned whether the material on the computer system “should force him to step aside” from the trial. The Los Angeles Times apparently was alerted to certain material on the Judge’s computer system by Cyrus Sanai, a Beverly Hills, California, attorney. Mr. Sanai contends that, in December 2007, he discovered certain material on the Judge’s computer system. Mr. Sanai is a critic of the Judge and other Ninth Circuit judges against whom he has previously filed complaints of judicial misconduct in connection with litigation involving his family. Mr. Sanai has appeals pending before the United States Court of Appeals for the Ninth Circuit in Sanai v. Sanai, Nos. 07-36001 and 07-36002. Those appeals were pending in December 2007, when Mr. Sanai says he discovered the material. B. Applicable Standards The Judicial Conduct and Disability Act defines judicial misconduct as “conduct prejudicial to the effective and expeditious administration of the business of the courts.” 28 U.S.C. § 351(a). Under the Rules for Judicial-Conduct and Judicial-Disability Proceedings, judicial misconduct includes “conduct occurring outside the performance of official duties” which “might have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people.” Rule 3(h)(2). These standards are informed, where appropriate, by the precepts of the Code of Conduct for United States Judges, which are “in many potential applications aspirational rather than a set of disciplinary rules.” Commentary on Rule 3. Under the Code of Conduct, “[t]he test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” Code of Conduct for United States Judges, Commentary on Canon 2A. C. Focus of the Special Committee’s Investigation Proceeding from the allegations in the June 11, 2008, Los Angeles Times article, the Special Committee focused its factual investigation on four areas: (1) the creation, use, and maintenance of alex.kozinski.com; (2) the content of alex.kozinski.com; (3) the public accessibility of the material available at alex.kozinski.com; and (4) the circumstances of the Judge’s assignment to the Isaacs obscenity trial. With respect to the Judge’s online computer files, the Special Committee gathered and reviewed information relevant to the following specific questions: (1) Who created, used, and maintained alex.kozinski.com? (2) When was alex.kozinski.com created, and for what purpose? (3) How was it used and maintained? (4) What material was available on alex.kozinski.com? (5) Who placed it there? (6) How and when did that person (or those people) place it there? (7) What security measures, if any, were taken to prevent public access to alex.kozinski.com? (8) Who took such measures? (9) When were such measures taken? (10) Was the material on alex.kozinski.com shared? (11) If so, how and with whom was it shared? (12) Was it shared with the Judge’s knowledge or permission? (13) What was the degree and manner of public accessibility to alex.kozinski.com? (14) What were the Judge’s beliefs regarding public accessibility? and (15) What did the Judge know about attempts to access alex.kozinski.com? D. Investigative Procedure The Special Committee, assisted by its counsel, Robert C. Heim of Dechert LLP and J. Gordon Cooney, Jr., of Morgan, Lewis & Bockius LLP, investigated these issues by making written and telephonic inquiries; reviewing relevant documents and the image, audio, and video files provided by the Judge; engaging a consultant to advise the Special Committee on certain computer technology issues; and examining the Judge in person, under oath, and on the record. The Judge cooperated fully in all aspects of the investigation. The Judge had the assistance of counsel, Mark C. Holscher of Kirkland & Ellis LLP, throughout the investigation. Counsel for the Special Committee sent a letter to Mr. Holscher requesting documents and other information. The Judge responded through a detailed letter from Mr. Holscher and a voluminous appendix containing technical information, charts listing the contents of alex.kozinski.com, a disc containing the image, audio, and video files downloaded by the Los Angeles Times from the subdirectory that contained the material referenced in the June 11, 2008, article, and other requested material. After reviewing the Judge’s submission, counsel for the Special Committee identified several follow-up questions in a letter to Mr. Holscher and in several telephone conferences. Mr. Holscher responded with written answers to these questions; no requests were refused. In order to assist with technical issues in this matter, the Special Committee retained an information technology consultant, who reviewed relevant documents and assisted counsel for the Special Committee in confirming certain technical information. The Special Committee also consulted with the Deputy Circuit Executive for Information Technology for the United States Court of Appeals for the Third Circuit. The Special Committee requested information in the form of an affidavit from Cyrus Sanai, the attorney who claimed to have alerted the Los Angeles Times to the content and accessibility of alex.kozinski.com. Mr. Sanai responded to the Special Committee’s request with a brief sworn affidavit and a lengthy attached “Statement of Facts” covering a variety of topics, including several outside the scope of the identified Complaint. Mr. Holscher provided to counsel for the Special Committee a legal ethics opinion letter from a law professor contending the Judge engaged in no misconduct. Mr. Holscher later submitted four additional ethics opinion letters from law professors, also contending the Judge engaged in no misconduct, along with a letter brief that drew upon the expert opinions. After a series of exchanges, counsel for the Special Committee and the Judge’s counsel agreed upon twenty-eight factual stipulations relating to the technical matters at issue in the investigation. The technical stipulations were reviewed and verified by the Special Committee’s technical consultant prior to counsel’s executing the stipulation. The members of the Special Committee and its counsel thoroughly reviewed the information provided by the Judge, including the computer files comprising the material described in the June 11, 2008, Los Angeles Times article. The members of the Special Committee and the Judge, accompanied by their respective counsel, convened in Philadelphia for a hearing. For nearly three hours, the Judge testified under oath and on the record about facts relating to the investigation. The hearing began with an opening statement by the Judge, was followed by questioning from counsel for the Special Committee, and was concluded with questions by the members of the Special Committee. The members of the Special Committee found the Judge to be credible and thoroughly responsive to all the questions posed by counsel and the Special Committee. On April 29, 2009, the Special Committee filed its Report with the Judicial Council of the Third Circuit.5 E. Overview In June 2008, a public controversy followed the publication of a Los Angeles Times article that alleged the Judge had maintained a publicly accessible website featuring sexually explicit photographs and videos. The Judge requested this investigation into his personal conduct. Some media reports in June 2008 suggested that the Judge maintained, and intended to maintain, a public website, as that term is commonly understood — a presentation of offensive sexually explicit material open for public browsing. This investigation has established, however, that such a characterization is incorrect. As explained in further detail, the computer files described in media reports in June 2008 constituted a small fraction of a vast aggregation of various items that the Judge had received by e-mail over many years and had retained in a folder, or “subdirectory,” on a personal computer in his home, which had been connected to the Internet using web server software. Through a combination of improper security configuration and carelessness on the part of the Judge, the aggregation of retained files became accessible to the public. The Judge was notified of the filing of the Special Committee’s Report and received a copy of the Report. See Rule 15(b). The Judge, through counsel, submitted a response letter to the Judicial Council. See Rule 20(a). Uninvited visitors to the web server who knew the name of the specific subdirectory on the Judge’s computer could access the files, including the sexually explicit material. At least one Internet search engine catalogued the contents of the subdirectory containing the sexually explicit material, with the consequence that Internet searchers could locate the material. The Judge eventually became aware that members of the public could access the files, although he did not know about the search-engine cataloguing. Despite some small steps to remove offensive material from potential public view, the Judge neglected to complete this task or to disconnect the computer from the Internet. The consequence of the Judge’s possession of sexually explicit offensive material combined with his carelessness in failing to safeguard his sphere of privacy was the public controversy in June 2008. In testimony under oath before the Special Committee, the Judge explained his habit of saving the files, characterized the aggregation of files as including some offensive and demeaning material, promised to delete the sexually explicit files, and apologized for allowing his personal conduct to embarrass the federal judiciary. This opinion, which will be made public according to the Rules for Judicial- Conduct and Judicial-Disability Proceedings, concludes the investigation in the following manner. We find that the Judge’s possession of sexually explicit offensive material combined with his carelessness in failing to safeguard his sphere of privacy was judicially imprudent. Moreover, once the Judge became aware in 2007 that offensive material could be accessed by members of the public, his inattention to the need for prompt corrective action amounted to a disregard of a serious risk of public embarrassment. We join with the Special Committee in admonishing the Judge that his conduct exhibiting poor judgment with respect to this material created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary. We determine that the Judge’s acknowledgment of responsibility together with other corrective action, his apology, and our admonishment, combined with the public dissemination of this opinion, properly conclude this proceeding. Below are the findings of the Judicial Council of the Third Circuit, after having received the recommendations of the Special Committee, with respect to the allegation that the Judge maintained a publicly accessible website featuring sexually explicit offensive material. We set forth the Judge’s conduct subsequent to the publication of the Los Angeles Times article, including testimony before the Special Committee. Guided by applicable standards of judicial conduct and procedural rules, we evaluate the entirety of the Judge’s described conduct. We then explain our conclusions and action with respect to the identified Complaint. We also present our findings and conclusions with respect to the Judge’s assignment to and recusal from the United States v. Isaacs trial. III. The Online Computer Files Early Computer Use The Judge has used computers for over two decades and has collected thousands of personal files during that time. Since 2002, many of those files have been stored in a directory named alex on a personal computer system in the Judge’s home. The electronic files at issue in the identified Complaint were stored on the Judge’s personal computer system in his home, not on any computer or system provided by the federal government for his official use. The image and video files discussed in the June 11, 2008, Los Angeles Times article were stored in a subdirectory of the alex directory called stuff. The alex directory — which contained twenty-seven other subdirectories in addition to stuff — contained over 13,000 files, including almost 7,000 family photographs. The stuff subdirectory contained what the Judge called a “large agglomeration of files” — close to 600 — that he had “collected over many years,” the vast majority of which were not of a sexually explicit nature. The Judge’s activity can best be described as saving or retaining the files. His habit with respect to the stuff subdirectory was to keep a wide variety of items he had received by e-mail, among which were television commercials, video clips from television shows and other sources, publicly available court filings and other written materials, cartoons, animated videos and games, song parodies, and photographs of other subjects. Some of the material was sexually suggestive; a portion of that material was sexually explicit. Before the alex directory was connected to the Internet, it was located on a separate server that was connected to the Judge’s personal home computer. The original purpose of the server was to back up data on the Kozinski family computer hard drive. The alex directory, and a large portion of the files in it, existed long before the directory could be accessed remotely via the Internet. The Judge has little memory of the specific source of most of the files in the stuff subdirectory. The Judge testified that sometime around 1995 he started retaining material he received by e-mail from friends and acquaintances. The Judge testified that he could not recall ever downloading the stuff material from websites. The Judge testified that he does not visit and has no interest in pornographic websites. According to the Judge, when some of the stuff material initially was received, his personal computer was connected to the Internet via a slow-operating modem, so he often moved e-mail attachments he received into the stuff subdirectory without even opening them, with the thought of opening them later when he had more time. The Judge testified that the files were “like old things that I’ve sort of thrown into a room without thinking about them.” He explained: People send me e-mail attachments all the time. I’m sure I’m not unique in that regard. Some of them I find funny and interesting, others I discard immediately. Then there are some that I don’t have time to open right there and then. This was especially true in — several years ago, when I had a modem connection, and downloading an e-mail attachment would take many long minutes, sometimes half an hour or an hour. Sometimes I did go back and look at the files and left them on the stuff folder without ever thinking about them again. Now, I do want to make it clear that I do remember some of the sexually explicit files. And, frankly, I don’t know why I kept them. Some I thought were odd or funny or bizarre, but mostly I don’t have a very good reason for holding onto them. I certainly did not send them to anyone else or ask anyone to send me similar files. I did not appreciate, when I put the server online, that the files could potentially be accessed by others and myself, or the consequences of having my name associated with those files. Had I been aware, I would never have saved them. Connection of the Family Server to the Internet In 2002, the Kozinski family decided to connect the family server to the Internet as a convenient means to access personal files while away from home. Through the use of web server software, the Judge could access the files and subdirectories in the alex directory using a web browser via the Internet at http://alex.kozinski.com.6 This access was enabled by Apache server software. The Judge’s adult son, a computer hobbyist, configured the web server and operated and maintained it over several years; an outside computer expert was never consulted. Notwithstanding his son’s involvement, the Judge acknowledged his own ability to remove any of the files in the alex directory, including those in the stuff http://alex.kozinski.com was the Internet location, or uniform resource locator (URL), of the alex directory. Subdirectories of the alex directory could be located by adding an extension to the end of the alex directory’s URL. For example, the stuff subdirectory was accessible at http://alex.kozinski.com/stuff. subdirectory, and he accepts full responsibility for its contents. After the Judge’s son built the server in 2002, the contents of the alex directory and the stuff subdirectory were moved onto alex.kozinski.com without any particularized review. Consequently, material that was not originally intended for storage on the Internet became accessible online at this time. alex.kozinski.com was not set up as a public website as that term is commonly understood; there was no home page, no links, and none of the common indicia of a website. alex.kozinski.com was a collection of files and subdirectories that was created so the Judge and his family and certain close friends could access them remotely using a web browser. The Judge never promoted alex.kozinski.com as a public website. Initially he had no reason to believe that the public knew of its existence. He also never intended to grant permission to the general public to access his family’s server. The Judge testified, “We intended no visitors. We wanted no visitors. It was not something that was meant to be in any way like a web site.” Sharing Material via alex.kozinski.com Although the Judge did not intend to provide uninvited public access to alex.kozinski.com, he did use it to share links to personal photographs with family and “a very close circle of friends” (numbering about two dozen) — all “people [he] knew very well” — or to share links to legal writings with fellow judges from around the world. Also, on certain occasions when he taught or lectured at law schools, the Judge set up subdirectories within the alex directory as a convenient way to provide educational material to his students. Except for these discrete purposes, the Judge testified he did not recall giving out links to or the names of his server directory or subdirectories. With one notable exception (discussed below), other than on very rare occasions where he sent material to a close friend, the Judge testified that he could not recall sending out links to files in the stuff subdirectory, nor did he invite people to access the server to look at sexually explicit material. He testified that he “certainly did not send” sexually explicit files to anyone.7 Initial Security Settings for alex.kozinski.com No username or password was required to access alex.kozinski.com and/or to view a list of the files and directories on the Kozinski family server. The Judge testified that when the server was first connected to the Internet in 2002, he “did not give any thought to security” because he considered alex.kozinski.com to be “just a private — a way of privately accessing [his] files.” The Judge relied on not distributing the name of alex.kozinski.com and its subdirectories other than to family or close friends — a method known as “security through obscurity” — as a means of protecting against uninvited public access to that material. The Judge did not intentionally distribute music files located in his stuff subdirectory, and did not believe or understand that any of these files were being accessed by file sharing websites. The Judge testified that he did not share by e-mail any music files in the stuff subdirectory. Transmission of jump.avi Link to Underneath Their Robes In 2004, the Judge sent a link to a video of himself bungee jumping as part of a tongue-in-cheek message for posting on Underneath Their Robes, a blog about the federal judiciary. The video was located in the stuff subdirectory, and the link sent by the Judge had the URL http://alex.kozinski.com/stuff/jump.avi. This video did not contain any sexually explicit or otherwise controversial material. Underneath Their Robes posted the link to the jump.avi video using the URL to the stuff subdirectory that the Judge had provided. The Judge did not expect the blog to post a direct link to the jump.avi file in his stuff subdirectory; he thought the blog would instead download a copy of the video and post the video rather than the link. Internet users who visited the page of the Underneath Their Robes blog containing the posting about the Judge and clicked on the jump.avi link, or examined the HTML code for that page of the blog, could see the URL http://alex.kozinski.com/stuff/jump.avi. The posted link therefore revealed the URL for the jump.avi file as well as the name of the stuff subdirectory, compromising its “security through obscurity.” Accordingly, any person who viewed the relevant page of the Underneath Their Robes blog could learn of the existence of the stuff subdirectory and could gain access to it and its files by typing the URL http://alex.kozinski.com/stuff into a web browser. The Judge was not aware at the time that the public could gain access to his subdirectories in this manner. When he provided the jump.avi link to Underneath Their Robes, the Judge did not intend to provide public access to the stuff subdirectory. Additionally, when he provided the jump.avi link to Underneath Their Robes, the Judge was unaware that Yahoo! could locate and index the contents of the stuff subdirectory if an e-mail recipient with Yahoo! Toolbar software installed clicked on the jump.avi link that appeared on Underneath Their Robes. Awareness of, and Response to, Security Issues in 2005 The Judge first became aware of security issues with alex.kozinski.com in early 2005, when a friend sent him an e-mail commenting on files from the server other than the ones the Judge had intended to share with him. As a result, the Judge knew as of that time that people with whom he had shared links to files on alex.kozinski.com may have been able to access files on alex.kozinski.com other than the files he had intended to share with those people. The Judge testified that he did not know at this time that strangers — people with whom he had not intended to share any files — might be able to access files on alex.kozinski.com. In response to this information, the Judge instructed his son to temporarily disconnect the web server from the Internet and to take measures to restrict access before reconnecting the web server to the Internet. After the Judge’s son researched the issue, the Judge and his son installed an index.html file in the alex directory to hide the names of the server subdirectories within it. The existence of an index.html file in any directory accessible via the web server masks the names of files and subdirectories located in that directory. As a result of the installation of the index.html file in the alex directory, any access from the Internet to the URL http://alex.kozinski.com led to an HTML page that neither contained any links to nor advertised the existence of any files or subdirectories on the Kozinski family server. There was nothing on alex.kozinski.com that advertised or otherwise made public the existence of stuff or other hidden subdirectories or their contents. When they installed the index.html file, the Judge and his son incorporated a message on alex.kozinski.com that read: “Ain’t nothing here. Y’all best be moving on, Compadre.” An Internet user who typed alex.kozinski.com into a web browser would have seen this message. The Judge believed that these “discouraging words” notified outsiders attempting to access his server that they were to “keep out of here” and that they were “not welcome.” The Judge believed at the time that the existence of the index.html file would thwart any uninvited access to the subdirectories on his server. Contrary to the Judge’s expressed belief, however, a person could still access the contents of alex subdirectories from the Internet — despite the placement of the index.html file — if he or she knew the name of a specific subdirectory. In other words, the installation of the index.html file served only to block the listing of subdirectories on alex.kozinski.com and did not restrict access to the subdirectories. Accordingly, the contents of the subdirectories were not masked as the Judge had thought. The Judge testified that he and his son did not install an index.html file in each of the subdirectories because the Judge mistakenly believed that it was not necessary. Instead, they installed only one index.html file in the alex directory. Knowledge of, and Protection Against, Internet Spiders The Judge belongs to an international discussion group for judges. In late 2005, the group’s website crashed and the Judge offered to host the group’s replacement webpage temporarily on his home server in a separate subdirectory created for that purpose. One of the judges in the group suggested to the Judge that he should have some protection against “spiders” and “crawlers,” i.e., sophisticated automated web-scanning software, such as that employed by Yahoo! Toolbar, that aggressively catalogues and indexes website content and makes it available to the public via web searches. This was the first time the Judge had heard about spiders or crawlers, and he asked his son what could be done to protect his server against them. His son suggested installing a robots.txt file. The Judge believed that installing the robots.txt file would protect his entire server from access by spiders and indexing by search engines. But due to a miscommunication or configuration error, when the Judge’s son installed the robots.txt file, he installed it only in the subdirectory created for the group of judges. The result was that only that particular subdirectory was protected against spiders; the rest of the alex directory was not. The Judge became aware of the limited scope and effect of the robots.txt file only after the publication of the June 11, 2008, Los Angeles Times article. The Judge testified that he thought the robots.txt file “was there, it was guarding the door. And if I had known that crawlers or search engines were indexing my files, I would have just taken it offline immediately. I had no idea.” Awareness of, and Response to, Security Issues in 2007 At some point before December 2007, files in the Judge’s stuff subdirectory were indexed by Yahoo! and may have also been available through other Internet search engines. The Yahoo! spiders may have located the link to http://alex.kozinski.com/stuff/jump.avi in the HTML code of the Underneath Their Robes blog, dissected that link, and scanned and indexed the contents of http://alex.kozinski.com/stuff. The other likely way that the stuff subdirectory was indexed by Yahoo! is through a feature of the Yahoo! Toolbar. Certain versions of the Yahoo! Toolbar transmit all URLs visited from a computer to Yahoo! for indexing by spiders. Thus, if the Judge sent a link to a file in any of his subdirectories to a friend, family member, associate, or anyone else with a computer running Yahoo! Toolbar software, the simple act of clicking on the link could have resulted in Yahoo! obtaining an index of all of the files in the subdirectory. Once the stuff subdirectory was indexed by Yahoo!, the files in that subdirectory could be located by Internet users who used Yahoo! to search the web. By late 2007, an Internet user who searched for alex.kozinski.com on Yahoo! would receive, among other things, a listing of files in the stuff subdirectory. In late 2007, the Judge became aware that, despite the precautionary measures he and his son had taken, it was still possible for uninvited persons to access and browse the hidden subdirectories if their titles were known. Specifically, the Judge realized that people who had a link to one of his subdirectory files might be able to use it to access other files on the server. He knew this, in part, because a cousin wrote to him sometime in Fall 2007 to congratulate him on family photographs in the Judge’s photos subdirectory that were different from the pictures that the Judge had sent him. The Judge then tested the public accessibility of alex.kozinski.com from a computer outside his home, and discovered that in fact his server could still be accessed by uninvited persons. Having made this discovery, the Judge began to open and examine files in the stuff subdirectory to remove those that he thought might be deemed offensive. Specifically, he moved three sexually explicit files that he could recall being in the stuff subdirectory, to a separate, hidden folder.8 The Judge did not continue removing problematic files from his stuff subdirectory. He admitted that he did not do so because going through the many files in the stuff subdirectory to locate sexually explicit and offensive material was, according to the Judge, time-consuming, difficult, and tedious since many of the file titles were uninformative and there were so many files to review in the subdirectory. He also noted that he was very busy at the time because he was preparing to start his term as Chief Judge of the United States Court of Appeals for the Ninth Circuit. The Judge had not In response to a question at the hearing, the Judge testified that he was moving the files into a separate hidden folder for later deletion — specifically, permanent and unrecoverable deletion — which he believed his son knew how to perform. completed the sorting process when the Los Angeles Times visited his server in 2008. When the Los Angeles Times posted the June 11, 2008, article, the Judge disabled public access to alex.kozinski.com, the alex directory, and all subdirectories, including stuff, by disconnecting the server from the Internet. The Judge testified that he regrets not finishing the task of removing problematic files from the stuff subdirectory and admits that he should have finished it or at least taken the server offline until that task was completed. While the Judge understood it was possible that individuals might stumble upon alex.kozinski.com, he admitted that he “fell down on the job” and “didn’t try nearly hard enough.” The Judge also made clear that had he completed the task of reviewing the files, he would have gotten “rid of [the] salacious files” because he “didn’t want to keep them.” The Judge explained that he is “sorry [he] ever kept” the sexually explicit files and is “anxious to get rid of them,” but has not done so on the advice of his counsel, to prevent any concern about spoliation of evidence. IV. The Judicial Conduct and Disability Act allows any person to file a complaint alleging judicial misconduct against a federal judge. The Act was designed “to establish a procedure for the processing of complaints directed against federal judges.” S. Rep. No. 96-362, at 1 (1979), as reprinted in 1980 U.S.C.C.A.N. 4315, 4315.9 Here, as noted, the Judge initiated this disciplinary proceeding himself by requesting that the Los Angeles Times article be treated as a complaint of judicial misconduct. The Judicial Conduct and Disability Act defines judicial misconduct as “conduct prejudicial to the effective and expeditious administration of the business of the courts.” 28 U.S.C. § 351(a). In 2008, the Judicial Conference of the United States promulgated the Rules for Judicial-Conduct and Judicial-Disability Proceedings in order to “guid[e] the various officers and bodies who must exercise responsibility under the Act.” Commentary on Rule 1. Rule 3 further defines judicial misconduct. It first provides a litany of specific conduct that qualifies as “misconduct.” See Rule 3(h)(1)(A)–(G). Cognizable misconduct may involve a judge’s official duties, see Rule 3(h)(1), or, in some circumstances, conduct occurring outside the performance of official duties, see Rule 3(h)(2). Under the Judicial Conduct and Disability Act and the Rules, actions available to the Judicial Council upon receipt of the report of a Special Committee include the following: ordering that, on a temporary basis for a time certain, no further cases be assigned to the judge whose conduct is the subject of a complaint; censuring or reprimanding such judge by means of private communication; The Act was amended by the Judicial Improvements Act of 2002, as codified at 28 U.S.C. §§ 351–364. censuring or reprimanding such judge by means of public announcement; certifying disability of the judge pursuant to the procedures and standards provided under [28 U.S.C. § 372(b)]; requesting that the judge voluntarily retire, with the provision that the length of service requirements under [28 U.S.C. § 371] shall not apply; refer[ring] any complaint . . ., together with the record of any associated proceedings and its recommendations for appropriate action, to the Judicial Conference of the United States; [i]n any case in which the judicial council determines, on the basis of a complaint and an investigation under this chapter, or on the basis of information otherwise available to the judicial council, that a judge appointed to hold office during good behavior may have engaged in conduct — (A) which might constitute one or more grounds for impeachment under article II of the Constitution, or (B) which, in the interest of justice, is not amenable to resolution by the judicial council, . . . promptly certify[ing] such determination, together with any complaint and a record of any associated proceedings, to the Judicial Conference of the United States. See 28 U.S.C. §§ 354(a)–(b). The Judicial Council also may dismiss the complaint, see Rule 20(b)(1)(A), or it may “conclude the proceeding because appropriate corrective action has been taken or intervening events have made the proceeding unnecessary,” Rule 20(b)(1)(B). The allegation that the Judge maintained a publicly accessible website involves conduct outside the performance of judicial duties. Cognizable misconduct nevertheless includes “conduct occurring outside the performance of official duties” which “might have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people.” Rule 3(h)(2). This provides the starting point for our analysis. A. Some of the content of the stuff subdirectory — the sexually explicit material — is undoubtedly offensive to many. The identified conduct at the core of this Complaint consists of the possession of sexually explicit offensive material combined with its public accessibility. No provision of the Act, the Rules, or the Canons specifically addresses the propriety of such conduct by a judge. These facts distinguish this matter from other complaints of misconduct; see, for example, In re Charges of Judicial Misconduct, 404 F.3d 688 (2d Cir. Judicial Council 2005). Judicial misconduct is not limited to violations of the law, as the Act and Rules make clear, but may occur whenever a judge engages in “conduct prejudicial to the effective and expeditious administration of the business of the courts.” 28 U.S.C. § 351(a); Rule 3(h)(1). As noted, the Rules specify that “conduct occurring outside the performance of official duties” may constitute misconduct if “the conduct might have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people.” Rule 3(h)(2). A judge’s conduct may be judicially imprudent, even if it is legally defensible. The aspirational goals of the Canons in the Code of Conduct for United States Judges counsel judges to avoid allowing their personal or professional conduct to cause public embarrassment to the judiciary. Canon 2(A) provides that “[a] judge . . . should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The Commentary on Canon 2(A) explains: Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. The Code of Conduct “is in many potential applications aspirational rather than a set of disciplinary rules.” Commentary on Rule 3. Accordingly, a violation of a Canon does not necessarily amount to judicial misconduct. See Commentary on Canon 1 (“Many of the proscriptions in the Code are necessarily cast in general terms, and it is not suggested that disciplinary action is appropriate where reasonable judges might be uncertain as to whether or not the conduct is proscribed.”). A 2006 report on the implementation of the Judicial Conduct and Disability Act, commissioned by Chief Justice William H. Rehnquist and known as the Breyer Committee Report,10 addressed a whole range of matters, and reflects some of the tensions The committee, chaired by Justice Stephen G. Breyer, was charged with assessing how the judicial branch has administered the Judicial Conduct and Disability Act and what steps could be taken to handle and investigate misconduct complaints more effectively. See The Judicial Conduct and Disability Act Study Committee, implicated here. The Report noted that “the fact that a judge’s alleged conduct occurred off the bench and had nothing to do with the performance of official duties, absolutely does not mean that the allegation cannot meet the statutory standard” for judicial misconduct. Breyer Committee Report at 147. Having acknowledged that misconduct may encompass lawful extra-judicial behavior, the Report also recognized a legitimate zone of privacy for judges: [M]any might argue that judges are entitled to some zone of privacy in extra-official activities into which their colleagues ought not venture. Perhaps the statutory standard of misconduct could be construed in an appropriate case to have such a concept implicitly built-in. Id. Recognizing the complexity and sensitivity that accompanies the evaluation of the extra-judicial conduct of judges, the Report acknowledged that any bright-line rule governing such conduct would be unsuitable; instead, as the Report implicitly acknowledged, extra-judicial conduct must be evaluated by chief judges, special committees, and judicial councils under the facts and circumstances of individual complaints. The necessity for consideration of individual facts and circumstances is specifically contemplated by the Rules. See, e.g., Commentary on Rule 3 (“Ultimately, the responsibility for determining what constitutes misconduct under the statute is the province of the judicial council of the circuit . . . .”); see also Code of Conduct for United States Judges, Commentary on Canon 1 (“Whether disciplinary action is appropriate, and Implementation of the Judicial Conduct and Disability Act of 1980: A Report to the Chief Justice (2006) [hereinafter Breyer Committee Report]. the degree of discipline to be imposed, should be determined through a reasonable application of the text and should depend on such factors as the seriousness of the violation, the intent of the judge, whether there is a pattern of improper activity, and the effect of the improper activity on others or on the judicial system.”). B. Against this background, we base our findings on the record of the Special Committee’s investigation. Some public reports have suggested that the Judge presented, or intended to present, the material in his stuff subdirectory as a website open to public browsing. This is incorrect; the record refutes any such characterizations. The material in the stuff subdirectory was plainly intended to be private and not to be presented as a public website. But possession of controversial private material such as that at issue here carries with it the peril of unwanted disclosure. As noted, the conduct at issue here extends beyond the purely private possession of controversial material. The Judge became aware over time that, despite his initial intent, members of the public could access material in his stuff subdirectory because of the Internet accessibility of the subdirectory. The Judge learned in 2005 that personal files on his family’s server that he did not intend to share could be accessed through the Internet by uninvited persons. Although he took some measures to secure his personal files, the measures were, he admits, inadequate. Moreover, in late 2007, when he learned of continued uninvited access to his personal files, the Judge could have completed the job of securing his server and/or removing or making his personal files private. And, although he began the process of moving some files to a secure directory in order to delete them at a later time, he left most of the files in the stuff subdirectory untouched and unprotected. The identified conduct at issue in this Complaint is the possession of sexually explicit offensive material combined with its public accessibility. The question is how to evaluate this conduct under the standards set forth in the Act and the Rules. C. Like any citizen, a judge enjoys a sphere of privacy. As noted, however, a judge’s conduct may be legally defensible but judicially imprudent. Imprudent extra-judicial conduct that becomes public may result in gratuitously offending many people and invite public controversy, which in turn may undermine public confidence in the judiciary.11 The Judge’s possession of sexually explicit offensive material combined with his carelessness in failing to safeguard his sphere of privacy was judicially imprudent. Moreover, once the Judge became aware in 2007 that offensive material could be See Code of Conduct for United States Judges, Canon 2A; Commentary on Canon 2A (“A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. . . . The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.”). accessed by members of the public, his inattention to the need for prompt corrective action amounted to a disregard of a serious risk of public embarrassment. The Judge in his acceptance of responsibility and his apology has acknowledged as much. We join with the Special Committee in admonishing the Judge that his conduct exhibiting poor judgment with respect to this material created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary. D. In his testimony before the Special Committee, the Judge accepted responsibility for the events that culminated in the June 11, 2008, Los Angeles Times article. He apologized for possessing the offensive material and for failing to secure it after his personal files were placed online and when he knew it was possible for uninvited persons to find them. The Judge testified: I have caused embarrassment to the federal judiciary. I put myself in a position where my private conduct became the subject of public controversy. While this was painful for me personally, my greatest regret is that I was identified as a federal judge, indeed, as a Chief Judge of the nation’s largest federal circuit. And thus whatever shame was cast on me personally, it reflected on my colleagues and our system of justice as well. *** My unfortunate carelessness with certain files on my computer has embarrassed the federal courts. And for this, I am deeply sorry. With regard to the content of the stuff subdirectory described in the Los Angeles Times article, the Judge characterized it as including some material that was “highly offensive,” “gross,” “demeaning” and with “no redeeming value.” The Judge recognizes that some members of the public, upon learning he possessed the material, may have the misimpression that he has demeaning or disdainful attitudes toward women, creating in the minds of some people what he called “a highly distorted picture” of him. The Judge testified, “It is especially unfortunate that this happened on account of images and videos that I care absolutely nothing about.” The Judge explained: [B]y the fall of 2007, I did come to understand that people who had a link to one of the files on my server could use it to access other files on the server. I was aware that some of the files that could be accessed in this manner would be highly offensive and demeaning to many people. It has never been my intention to offend or demean anyone. I have now looked at the files in question and fully agree that many would rightfully find them offensive and demeaning. Indeed, I find some of them offensive and demeaning, and I’m anxious to get rid of them. I’m anxious to delete them. He added that “once you give me the go ahead, I plan to get rid of those things.” With regard to his failure to adequately secure his server from uninvited access, the Judge testified: I recognize I should have been aware of the danger, and I should either have taken my server offline or worked diligently to remove the files that were sexually explicit and offensive. I was careless in that regard. And for that, I am very sorry and offer my sincere apology. The Judge explained: Had I known how easily the files could be accessed by strangers, or that the files on my server had been indexed by Yahoo! and perhaps other search engines, I would have been much more diligent. But I failed to take it as seriously as I should have, because at the time, I incorrectly viewed this as only a threat to my privacy, rather than something presenting the risk of public exposure. He further stated: “I should have done it. I wish I had done it. I started to do it, and I fell down on the job.” “[O]nce I realized — I knew there was a problem, I should have taken the server offline and not let it be there until I had cleaned it up.” The Judge testified that before bringing the server back online, he will “implement password control security for all of [his] private files.” E. In summary, in response to the June 11, 2008, Los Angeles Times article and the public controversy that followed, the Judge: (1) took the web server offline so that his personal files could not be accessed by anyone, (2) initiated this disciplinary proceeding himself and cooperated fully in our investigation, (3) explained how and why his personal files were not protected from public view, (4) apologized for the offensive and demeaning character of some of his personal files and promised to delete permanently the sexually explicit material, (5) acknowledged the embarrassment his conduct has caused the judiciary, (6) promised to install password protection to secure his personal files in the future, and (7) acknowledged that judges have an obligation to ensure that their private matters do not become grist for the public mill. F. The question remains, then: what, if any, further action is appropriate? The Judge explained and admitted his error; apologized for it, recognizing its impact on the judiciary; and committed to changing his conduct to avoid any recurrence of the error. The offending material has been removed and will be destroyed. The Judge’s acknowledgment of responsibility combined with the corrective actions he has already completed or has committed to pursue and his apology, along with our admonishment, made public in this opinion, properly “remed[y] the problems raised by the complaint.” Rule 11(d)(2). Accordingly, this proceeding is properly concluded. We find that “all of the purposes of the judicial misconduct provisions are fully served” by this result. In re Charges of Judicial Misconduct, 404 F.3d 688, 697 (2d Cir. Judicial Council 2005). We take this action in accordance with Rule 20(b)(1)(B), which permits the Judicial Council to “conclude the proceeding because appropriate corrective action has been taken or intervening events have made the proceeding unnecessary.” Under Rule 11(d)(2), “appropriate” corrective action is sufficient to terminate and conclude the matter if it is “voluntary” and “acknowledges and remedies the problems raised by the complaint.” The Commentary on Rule 11(d) explains that resolving a complaint based on corrective action is the preferred course in a proceeding such as this: Because the Act deals with the conduct of judges, the emphasis is on correction of the judicial conduct that was the subject of the complaint. Terminating a complaint based on corrective action is premised on the implicit understanding that voluntary self-correction or redress of misconduct or a disability is preferable to sanctions. Commentary on Rule 11 (citation omitted) (citing Breyer Committee Report at 149–50); see, e.g., In re Charges of Judicial Misconduct, 404 F.3d at 698 (explaining that no additional action by the Judicial Council was necessary because the subject judge acknowledged that making the public remarks at issue was a mistake and apologized for the remarks).12 V. United States v. Isaacs A. On June 11, 2008, the date of publication of the Los Angeles Times article, the Judge was presiding over a criminal obscenity trial, United States v. Isaacs. The Judge was sitting by designation as a district judge for the purpose of the trial. On the day of the article’s publication, the Judge suspended the trial to permit exploration of a potential need for his recusal. On June 13, 2008, the Judge declared a mistrial and recused himself from the case. The case was returned to the original district judge, and the defendant, Ira Isaacs, immediately sought dismissal on double jeopardy grounds. The District Court denied Isaacs’s motion to dismiss the indictment with prejudice, and Isaacs filed an interlocutory appeal in the United States Court of Appeals for the Ninth Circuit. That appeal is pending. The Judicial Conduct and Disability Act is “remedial legislation, designed primarily to correct aberrant behavior, not to punish judges.” See Jeffrey N. Barr & Thomas E. Willging, Decentralized Self-Regulation, Accountability, and Judicial Independence Under the Federal Judicial Conduct and Disability Act of 1980, 142 U. Pa. L. Rev. 25, 93 (1993). See Richard L. Marcus, Who Should Discipline Federal Judges, and How?, 149 F.R.D. 375, 385–86 (1993) (“[T]he objective of the Act was to improve judicial performance. Thus it is not surprising that complaints under the Act seem to have had a more wide-ranging effect in prompting ‘corrective actions’ than in provoking formal discipline.”). The Isaacs case had been assigned to the Judge after he requested a trial assignment from the United States District Court for the Central District of California, in accordance with the normal procedures of the District Court in assigning cases for trial by visiting judges. Of the Isaacs assignment, the Judge testified, “I accepted it without giving much thought of what the case was about. In other words, I did not ask for this particular case, and I had no idea that [it] existed until [the district judge] sent it to me. It was sent in the normal course, as we’ve done every year.” The Special Committee independently verified that the Isaacs case was not specifically requested by the Judge and was assigned to him in the regular course of the District Court’s procedure. B. The Isaacs case was assigned to the Judge after he requested a trial assignment from the United States District Court for the Central District of California, consistent with the Judge’s longstanding practice and in the regular course of the District Court’s procedure. As noted, the Special Committee independently verified that the Isaacs case was not specifically requested by the Judge. With respect to the interruption of the Isaacs trial, the Judge testified, “I take full responsibility for that unfortunate event and the disruption this caused to the defendant, the Government, and individuals who were selected to serve on the jury in the Isaacs case.” “For this, I am very, very sorry, and extend my sincerest apology.” Neither the Judge’s assignment to, nor his decision to recuse himself from, the Isaacs case constituted conduct cognizable under the Act. Accordingly, the identified Complaint will be dismissed to the extent it involves the Judge’s conduct with respect to the Isaacs case.13 VI. With respect to the identified Complaint involving alex.kozinski.com, the proceeding will be concluded under Rule 20(b)(1)(B) because appropriate corrective action has been taken. To the extent the identified Complaint involves the Judge’s conduct with respect to the United States v. Isaacs case, that portion of the identified Complaint will be dismissed under Rule 20(b)(1)(A)(i). An appropriate Order follows. /s/ Anthony J. Scirica Anthony J. Scirica, Chief Judge United States Court of Appeals for the Third Circuit Dated: June 5, 2009 Any allegation of misconduct relating to the Judge’s recusal decision in Isaacs would properly be dismissed for an additional reason. Absent special circumstances such as racial or ethnic bias, not present here, a judge’s recusal decision is merits-related and, as such, is not a subject for determination under judicial misconduct rules. Rule 3(h)(3)(A). Under 28 U.S.C. § 352(b)(1)(A)(ii), a complaint that is “directly related to the merits of a decision or procedural ruling” is subject to dismissal. See Rule 11(c)(1)(B). Rule 3(h)(3)(A) provides: “An allegation that calls into question the correctness of a judge’s ruling, including a failure to recuse, without more, is merits-related.” JUDICIAL COUNCIL OF THE THIRD CIRCUIT _______________ J.C. No. 03-08-90050 _______________ IN RE: COMPLAINT OF JUDICIAL MISCONDUCT ___________________________ ORIGINAL PROCEEDINGS UNDER 28 U.S.C. § 351 TRANSFERRED FROM JUDICIAL COUNCIL OF THE NINTH CIRCUIT (J.C. No. 09-08-90035) ___________________________ ORDER ___________________________ (Filed: June 5, 2009) Present: SCIRICA, Chief Judge, SLOVITER, McKEE, RENDELL, BARRY, AMBRO, AMBROSE, BROWN, BARTLE, KANE, and SLEET, Members of the Judicial Council. SCIRICA, Chief Judge. After consideration of the Report and Recommendation of the Special Committee and the record and on the basis of the foregoing Memorandum Opinion entered on this date, it is ORDERED AND ADJUDGED that the Complaint identified pursuant to 28 U.S.C. § 351 and Rule 5 of the Rules for Judicial-Conduct and Judicial- Disability Proceedings is hereby: concluded in part pursuant to Rule 20(b)(1)(B) of the Rules for Judicial-Conduct and Judicial-Disability Proceedings, and dismissed in part pursuant to Rule 20(b)(1)(A)(i) of the Rules for Judicial-Conduct and Judicial-Disability Proceedings. Respondent is notified that this Order constitutes the final order of the Judicial Council under 28 U.S.C. § 354 and is conclusive and not subject to further review by the Judicial Council and is not judicially reviewable on appeal or otherwise except as provided by 28 U.S.C. § 357(a). In accordance with 28 U.S.C. 357(a), “[a] complainant or judge aggrieved by an action of the judicial council under section 354 may petition the Judicial Conference of the United States for review thereof.” The procedure for seeking review by the Judicial Conference Committee on Judicial Conduct and Disability is specified by Rules 21 and 22 of the Rules for Judicial-Conduct and Judicial-Disability Proceedings. The full text of the Rules for Judicial-Conduct and Judicial-Disability Proceedings is available from the Clerk’s Office of the Court of Appeals for the Third Circuit and on the Court of Appeals Internet site, www.ca3.uscourts.gov. /s/ Anthony J. Scirica Anthony J. Scirica, Chief Judge United States Court of Appeals for the Third Circuit Dated: June 5, 2009 JUDICIAL COUNCIL OF THE THIRD CIRCUIT _______________ J.C. No. 03-08-90050 _______________ IN RE: COMPLAINT OF JUDICIAL MISCONDUCT ___________________________ ORIGINAL PROCEEDINGS UNDER 28 U.S.C. § 351 TRANSFERRED FROM JUDICIAL COUNCIL OF THE NINTH CIRCUIT (J.C. No. 09-08-90035) ___________________________ ORDER ___________________________ (Filed: July 2, 2009) SCIRICA, Chief Judge. Pursuant to Rule 24(a) of the Rules for Judicial-Conduct and Judicial- Disability Proceedings, because “final action has been taken on [the] complaint and it is no longer subject to review,” the Memorandum Opinion and Order filed by the Judicial Council of the Third Circuit in the above-captioned matter is hereby made public. /s/ Anthony J. Scirica Anthony J. Scirica, Chief Judge United States Court of Appeals for the Third Circuit Dated: July 2, 2009

PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT THE NEWS AND OBSERVER  PUBLISHING COMPANY; THE DURHAM HERALD COMPANY; THE NEW YORK TIMES COMPANY; GANNETT COMPANY, INCORPORATED, Plaintiffs-Appellees,  No. 09-1010 v. RALEIGH-DURHAM AIRPORT AUTHORITY, Defendant-Appellant.  THE NEWS AND OBSERVER  PUBLISHING COMPANY; THE DURHAM HERALD COMPANY; THE NEW YORK TIMES COMPANY; GANNETT COMPANY, INCORPORATED, Plaintiffs-Appellees,  No. 09-1231 v. RALEIGH-DURHAM AIRPORT AUTHORITY, Defendant-Appellant.  Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:04-cv-00639-BO) 2 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. Argued: October 27, 2009 Decided: March 12, 2010 Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges. Affirmed by published opinion. Judge Duncan wrote the majority opinion, in which Judge Wilkinson concurred. Judge Davis wrote a dissenting opinion. COUNSEL ARGUED: James P. McLoughlin, Jr., MOORE & VAN ALLEN, Charlotte, North Carolina, for Appellant. John Adam Bussian, III, THE BUSSIAN LAW FIRM, PLLC, Raleigh, North Carolina, for Appellees. ON BRIEF: John A. Zaloom, David E. Fox, Research Triangle Park, North Carolina, for Appellant. Mark J. Prak, Charles E. Coble, Eric M. David, BROOKS, PIERCE, MCLENDON, HUMPHREY & LEON- ARD, LLP, Raleigh, North Carolina, for Appellees. OPINION DUNCAN, Circuit Judge: This appeal arises from the district court’s grant of sum- mary judgment to newspaper publishers bringing a First Amendment challenge to a public airport’s total ban on news- paper racks inside its terminals. We found a similar ban unconstitutional in Multimedia Publishing Co. of South Caro- lina, Inc. v. Greenville-Spartanburg Airport District, 991 F.2d 154 (4th Cir. 1993), which guides our decision today. Because NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 3 the government interests asserted to justify the ban do not counterbalance its significant restriction on protected expres- sion, we affirm.1 I. As this is an appeal from a grant of summary judgment, we present the facts affecting our First Amendment analysis in the light most favorable to the appellant. See Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir. 2009). Appellant Raleigh- Durham Airport Authority (the "Authority") was chartered by the North Carolina General Assembly to operate the Raleigh- Durham International Airport (the "Airport"). See 1939 N.C. Pub. L. ch. 168. Appellees The News and Observer Publish- ing Company; The Durham Herald Company; The New York Times Company; and Gannett Company, Incorporated (the "Publishers") publish and distribute four daily newspapers: The News & Observer, The Herald-Sun, The New York Times, and USA TODAY. A. The Airport facilitates air travel for the region known as the "Triangle area," which encompasses Raleigh, Durham, and Chapel Hill, North Carolina. Every year millions of travelers pass through the Airport. During the relevant time period, the Airport consisted of two terminals, labeled A and C, that shared one attached parking deck and eleven outer parking This appeal also involves a challenge to the district court’s order awarding attorney’s fees and costs under 42 U.S.C. § 1988 and 28 U.S.C. § 1920. The appellant contends that by awarding "those fees and expenses the publishers incur from December 2008 through the conclusion of this case," J.A. 1171, the court granted a "‘blanket’ award of attorney’s fees . . . without any mechanism for evaluating the reasonableness of the pro- spective fees," Appellant’s Br. at 62. Nothing in the court’s order, how- ever, suggests that the publishers would ever be entitled to attorney’s fees and costs without proving their reasonableness. Therefore, we find no error and affirm. 4 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. lots reachable by shuttle bus. Each terminal had a non-secure area for ticketing and baggage pickup, and a secure area or "concourse" for loading and unloading passengers on planes. Whereas anyone could access the non-secure areas, only tick- eted travelers and authorized personnel could enter the secure areas. Entering a secure area required passing through a secur- ity checkpoint operated by the Transportation Security Administration ("TSA").2 The Airport was intended not only to facilitate air travel but also to generate revenue. Federal law requires making the facility as financially self-sustaining as possible. See 49 U.S.C. § 47107(a)(13) (conditioning federal grant money upon "the airport owner or operator . . . maintain[ing] a sched- ule of charges for use of facilities and services at the airport . . . that will make the airport as self-sustaining as possible"). The Authority generated revenue for the Airport in various ways, including (1) leasing wall space for advertising, (2) charging a fixed rent to shops and restaurants inside each ter- minal, and (3) charging additional rent calculated as ten per- cent of gross profits. Inside each terminal were numerous shops and restaurants, located mostly within the secure area where travelers waited before departing. These concessions, which included various eating establishments and retail stores, were selected and arranged under "a master plan for the retail and food service concession space" designed to "maximize customer service and . . . revenue to the Authority."3 J.A. 265. The terminals The Airport was substantially renovated after this litigation began. Ter- minal C was demolished, a brand new terminal was constructed, and the Airport’s terminals are now labeled 1 and 2. The Authority moved to sup- plement the record on appeal to reflect this renovation, but we denied its motion. See Kirkpatrick v. Lenoir County Bd. of Educ., 216 F.3d 380, 384 (4th Cir. 2000) ("From a procedural standpoint, courts hearing a case on appeal are limited to reviewing the record that has been developed below."). In 1998, the Authority hired consultant Ann Ferraguto "to plan and implement a master plan for the retail and food service concession space NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 5 also contained vending machines, racks displaying brochures, information kiosks, television monitors, ATM machines, email stations, shoe-shine stations, trash bins, bathrooms, plants, and other features intended to serve travelers or boost revenue. In early 2002, the Publishers contacted the Authority about placing coin-operated newsracks inside the terminals, where newsracks had never been placed before. At that time, news- papers could only be purchased from various shops. Terminal A’s secure area had four shops selling newspapers. Three "RDU-Press" shops were located by Gates 5, 8, and 14/16, and an "RDU-Press Plus" shop was located by Gate 19. Ter- minal A’s non-secure area had a "JQ Snacks" kiosk near the baggage claim area that offered USA Today. Terminal C’s secure area had two shops selling newspapers. These were the "Hudson News" shop and the "Hudson News and Book" shop located near the TSA security checkpoint. Finally, Terminal C’s non-secure area had one shop selling newspapers located between the baggage claim and ticketing areas. All these shops could offer any newspaper selection they chose, but the Authority generally expected them to carry The News & Observer and The Herald-Sun. Although the Airport was open to the public twenty-four hours every day, the shops normally opened between 5:30 a.m. and 6:30 a.m., and closed between 8:00 p.m. and 9:00 p.m. They were "required to open before the first flights [left] . . . each morning and remain open until after the last flights within the airport terminals." J.A. 265. The Authority implemented that plan in 2000 by reorganizing concession space inside each terminal and entering new concession contracts. No single document comprises the entire "master plan," but the Authority stated during oral argument that Ingrid Hairston’s memorandum dated July 10, 2000, provides a reliable summary. Nothing in the record suggests that anyone involved in develop- ing the master plan ever considered placing newsracks inside the termi- nals. 6 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. depart[ed] each evening." J.A. 296. Among the five hundred or so flights that arrived at or departed from the Airport every day, however, about thirty-seven were scheduled to arrive after the shops had closed. Passengers aboard these flights or any flights delayed beyond the normal hours were therefore unable to purchase a newspaper. The record also reflects other issues regarding the adequacy of newspaper circulation. For example, the Authority received complaints that newspapers were sometimes unavailable dur- ing the early morning hours. Furthermore, The Durham Her- ald Company received complaints that the shops sold out of The Herald-Sun. Notwithstanding, the Authority declined to regulate how many newspapers were stocked, reasoning that the shops had a financial incentive to meet demand. B. In January 2002, The News and Observer Publishing Com- pany (the "Observer") inquired about the possibility of plac- ing newsracks inside the terminals. In response, the Authority asserted "an informal policy that newspapers would be dis- tributed via the newsstands/gift shops in the terminals," and explained that "there had been no complaints from customers with respect to newspapers being available only in those shops." J.A. 230-31. The Authority also raised concerns about security, floor space, and losing revenue from shop sales. The Observer and Authority did not discuss newsracks again until about two years later. On February 17, 2004, the Observer faxed a letter to the Authority asserting that its ban on newsracks would unlikely survive First Amendment scru- tiny, requesting permission to place and stock "a limited num- ber of newsracks at locations in the terminal and on the concourses . . . without charge," and promising that the news- racks would be "as ‘security friendly’ as technology currently allows." J.A. 167. The Authority refused this request. On March 31, 2004, the Observer faxed another letter asserting NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 7 "the right to place [Observer] newsracks on the concourses" and threatening litigation, but the Authority again refused. J.A. 168. On September 2, 2004, the Publishers sued the Authority in the Eastern District of North Carolina. Their complaint alleged that the Authority’s refusal to allow newsracks inside the terminals violated the First Amendment and North Caro- lina Constitution. The Publishers requested both injunctive relief and attorneys’ fees and costs under 42 U.S.C. § 1988 and 28 U.S.C. § 1920. Specifically, the Publishers sought a permanent injunction letting them place 208 newsracks in 26 locations throughout the Airport terminals.4 The Authority and Publishers filed cross-motions for sum- mary judgment under Federal Rule of Civil Procedure 56. After initially denying both motions, the district court amended its decision and granted the Publishers’ motion for summary judgment regarding their First Amendment claim. See The News & Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 588 F. Supp. 2d 653, 659 (E.D.N.C. 2008). The court reasoned that banning "the installation of news racks within the terminals ‘substantially burdens the newspaper companies’ expressive conduct within that public place,’" id. at 658 (quoting Multimedia, 991 F.2d at 159), and that con- cerns about security, aesthetics, preserving revenue, and pre- venting congestion were not "sufficiently powerful interests to justify the burden on protected expression," id. This appeal followed. Although it provides factual context, this request does not affect our First Amendment analysis. We decide today only whether the Authority violated the Constitution by banning any newsracks inside the terminals, not whether 208 newsracks should be mandated. That and other remedial issues remain for another day. 8 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. II. On appeal, the Authority challenges the district court’s grant of summary judgment. We "review[] a district court’s decision to grant summary judgment de novo, applying the same legal standards as the district court." Pueschel, 577 F.3d at 563. Summary judgment should be granted "if the plead- ings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any mate- rial fact and that the movant is entitled to judgment as a mat- ter of law." Fed. R. Civ. P. 56(c)(2). Facts are "material" when they might affect the outcome of the case, and a "genu- ine issue" exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party is "entitled to judgment as a matter of law" when the nonmoving party fails to make an adequate showing on an essential element for which it has the burden of proof at trial. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 804 (1999). "[I]n ruling on a motion for summary judgment, the nonmoving party’s evidence is to be believed, and all justifi- able inferences are to be drawn in that party’s favor." Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (internal quotations omitted). To overcome a motion for summary judgment, how- ever, the nonmoving party "may not rely merely on allega- tions or denials in its own pleading" but must "set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e). The Publishers’ complaint alleged that the Authority’s total ban on newsracks inside the terminals violated the First Amendment. Multimedia addressed a similar challenge on appeal from a final judgment after a bench trial. The district court there found that the Greenville-Spartanburg Airport Commission’s (the "Commission") ban on newsracks inside the Greenville-Spartanburg International Airport ("GSP") vio- lated the First Amendment. GSP had two terminals, labeled A and B, that were con- nected by both a direct walkway and a ticketing area with NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 9 walkways leading to each terminal. Newspapers could be pur- chased either from a newsrack located in the parking deck or from a souvenir shop located between terminal A and the tick- eting area. The shop was open from 6:30 a.m. to 9:00 p.m. and had a sign advertising the newsrack outside, but travelers using terminal B were unlikely to pass the shop. Likewise, travelers not using the parking deck were unlikely to pass the newsrack. We held that "the First Amendment protects distribution as well as publication" of newspapers and that "modes of distri- bution involving permanent or semi-permanent occupation of publicly-owned property don’t lose First Amendment protec- tion because of that fact." Multimedia, 991 F.2d at 158. After noting that the Commission allowed only limited means of newspaper distribution, we upheld the district court’s decision that concerns about aesthetics, preserving revenue, preventing congestion, and security failed to justify the heavy restriction on protected expression. See id. at 160-63. Although the procedural posture here differs, Multimedia provides the substantive legal framework for our analysis. In deciding whether government property should be made avail- able for protected expressive activity such as newspaper dis- tribution, we apply different levels of protection for different types of government property. See id. at 162; see also Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44-46 (1983). Stringent protection applies for "public forums," i.e., "places which by long tradition or by govern- ment fiat have been devoted to assembly and debate," but less protection applies for "nonpublic forums," i.e., "[p]ublic prop- erty which is not by tradition or designation a forum for pub- lic communication." Perry, 460 U.S. at 45-46. The Supreme Court has declared that airports are nonpublic forums. See Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679-80 (1992). Accordingly, the following protection applies in this case: "In addition to time, place, and manner regulations, the State may reserve the forum for its intended 10 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. purposes, communicative or otherwise, as long as the regula- tion on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speak- er’s view." Multimedia, 991 F.2d at 159 (quoting Perry, 460 U.S. at 46). Because no one argues that the Authority’s total ban on newsracks inside the terminals discriminated based on view- point, we need only consider its reasonableness. See id. "[R]easonableness . . . must be assessed ‘in the light of the purpose of the forum and all the surrounding circumstances.’" Id. (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 809 (1985)). Although the ban "need not be the most reasonable or the only reasonable limitation" on protected expression, "it isn’t enough simply to establish that the regulation is rationally related to a legitimate governmen- tal objective, as might be the case for a typical exercise of the government’s police power." Id. Instead, Multimedia requires the following analysis: The degree and character of the impairment of pro- tected expression involved, discounted by any miti- gating alternatives that remain to the aggrieved party, must be considered. . . . The validity of any asserted justification for the impairment must then be assessed and, if found valid, then weighed in the balance against the impairment. . . . Because regula- tions other than mere time, place, and manner restrictions must be designed to reserve the forum for its intended purposes, the overall assessment must be undertaken with an eye to the intended pur- poses of this particular airport terminal and of the ways in which the regulated conduct . . . might actu- ally interfere with the carrying out of those purposes. Id. (internal quotations and citations omitted). Consistent with Multimedia, but through the lens of summary judgment, we NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 11 now consider whether the Authority’s total ban on newsracks inside the terminals was reasonable.5 A. First we measure the Authority’s restriction on the Publish- ers’ protected expressive activity, namely, newspaper distri- bution. This analysis hinges not upon a projected difference in newspaper sales but rather upon the Publishers’ access to Airport users for speech purposes. See Lee, 505 U.S. at 684 (upholding a regulation "limiting solicitation . . . to the side- walk areas outside . . . [airport] terminals" and reasoning that, because "[t]his sidewalk area is frequented by an overwhelm- ing percentage of airport users, . . . the resulting access of those who would solicit the general public is quite com- plete"). Among other things, we consider the extent to which people visiting the Airport could have received the Publish- ers’ message by buying their newspapers. See Multimedia, 991 F.2d at 160 (reasoning that "the Commission’s newsrack ban makes newspapers hard to come by for many patrons of the Greenville-Spartanburg Airport and impossible for others, thereby placing a heavy burden on the newspaper companies’ protected distribution activity"). Even drawing all reasonable inferences in the Authority’s favor, we are constrained to find that its total ban on news- racks inside the Airport’s terminals significantly restricted the Publishers’ ability to distribute newspapers. The record reflects that travelers had trouble buying newspapers from the shops. There were instances of unavailability during the early morning, and the shops would sell out of The Herald-Sun. The Authority contends that we should apply a different analysis, assessing reasonableness without weighing asserted justifications against the restriction on protected expression, because its ban on newsracks inside the terminals arose from a business judgment. See Appellant’s Br. at 28-32. We disagree. Because the ban considered in Multimedia also resulted from a business judgment, this case cannot be distinguished from Multimedia on that basis. 12 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. Furthermore, the Authority concedes that newspapers were unavailable once the shops closed each day around 9:00 p.m. This means that passengers aboard the thirty-seven flights scheduled to arrive after that time or aboard flights delayed past that point could never purchase a newspaper upon land- ing. The Publishers’ ability to reach these people inside the terminals was thus nonexistent. Finally, the Airport’s tightly contained character enhanced this burden on newspaper distri- bution. See id. ("If a governmental entity imposed a similar ban on newsrack placement on city streets and sidewalks, those desiring a paper might find private vendors on nearby private property taking advantage of a newly created market; but the Airport’s ban offers no similar opportunity for patrons or vendors."). For these reasons, we conclude that the Author- ity’s total ban on newsracks inside the terminals significantly restricted the Publishers’ protected expression. B. Next we determine whether the Authority asserted legiti- mate interests that counterbalance the restriction on protected expression. Given that the Authority may "reserve the forum for its intended purposes," our analysis here must keep in mind the Airport’s intended purposes of facilitating air travel and raising revenue. Perry, 460 U.S. at 46. We also note that the Authority "need not have adduced specific factual evi- dence that its interests were advanced by the ban or that the expressive activity banned did interfere with the forum’s intended use." Multimedia, 991 F.2d at 160. Instead, the Authority generally "was entitled to advance its interests by arguments based on appeals to common sense and logic." Id. The Authority asserts four interests to justify totally ban- ning newsracks inside the terminals: aesthetics, preserving revenue, preventing congestion, and security. We recognize the legitimacy of these interests. See id. at 161 (noting that government interests in aesthetics and preserving revenue are legitimate); Lee, 505 U.S. at 683-85 (deeming legitimate the NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 13 government interest in preventing congestion); Jacobsen v. City of Rapid City, 128 F.3d 660, 662-63 (8th Cir. 1997) (deeming legitimate the government interest in airport secur- ity). Below we consider whether they counterbalance the sig- nificant restriction on protected expression. 1. First, we consider the Authority’s interest in preserving the Airport’s aesthetics. Although arguments based solely on logic or common sense normally are allowed, Multimedia stated that asserting an "interest in aesthetics . . ., without more, isn’t sufficient to . . . permit the restriction of protected expression." Multimedia, 991 F.2d at 161. We added that aes- thetic concerns have been found substantial enough to justify restricting protected expression only where "the aesthetic harm has been both substantial and widely recognized," and noted "that the speech restricted has often been of low First Amendment value." Id. (citations omitted). The Authority has offered no evidence that placing news- racks inside the Airport’s terminals would cause substantial and widely recognizable aesthetic harm. Nor does common sense or logic support that conclusion. We cannot see how an appropriate number of carefully placed newsracks fashioned to complement each terminal’s interior design would have substantially undermined the Airport’s aesthetics. Moreover, the Authority has proffered no justification to distinguish newsracks from the vending machines, racks displaying bro- chures, ATM machines, and other visual obtrusions that existed inside the terminals. For these reasons, we conclude that the Authority’s aesthetic interest cannot counterbalance the significant restriction on protected expression. 2. Second, we consider the Authority’s interest in preserving revenue. The Authority argues that we should adopt its busi- 14 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. ness judgment under the "concession master plan," which excludes newsracks but purports to maximize revenue. J.A. 265. The Authority also proffered expert testimony that let- ting people buy newspapers from newsracks would affect shops’ sales not only of newspapers but also of snacks and other items that customers seeking newspapers might pur- chase on impulse. Fewer sales would mean less revenue for the Authority, which received ten percent of shops’ gross profits. At the very least, these arguments fail to address the signif- icant restriction on protected expression we identified, namely, that the Publishers cannot distribute newspapers inside the terminals to passengers arriving when the shops are closed, and that at times newspapers are otherwise unavail- able. We cannot see, and indeed the Authority has offered no evidence or rational explanation for, how allowing newsracks in such circumstances could detract from sales or affect reve- nue. Furthermore, we are not persuaded by the Authority’s reli- ance on the master plan for concessions. Nothing in the record or briefs suggests that, when the master plan was being devel- oped, its creators even considered newsracks. Accordingly, that the plan excludes newsracks provides no basis for con- cluding that placing some number inside the terminals would be inconsistent with maximizing revenue. Finally, Multimedia considered and rejected a similar argu- ment about lost revenue on the ground that the Commission "could have exacted a concession for papers sold from news- racks equal to that assessed against the shop." Multimedia, 991 F.2d at 161. We do not foreclose that possibility here.6 Once again, we stress the limited nature of our inquiry. We consider only whether banning all newsracks inside the terminals violated the First Amendment. Such issues as number, placement, and cost are beyond the scope of our analysis. NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 15 For these reasons, we conclude that the Authority’s interest in preserving revenue cannot counterbalance the significant restriction on protected expression. 3. Third, we consider the Authority’s interest in preventing congestion. The Authority draws support from the following description of newsracks: A standard newsrack projects twenty inches into a passenger movement corridor. An object of this size reduces the pedestrian traffic flow capacity of the corridor by 42 people per minute. A USA TODAY type newsrack, being used by a standing customer with the cabinet door fully extended, reduces pedes- trian traffic flow capacity by 110 people per minute, without allowing for any baggage placed on the floor while the device is in use. Gannett Satellite Info. Network, Inc. v. Berger, 716 F.Supp. 140, 153 (D.N.J. 1989), rev’d on other grounds, 894 F.2d 61 (3d Cir. 1990). The Authority might well posit a government interest against spreading a large number of newsracks indis- criminately throughout the terminals, but that is not the sce- nario presented. The Authority has not simply prohibited a large number of newsracks from being randomly spread around the terminals; it has banned them all. Accordingly, we need only consider how much congestion would result from a "limited number" of carefully placed newsracks—the amount requested by the Observer’s February 17, 2004, letter. J.A. 167. Having properly framed the question, we are ultimately bound by Multimedia. There, we stated that "common sense" allays fears of congestion around newsracks. Multimedia, 991 F.2d at 162. We reasoned that, because the Supreme Court found the congestion at an airport created by "a large number 16 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. of peaceful leafletters seeking out passersby and attempting to engage them in dialogue" insufficient to justify banning that expressive activity, id. at 162 (citing Lee, 505 U.S. at 690 (O’Connor, J., concurring)), "the obviously trivial congestion- related difficulties posed by carefully placed inanimate news- racks cannot justify the Commission’s ban either," id. Accordingly, we find here that a limited number of carefully placed newsracks would create only trivial congestion.7 Cf. Ayres v. City of Chicago, 125 F.3d 1010, 1013 (7th Cir. 1997) ("The incremental contribution to congestion that five ped- dlers can make in a sea of hundreds of thousands of festival- goers is very small."). Furthermore, the record reflects the presence of numerous free-standing objects inside the terminals. The Authority prof- fers no basis on which to distinguish newsracks from the plants, vending machines, racks displaying brochures, ATM machines, email stations, trash bins, and similar objects already present. For these reasons, we conclude that the Authority’s interest in preventing congestion cannot counter- balance the significant restriction on protected expression. 4. Finally, we consider the Authority’s interest in maintaining security within the Airport. The Authority contends that newsracks could become hiding places for bombs or weapons, and that stocking them would require letting delivery persons That Multimedia applied a different legal standard makes no differ- ence. Its holding about congestion was based on common sense rather than factual evidence, and summary judgment does not require ignoring logic or common sense to favor the nonmoving party. See Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 743 (1st Cir. 1995) ("While the summary judgment mantra requires us to draw every reasonable inference in favor of the nonmoving party, inferences, to qualify, must flow ratio- nally from the underlying facts; that is, a suggested inference must ascend to what common sense and human experience indicates is an acceptable level of probability."). NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 17 through TSA security checkpoints. In support, the Deputy Airport Director for Operations Mike McElvaney provided an affidavit stating that placing newsracks throughout the Airport would create security risks and burden security personnel, who would need to screen delivery persons and repeatedly check newsracks for contraband. Notably, McElvaney con- fined his analysis to "the information provided by the Plain- tiffs in this action identifying 26 locations where they want to place 208 news racks at the Airport." J.A. 316. Without in any way diminishing the importance of security concerns, we again note the extent to which the Airport’s evi- dence misses the mark. McElvaney premised his analysis on the existence of 208 newsracks throughout the Airport. The Authority, however, has banned all newsracks inside the ter- minals. McElvaney’s analysis indicates little about the secur- ity risk created by allowing a carefully calibrated newsrack presence. Such risk could not be more than de minimis. We find Multimedia particularly instructive on this point: "The Federal Aviation Administration has no safety or security reg- ulations addressed to newsracks, and proper design would render them highly unsuitable for bomb placement. . . . The incremental danger to airport security posed by newsracks is entirely de minimis." Multimedia, 991 F.2d at 162 (internal citation omitted). In addition to being facially overbroad, the Authority’s evi- dence has "fail[ed] to distinguish the security impact of news- racks from that of other places in the terminal where a weapon or bomb can be placed, such as, restrooms, trash cans, various plants placed in the terminal for aesthetic purposes, and within newsstands and kiosks." News & Observer, 588 F. Supp. 2d at 659; see also Jacobsen, 128 F.3d at 663 (dismiss- ing a similar concern "because the terminal has many other places where a bomb could be hidden, such as waste contain- ers and plant holders, and if anything, the glass door on the front of a newsrack makes it a less suitable place to hide a bomb."). We therefore conclude that the Authority’s security 18 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. interest cannot counterbalance the significant restriction on protected expression. In sum, the record contains insufficient evidence from which a reasonable jury could conclude that the Authority’s asserted interests justify the total ban on newsracks inside the terminals. Nor does the record support the conclusion that carefully placing an appropriate number of newsracks inside the terminals would be incompatible with the Airport’s intended purposes of facilitating air travel and raising reve- nue. Cf. Multimedia, 991 F.2d at 163 ("Nothing in the eviden- tiary record of this case, or in the Commission’s arguments, suggests that a reasonably controlled placement of a limited number of newsracks in this terminal would significantly, if at all, interfere with either the primary or secondary intended purposes of its operation."). For the reasons stated above, we AFFIRM. DAVIS, Circuit Judge, dissenting: The issue in this case is whether the court below properly granted summary judgment to the newspaper publishers when it held that the Raleigh-Durham Airport Authority’s ban on newsracks violated the publishers’ First Amendment rights under Multimedia v. Greenville-Spartanburg Airport Dist., 991 F.2d 154, 156 (4th Cir. 1993). My colleagues find that "the government interests asserted to justify the ban do not counterbalance its significant restriction on protected expres- sion[.]" Maj. Op. at 3. But that conclusion answers the wrong inquiry. Because this is an appeal from a grant of summary judgment, the question is simply whether the evidentiary record reflects the existence of genuine disputes of material fact. I conclude that it does, and therefore, I would vacate the district court’s order granting summary judgment and remand this case for trial. Accordingly, I respectfully dissent. NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 19 I. In the Fifth Circuit, district courts have been afforded sig- nificant authority to find facts even when they are considering motions for summary judgment if the proceeding is a nonjury case. Cf. In re Placid Oil Co., 932 F.2d 394, 398 (5th Cir. 1991). But while our court has grudgingly embraced that notion in a narrow context, see Int’l Bancorp, LLC v. Societe des Bains de Mer et du Cercle des Estrangers a Monaco, 329 F.3d 359 (4th Cir. 2003), cert. denied, 540 U.S. 1106 (2004), this is not one of those instances. No party here consented to have the district court convert the summary judgment record into a trial record, permitting the district court to engage in fact-finding. Rather, in this case, the district court was not entitled to find facts and resolve conflicting inferences at this stage of the pro- ceedings. Nor was it allowed to draw reasonable inferences from the facts before it as if it were a fact- finder. Indeed, given the posture of the case, the court was required to resolve all inferences in favor of the non-moving party. Id. at 394 (Motz, J., dissenting). Accordingly, the facts in this case and the inferences fairly to be drawn from them must be viewed in the light most favorable to the non-moving party, here, the Authority. Pueschel, 577 F.3d at 563. Even though this case will be tried without a jury because the parties did not request one, there must nevertheless be a trial. II. Appellant Raleigh-Durham Airport Authority (the "Author- ity") operates the Raleigh-Durham Airport (the "Airport"), a facility that has two passenger terminals, each with its own departure and arrival concourse, baggage claim, and ticketing area. As of 2007, approximately ten million passengers passed 20 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. through the Airport annually, and in 2004, the Authority’s operating budget was approximately 65 million dollars. The vast majority of the Airport’s passengers have ample access to newspapers. There are multiple vendors in the air- port, many of which sell newspapers and magazines, along with other non-newspaper items, such as food. As the major- ity opinion indicates, these shops were "required to open before the first flight [left] . . . each morning and remain open until the last flight depart[ed] each evening." J.A. 296. They normally opened between 4:30 a.m. and 6:30 a.m. and closed between 8:00 p.m. and 9:00 p.m., although the shops often closed later when flights were delayed. As the majority indicates, in January 2002, The News and Observer Publishing Company ("the Observer") inquired about the possibility of placing newsracks inside the termi- nals. The Authority tentatively agreed to allow installation of newsracks in the Airport’s parking areas. The Observer declined the Authority’s offer, likely because it did not want to pay rent and concession fees. The Publishers then filed suit, demanding that the Authority permit them to install 208 newsracks throughout the Airport. III. The surprising procedural history of this case merits atten- tion. On September 29, 2007, the district court denied cross motions for summary judgment. The court explained that it was required by Multimedia to undertake an intensive fact- based inquiry, and that it could not resolve this case as a mat- ter of law because it contained multiple material and disputed facts. The court identified five such facts. They were (1) the severity of the burden faced by customers at the Airport in buying newspapers; (2) the validity of the aesthetic justifica- tion offered by the Authority for refusing to allow racks in the NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 21 terminals; (3) the Authority’s potential loss of revenue from the allowance of racks in the terminals and the resulting decline in sales the Authority’s authorized concessions would see as a result; (4) the safety issues involved in having news- racks in crowded terminals; and (5) the security issues involved in having newsracks in the secure areas of the termi- nals. J.A. 1123-27. The district court concluded: Both parties have answered, in various forms, their opponents arguments with straight factual contradic- tions—contradictions that require a weighing of the evidence, not mere arguments on the law. Such a multitude of disputed and highly specific factual contradictions, enhanced by the volume of the motions and reply, raises a cacophony of arguments that cannot be settled in a mere summary judgment hearing. J.A. 1127. The court scheduled a bench trial for November 13, 2007. On the eve of trial, Plaintiffs’ counsel requested a continuance to address a serious medical problem in his family, and the court granted the continuance. Neither party filed anything with the court between November 13, 2007, and November 24, 2008. Over one year after the court denied the cross motions for summary judgment, on November 24, 2008, the district court issued an amended order, granting summary judgment to the Plaintiffs. The court offered no explanation for the change, and none is apparent, since the court did not receive any fil- ings or additional briefing between its first and second rul- ings. In its amended order, the district court applied the same reasonableness analysis from Multimedia that it used in its 22 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. first opinion. The only difference was that — without receiv- ing any new factual evidence or hearing any new legal argu- ments — it methodically reversed each of its prior conclusions, converting genuine and material factual disputes into legal conclusions simply by declaring them as such. J.A. 1140-42. IV. Clearly, the legal framework set forth in Multimedia con- trols the outcome of this case. The question presented under Multimedia is whether the ban is reasonable "in the light of the purpose[s] of the forum and all the surrounding circum- stances." 991 F.2d at 159. The Authority must establish a rea- sonable fit between its ends and its means. Bd. of Trustees of State University of N.Y. v. Fox, 492 U.S. 469, 480 (1989). The fit need not be perfect, only reasonable. The Multimedia test evaluates the severity of the burden imposed by the ban, and then weighs that burden against the government’s interests and asks if the ban is reasonable. See Maj. Op. at 12-13. A. As did the majority, I start by quantifying the burden suf- fered by potential newspaper customers. In Multimedia, the court’s burden analysis focused on whether newspaper dis- tributors and potential newspaper buyers had access to news- papers via alternative channels such as gift shops or retail stores. Multimedia, 991 F.2d at 159. This analysis hinges not upon a projected difference in newspaper sales but rather upon the Publishers’ access to Airport users for speech pur- poses. See Lee, 505 U.S. at 684. To help identify the overall burden suffered by the custom- ers at the Airport, it is useful to contrast the situation at the Airport with the situation at Greenville-Spartanburg Airport ("GSP"), the airport at issue in Multimedia. This comparison makes it clear that a factfinder could reasonably find that the NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 23 Airport’s customers suffer only a minimal burden. The Air- port boasts significantly more newspaper vendors, the vendors are open longer hours, and the newspapers sold by these ven- dors are more prominently displayed. Customers at the Airport enjoy substantially broader and easier access to newspapers than those at GSP. Prior to Multi- media, GSP contained only one shop, and it was "a substantial distance from the gate areas." Multimedia, 991 F.2d at 159. Moreover, the sole shop was accessible only in one of the GSP’s two terminals. At the Airport, however, customers may choose between multiple gift shops in both of its terminals, both inside and outside the secure passenger area.1 The shops at the Airport are also open longer. At GSP, the single shop was open from 6:30 a.m. to 9:00 p.m. Multimedia, 991 F.2d at 160. Here, the newspaper vendors are open before the first flight leaves the Airport each morning and they remain open until after the last flight departs each evening, typically from as early as 4:30 a.m. to as late as 9:00 p.m. J.A. 296. Further, many shops remain open after the last flight is scheduled to depart if extraordinary events, such as bad weather, cause flight delays. J.A. 296, 327, 352. The newspapers at the Airport are also more prominently displayed than they were at GSP. The shops draw attention to their newspapers with displays visible from outside the shops. J.A. 327, 326-27. At GSP, the only shop that sold newspapers did not display them visibly, and instead, the newspapers were put in the back of the shop on a flat shelf. Multimedia, 991 F.2d at 160. At the time the district court denied summary judgment, Terminal A had five shops and two kiosks selling newspapers, with one of those shops and one of those kiosks located outside the secure passenger area. J.A. 413-15. Terminal C had three shops selling newspapers, one located out- side the secure passenger area and two in the secure area. J.A. 289-290. 24 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. For all of these reasons, it is clear that the burden on pas- sengers at the Airport is considerably less onerous than the pre-Multimedia burden imposed on GSP passengers. But the analysis does not end with a simple comparison, because a review of the absolute burden imposed on the Airport’s pas- sengers by the newspaper rack ban also demonstrates the weakness of the burden. The overall burden is weak because the vast majority of passengers flow through the Airport when shops selling news- papers are open, and it is undisputed that these passengers have access to newspapers. More specifically, approximately 500 passenger flights arrive and depart from the Airport daily. J.A. 418. Of these 500 flights, all departing passengers and 90% of arriving passengers have full access to open shops. Id. The small percentage of passengers who lack access to the shops are those who arrive in the late evening, after 9:00 p.m. As the Authority demonstrates, these late arrivals are extremely unlikely to buy anything because they are deplan- ing passengers, and deplaning passengers account for only 10% of all airport purchases. Id. (explaining that enplaning (i.e., departing) passengers make 90% of all airport pur- chases). Further, as a matter of common sense and logic, see Multimedia, 991 F.2d at 160, passengers who arrive at an air- port in the late evening are unlikely to buy newspapers. By 9:00 p.m., the day is over; the newspaper that was published earlier that morning contains outdated news, soon to be replaced by the next day’s newspaper. For all of these rea- sons, very few people are practically affected by this ban.2 Although the majority purports to draw all reasonable infer- The majority notes that the Airport’s "tightly contained character enhanced" the burden imposed by the newspaper rack. But the Authority offered to permit the Observer to install newspaper racks in its garages. J.A. 230. If the Observer had installed such newspaper racks, deplaning passengers who arrived late in the evening — assuming that they wanted newspapers — would have had access to purchase them. NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 25 ences in favor of the Authority as the non-movant, its burden analysis suggests otherwise. The majority finds that passen- gers suffer a heavy burden when they attempt to purchase newspapers because (1) travelers had "trouble buying newspa- pers from the shops[,]" (2) "[t]here were instances of unavailability during the early morning," and (3) "the shops would sell out of The Herald-Sun." Maj. Op. at 11. These assertions are removed from their factual context and fail to accord the Authority the proper favorable inferences to which it is entitled under our precedents. As to the first issue, the overwhelming evidence is that travelers did not have trouble buying newspapers at the shops.3 Travelers could patronize any one of multiple stores open for their convenience, all of which sold newspapers and displayed them prominently. At the time the district court denied sum- mary judgment (before it granted summary judgment on the same evidentiary record), Terminal A had five shops and two kiosks selling newspapers, with one of those shops and one of those kiosks located outside the secure passenger area. Termi- nal C had three shops selling newspapers, one located outside the secure passenger area and two in the secure area. Further, The majority may be referring to the occasional complaint received by the Authority. The evidence shows that the Authority received very few complaints about newspapers, J.A. 296, 424, and that most complaints referred to the lack of newspapers early in the morning. J.A. 313. Between November 2004 and August 17, 2007, less than 0.7% of the total feedback (or 9 of 1283 complaints) to the airport expressed any concern about access to newspapers. J.A. 417; see also J.A. 1068 (statistics from April of 2003); J.A. 313 (airport has received less than 5 complaints about news- papers since moving its complaint system online); J.A. 424 (airport received one request in 2007 to keep newsstands open later on non-secure side of airport). The Airport concedes that it received some complaints directly after September 11, 2001, but that those complaints probably resulted from the then-new rules that forbid non-ticketed passengers access to the terminals. J.A. 295. The sum of these complaints is minor, especially considering that the airport was undergoing construction and rule changes regarding airport security throughout part of this period, two issues that gave rise to temporary problems that were quickly resolved. 26 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. if newspaper purchasers did not want to wait in line, they could use the "honor boxes" posted in some stores. J.A. 327. The majority also claims that the facts demonstrate that newspapers are sometimes unavailable in the morning, but it omits mentioning the reason that newspapers are unavailable in the morning. The reason that newspapers are sometimes not available in the morning is not because of the newspaper rack ban. Instead, it is because the Publishers deliver the newspa- pers late. J.A. 352-53. The Airport’s stores open before the first flight departs, and the shops’ employees attempt to pick up the newspapers before they open or immediately upon open- ing.4 J.A. 328, 352-53, 430-31. But, the papers are often deliv- ered late to the Airport by the Publishers. The shops cannot sell the papers until the Publishers deliver them. The majority’s last assertion, that on rare occasions, some shops sold out of The Herald Sun, also overlooks or ignores some key evidence in the record. The record shows that the shops rarely run out of papers, and that when they do, the shop employees simply ask the Publishers to deliver more. J.A. 330. This presents the Publishers with the same choice that they would face with an empty newspaper rack, and in either case, the Publishers would be free to decide whether to deliver additional papers, or not. For all of these reasons, it is clear that a factfinder could reasonably find that the newspa- per rack ban imposes only a modest burden. The Paradies stores (CNBC New, Press, and two Press Plus locations), J.A. 326, attempt to pick up newspapers no later than 5:20 a.m., but often, the papers are not available until 6:00 a.m. J.A. 327-28, 430-31. The three Hudson stores open between 4:30 a.m. and 5:00 a.m., and check the load- ing dock for newspapers every fifteen minutes. J.A. 352-53. These stores report that the USA Today and The News & Observer are typically deliv- ered around 5:30 or 6:00 a.m., and that the New York Times and Durham Herald Sun often do not arrive until 6:00 a.m. or later. Id. Thus, due to no fault of their own, the stores sometimes open without newspapers. NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 27 B. As does the majority, I turn next to determine whether the Authority asserted legitimate interests that, when considered together, present a genuine dispute of material fact as to whether the ban is reasonable in light of the burden that it imposes. See Maj. Op. at 11. As a threshold matter, I noted that the facts of this case differ from those of Multimedia in one very critical way.5 In Multimedia, the district court con- cluded that the governmental interests asserted as justification for the ban were post hoc, pretextual creations. Multimedia, 991 F.2d at 162. We affirmed. Thus, in Multimedia, the court found the "government interest" side of the balancing test to entirely lack credibility. Id. Manifestly, the same is not true here. In fact, the Airport’s four justifications create genuine issues of historical as well as ultimate fact regarding the rea- sonableness of the ban "in the light of the purpose of the forum and all the surrounding circumstances." Multimedia, 991 F.2d at 159. Thus, this case should be resolved at trial and not decided as a matter of law. The Authority offers four justi- fications for its ban on newspaper racks: revenue and eco- nomics, security, passenger flow, and aesthetics.6 I review each in turn. There are also important procedural differences here as the Multimedia decision followed a trial, not a grant of summary judgment. Here, the Authority presented substantial economic arguments that were based on a master concession plan created in collaboration with neu- tral paid consultants. This plan was comprehensive and thoughtful, and it also increased the Authority’s revenue. The majority argues that the Authority’s master concession plan is not probative evidence because it did not explicitly consider newspaper racks. But this assertion seems illogical — obviously there are at least two ways to sell newspapers, via stores and via newsracks. When the Authority cre- ated its master plan, it hired two outside consulting firms and performed customer surveys. It was surely aware of the possibility of using newspa- per racks, but decided against it, and ultimately selected a plan that sold newspapers through retail shops in order to maximize its revenues. J.A. 285. And the plan worked — it boosted retail sales 68% and increased rental revenue from those sales by 17%. J.A. 298. 28 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 1. Under federal law, the Authority must be financially self- sustaining and the revenues generated at the Airport should be expended only for its capital and operating costs. 49 U.S.C. § 47107(a)(13) & (b)(1). Thus, the strongest justification for the ban of newsracks is that it increases the Authority’s reve- nue. Selling newspapers in stores increases revenue in three ways: it increases store rents, it increases retails sales, and it increases advertising revenues. Increased sales drive up the store rents because stores pay additional rent based on their retails sales, generally 10% of gross receipts. J.A. 1027-28. Drawing all reasonable inferences in favor of the Authority, selling newspapers in stores dramatically increases retail sales and therefore, Authority income. J.A. 283-88, see J.A. 266- 68, 271-2 (explaining the "node approach" to retail shopping where retail and food stores are clustered together to encour- age impulse buying). Store-selling generates two streams of revenue. First, the stores generate significant income from selling the physical newspaper. J.A. 266, 285. An Airport Retail Store Executive with several stores at the Airport explained that the New York Times and USA Today are both in the top 20 of items sold in his stores, and that USA Today is among its highest gross profit items. J.A. 267. Experts esti- mated that in 2004, the loss of newspaper sales alone would total $25,200. J.A. 273. The second revenue stream, income produced by the impulse buys of newspaper purchasers, is even more substan- tial.7 Newspaper sales spark the sale of items like bottled water or chewing gum, and these small purchases generate The majority suggests that the Airport could re-coup the lost revenue by "exact[ing] a concession for papers sold from newsracks equal to that assessed against the shop." Maj. Op. at 14 (citing Multimedia, 991 F.2d at 161). But this argument only applies to lost revenue from the sales of the actual newspapers, not lost sales from impulse buying. NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 29 not-so-small profits. One Airport retail executive explained that newspapers help his profits because newspapers (like bottled water) are in my view the equivalent of bread and milk at grocery stores. . . we have observed the people come into our shops to buy newspapers, but once they are there, they buy other items. If newspaper racks were put inside the airport, it would impact sales. J.A. 226. Other sales managers at the Airport agree. J.A. 327, 352. Thus, taking the majority’s suggestion at face value, even if the Authority could charge the Publishers a premium to allow installation of newsracks, "a reduction in total reve- nue would still exist because of the lost sales on related goods and services also available at the newsstands." See Gannett, 716 F. Supp. at 152; Jacobsen, 128 F.3d at 664 (noting that installing newsracks would cause concessionaires to "lose revenues, making its exclusive contract less valuable, . . . [which] in turn will reduce the City’s leverage in bargaining for terms such as minimum annual concession fees and pro rata utility charges."). Each of these income streams increases the funds that accrue to the Authority. Installing newspaper racks would also likely decrease advertising revenue at the Airport. The Authority sells adver- tising space on the Airport’s walls and in floor display cases; the vast majority of such space, about 95%, comprise wall displays. J.A. 272. These ads produce an average of $1,750,000 in sales annually, which translates into approxi- mately $875,000 in annual revenue to the Authority. J.A. 292. Since all newspaper racks must be placed on the floor,8 The record is clear that newspaper racks cannot be installed in walls. The Authority provided ample evidence to show that it has little or no interstitial wall space that could support recessed newsracks. J.A. 320, 324, 1017-18. Any existing space is already occupied with ATM machines, telephones, or fire extinguishers. J.A. 320. Thus, the only way to incorporate the boxes would be to install them on the floor either adjoining or adjacent to the walls. J.A. 1018. 30 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. installing newspaper racks would eliminate floor space avail- able for advertising displays and cover some wall ads. J.A. 250, 272, 292. Thus, newspaper racks will likely decrease the Authority’s ability to generate advertising revenue, and decrease it substantially.9 If, for example, twenty-five percent of wall space was displaced by newspaper racks, the Author- ity would lose between $182,000 and $214,000 in annual rev- enues. J.A. 274. The Authority’s losses from rents, retail sales, and advertis- ing revenue sum to hundreds of thousands of dollars. It has a substantial interest in keeping this money, and perhaps an interest that might make reasonable the modest inconvenience that the newspaper ban imposes on a few late-night passen- gers. Again, the issue here is merely whether a factfinder could find that this ban is reasonable after considering the severity of the burden imposed by the ban, here, a very mod- est burden, in light of all of the Authority’s interests, includ- ing but not limited to the Authority’s interest in generating revenue. Tellingly, the majority finds that the "Authority’s interest in preserving revenue cannot counterbalance the significant restriction on protected expression." Maj. Op. at 15. But as an appellate court, we are not in the position of a factfinder. Moreover, all of the Authority’s interests must be considered jointly, not individually. And finally, this statement is striking because the issue is not whether the Authority should win at trial — it is merely whether the Authority successfully dem- onstrated a genuine issue of material fact and therefore deserves an opportunity to go to trial. Adding newsracks would also not increase the Publishers’ sales. Evi- dence from other North Carolina airports shows that when airports have newsracks and retail stores, the vast majority of buyers flock to the stores. For example, sales of USA Today from newsracks at Charlotte, Greens- boro, and Wilmington airports total .91%, 3.49%, and 3.14% of total sales at these airports—very small numbers indeed. J.A. 379. At best, news- racks re-direct a few sales. NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 31 It is worth noting that economics and revenue arguments can be sufficiently strong on their own to make the newspaper rack ban reasonable. See Gannett, 745 F.2d at 775 ("When a government agency is engaged in a commercial enterprise, the raising of revenue is a significant interest."). But the Author- ity provided additional justifications, e.g., security, passenger flow, and aesthetics, to which I will now turn. 2. The Authority asserts the reduction of security risks as a government interest.10 As a matter of common sense and logic, security is of paramount importance at airports in our post-9/11 world. First and foremost, officials worry that the newsracks could be used to hide explosive devices or weap- ons. J.A. 244-45. Airport security would need to check these potential hiding places several times each day. J.A. 317. Although the TSA does not have any regulation that bans newsracks, a TSA Director opined that "based on my 20+ years of physical security experience, I would discourage this in the strongest possible terms. This is an invitation for trou- ble." J.A. 247-48. In light of this advice, since 9/11, the Authority has removed all vending machines except ATM machines from the secure side of the terminal. J.A. 232, 291.11 The majority, instead of considering the record, relies on a The majority dismisses these concerns because it does not distinguish the impact of newsracks from plants, vending machines, racks displaying brochures, ATM machines, email stations, trash bins, and similar objects already present. Maj. Op. at 16. As the factual record makes clear, how- ever, after the increased security following 9/11, the Airport removed all such items (except ATM machines) from the secure part of the terminal. There is no evidence that the Publishers merely want to put newspaper racks on the unsecure side of the terminals, so the court must consider the security concerns for the secure side of the terminal. The non-secure side of the terminal has a few vending machines such as a luggage cart machine, public telephones, a phone card dispenser, a flower machine, and a flight insurance kiosk. J.A. 232, 291. 32 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. citation from Multimedia that the risk posed by newsracks is "de minimis." Multimedia, 991 F.2d at 162. But this quote loses it persuasiveness once it is placed in its proper context: it predates September 11, 2001. The imperative of airport security has changed dramatically, and governmental efforts in these regards certainly have grown more vigorous. For example, only ticketed passengers and badged support person- nel who have undergone background security checks are per- mitted to pass into the secure areas of passenger terminals now. J.A. 911-912, 971-72. Similarly, TSA now requires that all newspapers go through security checkpoints. In contrast, Multimedia was decided in 1993, significantly before these security changes were deemed necessary. The majority also improperly discounts the testimony of the Deputy Airport Director for Operations Mike McElvaney. McElvaney provided an affidavit stating that placing news- racks throughout the terminal would create security risks and burden security personnel, who would need to screen delivery persons and repeatedly check the racks for contraband. J.A. 316. The majority completely undercuts his testimony simply on the basis that he responded to the Publishers’ demand to install 208 newspaper racks. The majority does not cite any evidence that actually discredits McElvaney, nor does the majority indicate any reason to believe that installing fewer than 208 newsracks would completely eliminate potential security problems. Instead, without any support from the evi- dentiary record, the majority assumes that "a carefully cali- brated newsrack presence" would not create more than a "de minimis" risk. Maj. Op. at 17. I would not discount McEl- vaney’s testimony, and would instead permit a factfinder to apply it to the government’s case for establishing reasonable- ness. In sum, security risks are a legitimate factor to be con- sidered in the reasonableness analysis. NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 33 3. The arguments for passenger flow and aesthetics are the Authority’s secondary arguments, but the majority gives short shrift even to those. I disagree particularly with the majority’s disregard for the Authority’s passenger flow argument.12 The majority acknowledges the Authority’s argument that each newsrack "reduces pedestrian traffic flow capacity by 110 people per minute, without allowing for any baggage placed on the floor while the device is in use." Maj. Op. at 15 (citing Gannett Satellite Info. Network, Inc. v. Berger, 716 F. Supp. 140, 153 (D.N.J. 1989), rev’d on other grounds, 894 F.2d 61 (3d Cir. 1990)). But instead of crediting this demonstrated pedestrian hindrance, the majority, without justification, wholly discounts it. More specifically, the majority opinion sets up a straw-man when it considers only "how much congestion would result from a ‘limited number’ of carefully placed newsracks," Maj. Op. at 15, and then leaps to the conclusion that the congestion caused by these newsracks would be "trivial" and "cannot jus- tify the Commission’s ban." Id. But this conclusion misses the mark for three reasons. First, the majority should not work from the assumption of a "limited number" of newsracks. Granting all favorable inferences to the Authority, it is clear that the Publishers want 208 newsracks distributed throughout the Airport, not a limited number. This court is asked to review a summary judgment order, not to give instructions on how to run an airport. Second, regardless of the number of newsracks, the major- ity should not ignore the very real hindrance that these racks A factfinder understandably might be less concerned about aesthetics. The Authority relies principally on concerns about visual clutter. J.A. 250. Although this concern is valid to the extent that increased clutter translates into decreased advertising revenues, id., the pure aesthetics argument does little to help the Authority’s cause. 34 NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. impose on passenger flow. If each newsrack impedes pedes- trian traffic flow by 110 people per minute, 208 newsracks impedes 200,000 people per minute, and a quarter of that number of newsracks impedes almost 6,000 people per min- ute. This slow-down could cause real trouble, particularly dur- ing peak hours or during the holiday season. At the very least, it is a valid government objective deserving of consideration at trial. Lastly, the majority again forgets to consider all of the Authority’s interests in tandem and holistically, instead deter- mining that "the Authority’s interest in preventing congestion cannot counterbalance the significant restriction on protected expression." Maj. Op. at 16. The majority should balance all of the government’s proposed interests against the burden imposed by the ban, not weigh each argument individually and atomistically. Thus, whether or not the passenger flow argument is dispositive as a stand-alone argument is entirely inconsequential. It is simply one evidentiary peg giving rise to a discrete argument, which is to be weighed with others against the burden imposed by the ban to determine if the ban is reasonable. C. The ultimate issue before the trial court is whether the Authority’s ban is found reasonable when the Authority’s interests are weighed against the burden imposed by the ban. Multimedia, 991 F.2d at 159. Here, the evidence shows that the government has significant interests in generating revenue and in airport security, along with a modest interest in ensur- ing smooth passenger movement. Further, the evidence amply supports a finding that the burden imposed on the Publishers and on readers by this ban on newspaper racks is, if not de minimis, negligible. It affects a very small number of airport passengers, all of whom are statistically unlikely to purchase newspaper. Despite these factors, the majority finds the NEWS AND OBSERVER v. RALEIGH-DURHAM AIRPORT AUTH. 35 Authority’s ban on newspaper racks unreasonable as a matter of law. With respect, although the majority describes this conclu- sion as a legal conclusion, the evidence in the summary judg- ment record exposes it as the factual conclusion that it truly is. There simply is no doubt that reasonable minds might rea- sonably disagree over how best to strike the balance in this case. Accordingly, I conclude that the district court’s work is not finished and that this court cannot and should not do that work for the district court. I would therefore vacate the order of the district court and remand this case for a trial on the merits of Plaintiffs’ claims and the Authority’s affirmative defenses. V. For all of the above reasons, I respectfully dissent.

PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT In Re: LISA M. KIRKLAND,  Debtor. EDUCATIONAL CREDIT MANAGEMENT CORPORATION,  No. 09-1379 Plaintiff-Appellant, v. LISA M. KIRKLAND, Defendant-Appellee.  Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. Norman K. Moon, District Judge. (6:09-cv-00002-nkm; 01-00627-WA1) Argued: January 26, 2010 Decided: March 12, 2010 Before MOTZ, KING, and AGEE, Circuit Judges. Reversed by published opinion. Judge Agee wrote the major- ity opinion, in which Judge Motz joined. Judge King wrote a dissenting opinion. 2 IN RE KIRKLAND COUNSEL ARGUED: Troy A. Gunderman, EDUCATIONAL CREDIT MANAGEMENT CORPORATION, Oakdale, Minnesota, for Appellant. Stephen Eldridge Dunn, STEPHEN E. DUNN, PLLC, Forest, Virginia, for Appellee. ON BRIEF: James C. Joyce, Jr., JAMES C. JOYCE, JR., PLC, Roanoke, Virginia, for Appellant. OPINION AGEE, Circuit Judge: Educational Credit Management Corporation ("ECMC") appeals the district court’s determination that the bankruptcy court had jurisdiction to determine the post-petition interest and collection costs to which ECMC was entitled as the result of a default on a student loan that occurred after the Chapter 13 estate was closed and the debtor discharged. For the rea- sons set forth below, we conclude the bankruptcy court lacked subject matter jurisdiction as to the issues of collection costs and post-petition interest in this case, and we reverse the judg- ment of the district court. I. On eight separate occasions between 1989 and 1995, Lisa M. Kirkland borrowed money from Sallie Mae in order to finance her college education. ECMC, United Student Aid Funds, Inc. ("USAF"), and the New Jersey Higher Education Assistance Authority ("NJHEAA") guaranteed the loans. In February 2001, Kirkland filed a Chapter 13 bankruptcy petition in the United States Bankruptcy Court for the West- ern District of Virginia, properly listing all of the loans as debts. Sallie Mae filed five proofs of claim, three of which IN RE KIRKLAND 3 were allowed: claim no. 6 in the amount of $8,126.72 (guar- anteed by USAF), claim no. 7 in the amount of $2,680.59 (guaranteed by NJHEAA), and claim no. 9 in the amount of $4,737.27 (guaranteed by ECMC). At the time Kirkland filed her petition, none of the student loans were in default. Kirkland’s approved Chapter 13 bankruptcy plan provided for sixty monthly payments of $700. The plan was designed so that Kirkland would pay the three Sallie Mae loans in full, except for any interest that accrued on the loans during the pendency of the bankruptcy. Kirkland timely made 55 monthly payments, totaling $38,500.00, to the Chapter 13 Trustee. For reasons not entirely clear from the record, the Chapter 13 Trustee scheduled lower amounts to be paid on each of Sallie Mae’s claims than what the bankruptcy court had approved based on the filed proofs of claim. Compounding this error, sums that were scheduled to be paid toward claim no. 9 were actually paid toward claims no. 6 and 7, causing an overpayment on those claims, and no payment on claim no. 9. Sallie Mae refunded the amount that had been overpaid on claims no. 6 and 7 to the Chapter 13 Trustee. Because the Chapter 13 Trustee’s records incorrectly showed that all the claims in the bankruptcy estate had been paid in full, he refunded the money received from Sallie Mae directly to Kirkland and did not require her to make the final five plan payments. Instead, the Chapter 13 Trustee filed a final report, the order of discharge was entered, and, in February 2006, the case was closed.1 Following the close of her bankruptcy proceeding, Kirkland It is not clear from the record why the Trustee used lower claim amounts, as no order reduced the loan amounts as filed in each of Salle Mae’s allowed claims. Nor is it clear from the final report how the Trustee accounted for the supposed overpayment on claims no. 6 and 7, or the refund that Sallie Mae paid to the bankruptcy estate. 4 IN RE KIRKLAND began receiving notices that she owed Sallie Mae approxi- mately $5,000. Kirkland sought additional documentation, and Sallie Mae asserted that she still owed the entire principal loan amount reported in claim no. 9, plus the accrued interest. In June 2007, Kirkland filed an adversary proceeding against ECMC in the bankruptcy court, styled a Complaint to Determine Dischargeability of Debt ("Complaint").2 Kirkland asserted that since the loan had been properly listed as part of her Chapter 13 plan, it should have been paid in full by the Chapter 13 Trustee during the pendency of her bankruptcy estate, and the claim was thus discharged as part of the bank- ruptcy proceeding. Kirkland specifically acknowledged in her Complaint "that interest that accumulated during the term of the Chapter 13 would be non-dischargeable," and that she was responsible for paying the post-petition interest that had accrued on the loan. Accordingly, she asked the court to determine only that the loan principal had "been paid in full and discharged except to the extent of any interest that may have" accrued during the bankruptcy proceeding. J.A. 5. ECMC responded that claim no. 9 had not been paid during Kirkland’s bankruptcy proceeding and consequently the court could not declare that the loan had been discharged.3 ECMC further maintained that the bankruptcy court could not now adjudicate the student loan obligation as discharged unless it made a finding of undue hardship, which Kirkland had neither pled nor shown. Neither Kirkland nor ECMC asked the bank- ruptcy court to make any determination as to post-petition interest or collection costs. In its memorandum and judgment, the bankruptcy court concluded that it had jurisdiction "over this matter" pursuant Sallie Mae appeared as a co-defendant until the appeal to the district court. For ease of reference, the opinion will refer simply to ECMC. ECMC also averred that Sallie Mae had assigned the student loan debt to ECMC, who was now the holder of the debt. IN RE KIRKLAND 5 to 28 U.S.C. §§ 1334(a) and 157(a), also noting that the pro- ceeding was a "core proceeding" under § 157(b)(2)(A). The court then noted that student loans are nondischargeable in bankruptcy absent proof of undue hardship, found that no amount had been paid on Kirkland’s loan during her bank- ruptcy, and held that Kirkland owed ECMC the full amount of principal due on the loan, $4,737.27. It observed that the Chapter 13 Trustee "cannot unilaterally reduce the amount of an allowed claim," J.A. 86, and that although Kirkland "was not at fault for the return of funds to the chapter 13 trustee, she cannot keep the money refunded to her and, at the same time, claim that she paid it to Sallie Mae." J.A. 87. The bankruptcy court then stated that Kirkland and ECMC "agree that some amount of interest has accrued to date since the filing of" the bankruptcy petition. J.A. 87. It observed that Kirkland had not disputed the sum ECMC included in the documentation it filed with the court, and so it awarded ECMC $184.40 in post-petition interest.4 Lastly, the court stated that it was not awarding ECMC any collection costs because ECMC "has not provided any statutory or factual basis for the accrual of" such costs. J.A. 87. ECMC filed a motion to alter or amend, contending that it should have been awarded more than $184.40 in post-petition interest because that amount ignored the full amount of "inter- est incurred during the Bankruptcy and the capitalized interest since." J.A. 94. In addition, ECMC asserted it was entitled to collection costs under the applicable statute and implementing regulations, which set a fixed amount of costs to be imposed.5 ECMC filed an exhibit in the bankruptcy court reflecting the principal due on the loan to Kirkland of $4,737.27, but also showing interest of $184.40. It is unclear from the record why ECMC claimed any amount of post-petition interest in Kirkland’s discharge proceeding, or what the amount of $184.40 represented. Specifically, ECMC contended the bankruptcy court lacked discretion to deny collection costs because the federal regulation implementing 20 6 IN RE KIRKLAND The bankruptcy court denied ECMC’s motion and held that although ECMC was legally entitled to post-petition interest, it was also responsible for providing the court with sufficient information to determine the amount of interest due. Conse- quently, it held that because ECMC had only provided docu- mentation of accrued interest in the amount of $184.40, that was the only amount ECMC could recover. In addition, the court held that under its reading of the relevant statute and federal regulations, ECMC was only entitled to "reasonable" collection costs based on whatever amount would be incurred by a prudent creditor under the circumstances. Finding that ECMC had failed to act as a prudent creditor during the pen- dency of Kirkland’s bankruptcy, the court held ECMC was partially responsible for the events resulting in post-petition default on the loan and concluded that no collection costs were appropriate. On appeal to the district court, ECMC asserted for the first time that the bankruptcy court, and now the district court, lacked subject matter jurisdiction to make any determination as to either post-petition interest or collection costs. The dis- trict court rejected that contention, for the reasons discussed below. As did the bankruptcy court’s, the district court’s sub- stantive analysis focused on ECMC’s failure to prove that it was owed a greater amount of post-petition interest than $184.40. The district court also affirmed the bankruptcy court’s determination to award no collection costs, observing that although a creditor was entitled under 20 U.S.C. U.S.C. § 1091a(b)(1) — 34 C.F.R. § 682.410(b)(2) — requires the assess- ment of actual collection costs or, in the alternative, the lesser of two cal- culations (1) the amount the same borrower would be charged for collection costs under the formula provided in 34 C.F.R. § 30.60, or (2) the amount the borrower would be charged for collection costs if the loan were held by the Department of Education. ECMC argued the bankruptcy court mistakenly relied upon a definition of "reasonable collection costs" that did not apply to 34 C.F.R. § 682.410(b)(2). IN RE KIRKLAND 7 § 2091a(b)(1) to reasonable collection costs, the statute did not guarantee a specific amount. ECMC noted a timely appeal and this Court has jurisdiction based on 28 U.S.C. § 158(d). II. When reviewing a decision by a district court in its capacity as a bankruptcy appellate court, this Court examines factual findings of the bankruptcy court for clear error and reviews legal conclusions de novo. See IRS v. White (In re White), 487 F.3d 199, 204 (4th Cir. 2007). Whether subject matter juris- diction exists is a question of law that we also review de novo. See New Horizon of NY LLC v. Jacobs, 231 F.3d 143, 150 (4th Cir. 2000). III. On appeal, ECMC contends that the bankruptcy court, and consequently the district court, lacked subject matter jurisdic- tion to determine or award collection costs and post-petition interest. Specifically, ECMC asserts the bankruptcy court "lacked authority to discharge the post-petition interest and collection cost part of the student loan debt" because those obligations arose after Kirkland filed her bankruptcy petition and were unrelated to the loan principal represented by claim no. 9. Appellant’s Br. 21. Although ECMC failed to raise the issue of subject matter jurisdiction in the bankruptcy court, we can always consider whether subject matter jurisdiction exists. New Horizon, 231 F.3d at 150. Subject matter jurisdiction cannot be forfeited or waived, and can be raised by a party, or by the court sua sponte, at any time prior to final judgment. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). Accordingly, ECMC’s failure to raise the issue of subject matter jurisdiction in the bankruptcy court is not dispositive. 8 IN RE KIRKLAND "Federal bankruptcy courts, like the federal district courts, are courts of limited jurisdiction." Canal Corp. v. Finnman (In re Johnson), 960 F.2d 396, 399 (4th Cir. 1992). Two stat- utes govern jurisdiction over bankruptcy proceedings, 28 U.S.C. §§ 157 and 1334. Under the latter statute, district courts "have original and exclusive jurisdiction of all cases under title 11," and "original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases until title 11." § 1334(a), (b). Under § 157, district courts can refer § 1334(a) and (b) cases to bankruptcy courts. § 157(a). While subject matter jurisdiction is deter- mined by § 1334, the application of § 157(b) and (c) deter- mines the bankruptcy court’s authority to act once that jurisdiction is established. See Valley Historic Ltd. P’ship v. The Bank of New York, 486 F.3d 831, 839 n.3 (4th Cir. 2007). The sole issue raised in Kirkland’s complaint requested that the bankruptcy court determine the dischargeability of her obligation to pay ECMC the principal of her loan. ECMC has not questioned the bankruptcy court’s jurisdiction in this regard, and the bankruptcy court clearly had subject matter jurisdiction to determine the issue of discharge as to the prin- cipal of the loan represented by claim no. 9.6 However, without separately analyzing its authority to do so, the bankruptcy court proceeded sua sponte to adjudicate collection costs and post-petition interest. The bankruptcy court proceeded on this course despite the fact that Kirkland specifically acknowledged in her pleading that she owed post- petition interest to ECMC and excluded that interest from her Because Kirkland sought a determination that the principal obligation had been discharged during her bankruptcy proceeding, the bankruptcy court had jurisdiction under § 1334. In addition, even more directly on point than the subsection identified by the bankruptcy court, § 157(b)(2)(I) lists "determinations as to the dischargeability of particular debts" as con- stituting a core proceeding. In any event, this component of the bank- ruptcy court’s decision — the nondischargeability of the principal loan obligation — is not at issue on appeal. IN RE KIRKLAND 9 request to determine the dischargeability of the underlying principal of the loan. Moreover, the record does not reflect that either party ever requested the bankruptcy court to make a determination as to whether post-petition interest or collec- tion costs were owed to ECMC, much less the amount. The bankruptcy court’s May 2008 memorandum opinion is the first occasion where those issues arise. After the bankruptcy court’s memorandum and judgment raised the matters of post-petition interest and collection costs, ECMC challenged that decision in its motion to alter or amend, but did not question the court’s jurisdiction to con- sider those issues. Not surprisingly, the bankruptcy court did not discuss its subject matter jurisdiction to consider the issue of post-petition interest and collection costs when it denied ECMC’s motion. ECMC first questioned subject matter jurisdiction in its brief to the district court, which noted that although ECMC had not raised the issue in the bankruptcy court, subject mat- ter jurisdiction may be questioned at any stage of litigation, including an appeal. ECMC contended that the bankruptcy court "lacked subject matter jurisdiction to determine Kirk- land’s obligation for interest and collection costs" because those issues "do not arise under, arise in, or relate to cases under Title 11." J.A. 135. The district court reviewed the concepts of "arising in," "arising under," and "related to" jurisdiction, citing our deci- sion in Valley Historic Ltd. Partnership v. Bank of New York (Valley Historic), 486 F.3d at 835-36. However, the court’s analysis seems to focus on jurisdiction to adjudicate the dis- chargeability of the principal of the student loan debt, an issue not raised or contested by the parties.7 The district court Among the court’s statements to this end are: "[T]he fact that Kirkland had not paid [claim no. 9] when she brought the adversary proceeding means that there was a ‘conceivable bankruptcy administration purpose’ 10 IN RE KIRKLAND offered only a conclusory statement directed to the separate matter of subject matter jurisdiction over the issues of post- petition interest and collection costs: Kirkland would have never had to bring the adver- sary proceeding against Sallie Mae and ECMC in Bankruptcy Court were it not for the problems that arose out of her closed Chapter 13 bankruptcy case. The post-petition interest and collection costs sought by ECMC in the Bankruptcy Court, for example, would not have even been at issue were it not for the maladministration of the bankruptcy plan and the initial bankruptcy proceeding. The controversy at issue between Kirkland and ECMC would have had no practical existence but for the bankruptcy. Kirk- land’s case was not only one "related to" a case under Title 11, but also one "arising in" Title 11. The Bankruptcy Court therefore had subject matter juris- diction to rule on the issues before it. J.A. 138. We disagree, and hold that the bankruptcy court lacked subject matter jurisdiction to determine the issues of post- petition interest and collection costs to award ECMC. ECMC’s claim to post-petition interest and collection costs is not a matter "under Title 11," nor is it a civil proceeding "aris- ing in," or "related to" Kirkland’s bankruptcy petition. This is so because ECMC’s claims to post-petition interest and col- lection costs arose entirely independent from Kirkland’s bankruptcy proceeding. to be served . . . ." J.A. 137. "Because the adversary proceeding would not have been necessary but for the errors contained in the plan and the Trust- ee’s Report, there is a strong enough nexus to uphold the Bankruptcy Court’s jurisdiction over this matter." J.A. 137. IN RE KIRKLAND 11 ECMC’s claim to post-petition interest or collection costs does not "aris[e] under Title 11." A claim "aris[es] under Title 11" if it is a cause of action created by the Bankruptcy Code, and which lacks existence outside the context of bankruptcy. Aheong v. Mellon Mortgage Co. (In re Aheong), 276 B.R. 233, 242-46 (B.A.P. 9th Cir. 2002). ECMC’s claim for post- petition interest or collection costs does not satisfy this requirement. Post-petition interest is based on a contractual right created by the loan agreement and, as detailed below, the right to collect such unmatured interest is not affected by or part of the bankruptcy proceeding. Collection costs are a con- tractual obligation, but in the student loan context also based on the statutory right set forth in 20 U.S.C. § 1091a(b)(1), providing that individuals who borrow money for higher edu- cation through a title 20 loan are required to pay "reasonable collection costs" in the event of a default. A cause of action to collect on either post-petition interest or collection costs is not found in the bankruptcy code but does clearly exist out- side the context of bankruptcy. Thus, neither can be said to be an issue which "arises under Title 11." A claim to post-petition interest and collection costs is also not a matter "arising in" or "related to" a bankruptcy proceed- ing. We most recently described "arising in" and "related to" jurisdiction in Valley Historic: A proceeding or claim "arising in" Title 11 is one that is "not based on any right expressly created by title 11, but nevertheless, would have no existence outside of the bankruptcy. Therefore, a controversy "arises in Title 11" when it would have no practical existence but for the bankruptcy. .... [F]or "related to" jurisdiction to exist at the post- confirmation stage, the claim must affect an integral aspect of the bankruptcy process—there must be a 12 IN RE KIRKLAND close nexus to the bankruptcy plan or proceeding. Practically speaking, under this inquiry matters that affect the interpretation, implementation, consumma- tion, execution, or administration of the confirmed plan will typically have the requisite close nexus. 486 F.3d at 835, 836-37 (emphasis in original) (internal quo- tation marks, alterations, and citations omitted). ECMC’s right to post-petition interest or collection costs does not satisfy either of these jurisdictional requirements. Post-petition interest, by definition, is interest that accrues on an obligation during the pendency of the bankruptcy estate, but after the bankruptcy petition is filed. 11 U.S.C. § 502(b)(2) prohibits post-petition interest—that is, interest that has not matured at the time the bankruptcy petition is filed—from being included in a proof of claim against the bankruptcy estate. See Kielisch v. Educ. Credit Mgmt. Corp. (In re Kielisch), 258 F.3d 315, 321-22 (4th Cir. 2001) (observing that § 502 prohibits creditors from claiming post- petition interest from bankruptcy estates). Thus, the debtor’s obligation to pay post-petition interest pre-exists the bank- ruptcy petition, does not become part of the bankruptcy pro- ceeding, and is an obligation that survives the debtor’s discharge. Once the bankruptcy estate is closed, the debtor remains personally liable for post-petition interest. See id. at 325 (citing Bruning v. United States, 376 U.S. 358, 363 (1964)). Based on these principles, ECMC could not have included post-petition interest in its proof of claim to Kirkland’s bank- ruptcy estate, see id. at 323, and the Chapter 13 Trustee would have been without authority to pay any such interest. Any claim that ECMC has to post-petition interest exists indepen- dent from the bankruptcy, based on the original student loan agreement. Even though some post-petition interest matured during the pendency of the bankruptcy, it cannot be said that this obligation "arose in" the bankruptcy because that obliga- IN RE KIRKLAND 13 tion "would have existed whether or not [Kirkland] filed bankruptcy." See Valley Historic, 486 F.3d at 836. ECMC’s claim to post-petition interest also does not "re- late[] to" Kirkland’s bankruptcy. It does not "affect an integral aspect of the bankruptcy process." Cf. id. at 836-37. As noted above, the post-petition interest obligation cannot be claimed against the bankruptcy estate and is, instead, a personal obli- gation of the debtor that remains at the close of the bank- ruptcy proceeding and after discharge of the underlying debt for the principal. The post-petition interest neither affects nor is affected by Kirkland having filed bankruptcy or the admin- istration of her bankruptcy estate. ECMC’s claim to post- petition interest thus lacks the requisite "close nexus" to the bankruptcy proceeding to establish "related to" jurisdiction. Accordingly, the issue of post-petition interest did not arise in or relate to the bankruptcy proceeding. Kirkland’s Com- plaint acknowledged as much when it asked the bankruptcy court to determine the dischargeability of the principal loan obligation, while admitting that she would still be liable for any post-petition interest that accrued on the loan. The bank- ruptcy court lacked subject matter jurisdiction to determine the independent issue of whether or how much post-petition interest Kirkland owed ECMC. Similarly, Kirkland’s obligation to pay collection costs, if such an obligation exists, also arose apart from Kirkland’s bankruptcy proceeding. Under 20 U.S.C. § 1091a(b)(1), "a borrower who has defaulted on a loan made under this [Title] shall be required to pay, in addition to other charges specified in this [Title], reasonable collection costs."8 Here, it is undisputed that Kirkland was not in default at the The issue of whether Kirkland is in default on the ECMC loan is not an issue on appeal and we make no determination of any kind in that regard. 14 IN RE KIRKLAND time she filed her petition. Instead, ECMC contends that Kirk- land defaulted on her obligation to pay the loan after her dis- charge and the close of her bankruptcy estate. Therefore, any right ECMC has to collection costs associated with a default, if there was such, also arose after Kirkland’s discharge and the close of her bankruptcy estate. Consequently, ECMC’s claim to collection costs cannot be said to "arise under Title 11," nor does it "aris[e] in" or "relate[] to" Kirkland’s bank- ruptcy case. The claim exists irrespective of Kirkland’s bank- ruptcy and had no effect on that proceeding or her bankruptcy estate. The bankruptcy court thus lacked subject matter juris- diction to consider whether to award ECMC collection costs, much less the amount of such costs.9 IV. Accordingly, the district court erred in concluding that the bankruptcy court had subject matter jurisdiction over post- petition interest and collection costs that Kirkland may owe ECMC.10 For the foregoing reasons, we reverse the district Because of our resolution of the matter of subject matter jurisdiction, we do not address ECMC’s arguments based on the merits of the bank- ruptcy court’s determinations as to the amount of post-petition interest or collection costs to which ECMC may be entitled. In her appellate brief, Kirkland contends that the case is moot because Sallie Mae transferred the loan at issue to USAF and ECMC no longer has an interest in it. She relies on an August 2008 letter from Sallie Mae as support for this assertion. In its reply brief and during oral argument, ECMC responded to Kirkland’s assertion by contending that it continues to hold the promissory note at issue and therefore has an ongoing interest in the matter. The bankruptcy court was aware of the August 2008 letter because it refers to it in its October 2008 memorandum denying ECMC’s motion to alter or amend. However, neither it nor the district court addressed whether the letter made the matter moot, and neither made any factual findings relevant to that determination. The doctrine of mootness constitutes a part of the constitutional limits of federal court jurisdiction. United States v. Hardy, 545 F.3d 280, 283 IN RE KIRKLAND 15 court’s judgment affirming the bankruptcy court’s order to deny collection costs and awarding $184.40 in post-petition interest.11 REVERSED KING, Circuit Judge, dissenting: Although I admire and respect the diligence and wisdom of my distinguished colleagues in the panel majority, I am never- theless convinced that our friend Judge Moon decided this case properly, on both the jurisdictional and merits issues. I would therefore affirm on the basis of his fine opinion for the district court. See Educ. Credit Mgmt. Corp. v. Kirkland, No. 6:09-cv-00002 (W.D. Va. Mar. 10, 2009). I respectfully dissent. (4th Cir. 2008). However, we lack the necessary factual record to deter- mine the significance, if any, of the August 2008 letter on ECMC’s inter- est in the case. Nevertheless, we conclude that it is unnecessary to remand the case for further development of the record on this point based on our determination that the bankruptcy court lacked subject matter jurisdiction over the issues raised on appeal. The bankruptcy court’s decision that Kirkland’s obligation on claim no. 9 was not discharged during her bankruptcy and that Kirkland owed ECMC $4,737.27 in principal on that claim was not challenged before the district court or on appeal to this Court. Accordingly, that portion of the bankruptcy court’s judgment is not affected by our conclusion that the bankruptcy court lacked jurisdiction to decide post-petition interest and collection costs.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4911 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PATRICIA OMONDI, a/k/a Patricia Sanfo, a/k/a Patricia O’Mundy, Defendant - Appellant. No. 08-4912 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BOUREIMA SANFO, a/k/a Abraham Sanfo, a/k/a Ibraham Sanfo, Defendant - Appellant. Appeals from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (8:07-cr-00197-DKC-1; 8:07-cr-00197-DKC-2) Submitted: February 11, 2010 Decided: March 12, 2010 Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Timothy J. Sullivan, William A. Mitchell, Jr., BRENNAN, SULLIVAN & MCKENNA, LLP, Greenbelt, Maryland; Stephanie Gallagher, LEVIN & GALLAGHER, LLC, Baltimore, Maryland, for Appellants. Rod J. Rosenstein, United States Attorney, Mara B. Zusman, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Patricia Omondi and Boureima Sanfo (“Defendants”), wife and husband, appeal their convictions for interstate transportation of property obtained by fraud, money laundering, and obstruction of justice, alleging violations of the Fifth and Sixth Amendments of the United States Constitution arising out of the pretrial seizure of funds, and also challenging the sufficiency of the evidence to support their convictions for obstruction of justice. For the reasons that follow, we affirm. I. Defendants operated a scheme to defraud victims out of deposits for lot purchases and construction of homes. Defendants held themselves out as executives of Construction Consulting and Management, a purported residential home builder that promised, in addition to constructing the homes, to secure the relevant permits and financing. After their victims paid deposits, Defendants pocketed the money without ever working on the homes. In July of 2006, almost two years prior to the trial in this case, Special Agent Philip Soto of the Secret Service swore an affidavit of probable cause supporting a seizure warrant of up to $202,435. Based on this testimony, stop payment orders were issued on three $95,000 cashier’s checks withdrawn by Omondi from her accounts at Branch Banking and Trust Co. (“BB&T”). Additionally, a magistrate judge issued two seizure warrants pursuant to 18 U.S.C.A. § 981 (West 2006 & Supp. 2009) for all currency in Omondi’s BB&T accounts and proceeds from the stop payment orders on the three $95,000 checks. The warrants did not limit Defendants’ forfeiture liability to $202,435. However, upon execution of the warrants, the Government seized only $10,078 from Defendants’ BB&T accounts. The Government also failed to locate the three cashier’s checks. A few months later, Sanfo and Omondi deposited the three $95,000 checks into a newly opened savings account at Burk and Herbert Savings Bank. In compliance with the stop payment orders, Burke and Herbert Savings Bank returned the checks to BB&T, which deposited the checks into an official BB&T account. On November 7, 2006, a magistrate judge issued another seizure warrant for all proceeds of the three $95,000 checks up to $202,435 at BB&T. The Government executed the third seizure warrant, seizing $202,435, for an aggregate seizure of $212,513, which exceeded the authorized amount by $10,078. On the execution date, the Government served a copy to “Gigi Frio, BB&T Corporate Security,” and claims to have sent a copy to Defendants’ then-attorney. BB&T held Defendants’ unseized balance of $82,565 until prompted by defense counsel’s telephone calls to release the funds to Defendants. On April 25, 2007, a federal grand jury returned a thirteen count indictment charging Defendants with nine counts of interstate transportation of property obtained by fraud in violation of 18 U.S.C. § 2314 (2006), three counts of money laundering in violation of 18 U.S.C. § 1957 (2006), and one count of obstruction of justice in violation of 18 U.S.C. § 1503 (2006). The indictment also contained a forfeiture allegation for $202,435, representing the fruits of the crimes involved in the criminal investigation. On March 25, 2008 -- after the indictment, and before the trial -- in an attempt to recover the $10,078 in excessively seized funds, Omondi filed a pre-trial motion for return of property pursuant to Fed. R. Crim. P. 41(g) on March 20, 2008. Conceding that it had seized $10,078 in error, the Government agreed to return that sum to Defendants. Defendants also requested that the court hold an evidentiary hearing to determine what had happened to the remaining $82,565, which BB&T had set aside while complying with the Government’s warrants, but the Government had never seized. The district court determined that this request went beyond the scope of a motion to return property, and declined to hold an evidentiary hearing because the funds were not in the Government’s possession. However, the court admonished the Government to cooperate with Defendants to secure the return of any additional funds held by BB&T. The matter proceeded to trial with Defendants being represented by appointed counsel and the Assistant Federal Public Defender without objection or request for substitution of counsel. On April 25, 2008, a jury convicted Defendants on all but one fraud count. On April 28, Defendants filed a post-trial motion challenging the sufficiency of the evidence supporting their convictions and voicing an intention to file more detailed motions later. On July 10, Defendants filed those motions, arguing for the first time that the Government’s failure to serve the November seizure warrant on Defendants left them with the false impression that the Government had seized the entire balance of their bank accounts. As a result, Defendants argued, they had failed to realize that they had funds on hand to pay a private attorney. Defendants thus claimed that the Government denied their Sixth Amendment right to counsel of their choosing. The district court held that because it had not authorized Defendants to file a supplemental, tardy motion, the July 10 motion was untimely. In the alternative, the court rejected Defendants’ Sixth Amendment claim on the merits. It found the evidence otherwise sufficient to sustain the jury’s verdicts. The district court sentenced Omondi and Sanfo each to concurrent terms of thirty-seven months’ imprisonment followed by three years’ supervised release. Additionally, the district court entered forfeiture orders, and imposed assessments of $1200, fines of $10,000, and restitution of $185,135. Defendants timely noted this appeal. II. Defendants argue first that the Government’s failure to provide adequate notice of the seizures, the Government’s seizure of $10,078 in excess funds, and the district court’s denial of a Rule 41(g) hearing deprived them of a Fifth Amendment right to due process and violated their Sixth Amendment right to retain counsel of their choice. Defendants clarify that they do not challenge the district court’s order holding this claim time-barred; and we therefore consider their claim as though raised for the first time on appeal, and thus review under the exacting plain error standard, which requires the appellant to show that: (1) there was error; (2) the error was “plain”; and (3) the error affected Defendants’ substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993); United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). Even if the appellant makes this showing, we exercise our discretion to correct the error only if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Lynn, 592 F.3d at 577 (internal quotation marks omitted). Defendants do not claim that they did not receive any notice of the seizures, as they received the July seizure warrants. Rather, they contend that the notice was inadequate because it did not state the exact amount of the seizure, which caused them to mistakenly believe that the Government had seized all of their funds, leaving nothing that they could use to pay their attorney. Defendants also argue that the Government’s seizure warrants precipitated BB&T’s decision to hold $82,565 of their money in an account over which they had no control, and that the Government therefore deprived them of those funds. Defendants’ argument fails because they cannot show that any error affected their substantial rights. First, Defendants had ample notice of the seizure of their funds, including seizure warrants issued in July of 2006. The actual seizure took place, and Defendants knew that it took place, in late 2006. From that point, they had the ability to request a hearing to show probable cause to seize the funds. The fact that Defendants thought that the Government had seized all of their money, as opposed to only $202,435, gave them more, and not less, reason to inquire about the basis for the seizure. The grand jury returned the indictment on April 25, 2007, putting Defendants on notice that they would need a criminal defense attorney. Surely, Defendants had sufficient notice and time to ascertain the whereabouts of their funds. Furthermore, after Defendants filed their Rule 41(g) motion for return of property in March of 2008, they received a pretrial hearing regarding their motion, in which they recovered all of the improperly seized funds, and became aware that BB&T was holding more than $85,000 of their funds, further indicating that any defect in Defendants’ notice had no effect on their substantial rights. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950) (notice must be reasonably calculated to apprise interested parties of pendency of action and afford them an opportunity to object). We also find that the district court did not err in declining to grant a Rule 41(g) hearing to allow Defendants the opportunity to question the federal agent as to BB&T’s disposition of funds the Government never seized or possessed. See United States v. Stevens, 500 F.3d 625, 628 (7th Cir. 2007); United States v. Solis, 108 F.3d 722, 722 (7th Cir. 1997) (denying Rule 41(g) motion when Government never had possession of property). The Government offered to assist Defendants in securing the prompt return of these funds from BB&T, and the Constitution certainly requires no more than that. Defendants’ Sixth Amendment argument fares no better. Defendants failed to produce sufficient factual support for their claim that private counsel would have represented them had they had earlier access to the $10,078 overage wrongfully seized by the Government, the $82,565 from the bank, or the aggregate of the two. Furthermore, Defendants failed to produce credible evidence that the Government was responsible for Defendants’ delay in accessing the $82,565 non-seized balance from BB&T. Consequently, we find no plain error affecting Defendants’ substantial rights. III. Defendants also challenge the sufficiency of the evidence supporting their convictions for obstruction of justice. A defendant challenging the sufficiency of the evidence bears a heavy burden. We must sustain a jury verdict “if there is substantial evidence, taking the view most favorable to the Government, to support it. See Glasser v. United States, 315 U.S. 60, 80 (1942); United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). To support a conviction for obstruction of justice, the Government must prove: (1) a pending judicial proceeding; (2) of which Defendants had knowledge or notice; and (3) that Defendants “acted corruptly, that is with the intent to influence, obstruct, or impede that proceeding in its due administration of justice.” United States v. Grubb, 11 F.3d 426, 437 (4th Cir. 1993) (footnote omitted). Additionally, a nexus must exist with the judicial or grand jury proceedings. See United States v. Aguilar, 515 U.S. 593, 599 (1995) (requiring “a relationship in time, causation, or logic with the judicial proceedings”). Intent to influence an ancillary proceeding independent of the court’s or grand jury’s authority is insufficient to establish the requisite nexus. Id. The Government charged that Defendants had requested Mohamad Al-Shalabi, a civil engineer, to backdate feasibility studies relating to the construction of the homes. Al-Shalabi had actually completed the studies in September 2006, but Defendants requested that he backdate them to the summer of 2005 in order to create the appearance that they were, in fact, working on the studied properties at that time. On appeal, Defendants argue that they did not act corruptly because Al-Shalabi actually had started work on the feasibility studies in 2005, and therefore the backdating was designed to more accurately portray reality. Defendants point to testimony from Al-Shalabi stating that he did nothing wrong or unprofessional by backdating the studies to 2005. We find the testimony of Secret Service Agent Philip Soto and of Al-Shalabi provided sufficient evidence for a jury to find beyond a reasonable doubt that Defendants’ knowledge of the ongoing grand jury investigation prompted them to act corruptly. In 2006, when faced with an ongoing grand jury investigation, Defendants requested Al-Shalabi to backdate invoices and feasibility reports to indicate that feasibility studies were performed approximately one year earlier. The evidence at trial showed that in 2005 Al-Shalabi had merely performed a cursory evaluation of two properties listed in the indictment and had not opened a file, created a report, generated a bill, or communicated with Defendants again until approximately one year later when they requested the backdated documents for presentation in the grand jury investigation. Al- Shalabi’s perception that he did nothing wrong or unprofessional by backdating the documents is of no consequence. See United States v. Erickson, 561 F.3d 1150, 1160 (10th Cir. 2009) (finding obstruction of justice conviction supported by presentation of manufactured evidence (backdated documents) even if the manufacturer thought the evidence supported reality). Furthermore, we find the nexus requirement of Aguilar satisfied. The record contains sufficient evidence that Defendants should have reasonably foreseen obstruction of justice as a natural and probable consequence of presenting backdated documents to the case agent involved with the grand jury investigation. See United States v. Neiswender, 590 F.2d 1269, 1273 (4th Cir. 1979); see also United States v. Furkin, 119 F.3d 1276, 1283 (7th Cir. 1997) (finding evidence sufficient to support guilty verdict for obstruction of justice for requesting backdated leases which had the “natural and probable effect” of interfering with the grand jury investigation). We conclude that a reasonable trier of fact, viewing the evidence in the light most favorable to the Government, could have found sufficient evidence to support Defendants’ guilty verdicts for obstruction of justice beyond a reasonable doubt. IV. Finding no plain error affecting Defendants’ substantial rights regarding their alleged violations of their rights to due process and counsel of their choice, and finding sufficient evidence to support the jury’s verdicts of obstruction of justice, we affirm Omondi’s and Sanfo’s convictions and sentences. 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

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4239 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RAJUL RUHBAYAN, a/k/a Creme, a/k/a James Vernon Wood, a/k/a James Vernette Johnson, a/k/a Kreem, a/k/a Day-Ja, a/k/a Deja, a/k/a Amir Ruhbayan, a/k/a Jibra’el Ruh’alamin, a/k/a Jibrael Ruhalamin, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:02-cr-00029-RBS-FBS-1) Submitted: February 26, 2010 Decided: March 12, 2010 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Robert L. Flax, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, James Ashford Metcalfe, Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Rajul Ruhbayan was convicted by a jury in 2002 of conspiracy to commit perjury and obstruction of justice; witness tampering; perjury; suborning perjury; and obstruction of justice in connection with his 2000 trial on federal drug and firearms charges. When he was initially sentenced in 2004, the district court departed upward pursuant to U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (2003), and USSG § 5K2.0, p.s., to impose a sentence of life imprisonment, with three additional concurrent five-year terms. We affirmed the convictions, but found error in the four-level adjustment for a leadership role, USSG § 3B1.1(a), and remanded for resentencing under United States v. Booker, 543 U.S. 220 (2005). United States v. Ruhbayan, 406 F.3d 292, 298 (4th Cir. 2005). On remand, the district court recalculated the advisory guideline range with a two-level role adjustment, USSG § 3B1.1(c), again departed upward from the guideline range, and again imposed a life sentence. We affirmed the sentence. United States v. Ruhbayan, 527 F.3d 107 (4th Cir. 2007). The Supreme Court subsequently granted certiorari, vacated this court’s judgment, and remanded for reconsideration in light of Kimbrough v. United States, 552 U.S. 85 (2007) (holding that district courts may consider the crack-to-powder- cocaine guideline sentencing ratio as a possible basis for variance from the guidelines). We decided that resentencing was warranted, vacated the sentence, and remanded for resentencing in light of Kimbrough. United States v. Ruhbayan, 294 F. App'x 23 (4th Cir. 2008). The day before he was resentenced, Ruhbayan’s appointed attorney moved to withdraw and Ruhbayan moved to proceed pro se, stating that his attorney had refused to make certain legal arguments he wanted to present. Ruhbayan asked for new counsel or, alternatively, to be permitted to represent himself with a new attorney to assist him. The district court denied both motions, explaining that Ruhbayan’s attorney had represented him through seven years of litigation, the narrow legal issue before the court had been fully briefed, no new circumstances warranted counsel’s withdrawal, and Ruhbayan would be given an opportunity to make any arguments he wished the court to hear. The district court observed that, even if Ruhbayan’s offense level were decreased by two levels according to the revised guidelines for crack offenses effective in November 2007, his offense level would remain at 30 and his guideline range would not change. The court heard Ruhbayan’s argument that it was without subject matter jurisdiction over his case and other issues and found them to be meritless. The court also heard Ruhbayan’s allocution concerning the appropriate sentence. The court then stated that, reconsidering the previously-imposed sentence in light of Kimbrough, the court was still of the view that, in this case, the crack/powder disparity did not yield a sentence greater than necessary to achieve the sentencing purposes set out in 18 U.S.C. § 3553(a) (2006). The court reviewed its reasons for previously imposing a life sentence and stated “the sentence previously imposed and reimposed now is a sentence that is sufficient but not greater than necessary to meet these statutory considerations[.]” The court then reimposed a life sentence on the witness tampering count, with concurrent sixty-month sentences for each of the three other counts. On appeal, Ruhbayan first argues that the court erred in denying his motion for self-representation. A defendant has a Sixth amendment right to represent himself at trial. Faretta v. California, 422 U.S. 806 (1975). A defendant’s assertion of his right of self-representation constitutes a waiver of his right to counsel, and must be (1) clear and unequivocal; (2) knowing, intelligent, and voluntary; and (3) timely. United States v. Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000). In this circuit, after a defendant has been represented at trial with counsel, his request to represent himself is within the discretion of the district court. United States v. Singleton, 107 F.3d 1091, 1096 (4th Cir. 1997). Moreover, a defendant who wishes to proceed pro se does not have a right under Faretta to the assistance of an attorney as stand- by counsel or co-counsel. Id. Here, Ruhbayan’s request to represent himself was neither unequivocal nor timely. He was represented by counsel at trial and during the appeal process. Not until his second resentencing hearing did he ask for new counsel or, alternatively, to represent himself with a new attorney as back- up counsel. In addition, at sentencing, Ruhbayan’s attorney stated that his client wanted him to make certain legal arguments which he did not believe were justified. “A trial court must be permitted to distinguish between a manipulative effort to present particular arguments and a sincere desire to dispense with the benefits of counsel.” Frazier-El, 204 F.3d at 560. The record makes clear that Ruhbayan’s request was “a manipulative effort to present certain arguments[.]” Id. Therefore, we conclude that the district court did not abuse its discretion in denying Ruhbayan’s motion to represent himself at his second resentencing hearing. Next, Ruhbayan contends that the district court’s reimposition of a life sentence was unreasonable. A sentence is reviewed for reasonableness under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). Generally, this requires consideration of both the procedural and substantive reasonableness of a sentence. Id. After determining whether the district court properly calculated the defendant’s advisory guideline range, we must decide whether the district court considered the § 3553(a) factors, analyzed the arguments presented by the parties, and sufficiently explained the selected sentence. Id.; see also United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). Finally, we review the substantive reasonableness of the sentence, “taking into account the totality of the circumstances, including the extent of any variance from the guideline range.” Gall, 552 U.S. at 51. Ruhbayan argues that the district court abused its discretion when it reimposed a life sentence after his culpability had been reduced on appeal; he specifically refers to the leadership role adjustment (reduced from four levels to two levels after his first appeal) and to the application of the 2007 reduced crack guidelines at his second resentencing. Ruhbayan claims that the district court erred in limiting itself to reconsideration of his sentence in light of Kimbrough and by failing to take into account certain mitigating factors and giving too much emphasis to his criminal history. We conclude that these arguments are without merit. Ruhbayan’s case was remanded for the limited purpose of resentencing in light of Kimbrough. Before imposing sentence on remand, the district court described the reason for the remand, summarized the holding in Kimbrough, and acknowledged its discretion to conclude that the crack/powder sentencing disparity resulted in a sentence greater than necessary to achieve the purposes set out in § 3553(a). The court then determined that, in Ruhbayan’s case, the crack/powder disparity did not yield a sentence greater than necessary to achieve § 3553(a)’s purposes and a downward variance from the guideline range was not appropriate. We conclude that the district court properly considered whether Kimbrough had any mitigating effect and adequately explained its decision to reimpose a life sentence. We further conclude that the extent of the departure was reasonable. We therefore affirm the sentence imposed by the district court. 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

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4295 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. SHARONE JERMAINE BERRY, a/k/a Shaun Smith, a/k/a Jerome Smith, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Robert G. Doumar, Senior District Judge. (4:08-cr-00043-RGD-TEM-1) Submitted: January 27, 2010 Decided: March 12, 2010 Before SHEDD, DUNCAN, and DAVIS, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Keith Loren Kimball, Assistant Federal Public Defender, Patrick L. Bryant, Research and Writing Attorney, Norfolk, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Richard Cooke, Brian J. Samuels, Assistant United States Attorneys, Newport News, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Sharone Jermaine Berry appeals his jury conviction and 286-month sentence for possession with intent to distribute cocaine base within 1000 feet of school property, in violation of 21 U.S.C. §§ 841, 860 (2006); identification theft, in violation of 18 U.S.C. § 1028(a)(7) (2006); false representation of a social security number, in violation of 42 U.S.C. § 408(a)(7)(B) (2006); and aggravated identity theft, in violation of 18 U.S.C. § 1028A (2006). On appeal, Berry asserts that: (i) the district court erred when it denied his motion to suppress; (ii) his identity theft and aggravated identity theft convictions must be reversed in light of the Supreme Court’s recent holding in Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009); and (iii) his sentence is procedurally unreasonable because the district court allegedly failed to provide a sufficient statement of reasons for the sentence it imposed. Although we vacate Berry’s identity theft and aggravated identity theft convictions and their corresponding sentences, we affirm the remainder of the district court’s judgment. On appeal from a district court’s denial of a suppression motion, we review the district court’s factual findings for clear error and its legal determinations de novo. See United States v. Blake, 571 F.3d 331, 338 (4th Cir. 2009). When a defendant’s suppression motion has been denied, we review the evidence in the light most favorable to the Government. See United States v. Farrior, 535 F.3d 210, 217 (4th Cir.), cert. denied, 129 S. Ct. 743 (2008). We also defer to the district court’s credibility determinations. See United States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009). With these standards in mind, and having reviewed the transcript of the suppression hearing and the parties’ briefs, we conclude that the district court did not err in denying Berry’s motion to suppress. We nonetheless agree that Berry’s § 1028A aggravated identity theft conviction and his § 1028(a)(7) identity theft convictions, as well as their corresponding sentences, must be vacated in light of Flores-Figueroa. * In Flores-Figueroa, which was decided after Berry was convicted and sentenced by the district court, the Supreme Court held that “§ 1028A(a)(1) requires the Government to show that the defendant knew that the means of identification [stolen] belonged to another person.” 129 S. Ct. at 1894. Although Flores-Figueroa did not address the knowledge necessary for a § 1028(a)(7) conviction, “when Congress uses the same language in two statutes having similar * Although Berry moved for a judgment of acquittal on his § 1028A conviction, thereby preserving this issue for appeal, we review Berry’s challenge to his § 1028(a)(7) convictions for plain error. See United States v. Smith, 441 F.3d 254, 271 (4th Cir. 2006). purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes.” Smith v. Jackson, MS, 544 U.S. 228, 233 (2005). Because § 1028(a)(7)’s wording is virtually identical to § 1028A, both statutes criminalize identity theft, and § 1028A was passed shortly after § 1028(a)(7), we agree that the Supreme Court’s holding in Flores-Figueroa should apply to a § 1028(a)(7) conviction, as well. Compare 18 U.S.C. § 1028(a)(7) (2006) (making it unlawful for someone to “knowingly transfer[], possess[], or use[], without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law) with 18 U.S.C. § 1028A(a)(1) (2006) (making it unlawful for someone to “knowingly transfer[], possess[], or use[], without lawful authority, a means of identification of another person”). The Government concedes that Flores-Figueroa is retroactively applicable to Berry’s appeal, see Griffith v. Kentucky, 479 U.S. 314, 328 (1987), and acknowledges that the record is devoid of evidence establishing that Berry knew the identification he stole belonged to another person. Because we agree, we vacate Berry’s identity theft and aggravated identity theft convictions, as well as their respective sentences. We nonetheless affirm the remainder of the district court’s judgment. In evaluating the district court’s explanation for a selected sentence, we have consistently held that, while a district court must consider the statutory factors and explain its sentence, it need not explicitly reference 18 U.S.C. § 3553(a) (2006) or discuss every factor on the record. United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). At the same time, the district court “may not presume that the Guidelines range is reasonable,” but “must make an individualized assessment based on the facts presented.” Gall v. United States, 552 U.S. 38, 50 (2007). Against this backdrop, we recognized in United States v. Carter, 564 F.3d 325 (4th Cir. 2009), that the “individualized assessment . . . must provide a rationale tailored to the particular case at hand and [be] adequate to permit meaningful appellate review.” 564 F.3d at 330 (internal quotation marks and citation omitted). Thus, a recitation of the § 3553(a) factors and purposes is insufficient. Likewise, a conclusory statement that a specific sentence is the proper one does not satisfy the district court’s responsibilities. Id. at 328-29. In addition, we “may not guess at the district court's rationale, searching the record for statements by the Government or defense counsel or for any other clues that might explain a sentence.” Id. at 329-30. Despite the foregoing considerations, the district court’s explanation "need not be elaborate or lengthy." Id. at 330. “That is especially true where, as here, the sentence is inside the advisory guidelines range.” United States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009). “Gall was quite explicit that district courts should provide more significant justifications for major departures than for minor ones. But when a district court does not depart or vary at all, it may provide a less extensive, while still individualized, explanation.” Id. (internal citations, quotation marks and brackets omitted). “This is because guidelines sentences themselves are in many ways tailored to the individual and reflect approximately two decades of close attention to federal sentencing policy.” Id. (internal quotation marks and citation omitted). We have reviewed the transcript of Berry’s sentencing and find that the district court adequately explained its rationale for the within-Guidelines sentence it imposed and, although not overly detailed, the district court’s reasoning for Berry’s sentence was sufficiently individualized and reflected a considered rationale. Based on the foregoing, we vacate Berry’s conviction and sentence for aggravated identity theft under § 1028A, as well as his convictions and sentences for identity theft under § 1028(a)(7), affirm the remainder of the district court’s judgment and remand to the district court for further proceedings consistent with this opinion. 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 IN PART, VACATED IN PART, AND REMANDED

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4557 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AMBROSE AKINMUKOMI, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:08-cr-00487-CMH-1) Submitted: February 23, 2010 Decided: March 12, 2010 Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Kevin R. Brehm, Assistant Federal Public Defender, Patrick L. Bryant, Research and Writing Attorney, Alexandria, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Jenny C. Ellickson, Special Assistant United States Attorney, Gene Rossi, Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury convicted Ambrose Akinmukomi of bulk cash smuggling, in violation of 31 U.S.C.A. § 5332 (2006 & West Supp. 2009), and knowingly making a false statement to a government agent, in violation of 18 U.S.C. § 1001 (2006). The district court sentenced Akinmukomi to two years of probation and ordered that he forfeit the $15,561 involved in the offense, and Akinmukomi now appeals. Finding no error, we affirm. Akinmukomi first challenges the district court’s order denying his motion to suppress statements he made to United States Customs and Border Protection agents. “In reviewing a district court’s ruling on a motion to suppress, we review the court’s factual findings for clear error, and its legal conclusions de novo.” United States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008) (citation omitted). When the district court denies a defendant’s suppression motion, we construe “the evidence in the light most favorable to the [G]overnment.” United States v. Grossman, 400 F.3d 212, 216 (4th Cir. 2005) (citation omitted). Akinmukomi argues that the district court should have suppressed the statements he made because he was subjected to custodial interrogation without being informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Statements obtained from a defendant during custodial interrogation are presumptively compelled in violation of the Fifth Amendment, unless the Government shows that law enforcement officers adequately informed the defendant of his Miranda rights and obtained a waiver of those rights. United States v. Cardwell, 433 F.3d 378, 388-89 (4th Cir. 2005). To determine whether a defendant was in custody for purposes of Miranda, courts determine “first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995). We have reviewed the record and find that a reasonable person in Akinmukomi’s position would not have felt that his freedom of action was limited to a degree associated with a formal arrest. See United States v. Colonna, 511 F.3d 431, 435 (4th Cir. 2007) (internal quotation marks and citation omitted). Accordingly, we conclude that Akinmukomi was not in custody at the time he made the statements and, therefore, the agents were not required to inform Akinmukomi of his Miranda rights. Thus, the district court did not err in denying Akinmukomi’s suppression motion. Akinmukomi next challenges the sufficiency of the evidence to convict him of both counts. This court reviews a district court’s decision to deny a Rule 29 motion for a judgment of acquittal de novo. United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). A defendant challenging the sufficiency of the evidence faces a heavy burden. United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). The verdict of a jury must be sustained “if, viewing the evidence in the light most favorable to the prosecution, the verdict is supported by ‘substantial evidence.’” Smith, 451 F.3d at 216 (citations omitted). Substantial evidence is “evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” Id. (internal quotation marks and citation omitted). Furthermore, “[t]he jury, not the reviewing court, weighs the credibility of the evidence and resolves any conflicts in the evidence presented.” Beidler, 110 F.3d at 1067 (internal quotation marks and citation omitted). “Reversal for insufficient evidence is reserved for the rare case where the prosecution’s failure is clear.” Id. (internal quotation marks and citation omitted). Akinmukomi argues that there was insufficient evidence to demonstrate that he knowingly, and with the intent to evade reporting requirements, attempted to smuggle currency, in violation of § 5332(a). We have thoroughly reviewed the record, however, and conclude that the Government provided substantial evidence from which the jury could conclude that Akinmukomi acted with the requisite intent and state of mind. To establish a violation of § 1001(a)(2), the Government must demonstrate that “(1) the defendant made a false statement to a governmental agency . . . , (2) the defendant acted ‘knowingly and willfully,’ and (3) the false statement . . . was material to a matter within the jurisdiction of the agency.” United States v. Arch Trading Co., 987 F.2d 1087, 1095 (4th Cir. 1993) (citation omitted). Akinmukomi argues that the Government failed to prove that he acted knowingly and willfully when he made the materially false statement to the government agents. Our review of the record, however, leads us to conclude that there was sufficient evidence to demonstrate that Akinmukomi made the false statement knowingly and willfully. Finally, Akinmukomi challenges the district court’s order that he forfeit the entire amount involved in the offense. Section 5332(b)(2) provides that when a defendant is convicted of violating § 5332(a), the district court “shall order that the defendant forfeit to the United States, any property, real or personal, involved in the offense, and any property traceable to such property.” 31 U.S.C.A. § 5332(b)(2). However, “[t]he Excessive Fines Clause of the Eighth Amendment prohibits the [G]overnment from imposing excessive fines as punishment.” Korangy v. U.S. F.D.A., 498 F.3d 272, 277 (4th Cir. 2007). “This court considers de novo whether a forfeiture is a constitutionally excessive fine.” United States v. Bollin, 264 F.3d 391, 417 (4th Cir. 2001) (citing United States v. Bajakajian, 524 U.S. 321, 336-37 (1998)). A forfeiture violates the Eighth Amendment “if it is grossly disproportionate to the gravity of the defendant’s offense.” Bajakajian, 524 U.S. at 334. In determining the proportionality of a forfeiture, the court should consider “the nature and extent of the criminal activity, its relation to other crimes, its penalties, and the harm it caused.” Bollin, 264 F.3d at 417 (internal quotation marks and citations omitted). We have carefully reviewed the record and the relevant legal authorities and conclude that the district court’s forfeiture order did not violate the Excessive Fines Clause of the Eighth Amendment. Accordingly, we affirm the judgment of the district court. 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

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4719 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HAROLD ANTHONY TROUT, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry F. Floyd, District Judge. (6:08-cr-01055-HFF-1) Submitted: February 18, 2010 Decided: March 12, 2010 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. J. Falkner Wilkes, Greenville, South Carolina, for Appellant. W. Walter Wilkins, United States Attorney, Dean A. Eichelberger, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Harold Anthony Trout appeals his convictions under the Computer Fraud and Abuse Act, 18 U.S.C.A. § 1030 (West 2000 & Supp. 2009), and the Electronic Communications Privacy Act, 18 U.S.C.A. § 2511 (West 2000 & Supp. 2009). The conduct underpinning the indictment occurred while Trout was a county councilman and involved his access to and use of information covertly obtained from the computer of the county administrator, Joseph Kernell, as a consequence of Trout’s use of a “spyware” software program. On appeal, Trout argues that the district court improperly allowed the Government to present testimony regarding prior bad acts, because the evidence was not relevant and only served to prejudice the jury. This court typically reviews evidentiary rulings for abuse of discretion. United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006). However, as Trout did not object to the evidence in the district court, we review the admission of evidence for plain error. United States v. Olano, 507 U.S. 725, 731 (1993). To show plain error, the appellant must demonstrate “that an error occurred, that the error was plain, and that the error affected his substantial rights.” United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Although not admissible to prove the defendant’s character, evidence of other wrongs may be admitted to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed. R. Evid. 404(b). Acts “intrinsic to” the crime are not subject to Rule 404’s restrictions. United States v. Siegel, 536 F.3d 306, 316 (4th Cir. 2008). “Evidence of uncharged conduct is not ‘other crimes’ evidence subject to Rule 404 if the uncharged conduct ‘arose out of the same series of transactions as the charged offense, or if [evidence of the uncharged conduct] is necessary to complete the story of the crime on trial.’” Id. (quoting United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994)) (alteration in original). In other words, the Government may “provide context relevant to the criminal charges.” United States v. Cooper, 482 F.3d 658, 663 (4th Cir. 2007). Having carefully reviewed the record, we hold that the evidence pertaining to Trout’s history with the other council members, Kernell, and other county staff is intertwined with and provided context to Trout’s conduct underlying the charges. Further, even considering the admissibility of the evidence of Trout’s pattern of conduct on the county council pursuant to the terms of Rule 404(b), the district court did not plainly err. Rule 404(b) is an inclusionary rule, allowing evidence of other crimes or acts to be admitted, except evidence that tends to prove only criminal disposition. See United States v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997). For such evidence to be admissible, it must be “(1) relevant to an issue other than the general character of the defendant; (2) necessary to prove an element of the charged offense; and (3) reliable.” United States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004). Additionally, the probative value of the evidence must not be substantially outweighed by its prejudicial effect. Id. (citing Fed. R. Evid. 403). After reviewing the record and the parties’ arguments, we hold that the evidence Trout challenges was not barred by Rule 404(b). 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 the court and argument would not aid the decisional process. AFFIRMED

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6513 UNITED STATES OF AMERICA, Petitioner - Appellee, v. JEFFREY ANDERSON, Respondent - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:07-hc-02189-BR) Submitted: February 19, 2010 Decided: March 12, 2010 Before GREGORY and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Jane E. Pearce, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Assistant United States Attorney, David T. Huband, Special Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jeffrey Anderson, a federal inmate, appeals the district court’s order revoking his conditional release and remanding him to the custody of the Attorney General pursuant to 18 U.S.C. § 4246(f) (2006). He contends that the revocation decision was based on hearsay evidence and that the evidence was insufficient to support the revocation of his conditional release. Because Anderson failed to raise either of these claims in the district court, we review the district court’s revocation decision for plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993). Finding no error, we affirm. Anderson was committed to the custody and care of the Attorney General pursuant to 18 U.S.C. § 4246(d) (2006) for treatment in the Federal Medical Center in Butner, North Carolina (“FMC Butner”), after the district court found by clear and convincing evidence that Anderson was “presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to the property of another.” See 18 U.S.C. § 4246(a) (2006). Based on the Warden of FMC Butner’s certification that Anderson had recovered to such an extent that his conditional release under a regimen of care and treatment would no longer create a substantial risk of bodily injury to another person or serious damage to the property of another, the district court ordered Anderson’s release on a conditional release plan. Several months after Anderson’s conditional release, the United States Probation Office notified the district court that Anderson had failed to comply with the terms of his conditional release. The Government moved to revoke Anderson’s conditional release. At the revocation hearing, the Government introduced into evidence without objection a letter from Anderson’s probation officer detailing numerous violations of his conditional release. Seven arrest records referred to in the letter were also admitted without objection. Finding Anderson violated the terms and conditions of his conditional release and that his continued release would create a substantial risk of bodily injury to another person or serious damage to the property of another, the district court revoked Anderson’s conditional release and remanded him to the custody of the Attorney General. Anderson timely appealed, contending the district court erred in relying upon hearsay and double hearsay evidence contained in the probation officer’s report. Anderson further asserted the district court failed to determine whether Anderson’s continued release would pose a risk to society. We may correct error that is both plain and prejudicial if such error “substantially affect[s] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732. We find the hearsay evidence contained in the probation officer’s letter bore several substantial indicia of reliability. See United States v. McCallum, 677 F.2d 1024, 1026 (4th Cir. 1982) (allowing admission of demonstrably reliable hearsay evidence in revocation proceeding). The probation officer’s letter exhibited reliability as an official document prepared and presented in furtherance of her statutory and court-ordered duties as an officer of the court to supervise Anderson’s conditional release. See 18 U.S.C. § 3603(8)(A), (B) (2006). Furthermore, the letter was reasonably factually detailed and was internally and externally corroborated by Anderson’s own statements, statements by the director of Anderson’s residential facility, arrest and conviction reports, and at least one lab report. Consequently, we find no plain error in the admission of the probation officer’s letter. We further find no plain error in the district court’s determination that Anderson’s continued release would pose a substantial risk of bodily injury to another or serious damage to the property of another. The evidence showed that Anderson verbally threatened the staff and residents at his residential facility, was arrested twice and convicted once for disturbing the peace, was arrested for public intoxication, profane swearing, open container, and littering, missed appointments with his medical provider, failed to comply with his medication regimen, consumed alcohol and drugs, and was allegedly stabbed and exhibited suicidal ideations for which he was hospitalized. According to the probation officer, Anderson exhibited escalating non-compliant behavior and adjusted poorly to supervision. Furthermore, the probation officer opined Anderson’s conditional release potentially placed “the community in a greater risk of harm.” Finding no plain error in the district court's decision to revoke Anderson’s conditional release and remand him to the custody of the Attorney General for care and treatment, we affirm the district court’s revocation order. 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

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-8075 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GREGORY LAMONT WILSON, a/k/a Nice, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge. (1:03-cr-00309-MJG-1; 1:08-cv-00160-MJG) Submitted: February 25, 2010 Decided: March 12, 2010 Before NIEMEYER, GREGORY, and AGEE, Circuit Judges. Dismissed by unpublished per curiam opinion. Michael Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland, for Appellant. Martin Joseph Clarke, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gregory Lamont Wilson seeks to appeal the district court’s order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2009) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude Wilson has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. 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. DISMISSED

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-1122 ___________ Stephen J. Holschen, * * Appellant, * * v. * Appeal from the United States * District Court for the International Union of Painters & * Eastern District of Missouri. Allied Trades/Painters District * Council #2, * * Appellee. * ___________ Submitted: September 22, 2009 Filed: March 12, 2010 ___________ Before BYE, SMITH, and COLLOTON, Circuit Judges. ___________ BYE, Circuit Judge. Stephen Holschen brought this action against the International Union of Painters & Allied Trades/Painters District Council #2 (the Union) alleging several violations of the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. §§ 401-53, as well as a state law claim for intentional interference with a valid business expectancy. The district court1 dismissed the state law claim concluding it The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri. was preempted by Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. The district court granted summary judgment on two LMRDA claims, and directed verdicts on the two remaining LMRDA claims following a jury trial. Holschen appeals raising a host of issues. We affirm. I The Union operates a non-exclusive hiring hall in the St. Louis area, making job referrals for its members to prospective employers. The collective bargaining agreements (CBAs) the Union enters into with prospective employers do not require the latter to hire union members, and union members are free to seek employment through the Union's job referral system or through their own efforts. Holschen, a painter, was a Union member and became a labor organizer for the Union in 2001. In the 2003 election for the Union's business manager, Holschen supported Rich Bryan. Bryan lost the election to Kevin Kenny. Kenny promptly removed Holschen from his position as a labor organizer after the election, but Holschen remained a member of the Union. In January 2006, Holschen took a non-union position with the City of St. Louis (the City). During the time between his removal as a labor organizer until he started his job with the City, Holschen contends Kenny conspired against him with other union members to "blackball" him by not referring his name to prospective employers in retaliation for Holschen's support of Bryan in the 2003 business manager election. For example, Max Robinson, a man whose son employed Holschen during this time period, testified Kenny approached him at a Christmas party and said things would be difficult for his son if he continued to employ Holschen. Holschen lost his job with Robinson's son a month later. Despite the alleged blackballing, Holschen was able to work 1183 hours in 2004 and 1088 hours in 2005, numbers somewhat lower but generally consistent with the number of hours he worked prior to becoming a labor organizer.2 The hostility between Kenny and Holschen continued after Holschen started working for the City. Holschen began efforts to organize the City's water department employees. The Union found out about Holschen's efforts and sent him a letter on February 8, 2006, telling him water department employees fell under the jurisdiction of another union, the Carpenters. The letter told Holschen to stop organizing because such efforts were considered a violation of the Constitution of the International Union of Painters and Allied Trades. Around this same time, Holschen announced his intention to run against Kenny in the June 2006 election for Union business manager. In addition, Holschen learned the Union had been engaging in efforts to organize the City's lead abatement painters, who at the time did not fall under the jurisdiction of the Carpenters' union. In February 2006, the Union announced it had successfully organized the City's lead abatement painters. Holschen believed Kenny and the Union were acting inconsistently by directing him to cease activities to organize the City's water department employees, while at the same time engaging in efforts to organize the City's lead abatement painters. Holschen made it known he was going to bring Union disciplinary charges against Kenny for not fulfilling his obligations to organize City workers. When Kenny learned of Holschen's intentions, he told Holschen he would respond by filing charges against Holschen for, among other things, continuing efforts to organize City workers after being told to stop in the February 8 letter and for filing baseless charges against In the six years prior to becoming a labor organizer, Holschen averaged about 1274 hours per year. Kenny. Holschen did, in fact, file charges against Kenny. Kenny responded by filing charges against Holschen. On March 11, 2006, the Union sent letters to both Holschen and Kenny regarding the respective charges and notifying both a disciplinary hearing would be held on April 13, 2006. Holchen's letter informed him he would be allowed to "confront and properly challenge the testimony of any witnesses who testify against you and you will be allowed to challenge the validity of any evidence offered against you. You will also be allowed to present witnesses and offer evidence on your own behalf." Despite advising Holschen of these rights, the Union's standard operating procedure for disciplinary hearings is to sequester both witnesses and parties from the hearing room. If parties specifically request to be present while other witnesses testify for the purpose of hearing the evidence or cross-examining the witnesses, they are allowed to be present. Holschen testified he understood these standard operating procedures. On the night of the disciplinary hearing, Holschen was asked to wait in a separate room for his turn to testify. He testified he did not know the trial against him had started while he was waiting. A witness was waiting in the same room as Holschen, however, so Holschen became aware his hearing had started when the witness, Michael Catiller, was summoned away from the waiting room to testify. At that point, Holschen did not tell anyone involved in the hearing he wished to be present to hear the testimony or to cross-examine witnesses. When it was Holschen's turn to present evidence, he was brought into the hearing room. He objected to one of the members of the trial board, Rich Dueckner, on the grounds Dueckner worked directly for Kenny. The trial board sustained Holschen's objection and removed Dueckner from the trial board. Holschen then testified on his own behalf. He also introduced a sworn statement of Rich Bryan. When Holschen was done giving his testimony, the chairman of the trial board, Dave Pohl, asked him if he was satisfied with his case and Holschen stated, "sure." Holschen never indicated there was more he wanted to say. The trial board found Holschen "guilty" without specifying guilt as to any of the particular charges brought against him. The trial board fined him $15,000 and expelled him from the Union, giving him the right to appeal only if he first paid the fine. Holschen filed an action in federal district court against the Union alleging a Title VII claim. The Union successfully moved to dismiss the Title VII claim. Holschen then filed a new complaint. The first count of the new complaint alleged several violations of the LMRDA. The second count alleged a state law claim for intentional interference with a valid business expectancy. The district court dismissed the state law claim for interference with a valid business expectancy concluding it was preempted by the LMRA. In the alternative, the district court held the claim was subject to and barred by the six month statute of limitations found in Section 10(b) of the National Labor Relations Act (NLRA), 20 U.S.C. § 160(b). The district court later granted a motion for summary judgment on two of the four claims Holschen brought under the LMRDA. The two claims disposed of by summary judgment were a voting rights claim, and a claim the trial board conducting the disciplinary hearing was biased. The two remaining LMRDA claims proceeded to a jury trial. The first claim was an alleged violation of Holschen's right to a full and fair hearing under the LMRDA, which fell under two subparts – one for an alleged violation of the right to cross-examine witnesses, and the second for an alleged violation of the right to present evidence. As to these claims, the district court ruled prior to trial that Holschen's remedy (should he prevail at trial) would be limited to a new disciplinary hearing rather than monetary damages. The second claim was an alleged violation of Holschen's free speech rights under the LMRDA, i.e, Holschen alleged the Union blackballed him for supporting Bryan in the 2003 business manager election. After hearing Holschen's evidence, the district court granted the Union's motion for a directed verdict on both of the remaining LMRDA claims. With respect to the full-and-fair-hearing claims, the district court determined the Union's disciplinary hearing comported with the requirements of due process. With respect to the free- speech claim, the district court determined the evidence did not show the Union – as opposed to Kenny individually – had taken any formal disciplinary action against Holschen in retaliation for his support of Bryan in the 2003 election. In addition, the district court determined Holschen failed to produce sufficient evidence connecting any of the Union's alleged retaliatory conduct to an injury (i.e., a loss of work). Holschen filed a timely appeal raising a host of issues. First, Holschen argues the district court erred in dismissing his Missouri state law claim for interference with a valid business expectancy on the grounds it was preempted by the LMRA. Second, he contends the district court erred in granting summary judgment on his trial board bias claim. Third, he claims the district court erred in directing a verdict on his full and fair hearing claims regarding cross-examination and presentation of evidence; if we agree, he further contends the district court erred in limiting his remedy to a new disciplinary hearing rather than allowing him to recover monetary damages in lieu of a new hearing. Fourth, he claims the district court erred in directing a verdict on his free speech claim. Finally, he raises two evidentiary issues with respect to certain statements the district court excluded during trial. II We begin by addressing the district court's dismissal of the state law claim for interference with a valid business expectancy on the grounds the claim was preempted by the LMRA. We review de novo a district court's determination a claim is preempted by § 301 of the LMRA. Bogan v. Gen. Motors Corp., 500 F.3d 828, 832 (8th Cir. 2007). A state law claim is preempted by § 301 if its resolution "depends upon the meaning of a collective-bargaining agreement." Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988). In this case, the CBAs entered into between the Union and prospective employers reflected the Union's status as a non-exclusive hiring hall. Pursuant to the CBAs, the Union's rights/obligations as to prospective employers were limited to "assist[ing] . . . the Employer in recruiting needed employees." Correspondingly, prospective employers were not obliged to hire union workers, but merely to "include the Union among other persons, firms, or corporations to be notified [of job openings] and . . . afford the Union an opportunity to recommend job applicants." Consistent with these provisions, the CBAs specifically recognized prospective employers were "free to accept or reject any job applicant referred from any source," and union members were likewise "free to select the Employer for whom they desire to work." Thus, the CBAs addressed the scope of the rights and duties between the Union and its members, reflecting the Union's mere obligation to act as a job referral source for union members. The CBAs also addressed the scope of the relationship between union members and prospective employers, indicating prospective employers were free to disregard applicants recommended by the Union and hire non-union applicants. In other words, a union member's status vis a vis a prospective employer was merely that of a job applicant. Holschen's state law claim for interference with a valid business expectancy required him to prove (1) the existence of a contract or valid business expectancy, (2) the Union's knowledge of the contract or relationship, (3) a breach induced or caused by the Union's intentional interference, (4) the absence of justification, and (5) damages. See Tamko Roofing Prods., Inc. v. Smith Eng'g Co., 450 F.3d 822, 829 (8th Cir. 2006) (applying Missouri law). Furthermore, while a business expectancy need not be based on an already existing contract, it must be based on more than a "mere hope" of a business relationship. Stehno v. Sprint Spectrum, L.P., 186 S.W.3d 247, 250 (Mo. 2006) (quoting Misischia v. St. John's Mercy Med. Ctr., 30 S.W.3d 848, 863 (Mo. Ct. App. 2000)). The expectancy cannot be contrary to the terms of the contract on which the expectancy depends. Id. at 251. To succeed on his state law claim, then, Holschen would have to prove the Union knew of a valid business expectancy between Holschen and prospective employers, breached a duty owed to Holschen by intentionally interfering with that expectancy without justification, and caused damages. There is preemption under § 301 "if the duty to the employee of which the tort is a violation is created by a collective-bargaining agreement." Williams v. George P. Reintjes Co., Inc., 361 F.3d 1073, 1074-75 (8th Cir. 2004) (quoting United Steelworkers v. Rawson, 495 U.S. 362, 369 (1990)). If the CBAs gave Holschen something more than a mere hope of a business relationship with prospective employers, the Union's duty to refrain from interfering with his valid business expectancy would arise from the CBAs. Conversely, if the CBAs did not give rise to a valid business expectancy between Holschen and prospective employers, the Union would have no corresponding duty to refrain from interfering with such an expectancy. Either way, the resolution of Holschen's state law claim would depend upon the meaning of the CBAs, because the CBAs would have to be examined to determine both (1) the extent of the Union's duties to its members and (2) the scope of a union member's contractual or business relationship with prospective employers. Consequently, the district court correctly concluded Holschen's state law claim was preempted under § 301.3 Because we conclude Holschen's state law claim was preempted under § 301, we do not address the district court's alternative holding the claim was subject to and barred by the NLRA's six-month statute of limitations. Holschen next contends the district court erred in granting summary judgment on his trial board bias claim. We review the district court's grant of summary judgment de novo. Rutherford v. Kessel, 560 F.3d 874, 877 (8th Cir. 2009). Holschen's trial board bias claim was brought for an alleged violation of Section 101(a)(5) of the LMRDA, which provides in relevant part "[n]o member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization . . . unless such member has been . . . afforded a full and fair hearing." 29 U.S.C. § 411(a)(5)(c). The LMRDA's right to a "full and fair hearing" encompasses the right to have an unbiased trial board. E.g., Falcone v. Dantinne, 420 F.2d 1157, 1161 (3d Cir. 1969). The district court granted summary judgment on this claim after concluding Holschen failed to present any direct evidence a trial board member was actually biased against him. Citing Wildberger v. American Federation of Government Employees, 86 F.3d 1188 (D.C. Cir. 1996), Holschen argues he does not need actual evidence of trial board bias; he contends a mere inference of bias is sufficient to survive summary judgment. In Wildberger, the appellate court concluded the district court "unduly restricted its inquiry by requiring Wildberger to show actual bias" and held there are some "circumstances themselves, by presenting a significant danger of bias [that] create[] the inherent impropriety." 86 F.3d at 1196 (quoting Tincher v. Piasecki, 520 F.2d 851, 855 (7th Cir. 1975)). The "circumstances" in both Wildberger and Tincher, as well as the other cases cited in Wildberger in which a plaintiff was not required to show actual bias, involved situations where an adversary participated as a decision- maker in the disciplinary proceedings. See id. at 1196 (involving an opponent of the Union president where the president participated in the disciplinary proceedings); Tincher, 520 F.2d at 855 ("[I]t is inherently improper for a person who has been charged by an accused in a collateral proceeding to participate as a committee member in the accused's disciplinary hearing."); Kuebler v. Cleveland Lithographers and Photoengravers Union Local 24-P, 473 F.2d 359, 364 (6th Cir. 1972) (concluding the union member was denied a full and fair hearing where the trial board was "made up of the same parties who investigated the charges against him"). Holschen's accuser, Kenny, was not a member of the trial board that found Holschen guilty and expelled him. In addition, when Holschen objected to one member of the trial board based on a close relationship between the trial board member and Kenny, the trial board sustained Holschen's objection and removed the allegedly biased person from the board. Thus, this is not a situation where the "circumstances themselves" presented a significant danger of bias such that Holschen was excused from presenting at least some evidence of actual bias involving one or more trial board members in order to survive summary judgment. Citing International Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233 (1971), Holschen also contends the trial board's bias can be inferred from the fact there was no evidence to support the charges against him, and under Hardeman there is a denial of due process unless "some evidence" supports the charges. Id. at 246. As the Union correctly notes, however, Holschen improperly focuses on just one of the charges the Union brought against him – the claim he was attempting to organize city laborers after he received the February 8, 2006 letter from the Union directing him to cease his efforts to unionize certain city workers. Holschen ignores the fact that other charges were brought against him, including the claim he filed baseless charges against Kenny. Holschen has not denied there is some evidence to support some of the charges brought against him. We therefore conclude the district court did not err in granting summary judgment on Holschen's claim of trial board bias. Holschen's remaining appellate issues involve the two LMRDA claims that were tried. Holschen challenges the exclusion of certain evidence at trial, as well as the district court's grant of directed verdict motions on both claims. Because the evidentiary issues may impact the resolution of the directed verdicts, we address those first. We review a district court's evidentiary rulings for a clear abuse of discretion. Littleton v. Pilot Travel Ctrs., LLC, 568 F.3d 641, 648 (8th Cir. 2009). At trial, Holschen sought to introduce testimony from David Doerr, a business agent for the Union, to prove his free-speech/retaliation claim. According to Holschen's offer of proof, Doerr was present when Matt Ferguson, a union member, confronted two union officers about being blackballed by Kenny. Doerr would have testified he heard another Union business agent tell Ferguson "Kevin [Kenny] didn't blackball you. The only one he ever f*****d with was Holschen." Trial Transcript at 162. The district court excluded the statement on the grounds it was hearsay and also because Holschen could not show whether the business agent who made the statement was speaking on behalf of the Union when he made the statement, or simply voicing his own opinion. For the reasons given by the distict court, it was not an abuse of discretion to exclude Doerr's testimony. In addition, at most the alleged statement would have been relevant to whether Kenny himself retaliated against Holschen, not whether the Union itself formally disciplined Holschen for exercising free speech rights. As we explain below, evidence of ad hoc retaliation by an individual union member does not state a cause of action for a free speech violation under the LMRDA. Breininger v. Sheet Metal Workers Int'l Ass'n Local Union No. 6, 493 U.S. 67, 91 (1989). Holschen also sought to introduce the testimony of Joe Barrett, a union member, regarding a statement Kenny made during a cocktail party. Kenny was discussing an administrative proceeding Holschen had brought against the Union, which at the time was pending before the National Labor Relations Board (NLRB). Referring to that separate proceeding, Barrett heard Kenny say "all the guys will just lie for [me]." Id. at 156. Holschen sought to introduce the statement to suggest witnesses were lying for Kenny in the federal district court trial. The district court excluded the statement on relevance grounds, noting the NLRB matter was a "whole different proceeding" and the court did not know "what they would lie about [so] I'm just not sure it's probative of anything here." Id. at 164-65. The district court did not abuse its discretion in excluding this testimony. Holschen failed to identify what "guys" Kenny claimed would lie in the NLRB proceeding, and whether the "guys" were witnesses in the federal trial. Holschen also failed to identify what subjects Kenny claimed the "guys" in the NLRB proceeding would lie about, and whether the same subjects were issues in the federal trial. Holschen also failed to identify a particular witness or witnesses he believed lacked credibility in the federal trial, or identify a particular topic about which he claimed a witness was lying. Given these circumstances, the district court correctly concluded Barrett's testimony was not probative. Holschen next challenges the district court's grant of a directed verdict on his full-and-fair-hearing claims for alleged violations of his right to cross-examine witnesses and right to present evidence during the Union's disciplinary hearing. We review the grant of a motion for a directed verdict de novo, applying the same standard employed by the district court. Warren v. State Farm Fire & Cas. Co., 531 F.3d 693, 698 (8th Cir. 2008). A motion for a directed verdict "should be granted only when the evidence produced by the party opposing the motion, when given the benefit of all reasonable inferences, would not suffice as the basis for a rational conclusion in that party's favor." Id. (internal citations and quotations omitted). Like Holschen's claim of trial board bias, his full-and-fair-hearing claims were brought for an alleged violation of Section 101(a)(5) of the LMRDA. The LMRDA's right to a "full and fair hearing" includes the right to cross examine witnesses and the right to present evidence.4 E.g., Ritz v. O'Donnell, 566 F.2d 731, 735 (D.C. Cir. 1977). The district court directed a verdict on both full-and-fair-hearing claims because the evidence showed the following: (1) the Union, in advance of the hearing, notified Holschen in writing of his rights to be present and to cross-examine witnesses; (2) Holschen testified he was aware of those rights; (3) Holschen testified he was aware of the Union's standard operating procedure which required him to ask to be present while other witnesses testified for the purpose of hearing the evidence or cross- examining the witnesses; (4) Holschen became aware his hearing had started, at a minimum, when witness Michael Catiller was summoned away from the waiting room to testify and Holschen still did not ask at that point to be present to hear the testimony or to cross-examine witnesses; (5) Holschen was given the opportunity to present all the evidence he intended to offer; (6) at the close of Holschen's evidence, the trial board chairman asked him if he was satisfied with his case and he stated "sure;" and Fundamental due process also gives a party the right to be present during proceedings brought against him or her, subject to limited exceptions. See Lane v. Tennessee, 315 F.3d 680, 682 (6th Cir. 2003) ("Parties in civil litigation have [a] due process right to be present in the courtroom and to meaningfully participate in the process unless their exclusion furthers important governmental interests."); see also Helminski v. Ayerst Labs., 766 F.2d 208, 216-17 (6th Cir. 1985) ("Consistent with due process, a plaintiff who can comprehend the proceedings and aid counsel may not be excluded from any portion of the proceedings absent disruptive behavior or a knowing and voluntary waiver."); Cary by and through Cary v. Oneok, Inc., 940 P.2d 201, 204 (Okla. 1997) ("The ideals behind due process and a fair trial permit a party to be present in the courtroom absent extreme conditions."). Because Holschen alleges only that his rights to cross examination and presentation of evidence were violated, we express no opinion on whether the Union's standard operating procedure of sequestering both witnesses and parties from a disciplinary hearing – without first establishing some compelling reason for excluding a party – comports with the due process requirements of the LMRDA. (7) Holschen acknowledged the reason he was satisfied with the evidence he had presented during the hearing was because he felt he would prevail. These facts support the conclusion that Holschen's right to present evidence was never violated. The facts also show Holschen waived any objection he may have had to the alleged violation of his right to cross-examination. See Ritz, 566 F.2d at 735 (holding a knowing failure to exercise rights offered by the union in connection with a disciplinary hearing constitutes a waiver of those rights); cf. Yakus v. United States, 321 U.S. 414, 444 (1944) ("No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it."). Holschen contends his case is like Milne v. International Ass'n of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 156 F. Supp. 2d 172 (D. Conn. 2001), where a district court found a union member did not knowingly waive his right to cross-examine witnesses against him at a disciplinary hearing. Id. at 180. We disagree. Milne involved a union member tried in absentia after he refused to answer some preliminary questions put to him by the trial board and was asked to leave the hearing room. Id. at 175-76. The union member claimed he was never told the trial would proceed without him, and when the union president came out of the hearing room and told him he might as well go home if he had nothing to say, he responded "you can't be trying me if that's the case and I'm sitting out here." Id. at 176. In contrast, Holschen had been advised of his rights in advance, was aware of the Union's standard operating procedures, at some point knew his hearing had started and still never requested the right to cross-examine witnesses even though there was testimony he would have been allowed to conduct cross-examination if he had asserted his right to do so, and then participated in his hearing. We agree with the district court these facts establish Holschen knowingly waived his right to cross-examination.5 Finally, Holschen argues the district court erred in granting the motion for a directed verdict on his free-speech/retaliation claim. Holschen alleged a violation of Section 101(a)(2) of the LMRDA, which provides in relevant part "[e]very member of any labor organization shall have the right . . . to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization[.]" 29 U.S.C. § 411(a)(2). Holschen's claim did not, however, involve the question whether the Union prevented him from expressing his views, but instead whether it retaliated against him for expressing his views by not referring him for jobs through the Union's non-exclusive hiring hall. While Section 101 of the LMRDA sets forth the substantive free speech rights Holschen enjoyed, Section 609 in turn prohibited the Union from retaliating against him, that is, "fin[ing], suspend[ing], expel[ling], or otherwise disciplin[ing] [him] for exercising any right to which he [was] entitled under the provisions of this chapter." 29 U.S.C. § 529. Even assuming the facts in the light most favorable to Holschen, the most the evidence showed is that Kenny, as an individual union officer, retaliated against Holschen for supporting Bryan in the 2003 election. There was no evidence the Union itself formally disciplined Holschen in retaliation for his exercise of free speech rights. In Breininger, the Supreme Court held "ad hoc" retaliation by individual union officers in a non-exclusive hiring hall does not give rise to a cause of action under the LMRDA for an alleged "free speech" retaliation claim. See Breininger, 493 U.S. at 91 (interpreting the phrase "otherwise discipline" as found in Section 609 and concluding "Congress did not intend to include all acts that deterred the exercise of Because we conclude the district court properly granted a directed verdict on Holschen's full-and-fair-hearing claims, Holschen's contention the district court erred by limiting his remedy to a new disciplinary hearing is moot. rights protected under the LMRDA, but rather meant instead to denote only punishment authorized by the union as a collective entity to enforce its rules."); see also Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1297 (3d Cir. 1991) (concluding the plaintiff's LMRDA free speech claim failed "because the union members failed to allege acts by the union acting in its official capacity and instead raised only ad hoc retaliations by the individual union official."). Thus, for there to be actionable retaliation under Section 609, a union member must show the retaliation was "the result of an established union disciplinary process." Maddalone v. Local 17, United Bhd. of Carpenters & Joiners of Am., 152 F.3d 178, 185 (2d Cir. 1998). Such evidence is lacking here. Although the facts in this case are indistinguishable from those involved in Breininger, Holschen argues Breininger does not foreclose his retaliation claim because he says his claim is not brought under Section 609. He purports to bring a retaliation claim arising directly under Section 101, invoking the remedies available under Section 102 of the LMRDA, 29 U.S.C. § 412,6 rather than the remedies available under Section 609. As an initial matter, we disagree with Holschen's view of how Sections 101, 102, and 609 interact with each other. Sections 102 and 609 do not provide alternative remedies for violations of Section 101. Rather, Sections 101 and 609 both create substantive rights which inure to the benefit of union members (Section 101 – the so-called "Bill of Rights of Members of Labor Organizations" – grants union members a number of rights, and Section 609 adds the right not to be subject to retaliatory discipline for exercising any LMRDA rights), while Section 102 contains the remedy provisions for alleged violations of both of the other sections. See 29 Section 102 of the LMRDA provides in relevant part "[a]ny person whose rights secured by the provisions of this subchapter have been infringed by any violation of this subchapter may bring a civil action in a district court of the United States for such relief . . . as may be appropriate." 29 U.S.C. § 412. U.S.C. § 529 ("The provisions of section 412 of this title [Section 102] shall be applicable in the enforcement of this section [609]."). Notwithstanding our disagreement with Holschen's view of how the three statutory sections interact, Holschen does raise a valid point: do the free speech provisions of Section 101, in conjunction with the use of the word "infringed" in the remedy provision of Section 102, give rise to a free-standing retaliation claim, or must an LMRDA free-speech retaliation claim always be brought pursuant to Section 609 and thus subject to the limits and contours contained therein? While some courts appear to have recognized a retaliation claim arising directly under Section 101 and then brought pursuant to Section 102, distinct from a retaliatory discipline claim arising under Section 609 brought pursuant to Section 102, e.g., Maddalone, 152 F.3d at 183 (addressing a Section 101 retaliation claim independently of a Section 609 retaliatory discipline claim and stating "Section 101(a)(2) protects union members from direct interference with union membership rights in retaliation for their expression of opinions concerning union activities.") (emphasis added), the Supreme Court has only intimated such a claim may exist, and twice declined to address whether it actually does. See Breininger, 493 U.S. at 94 n.18; see also Finnegan v. Leu, 456 U.S. 431, 439 & n.10 (1982). Our circuit has not addressed whether such a claim exists, and we decline to recognize such a claim for the first time in this case. First, we have our doubts about whether a free-standing Section 101 retaliation claim exists. In situations where, as here, Congress has specifically adopted a statutory provision creating a right to be free from retaliation for the exercise of substantive rights guaranteed elsewhere in the same statutory scheme, see, e.g., 29 U.S.C. § 158(a)(1) (setting forth the retaliation provisions of the National Labor Relations Act (NLRA)); 29 U.S.C. § 623 (setting forth the retaliation provisions of the Age Discrimination in Employment Act (ADEA); 29 U.S.C. § 1140 (setting forth the anti-retaliation provision under the Employee Retirement Income Security Act (ERISA)); 42 U.S.C. § 2000e-3 (setting forth Title VII's retaliation provision); 42 U.S.C. § 12203 (setting forth the retaliation provision under the Americans with Disabilities Act (ADA)), we are unaware of a dual analytic framework for addressing not only retaliation claims limited by the scope of and tethered to the retaliation provision, but also free-standing retaliation claims which arise from the statute(s) creating the substantive rights.7 Second, while Holschen raised this issue on appeal by arguing his case was distinguishable from Breininger, his contention there are two alternate types of LMRDA retaliation claims was "unaccompanied by some effort at developed argumentation." United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). There is a difference between a party distinguishing a case on the grounds he is pursuing a different remedy than the one pursued therein, and persuading a court such a remedy exists. "It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones." Id. Holschen's pleadings did not specify the distinction he now makes between general retaliation claims arising under Section 101 and 102, and retaliatory discipline claims arising under Section 609, and he concedes his reliance upon the former rather than the latter did not develop until trial. As a result, this issue was not fully aired in the district court. If we are to recognize this type of claim for the first time, we would prefer to do it in a case where the claim was specifically Our doubt is not without its own doubt, however, because there is a similarity between the words "infringement" and "retaliation" such that Section 102's use of the word "infringed" could be interpreted broadly enough to create a retaliation claim itself. Cf. 29 U.S.C. § 2615(a)(1) (using the word "interfere" when describing an employer's denial of substantive rights guaranteed under the Family Medical Leave Act (FMLA)); Scobey v. Nucor Steel-Arkansas, 580 F.3d 781, 790 n. 9 (8th Cir. 2008) (discussing the obvious similarity between "interference" and "retaliation" and expressing doubt about whether our circuit has identified the correct statutory provision which gives rise to a retaliation claim under the FMLA); Phillips v. Mathews, 547 F.3d 905, 913-14 (8th Cir. 2008) (Colloton, J., concurring) (same). pleaded in the district court, fully aired below, and thoroughly briefed on appeal. This is not such a case. III For the reasons stated above, we affirm the district court in all respects. COLLOTON, Circuit Judge, concurring in part and concurring in the judgment. I concur in the court’s judgment and agree with most of its opinion, but I decline to join the dicta in footnote 4 concerning the Union’s hearing procedures and the dicta in the discussion of Stephen Holschen’s “free-speech/retaliation” claim. Ante, at 15-18. Assuming for the sake of analysis that Holschen may proceed with a retaliation claim under Sections 101 and 102 of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. §§ 411, 412, I would affirm the dismissal of this claim based on the district court’s conclusion that Holschen presented insufficient evidence that actions of the Union’s business manager caused the injury that Holschen allegedly suffered. T. Tr. II, at 362-63. ______________________________

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-3087 ___________ United States of America, * * Plaintiff – Appellee, * * Appeal from the United States v. * District Court for the * District of South Dakota. Louis Means, * * [UNPUBLISHED] Defendant – Appellant. * ___________ Submitted: March 8, 2010 Filed: March 12, 2010 ___________ Before MURPHY, JOHN R. GIBSON, and RILEY, Circuit Judges. ___________ PER CURIAM. After Louis Means violated the terms of his supervised release, the district court1 sentenced him to 18 months imprisonment, a nine month upward variance from the advisory sentencing guideline range. Means contends that the district court abused its discretion by procedurally erring and by imposing an unreasonable sentence. We affirm. The Honorable Richard H. Battey, United States District Judge for the District of South Dakota. In 1999 Means participated in a brutal assault while under the influence of alcohol and drugs. He pled guilty to assault resulting in serious bodily injury, in violation of 18 U.S.C. § 113(a)(3), and was sentenced to 96 months imprisonment followed by three years of supervised release. Means completed his prison term and began supervised release in December 2006, but by October 2007 he had committed four alcohol related violations of the release's conditions. His release was revoked, and he was sentenced to 6 months imprisonment followed by 24 months of supervised release. Means completed his revocation prison sentence and began his second term of supervised release on March 1, 2008. Within a month, he had been discharged from a community alternative program for ingesting cough syrup, transferred to a work release program, and enrolled in a substance abuse treatment program. On August 7, 2008, Means was allowed to relocate to an unsupervised residence with significant conditions, including drug testing. By November 5, 2008, however, he was back in a work release program as a result of two more alcohol related violations. While there, he committed another alcohol related violation. Nevertheless he was allowed to move to an unsupervised residence on June 10, 2009. Within ten days, Means was arrested for disorderly conduct after police found him passed out in a bar. The probation office filed a petition to revoke Means' supervised release, charging that he had on four occasions violated the special condition prohibiting the consumption of alcohol and that he had entered a bar and committed the offense of disorderly conduct, both of which also constituted violations. Means admitted to each of the alleged violations, and the district court revoked his supervised release. The court calculated the advisory sentencing guideline range at 3 to 9 months imprisonment. Both parties requested an upward variance. The government requested a sentence of exactly one year to be followed by another term of supervised release. It justified its request as necessary to prevent the sentence from being truncated for good time served and to ensure that Means would serve an additional 6 months were he to violate his supervised release again. Means also requested an upward variance, seeking a prison term of one year and one day in order to take advantage of the time served sentence reduction which the government sought to avoid. He also expressly requested that the court forego imposing any further supervised release. After hearing argument from both parties, the district court inquired into the viability of further supervised release: Court: Can you be supervised? ... Means: Truthfully, I really don't know. ... Court: [W]hat have you done about your drinking problem? Means: I have been to treatment numerous times. I have been trying to further my treatment program . . . [a]nd I haven't found that to be satisfying yet. The court concluded that any further supervised release would be futile: [I]f you are going to drink, you are going to hurt people or you are going to get hurt yourself. . . . I don't believe you can be supervised. You have been offered multiple chances to quit drinking. You have had multiple uses of alcohol. Supervision [of] you is just a waste of time. You show no desire to comply with conditions of supervised release despite having your supervision revoked; serving six months of custody you still show little or no sign of rehabilitation. . . . The probation office has exhausted all efforts to assist you in becoming a sober, productive citizen. . . . [S]upervised release has been tried and tried and tried for you. The court then sentenced Means to 18 months imprisonment with no supervised release to follow. Neither party lodged any objections. On appeal Means challenges both the procedural integrity and the substantive reasonableness of his revocation sentence. We review both contentions under the same deferential abuse of discretion standard that applies to initial sentencing proceedings. See U.S. v. Merrival, 521 F.3d 889, 890 (8th Cir. 2008). We must first determine whether the district court committed a significant procedural error, such as "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence." Gall v. United States, 552 U.S 38, 51 (2007). Because Means failed to raise his procedural objections at sentencing, we review them for plain error. Fed. R. Crim. P. 52(b). An unpreserved procedural error will not result in reversal unless the complaining party shows that it was plain, affected his substantial rights, and "'seriously affects the fairness, integrity, or public reputation of judicial proceedings.'" United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (quoting United States v. Johnson, 520 U.S. 461, 467 (1997)). An error affects substantial rights if there is a "reasonable probability" that in its absence a more favorable sentence would have been imposed. Id. at 552. We will not engage in conjecture, however. "'[W]here the effect of an error on the result in the district court is uncertain or indeterminate—where we would have to speculate—the appellant has not met his burden of showing a reasonable probability that the result would have been different but for the error.'" Id. at 553 (quoting United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005)). Means alleges that the district court failed to undertake an individualized assessment of the facts of his case, to consider the § 3553(a) factors, and to explain adequately the rationale underlying the sentence imposed. While "defendants do not have a right to have their sentences handed down according to any particular script," United States v. Jones, 563 F.3d 725, 729 (8th Cir. 2009) (internal quotation marks and citation omitted), the district court must make clear that it "considered the parties' arguments and has a reasoned basis for [its decision]," Rita v. United States, 551 U.S. 338, 356 (2007). Although the district court's sentencing discussion was brief and made no mention of § 3553(a), Means' failure to object at the time limits the scope of our review. He has failed to carry his burden on plain error review to show a reasonable probability that he would otherwise have received a more favorable sentence. See Pirani, 406 F.3d at 550. The district judge was clearly familiar with Means and the circumstances relevant to his sentencing. This was the second time it had sentenced Means after revocation of a term of supervised release, and they engaged in a lengthy colloquy regarding his history and his suitability for a third term. These considerations were relevant under § 3553(a)(1) and (2). The court also considered the advisory guideline range and each party's arguments for an upward variance, as well as Means' request not to impose additional supervised release. Means has not shown plain error. See id. at 553. Means also challenges the substantive reasonableness of his sentence on the basis that it is greater than necessary to accomplish the sentencing purposes identified in § 3553(a)(2). In contrast to procedural objections, the failure to object at sentencing does not limit our review of the substantive reasonableness of a sentence to plain error. See United States v. Wiley, 509 F.3d 474, 477 (8th Cir. 2007). Our review is for an abuse of discretion. Gall, 552 U.S at 51. We may consider the extent of any variance from the advisory guideline range, "but must give due deference to the district court's decision that the § 3553(a) factors, on a whole, justify [it]." Id. After careful review, we conclude that the sentence imposed by the district court is not substantively unreasonable. Means had displayed a consistent inability to adhere to the requirements of his supervised release. The court considered the guideline range but agreed with both parties that an upward variance was justified. Given the extent of Means' violations and the substance abuse which connects them to his original underlying offense, we cannot conclude that the district court abused its discretion by imposing the sentence that it did. See Gall, 552 U.S at 51; see also United States v. Eagle Thunder, 553 F.3d 605, 608–09 (8th Cir. 2009) (finding 15 month upward variance from guideline range reasonable given defendant's repeated violations of supervised release); United States v. Larison, 432 F.3d 921 (8th Cir. 2006) (finding 49 month upward variance reasonable for same reason). Accordingly, the judgment of the district court is affirmed. ______________________________

United States Court of Appeals FOR THE EIGHTH CIRCUIT No. 09-3096 Hassel Family Chiropractic, DC, PC, * * Petitioner - Appellant, * * Appeal from the United States v. * Tax Court. * Commissioner of Internal Revenue, * [UNPUBLISHED] * Respondent - Appellee. * Submitted: March 8, 2010 Filed: March 12, 2010 Before MURPHY, JOHN R. GIBSON, and RILEY, Circuit Judges. PER CURIAM. Hassel Family Chiropractic, DC, PC (Hassel) petitioned in the United States Tax Court for review of an assessment by the Internal Revenue Service Appeals Office regarding Hassel’s 2002 and 2003 tax liability. The Tax Court1 granted summary judgment to the Commissioner of Internal Revenue (Commissioner) after it determined Hassel had exhausted its appeals as to the underlying tax liabilities. U.S.C. § 6330(c)(2)(B). Hassel now appeals the adverse grant of summary The Honorable Carolyn P. Chiechi, United States Tax Court Judge. judgment. After de novo review of the record, we affirm. Cox v. Comm’r, 121 F.3d 390, 391 (8th Cir. 1997) (standard of review). Taxpayers who disagree with an assessment of unpaid taxes by the Commissioner are afforded the means to challenge such an assessment. The Internal Revenue Code grants a taxpayer the right to a hearing to raise any relevant challenges and issues relating to the unpaid taxes, but restricts a taxpayer to only one such hearing per taxable period being challenged. U.S.C. § 6330(a)(3)(B), (b)(2), (c)(2)(A). Consequently a taxpayer may challenge the underlying tax liability only if he or she “did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability.” U.S.C. § 6330(c)(2)(B); Lewis v. Comm’r, 128 T.C. 48, 48-49 (2007). Hassel held a conference on February 26, 2007 with an Internal Revenue Service appeals officer regarding its 2002 and 2003 tax liability. That conference satisfies the “opportunity to dispute” clause of § 6330(c)(2)(B) and precluded Hassel from challenging that liability in the Tax Court. Treas. Reg. § 301.6330- 1(e)(3) (“An opportunity to dispute the underlying liability includes a prior opportunity for a conference with Appeals that was offered either before or after the assessment of the liability.”). We also find no merit to Hassel’s argument that the Commissioner violated the duty of consistency or the Due Process Clause. Accordingly, we affirm the Tax Court’s decision. ___________________________

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-3130 ___________ United States of America, * * Plaintiff – Appellee, * * Appeal from the United States v. * District Court for the * District of South Dakota. Aaron J. Young, also known as * A.J. Young, * * [UNPUBLISHED] Defendant – Appellant. * ___________ Submitted: March 8, 2010 Filed: March 12, 2010 ___________ Before MURPHY, JOHN R. GIBSON, and RILEY, Circuit Judges. ___________ PER CURIAM. Aaron J. Young violated the terms of his supervised release, and the district court revoked his release and sentenced him to 18 months imprisonment, a seven month upward variance from the advisory sentencing guideline range. Young contends that the sentence is unreasonable relative to the severity of his violations. We affirm. The Honorable Charles B. Kornmann, United States District Judge for the District of South Dakota. In 2005 Young pled guilty to assault with a dangerous weapon, in violation of 18 U.S.C. § 113(a)(3), and was sentenced to 46 months imprisonment followed by three years of supervised release. After he escaped from custody, his prison term was extended by 11 months, to be followed by two years of supervised release. Young completed his prison term and began supervised release on December 29, 2008. On March 7, 2009 he violated the terms of his release by consuming alcohol and testing positive for cocaine. Although he was verbally reprimanded and referred to daily substance abuse testing, he failed to participate in testing and attended a required anger management program only once. In April 2009 Young again violated his release terms by moving to a new residence without notifying his probation officer. He was verbally reprimanded a second time and ordered to report to his original supervised residence at a community corrections center. When he did not, a petition to revoke his supervised release was filed and a warrant for his arrest issued. He was taken into custody nearly two months later. Young admitted to having violated two of the special conditions of his supervised release by consuming alcohol and disregarding his probation officer's instruction to return to his original supervised residence. The district court adopted the report and recommendation of the magistrate judge and revoked Young's supervised release. At sentencing the district court reviewed Young's behavior during his supervised release. It also observed that Young had been in the federal criminal justice system intermittently since age 14 and that a previous probation sentence had been revoked because he had violated its terms. After calculating the advisory sentencing guideline range to be 5 to 11 months imprisonment, the court expressed its agreement with the probation officer that Young was a poor candidate for any further supervised release. It stated that it had considered the statutorily required sentencing factors set forth in 18 U.S.C. §§ 3583 and 3553 and sentenced Young to 18 months imprisonment, 6 months short of the maximum prison sentence for which he qualified. See § 3583(e)(3); United States v. Eagle Thunder, 553 F.3d 605, 608 (8th Cir. 2009). The court declined to order any further term of supervised release. On an appeal from the revocation of a term of supervised release, we review the substantive reasonableness of the sentence imposed under a deferential abuse of discretion standard, U.S. v. Merrival, 521 F.3d 889, 890 (8th Cir. 2008), "giv[ing]. due deference to the district court's decision that the § 3553(a) factors, on a whole, justify the extent of the variance," Gall v. United States, 552 U.S 38, 51 (2007). Young challenges his sentence as unreasonable on the basis that it exceeded the advisory guideline maximum by 7 months, that this was his first occasion on supervised release, and that his violations were initially met only with verbal reprimands. Although the district court varied upward from the advisory sentence, it did so for good reason and with adequate explanation. In less than four months on supervised release Young had accumulated a number of significant violations. A previous probation term had been revoked for violations and a prison sentence extended for his escape from custody. We cannot conclude that the district court abused its discretion in determining that continuing Young's supervised release would prove futile and that "the § 3553(a) factors, on a whole, justif[ied] the extent of the variance." See Gall, 552 U.S at 51; see also United States v. Miller, 557 F.3d 910, 917–18 (8th Cir. 2009) (finding two consecutive 5 month upward variances from guideline range reasonable given defendant's repeated violations of supervised release); Eagle Thunder, 553 F.3d at 608–09 (finding 15 month upward variance reasonable for same reason); Merrival, 521 F.3d at 891 (finding 13 month upward variance reasonable for same reason). Accordingly, the judgment of the district court is affirmed. ______________________________

United States Bankruptcy Appellate Panel FOR THE EIGHT CIRCUIT _______________ No. 09-6083 _______________ In re: G. Yvonne Stephens, * * Debtor * * G. Yvonne Stephens, * Appeal from the United States * Bankruptcy Court for the Debtor - Appellant * District of Minnesota * v. * * John A. Hedback, * Trustee of the Bankruptcy Estate * of G. Yvonne Stephens, and * Mary Jo A. Jensen-Carter, * Trustee of the Bankruptcy Estate * of Larry K. Alexander, * * Trustees - Appellees * _______________ Submitted: February 26, 2010 Filed: March 12, 2010 _______________ Before SCHERMER, FEDERMAN, and MAHONEY, Bankruptcy Judges FEDERMAN, Bankruptcy Judge Debtor G. Yvonne Stephens appeals from the Order of the Bankruptcy Court1 approving a settlement entered between the Trustee in her Chapter 7 bankruptcy case, John A. Hedback, and the Trustee in her husband’s separate Chapter 7 bankruptcy case, Mary Jo A. Jensen-Carter. The Debtor asserts that the Bankruptcy Court’s approval of the settlement was error because it failed to consider her claimed homestead interest in the property involved. For the reasons that follow, we AFFIRM the Bankruptcy Court’s Order. G. Yvonne Stephens, also known as Georgina Yvonne Stephens, filed a Chapter 7 bankruptcy case in August 1998. Her case is related to a separate case filed in 1998 by her then-husband, Larry Kenneth Alexander. As the Bankruptcy Court in this case has previously phrased it, these two cases have lengthy and thoroughly-litigated histories,2 much of which involved property located at 875 Laurel Avenue in St. Paul, Minnesota, which Ms. Stephens occupies as her residence and now claims is her homestead. The details concerning the Laurel property, and the litigation involving it, have been recited numerous times,3 and, by an Order Granting Partial Summary Judgment against Ms. Stephens entered on January 4, 2006 (the 2006 Order),4 the Bankruptcy The Honorable Dennis D. O’Brien, Bankruptcy Judge, United States Bankruptcy Court for the District of Minnesota. Jensen-Carter v. Stephens (In re Alexander), Case No. 98-33694, Adv. No. 04-3468, Order Granting Partial Summary Judgment at 2 (Doc. #26) (Bankr. D. Minn. Jan. 5, 2006). See, e.g., In re Alexander, 239 B.R. 911, 916 (B.A.P. 8th Cir. 1999), aff’d 236 F.3d 431 (8 Cir. 2001); Alexander v. Jensen-Carter (In re Alexander), 270 B.R. 281 (B.A.P. 8th Cir. th 2001), aff’d 44 Fed. Appx. 32 (8th Cir. 2002); Stephens v. Jensen Carter (In re Stephens), 276 B.R. 610 (B.A.P. 8th Cir. 2002), aff’d 53 Fed. Appx. 392 (8th Cir. 2002); Stephens v. Jensen- Carter (In re Alexander), 288 B.R. 127 (B.A.P. 8th Cir. 2003); Alexander v. Jensen-Carter (In re Alexander), 289 B.R. 711 (B.A.P. 8th Cir. 2003), aff’d 80 Fed. Appx. 540 (8th Cir. 2003). The 2006 Order is found at Jensen-Carter v. Stephens (In re Alexander), Case No. 98- 33694, Adv. No. 04-3468, Order Granting Partial Summary Judgment (Doc. #26) (Bankr. D. Court ultimately resolved all of the relevant facts regarding the Laurel property. That 2006 Order was affirmed by both the District Court for the District of Minnesota and the Court of Appeals for the Eighth Circuit.5 Hence, we need not, and do not, discuss in detail the events leading up to the 2006 Order but, instead, relate what the Bankruptcy Court concluded in that Order, what the District Court said in its Memorandum Opinion and Order affirming it, and the events occurring subsequent to those decisions. In sum, the Bankruptcy Court determined in the 2006 Order that neither Ms. Stephens, nor Mr. Alexander, was entitled to claim an ownership interest in the Laurel property, and, further, that neither of them had properly claimed a homestead exemption in it.6 The Bankruptcy Court also found that Stephens’ trustee had not abandoned the estate’s interest in the Laurel property.7 Consequently, the Bankruptcy Court concluded that the fight over the house was between the trustees of the debtors’ respective bankruptcy estates.8 The Bankruptcy Court then concluded in the 2006 Order that summary judgment was not appropriate as to the issues between the two trustees – i.e., whether, by virtue of a March 1998 deed, Mr. Alexander properly conveyed an interest in the 875 Laurel property to Ms. Stephens, which would be an interest belonging to Ms. Stephens’ bankruptcy estate, and whether such transfer could be avoidable by Minn. Jan. 5, 2006). Stephens v. Jensen-Carter, 2007 WL 2885813 (D. Minn. Sept. 27, 2007); Stephens v. Hedback, 321 Fed. Appx. 536 (8th Cir. 2009). See, e.g., 2006 Order at 9 (“Neither debtor properly claimed an exemption in the Laurel property and neither maintains an ownership interest in that property.”). 2006 Order at 7-8. 2006 Order at 9. Alexander’s bankruptcy trustee.9 However, because there was “no fact or legal question now undetermined relative to either Larry Alexander or Georgina Stephens with respect to the property,” summary judgment was appropriate as to her claimed interests in it.10 In its disposition, the Court expressly ordered that “G. Yvonne Stephens and Larry Kenneth Alexander are each declared to have no exemption in and no ownership interest in the property at issue herein, the real property commonly described as 875 Laurel Avenue in Saint Paul, Minnesota.”11 The Bankruptcy Court ordered that the property be sold, with the net proceeds to be held by Alexander’s trustee pending a final determination of the issues remaining as between the two bankruptcy estates as to their claimed interests in the property. As stated, the District Court affirmed the 2006 Order, expressly and unambiguously agreeing with the conclusion that neither Alexander, nor Ms. Stephens, had an ownership or exemption interest in the property.12 Moreover, the District Court found that Ms. Stephens and Mr. Alexander were vexatious litigants who were congesting the courts’ dockets, and barred them from making “any further filings of any kind relating to 875 Laurel Avenue, the Stephens bankruptcy, the Alexander bankruptcy, or the Jensen-Carter adversary proceeding” in either the Bankruptcy Court or the District Court, unless the filing was signed by an attorney pursuant to Rule 11 of the Federal Rules of Civil Procedure, or they had obtained the court’s advance authorization to file such pleading.13 Ms. Stephens appealed the 2006 Order at 8. 2006 Order at 9. 2006 Order at 10. Stephens v. Jensen-Carter, 2007 WL 2885813 at *2 (“In short, Judge O’Brien found that the Debtors have no valid claim to 875 Laurel, and that at this point, the fight over the house is essentially between the trustees of their bankruptcy estates, Jensen-Carter and Hedback. The Court agrees wholeheartedly with Judge O’Brien.”). Stephens v. Jensen-Carter, 2007 WL 2885813 at *6-7. Bankruptcy Court and District Court’s decisions to the Eighth Circuit, which affirmed in all respects.14 Meanwhile, on March 28, 2006, while the Bankruptcy Court’s 2006 Order was on appeal to the District Court, Ms. Stephens filed amended schedules listing the Laurel property and claiming it exempt as her homestead. Both trustees objected to the claimed exemption. The objections to exemptions were stayed by the Bankruptcy Court pending the outcome of the appeal of the 2006 Order. Although the appeal of the 2006 Order was decided in the trustees’ favor, as discussed above, these latest objections to exemptions were never placed back on the Court’s docket. Then, in November 2009, the two trustees entered into an agreement which resolved the issues between the two bankruptcy estates as to how the proceeds from the sale of the Laurel property were to be divided. On November 20, 2009, they filed motions to approve the settlement in the two bankruptcy cases. On December 14, 2009, Ms. Stephens, pro se, without prior court approval, filed an objection to the settlement, in contravention of the District Court’s bar against her filing such pleadings. The Bankruptcy Court conducted a hearing on the settlement on December 17, 2009, and allowed Ms. Stephens to argue her position. The Bankruptcy Court then ruled that the prior orders had been conclusive that neither Stephens nor Alexander had an interest in the property and, further, that Ms. Stephens’ attempt in 2006 to claim the Laurel property exempt had no effect. In addition, although the Bankruptcy Court had allowed Ms. Stephens to argue her position in court, he admonished her for filing her objection to the settlement in total disregard of the orders of the courts. That Stephens v. Hedback, 321 Fed. Appx. 536 (8th Cir. 2009). Recently, despite being repeatedly told that they have no interest in the property, and warned by the courts to cease litigation involving the property, on January 4, 2010, Mr. Alexander filed an action against Trustee Hedback in the Ramsey County District Court, seeking a declaratory judgment that he owns the Laurel property. Hedbeck removed that action to the District Court, which dismissed the case with prejudice, once again determining that “[a]ll of the theories now advanced have been or could have been raised in the prior actions” involving the Laurel property. Alexander v. Hedback, Case No. 10-cv-227, Order (Doc. #6) (D. Minn. February 23, 2010). same day, December 17, 2009, the Bankruptcy Court entered an Order approving the settlement. Ms. Stephens appeals from that Order. The trustees15 point out first that Ms. Stephens’ objection to the settlement was filed in contravention of the District Court’s bar against her filing pleadings pro se, and suggest that we not consider this appeal on that basis. However, it bears mention here that she is represented by counsel in this appeal, and that the Bankruptcy Court did permit her to make her argument to it pro se at the hearing on the settlement. In any event, we believe it preferable to consider her appeal on the merits. As to the merits of the appeal, Ms. Stephens asserts that, because the Bankruptcy Court has not expressly sustained the trustees’ objections to her 2006 amended schedules purporting to claim the Laurel property exempt, she has successfully exempted the property, thereby removing it from her estate and depriving the trustees of the authority to administer it through the settlement. Ms. Stephens is correct that Rule 1009 permits debtors to amend their schedules “as a matter of course at any time before the case is closed.”16 Further, in In re Ladd, the Eighth Circuit held that the denial of a debtor’s claimed exemptions under one provision is not, generally, res judicata as to the debtor’s subsequent attempt to claim alternative or amended exemptions.17 Moreover, as a general principle, claimed exemptions are presumptively valid.18 Based on that, Ms. Stephens asserts that her 2006 attempt to claim the Laurel property exempt stands, regardless of any prior orders, and the property is therefore out of the reach of the trustees. Mr. Hedback filed an Appellee Brief in this matter, with which Ms. Jensen-Carter joined. Fed. R. Bankr. P. 1009(a). 450 F.3d 751, 753-55 (8th Cir. 2006). In re Grueneich, 400 B.R. 680, 684 (B.A.P. 8th Cir. 2009). The patent flaw in this argument is that a debtor cannot claim an exemption in property in which she has no interest.19 As outlined above, the Bankruptcy Court , the District Court, and the United States Court of Appeals for the Eighth Circuit have very clearly, and finally, determined that Ms. Stephens has no interest in the Laurel property. Filing the amended schedules claiming the property exempt does not serve to undo the prior orders declaring that she has no interest in it in the first place. In other words, while a subsequent attempt to amend exemptions is generally not barred by res judicata, any attempt to assert an exemption in any property is meaningless if the debtor does not have an interest in such property. Therefore, the Bankruptcy Court was correct when it announced at the December 17 hearing that her attempt to subsequently claim the exemption in the property was of no effect – in other words, a nullity. Ms. Stephens next points out that the Bankruptcy Court has not found that she amended her exemptions in 2006 in bad faith. While the general rule allows liberal amendment to exemptions, the ability to amend is not absolute, and bad faith on the part of the debtor is one exception to the general rule.20 Here, the record is rife with evidence of Ms. Stephens’ bad faith with regard to the Laurel property and, had the Bankruptcy Court been required to decide the merits of the 2006 attempt to amend her exemptions, it easily could have denied the amended exemptions on the basis of bad faith. But, because Ms. Stephens has no interest in the Laurel property in the first place, and the attempted exemption is thus a nullity, it was not necessary for the Bankruptcy Court to reach the issue of bad faith. In other words, Ms. Stephens’ bad faith (or good faith) on the issue whether she can exempt the Laurel property is entirely irrelevant at this point. Consequently, her suggestion that the trustees failed In re Eagle, 373 B.R. 609, 612 (B.A.P. 8th Cir. 2007) (“The Debtor is not entitled to a homestead exemption in property which he does not own.”); In re Moss, 258 B.R. 427, 430 (Bankr. W.D. Mo. 2001) (“[D]ebtors are only allowed to claim an exemption in property in which they have an interest.”). In re Ladd, 450 F.3d at 755. to meet their burden on the propriety of the claimed exemption, and that she was deprived of a hearing on that issue, are without merit. Remarkably, the remainder of Ms. Stephens arguments are based on the premise that she does, in fact, have an interest in the Laurel property. Essentially, she asserts that the Court’s directing the trustees to administer the property is inconsistent with a finding that she had no interest, and that the various courts have given insufficient attention to the 1998 deed mentioned above. For reasons that should be more than obvious at this point, these arguments have no merit and bear no further discussion. For the foregoing reasons, the Bankruptcy Court’s December 17, 2009 Order approving the settlement between John A. Hedback and Mary Jo A. Jensen-Carter, as trustees of the bankruptcy estates of G. Yvonne Stephens and Larry K. Alexander, is AFFIRMED.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRUCE ALAN MORTON,  Plaintiff-Appellant, No. 07-55574 v. JAMES HALL, e/s/a Jim Hall;  D.C. No. CV-04-00831-SVW VINCENT ANDERSON; CHRISTY HALE; OPINION RICHARD HOWELL; ALBERT LUNA, Defendants-Appellees.  Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding Submitted March 1, 2010* Pasadena, California Filed March 12, 2010 Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges, and Lloyd D. George, District Judge.** Opinion by Judge Gould *The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ** The Honorable Lloyd D. George, Senior United States District Judge for the District of Nevada, sitting by designation. MORTON v. HALL 4215 COUNSEL Konrad L. Trope, Novo Law Group, P.C., Los Angeles, Cali- fornia, for the plaintiff-appellant. Kenneth G. Lake, Deputy Attorney General for the State of California, Los Angeles, California, for the defendants- appellees. 4216 MORTON v. HALL OPINION GOULD, Circuit Judge: Plaintiff-Appellant Bruce Alan Morton (“Morton”) appeals the dismissal of his Eighth Amendment 42 U.S.C. § 1983 claim against prison officials alleging that their deliberate indifference contributed to a violent assault on him by inmates on June 18, 2003. The district court found that Mor- ton had failed to exhaust prison administrative remedies with regard to this claim as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). We have juris- diction under 28 U.S.C. § 1291. We affirm. I On June 18, 2003, Morton was assaulted by unknown inmates in the prison yard at Ironwood State Prison in Blythe, California (“Ironwood”). It is not clear why he was assaulted, although he alleges it was because inmates gained access to his prison central file (“C-file”) and learned facts relating to his commitment offense (assault and murder of his five-year- old step-daughter) that stigmatized him as a sex-offender. Fol- lowing the assault, Morton was moved to protective adminis- trative segregation pending investigation of the assault. Morton was later transferred to a protective housing unit at Corcoran State Prison (“Corcoran”). On July 13, 2003, following the assault, Ironwood denied Morton visitation rights with minors. The grounds for doing so were based on Section 3173.1, title 15 of the California Code of Regulations, which imposes visiting restrictions on inmates arrested for or convicted of offenses involving minors, including sex offenses and homicide. Morton filed a grievance with the prison administration regarding this restriction on a standard California Department of Corrections (“CDC”) “Form 602,” as required by governing regulations, see Cal. Code Regs. tit. 15, § 3084.2(a), and eventually MORTON v. HALL 4217 exhausted his administrative remedies as to the denial of his visitation rights, see Cal. Code Regs. tit. 15 § 3084.5(e). Morton filed the present action in district court against Ironwood’s warden, associate warden, three corrections coun- selors, and two corrections officers (collectively “Defen- dants”). He alleged four state-law causes of action and an Eighth Amendment violation under 42 U.S.C. § 1983. His § 1983 claim was premised on three discrete theories: (1) the deliberate indifference of prison staff contributed to his June 2003 assault, (2) his confinement to administrative segrega- tion following the assault was unlawful, and (3) denial of visi- tation rights with minors was a serious deprivation of his rights. Defendants subsequently moved for summary judg- ment and argued, inter alia, the affirmative defenses of failure to exhaust administrative remedies under the PLRA and quali- fied immunity. The district court held an evidentiary hearing on September 18, 2006, on Defendants’ exhaustion argument. Morton pre- sented no evidence of exhaustion as to his claims of assault and improper administrative segregation. Defendants submit- ted the testimony of Robert Hall, the Inmate Appeals Coordi- nator at Corcoran, and Patrick Tonra, the Inmate Appeals Coordinator at Ironwood. Both men provided a detailed over- view of the record-keeping system for administrative appeals at each prison. Both men declared that they had reviewed hard-copy and electronic records and had found no evidence that Morton had ever filed a grievance pertaining to his assault. They testified that the only grievance for which records existed was Morton’s complaint relating to denial of visitations with minors. The district court found that Morton had failed to exhaust administrative remedies on his § 1983 claims regarding the assault and administrative segregation, and dismissed those claims without prejudice. The district court found that Morton had exhausted his § 1983 claim regarding the denial of visita- 4218 MORTON v. HALL tion rights, but the district court granted summary judgment for Defendants on the grounds that Morton had failed to state a constitutional or statutory violation and Defendants were protected by qualified immunity and the Eleventh Amend- ment. The district court denied Morton’s request for addi- tional discovery under Federal Rule of Civil Procedure 56(f) on the grounds that it was rendered irrelevant in light of the partial dismissal and grant of summary judgment. The district court then declined to exercise supplemental jurisdiction on the remaining state-law claims and entered final judgment for Defendants on Morton’s federal-law claims. Morton timely appealed. On appeal, Morton challenges only the dismissal of his § 1983 claim alleging that the delib- erate indifference of prison officials contributed to his assault (the “§ 1983 assault claim”). He argues that he was not required to exhaust the claim, that he did in fact exhaust the claim, and that the district court abused its discretion by deny- ing his request for additional discovery under Federal Rule of Civil Procedure 56(f). II In reviewing a dismissal for failure to exhaust administra- tive remedies, we review the district court’s legal conclusions de novo and factual findings for clear error. Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). We review the decision not to permit additional discovery under Rule 56(f) for abuse of discretion. Burlington N. Santa Fe R.R. Co. v. Assiniboine & Sioux Tribes of the Fort Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003). [1] According to the PLRA: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such MORTON v. HALL 4219 administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). In his opening brief, Morton argues that he was not required to exhaust administrative remedies under the PLRA with respect to his § 1983 assault claim because internal CDC grievance procedures do not provide a remedy in the form of money damages. This is an incorrect statement of law. Morton relies on outdated authority from this circuit overruled by the Supreme Court in Booth v. Churner, 532 U.S. 731 (2001).1 “The question is whether an inmate seeking only money damages must complete a prison administrative process that could provide some sort of relief on the com- plaint stated, but no money. We hold that he must.” Id. at 733. [2] In his reply brief, Morton concedes that Booth requires that he exhaust his administrative remedies, but argues instead that he did in fact exhaust administrative remedies on his § 1983 assault claim. In deciding a motion to dismiss for fail- ure to exhaust nonjudicial remedies under the PLRA, a district court “may look beyond the pleadings and decide disputed issues of fact.” Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003). At the hearing before the district court on exhaus- tion, Morton presented no evidence that he had exhausted this claim. On the other hand, Defendants presented the testimony of persons charged with administrative-appeals record keep- ing at both Ironwood and Corcoran, who both testified that neither prison had a record of any such grievance ever being filed. Moreover, Morton’s C-file contained no record of such a grievance. On this record, the district court did not commit clear error by finding that Morton had failed to exhaust administrative remedies on his § 1983 assault claim. Morton also argues that he exhausted his § 1983 assault The authorities relied on by Morton were Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999), and Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir. 1998) (order). 4220 MORTON v. HALL claim by exhausting his challenge to the CDC’s decision to deny him visitation with minors. According to Morton, the denial of visitation with minors “arose out of the same facts and circumstances” as his § 1983 assault claim and therefore exhausted both claims. [3] The level of detail in an administrative grievance nec- essary to properly exhaust a claim is determined by the pris- on’s applicable grievance procedures. Jones v. Bock, 549 U.S. 199, 218 (2007). However, “when a prison’s grievance proce- dures are silent or incomplete as to factual specificity, a griev- ance suffices if it alerts the prison to the nature of the wrong for which redress is sought.” Griffin, 557 F.3d at 1120 (inter- nal quotation marks omitted). “A grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved.” Id. [4] In this case, California regulations required Morton to lodge his administrative complaint on CDC Form 602 and “to describe the problem and action requested.” Cal. Code Regs. tit. 15, § 3084.2(a). The Form 602 Morton filed relating to the visitation restriction does not even mention the assault or the- orize that the visitation restriction imposed was related to the assault. Rather, Morton stated his problem as follows: Sometime on or near June 30, 2003 the visiting staff at Ironwood State Prison permanently restricted me from having visits from anyone under 18 years of age, whether they are a relative or not. Upon my family and I inquiring as to why, the response they and I receive is I was convicted of PC 273d. I have a list of all the PC restricting visits from minors and I was never charged with nor convicted with 273d or any of . . . the PC listed on the visiting regulations sheet. This was insufficient to put prison officials on notice of Mor- ton’s complaint that prison-staff conduct contributed to his MORTON v. HALL 4221 June 2003 assault. Accordingly, Morton did not exhaust administrative remedies on his § 1983 assault claim. The district court was required to dismiss Morton’s com- plaint because he did not exhaust administrative remedies, and therefore it did not abuse its discretion by denying Mor- ton’s request for additional discovery under Federal Rule of Civil Procedure 56(f). III For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED.

Volume 1 of 4 FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Dr. MICHAEL A. NEWDOW; PAT  DOE; JAN DOE; DOECHILD; JAN POE; POECHILD; ROECHILD-1, Plaintiffs, and JAN ROE and ROECHILD-2, Plaintiffs-Appellees, v. RIO LINDA UNION SCHOOL DISTRICT, Defendant-Appellant, and Nos. 05-17257 05-17344 UNITED STATES OF AMERICA; JOHN 06-15093 CAREY; ADRIENNE CAREY; BRENDEN CAREY; ADAM ARAIZA; ANITA  D.C. No. ARAIZA; ALBERT ARAIZA; MICHAELA CV-05-00017- BISHOP; CRAIG BISHOP; MARIE LKK BISHOP; TERESA DECLINES; DARIEN OPINION DECLINES; RYANNA DECLINES; ROMMEL DECLINES; JANICE DECLINES; ANTHONY DOERR; DAN DOERR; KAREN DOERR; SEAN FORSCHLER; TIFFANY FORSCHLER; FRED FORSCHLER; ESTERLITA FORSCHLER; MARY MCKAY; ROBERT MCKAY; SHARON MCKAY; THE KNIGHTS OF COLUMBUS, Defendants-Intervenors-Appellants, and  3866 NEWDOW v. RIO LINDA USD CONGRESS OF THE UNITED STATES OF  AMERICA; ELK GROVE UNIFIED SCHOOL DISTRICT; SACRAMENTO CITY UNIFIED SCHOOL DISTRICT; Dr. STEVEN LADD, Superintendent, Elk Grove Unified School District; M. MAGDALENA CARRILLO MEJIA, Superintendent, Sacramento City Unified School District; Dr. DIANNA MANGERICH, Superintendent, Elverta Joint  Elementary School District; FRANK S. PORTER, Superintendent, Rio Linda Unified School District; PETER LEFEVRE, Law Revision Counsel; ARNOLD SCHWARZENEGGER, Governor of California; RICHARD J. RIORDAN, California Secretary for Education, Defendants.  Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, District Judge, Presiding Argued and Submitted December 4, 2007—San Francisco, California Filed March 11, 2010 Before: Dorothy W. Nelson, Stephen Reinhardt, and Carlos T. Bea, Circuit Judges. Opinion by Judge Bea; Dissent by Judge Reinhardt NEWDOW v. RIO LINDA USD 3871 COUNSEL Dr. Michael Newdow (argued), Sacramento, California, for plaintiffs-appellees Jan Roe, et al. Craig M. Blackwell, Theodore C. Hirt, Peter D. Keisler, McGregor W. Scott, Gregory G. Katsas (argued), Robert M. Loeb, Lowell V. Sturgill, Jr., Department of Justice, Washing- ton, D.C., for defendant-intervenor-appellant United States. Terence J. Cassidy (argued), Michael W. Pott, Thomas L. Riordan, Porter, Scott, Weiberg & Delehant, Sacramento, Cal- ifornia, for defendant-appellant Rio Linda Union School Dis- trict. Kevin J. Hasson (argued), Anthony R. Picarello, Jr., Derek L. Gaubatz, Eric C. Rassbach, Jared N. Leland, The Becket Fund for Religious Liberty, Washington, D.C., for defendants- intervenors-appellants John Carey et al. Amici:* As Amicus Curiae in Support of Defendants-Appellants: Patrick T. Gillen, Ann Arbor, Michigan, for the Thomas More Law Center; *The amici in this case are extensive and include the following: All 50 States; the Pacific Justice Institute; the American Legion; the National Legal Foundation; the Thomas More Law Center; the Foundation for Moral Law; Los Angeles County; Rex Curry; the Appignani Humanist Legal Center; the Freedom from Religion Foundation, Inc.; American Atheists Inc.; the Madison-Jefferson Society; the Secular Coalition for America; the Atheists and Other Freethinkers, Humanist Association of Las Vegas and Southern Nevada, Agnostic and Atheist Student Associa- tion, Las Vegas Freethought Society; and the Humanist Community, Humanists of Houston, and the Humanist Association of the Greater Sac- ramento. We thank them all for their thoughts and efforts regarding this case. 3872 NEWDOW v. RIO LINDA USD Peter D. Lepiscopo, James M. Griffiths, Law Offices of Peter D. Lepiscopo, San Diego, California for the Pacific Justice Institute; Eric L. Hirschhorn, Anne W. Stukes, Andrew C. Nichols, Winston & Strawn LLP, Washington, DC, and Philip B. Onderdonk, Jr. for The American Legion, Indianapolis, Indi- ana; Greg Abbott, R. Ted Cruz, Office of the Attorney General, Austin, Texas; Lawrence Wasden, Attorney General of Idaho; Drew Edmondson, Attorney General of Oklahoma; Troy King, Attorney General of Alabama for all 50 States; Roy S. Moore, Gregory M. Jones, Benjamin D. Dupré, for the Foundation for Moral Law, Montgomery, Alabama; Steven W. Fitschen, The National Legal Foundation, Virginia Beach, Virginia, for the National Legal Foundation; and Raymond G. Fortner, Jr., Ralph L. Rosato, Doraine F. Meyer for the County of Los Angeles. As Amicus Curiae in Support of Plaintiffs-Appellees: Dr. Rex Curry, Tampa, Florida; Chris J. Evans, American Atheists, Inc., Irvine, California; for American Atheists, Inc.; George Daly, Charlotte, North Carolina, for the Freedom From Religion Foundation, Inc.; Shawn C. Mills and Paul S. Sanford, Aptos, California, for the Madison-Jefferson Society; Herb Silverman, Washington, D.C., for the Secular Coalition; NEWDOW v. RIO LINDA USD 3873 Norman Goldman, Los Angeles, California, for Atheists and other Freethinkers, Humanist Association of Las Vegas and Southern Nevada, Agnostic and Atheist Student Association, Las Vegas Freethought Society, The Humanist Community, Humanists of Houston, Humanist Association of the Greater Sacramento; and Melvin S. Limpan, Washington, D.C. for Appignani Human- ist Legal Centerl. OPINION BEA, Circuit Judge: I. Introduction We are called upon to decide whether the teacher-led reci- tation of the Pledge of Allegiance to the Flag of the United States of America, and to the Republic for which it stands, by students in public schools constitutes an establishment of reli- gion prohibited by the United States Constitution. We hold it does not; the Pledge is constitutional. The Pledge of Allegiance serves to unite our vast nation through the proud recitation of some of the ideals upon which our Republic was founded and for which we continue to strive: one Nation under God—the Founding Fathers’ belief that the people of this nation are endowed by their Creator with certain inalienable rights; indivisible—although we have individual states, they are united in one Republic; with liberty —the government cannot take away the people’s inalienable rights; and justice for all—everyone in America is entitled to “equal justice under the law” (as is inscribed above the main entrance to our Supreme Court). Millions of people daily recite these words when pledging allegiance to the United States of America: 3874 NEWDOW v. RIO LINDA USD I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all. 4 U.S.C. § 4 (2002). Pursuant to California Education Code § 52720, the Rio Linda Union School District in California (“the School Dis- trict”) has a practice that every morning, willing students, led by their teachers, face the American Flag, place their right hands over their hearts, and recite the Pledge of Allegiance. Plaintiff Jan Roe is a self-proclaimed atheist whose child, RoeChild-2, attends elementary school in the School District. Roe filed suit alleging that the words “under God” in the Pledge offend her belief that there is no God, interfere with her right to direct her child’s upbringing, and indoctrinate her child with the belief that God exists. The parties have stipu- lated that RoeChild-2 has never recited the Pledge, but Roe nevertheless asks us to prohibit the recitation of the Pledge by other students. Thus, this case presents a familiar dilemma in our pluralistic society—how to balance conflicting interests when one group wants to do something for patriotic reasons that another groups finds offensive to its religious (or atheis- tic) beliefs. In other words, does Roe have the right to prevent teachers from leading other students from reciting the Pledge of Allegiance—something we all agree is a patriotic exercise —because the mention of God in the Pledge offends her as an atheist? Plaintiffs challenge the School District’s policy as consti- tuting a violation of the Establishment Clause: “Congress shall make no law respecting an establishment of religion.” U.S. Const. amend. I. The Pledge reflects many beliefs held by the Founding Fathers of this country—the same men who authored the NEWDOW v. RIO LINDA USD 3875 Establishment Clause—including the belief that it is the peo- ple who should and do hold the power, not the government. They believed that the people derive their most important rights, not from the government, but from God: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. The Declaration of Independence, 1 U.S.C. § XLIII (1776) (emphasis added). The Founders did not see these two ideas— that individuals possessed certain God-given rights which no government can take away, and that we do not want our nation to establish a religion—as being in conflict. Not every mention of God or religion by our government or at the government’s direction is a violation of the Estab- lishment Clause. See Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (“Nor does the Constitution require complete separa- tion of church and state; it affirmatively mandates accommo- dation, not merely tolerance, of all religions, and forbids hostility toward any.”). The Supreme Court has upheld sev- eral government actions that contained a religious element against Establishment Clause claims: a display of the Ten Commandments on the Texas State Capitol grounds;1 the dis- play of a Chanukah menorah outside a City-County Building;2 the display of a Nativity scene in a public Christmas display;3 a state legislature’s practice of opening each day with a prayer led by a chaplain paid with state funds;4 a state’s property tax exemption for religious organizations;5 and a township’s pro- Van Orden v. Perry, 545 U.S. 677, 681 (2005). County of Allegheny v. ACLU, 492 U.S. 573, 578-79 (1989). Lynch v. Donnelly, 465 U.S. 668, 670-71 (1984). Marsh v. Chambers, 463 U.S. 783, 784-86 (1983). Walz v. Tax Comm’n, 397 U.S. 664, 667 (1970). 3876 NEWDOW v. RIO LINDA USD gram for reimbursing parents for the cost of transporting their children to parochial schools.6 Each of these cases involved religion. But taken in context, none of the government actions violated the Establishment Clause. The plaintiffs and the dissent focus solely on the words “under God” in isolation, stripped of all context and history. Plaintiffs and the dissent even go so far as to disregard the plain text of the preamble to 4 U.S.C. § 4 which sets forth that Congress had two primary purposes in including the phrase “one nation under God” in the Pledge: (1) to underscore the political philosophy of the Founding Fathers that God granted certain inalienable rights to the people which the government cannot take away; and (2) to add the note of importance which a Pledge to our Nation ought to have and which cere- monial references to God invoke. The Supreme Court has instructed us to do otherwise: “Focus exclusively on the reli- gious component of any [governmental] activity would inevi- tably lead to its invalidation under the Establishment Clause.” Lynch, 465 U.S. at 678. Were the correct focus as the dissent suggests, all of the above examples would have been found to violate the Establishment Clause, for all contain religious symbols or words. On the contrary, under Supreme Court law we are instructed to examine the history and context in which the phrase “one Nation under God” is used so that we may discern Congress’ “ostensible and predominant” purpose when it enacted the Pledge. See McCreary County v. ACLU, 545 U.S. 844, 867-68 (2005). Because California Education Code § 52720 as implemented by the School District’s Policy requires the recitation of the Pledge as a whole, we must examine the Pledge as a whole, not just the two words the Plaintiffs find offensive. In doing so, we find the Pledge is one of allegiance to our Republic, not of allegiance to the God or to any religion. Furthermore, Congress’ ostensible and pre- dominant purpose when it enacted and amended the Pledge over time was patriotic, not religious. Everson v. Bd. of Educ., 330 U.S. 1, 8-11 (1947). NEWDOW v. RIO LINDA USD 3877 The Supreme Court has agreed the Pledge is a “patriotic exercise designed to foster national unity and pride.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 6 (2004). Even the dissent agrees on this determinative point. Dissent at 4040 (“[T]he recitation of the Pledge both as originally written and as amended is a patriotic exercise . . . .”). The question about which we disagree is whether this patriotic activity is turned into a religious activity because it includes words with religious meaning. We hold that the Pledge of Allegiance does not violate the Establishment Clause because Congress’ ostensible and pre- dominant purpose was to inspire patriotism and that the con- text of the Pledge—its wording as a whole, the preamble to the statute, and this nation’s history—demonstrate that it is a predominantly patriotic exercise. For these reasons, the phrase “one Nation under God” does not turn this patriotic exercise into a religious activity. Accordingly, we hold that California’s statute requiring school districts to begin the school day with an “appropriate patriotic exercise” does not violate the Establishment Clause even though it permits teachers to lead students in recitation of the Pledge. California Education Code § 52720. In doing so we join our sister circuits who have held similar school policies do not violate the Establishment Clause. See Myers v. Loudoun County Pub. Schs., 418 F.3d 395, 409 (4th Cir. 2005) (upholding a Virginia statute requiring the daily recita- tion of the Pledge of Allegiance by students, but allowing stu- dents to sit or stand quietly if they object); Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling Twp., 980 F.2d 437, 447 (7th Cir. 1992), cert. denied, 508 U.S. 950 (1993) (same as to an Illinois statute).7 Therefore, we reverse the district court’s Contrary to the dissent’s assertion, Myers and Sherman are not based solely on Supreme Court dicta. We encourage the reader to read these cases for himself for we find them to be not only well-written, but also elegantly reasoned. 3878 NEWDOW v. RIO LINDA USD judgment and vacate the permanent injunction prohibiting the daily recitation of the Pledge in the School District. II. The Procedural History of this Case This is not the first time the Pledge has been challenged in our Circuit. In 2000, Newdow brought a similar Establish- ment Clause challenge against the Elk Grove Unified School District’s policy requiring teachers to lead their classes in the recitation of the Pledge. Newdow v. United States Congress, 2000 WL 35505916, at *1 (E.D. Cal. July 21, 2000). The dis- trict court rejected Newdow’s challenge and dismissed his complaint. Id. A divided panel of this Circuit reversed. Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002) (“Newdow I”). In its opinion, the panel held Newdow had standing as a par- ent to challenge Elk Grove’s Pledge-recitation policy, because the policy interfered with his right to direct his daughter’s religious upbringing. Id. at 602. Over Judge Fernandez’s dis- sent, the majority (of which Judge Reinhardt was a member) held Elk Grove’s policy violated the Establishment Clause. Id. at 612. Following the panel’s decision in Newdow I, the mother of Newdow’s daughter intervened in the case to challenge New- dow’s standing to sue on the basis that a California Superior Court had awarded her sole legal custody of the daughter. Newdow v. United States Congress, 313 F.3d 500, 502 (9th Cir. 2002) (“Newdow II”). The panel held the custody order did not deprive Newdow of standing to challenge the Elk Grove Pledge-recitation policy, even though he had lost cus- tody of his daughter. Id. at 502-03. The panel then issued an order amending its opinion in Newdow I and denying panel rehearing and rehearing en banc. Newdow v. United States Congress, 328 F.3d 466 (9th Cir. 2003) (“Newdow III”). The amended opinion did not reach the NEWDOW v. RIO LINDA USD 3879 question whether the Pledge was constitutional and instead invalidated, again over Judge Fernandez’s dissent, only the Elk Grove School District’s policy. Id. at 490. Nine judges of our Circuit dissented from the denial of rehearing en banc. See Newdow III, 328 F.3d at 471, 482. The Supreme Court of the United States reversed. Elk Grove, 542 U.S. at 5. The Court held that Newdow, as a non- custodial parent with interests potentially adverse to those of his daughter, failed to satisfy the requirements of “prudential standing, which embodies judicially self-imposed limits on the exercise of federal jurisdiction.” Id. at 11 (citation and internal quotation marks omitted). Accordingly, the Court held the Newdow III panel erred by reaching the merits of Newdow’s Establishment Clause challenge. Id. at 17. Plaintiffs, including Jan Roe who has full custody of her daughter, filed this action contending the teacher-led recita- tion of the Pledge in California public schools violates the Establishment Clause. Newdow v. United States Congress, 383 F. Supp. 2d 1229 & n.1 (E.D. Cal. 2005) (“Newdow IV”). The district court dismissed the majority of plaintiffs’ claims. As to the plaintiffs’ Establishment Clause claim against the recitation of the Pledge in the School District, the district court held this court’s decision in Newdow III remained binding authority, despite the Supreme Court’s deci- sion in Elk Grove Unified Sch. Dist. v. Newdow. Newdow IV, 383 F. Supp. 2d at 1240-41. Relying on Newdow III, the dis- trict court held the School District’s Policy requiring the daily, voluntary recitation of the Pledge by students violated the Establishment Clause. “Because this court is bound by the Ninth Circuit’s holding in Newdow III, it follows that the school districts’ policies violate the Establishment Clause. Accordingly, upon a properly-supported motion, the court must enter a restraining order to that effect.” Id. at 1242. The district court stayed the permanent injunction pending any 3880 NEWDOW v. RIO LINDA USD appeals to this court and to the Supreme Court. This timely appeal followed. III. Standard of Review We review a district court’s grant of a permanent injunction for abuse of discretion. Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1176 (9th Cir. 2002). However, we review legal questions underlying the district court’s grant of injunc- tive relief de novo. Id. Whether a statute violates the Estab- lishment Clause is a question of law we review de novo. Vasquez v. Los Angeles County, 487 F.3d 1246, 1254 (9th Cir. 2007). IV. Standing It is important to distinguish exactly which statutes are challenged on appeal and which are not. Only California Edu- cation Code § 52720 and the School District’s Policy are at issue in this case. The district court dismissed plaintiffs’ chal- lenge to the 1954 Amendment to the Pledge, and their direct challenge to the Pledge, as codified in 4 U.S.C. § 4. Newdow IV, 383 F. Supp. 2d at 1242. Plaintiffs did not cross-appeal this dismissal of their claims challenging the 1954 amendment to the Pledge and the codification of the Pledge at 4 U.S.C. § 4, and therefore they have abandoned those claims on appeal. [1] Even though Plaintiffs do not assert they have standing to challenge the 1954 Amendment, the Dissent assumes they do. Plaintiffs do not have standing to challenge the 1954 Amendment because no federal statute requires plaintiffs to recite the Pledge. Even under the School District’s Policy, children “may choose not to participate in the flag salute for personal reasons” or they can simply omit any words they find offensive. To satisfy standing requirements, a plaintiff must prove: “(1) he has suffered an ‘injury in fact’ that is (a) concrete and NEWDOW v. RIO LINDA USD 3881 particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the chal- lenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envt’l. Servs. (TOC), Inc. 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). [2] Plaintiffs are unable to show the 1954 amendment causes them to suffer any concrete and particularized injury because nothing in the Pledge actually requires anyone to recite it. To the contrary, however, because the Pledge does not mandate that anyone say it, Newdow has no personal injury to contest its wording in the courts. Rather, his remedy must be through the legislative branch. [3] Instead of a particularized injury, plaintiffs would, at most, be asserting “generalized grievances more appropriately addressed in the representative branches”, which do not con- fer standing. Allen v. Wright, 468 U.S. 737, 751 (1984); see also Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 489-90 n.26 (1982). Additionally, the 1954 Amendment did not involve Congress’ power to tax and spend, U.S. Const. art. I § 8, so the narrow exception established in Flast v. Cohen, 392 U.S. 83, 88 (1968), allowing a taxpayer to bring an Estab- lishment Clause challenge to the use of public funds does not apply. V. The Lemon Test We turn now to the merits of the plaintiffs’ Establishment Clause claims.8 There are three possible tests for determining whether a statute violates the Establishment Clause—the The Establishment Clause applies to the states through the Fourteenth Amendment. Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947). 3882 NEWDOW v. RIO LINDA USD Lemon test, the Endorsement test and the Coercion Test. We examine each in turn. Plaintiffs contend the School District’s policy violates the Establishment Clause test announced in Lemon v. Kurtzman, 403 U.S. 602 (1971), commonly known as the “Lemon test.” Although the Lemon test has been widely criticized, our court has reaffirmed its continuing vitality. See Card v. City of Everett, 520 F.3d 1009, 1013 (9th Cir. 2008); Access Fund v. USDA, 499 F.3d 1036, 1042 (9th Cir. 2007) (“The Lemon test remains the benchmark to gauge whether a particular govern- ment activity violates the Establishment Clause.”). [4] Under the Lemon test, to be constitutional (1) the chal- lenged governmental action must have a secular purpose; (2) “its principal or primary effect must be one that neither advances nor inhibits religion”; and (3) it “must not foster an excessive government entanglement with religion.” Lemon, 403 U.S. at 612-13 (citations and internal quotation marks omitted). The School District’s Policy must satisfy all three prongs of the Lemon test. Under each prong of this test, we first examine California Education Code § 52720 and the School District’s Policy and then, because the School Dis- trict’s Policy states that recitation of the Pledge will suffice, we also examine the Pledge. VI. California Education Code § 52720 and the School District’s Policy Are Constitutional under the Lemon test. California Education Code § 52720 states as follows: In every public elementary school each day during the school year at the beginning of the first regularly scheduled class or activity period at which the majority of the pupils of the school normally begin the school day, there shall be conducted appropriate patriotic exercises. The giving of the Pledge of Alle- NEWDOW v. RIO LINDA USD 3883 giance to the Flag of the United States of America shall satisfy the requirements of this section. In every public secondary school there shall be con- ducted daily appropriate patriotic exercises. The giv- ing of the Pledge of Allegiance to the Flag of the United States of America shall satisfy such require- ment. Such patriotic exercises for secondary schools shall be conducted in accordance with the regula- tions which shall be adopted by the governing board of the district maintaining the secondary school. To comply with California Education Code § 52720, the Rio Linda Union School District adopted the following policy (“The School District’s Policy”): Patriotic Exercises Each school shall conduct patriotic exercises daily. At elementary schools, such exercises shall be con- ducted at the beginning of each school day. The Pledge of Allegiance to the flag will fulfill this requirement. (Education Code § 52720) Individuals may choose not to participate in the flag salute for personal reasons. [5] All parties agree that the “ostensible and predominant” purpose of both California Education Code § 52720 and the School District’s Policy is patriotic. We agree. The plain wording of California Education Code § 52720 and the School District’s Policy both express a secular purpose: to encourage the performance of patriotic exercises in public school. Not only does the plain wording provide for the stu- dents to begin the day with a “patriotic exercise”, but it does not mandate the text of the Pledge or any other patriotic exer- cise. The Pledge is one acceptable alternative. Because only a patriotic exercise is encouraged and no particular text is 3884 NEWDOW v. RIO LINDA USD mandated, the California statute and the School District’s pol- icy are neutral toward religion. See Wallace v. Jaffree, 472 U.S. 38, 55 n.37 (1985). [6] Lemon’s second prong is also met. The effect of Cali- fornia Education Code § 52720 and the School District’s Pol- icy is stated quite clearly in each: each school shall conduct “appropriate patriotic exercises” daily. There is no mention of anything religious in either. Further, although the recitation of the Pledge “shall satisfy” this requirement, it is not mandated under California law. Schools could decide to have the chil- dren learn and recite a different historical document each week, or participate in another patriotic activity, such as working on a project to help the nation. Recitation of the Pledge is just one of many ways to satisfy this patriotic requirement. [7] Plaintiffs also concede that Lemon’s third prong, “ex- cessive [governmental] entanglement” with religion, is not violated by California Education Code § 52720 or the School District’s Policy, and we agree. Neither involves any entan- glement with religion at all, let alone excessive entanglement. Lemon, 403 U.S. at 612-13. VII. The Pledge of Allegiance Is Constitutional under the Lemon test. Because the School District’s Policy states that recitation of the Pledge will fulfill the policy, we also examine the Pledge itself. We begin our analysis with the least controversial ele- ments of the Lemon test in this case. A. The Pledge does not involve any excessive entanglement with religion. [8] Plaintiffs concede that the Pledge does not violate Lemon’s third prong, “excessive [governmental] entangle- NEWDOW v. RIO LINDA USD 3885 ment” with religion, and we agree. There is no excessive entanglement with religion. Lemon, 403 U.S. at 612-13. B. The primary or principal effect of the Pledge is neither to advance nor inhibit religion. [9] The Supreme Court has said the Pledge is a “common public acknowledgment of the ideals that our flag symbolizes. Its recitation is a patriotic exercise designed to foster national unity and pride in those principles.” Elk Grove, 542 U.S. at 6. The Pledge also has the permissible secular effect of pro- moting an appreciation of the values and ideals that define our nation. The recitation of the Pledge is designed to evoke feel- ings of patriotism, pride, and love of country, not of divine fulfillment or spiritual enlightenment. In sum, the students are simply supporting the nation through their Pledge “to the Flag of the United States of America and to the Republic for which it stands.” Thus, the Pledge passes Lemon’s second prong. Next, we turn to the hotly contested issue in this case, whether Congress’ purpose in enacting the Pledge of Alle- giance was predominantly patriotic or religious. C. Congress’ purpose in enacting the Pledge of Allegiance was patriotic. Under Lemon’s first prong, governmental action is uncon- stitutional only if it has the “ostensible and predominant pur- pose of advancing religion.” McCreary County, 545 U.S. at 860. We must defer to the government’s articulation of a sec- ular purpose, of which patriotism is one; however, the govern- ment’s stated purpose must be sincere, not a sham. Edwards v. Aguillard, 482 U.S. 578, 586-87 (1987). In 2002, Congress’ purpose in reaffirming the Pledge by enacting 4 U.S.C. § 4 was predominantly secular. The phrase “under God”, when read in context with the whole of the Pledge, has the predominant purpose and effect of adding a 3886 NEWDOW v. RIO LINDA USD solemn and inspiring note to what should be a solemn and inspiring promise—a promise of allegiance to our Republic. 1. We must examine the Pledge as a whole. When it comes to testing whether words and actions are violative of the Establishment Clause, context is determina- tive. The dissent analyzes only the words “under God”, instead of analyzing the context in which those words appear.9 The Supreme Court has specifically rejected such a limited analysis: “[the dissenting Justices] would cut context out of the enquiry, to the point of ignoring history, no matter what bearing it actually had on the significance of current circum- stances. There is no precedent for [their] arguments, or reason supporting them.” McCreary County, 545 U.S. at 864. Fur- ther, “[t]he eyes that look to purpose belong to an ‘objective observer’ . . . one presumed to be familiar with the history of the government’s actions and competent to learn what history has to show.” Id. at 864-66 (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000)). The dissent suggests that we should look only at the 1954 textual amendments to the Pledge. See Dissent at 3973-78, 3998-99. We disagree. Wallace looked not only to the textual difference between two statutes, but also to the legislative record surrounding the second statute, to the statute’s spon- sor’s testimony before the district court, and to the informa- The dissent mis-characterizes our analysis on page 3998. It is not the word “under” upon which we must focus, it is the entire wording of the Pledge as a whole. If the Pledge were solely: “We are under God’s rule”, would it make a difference? It would. There would be an argument that this was nothing more than a prayer. So would the Ten Commandments be a purely religious symbol if they stood alone in the Texas governmental park; so would the Nativity Crèche in the Rhode Island Park, if not sur- rounded by a Christmas tree, Santa and a Menorah. The recognition that words or symbols change and have different meanings in different con- texts is not “pure poppycock”, Dissent at 3998, unless Van Orden and Donnelly are pure poppycock. NEWDOW v. RIO LINDA USD 3887 tion Governor Wallace supplied in his answer to plaintiff Jaffree’s complaint, and to the character of a statute on a simi- lar topic passed one year later. Wallace, 472 U.S. at 56-60 (1985). Following Wallace’s holistic approach, we must examine the relevant history. [10] “[T]he question is what viewers may fairly understand to be the purpose of the display. That inquiry, of necessity, turns upon the context in which the contested object appears.” McCreary County, 545 U.S. at 867-68 (quoting County of Allegheny v. ACLU, 492 U.S. 573, 595 (1989)). The Califor- nia statute and the School District’s Policy provide for recita- tion of the entire Pledge, not just the two words to which the plaintiffs and the dissent object. Accordingly, we examine the Pledge as a whole. [11] In the previous case brought by Newdow, the Supreme Court recognized why we pledge allegiance to the flag: The very purpose of a national flag is to serve as a symbol of our country, and of its proud traditions of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations. As its history illustrates, the Pledge of Allegiance evolved as a common public acknowl- edgment of the ideals that our flag symbolizes. Its recitation is a patriotic exercise designed to foster national unity and pride in those principles. Elk Grove, 542 U.S. at 5 (internal citations and quotation marks omitted). The Supreme Court has held prayers, invocations and other overtly religious activities in public school violate the Estab- lishment Clause. A student-led prayer before high school football games;10 a prayer delivered by a clergyman in a high Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). 3888 NEWDOW v. RIO LINDA USD school graduation ceremony;11 a period of silence in a public school for “meditation or voluntary prayer;”12 a required Bible reading before each school day;13 and a daily prayer14 all have been invalidated by the Supreme Court as unconstitutional school-sponsored religious exercises. All of the religious exercises invalidated in those cases shared a fundamental characteristic absent from the recitation of the Pledge: the exercise, observance, classroom lecture, or activity was predominantly religious in nature—a prayer, invocation, petition, or a lecture about “creation science.”15 Lee v. Weisman, 505 U.S. 577 (1992). In Lee, the Court found that a prayer led by a Rabbi specifically made reference to the Judeo-Christian tradition, because it was taken from Micah 6:8. See id. at 603 n.5. In the Pledge, the phrase “one Nation under God” does not make reference to any text, doctrine, or the practice of any particular religion in a manner that might be taken as suggestive, let alone coercive. The most likely prov- enance of the words is from either George Washington’s address to boost his troops’ morale, the Declaration of Independence, or President’s Lin- coln’s tribute to the dead at Gettysburg. George Washington, General Orders (July 2, 1776); Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863). See pages 3903 to 3908 infra. Much as Justice Brennan explained, the “references to God contained in the Pledge of Allegiance” are “uniquely suited to serve such wholly sec- ular purposes as solemnizing public occasions, or inspiring commitment to meet some national challenge in a manner that simply could not be fully served in our culture if government were limited to purely non-religious phrases.” Lynch, 465 U.S. at 716-17. Wallace v. Jaffree, 472 U.S. 38 (1985). Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203 (1963). Engel v. Vitale, 370 U.S. 421 (1962). See e.g. Santa Fe, 530 U.S. at 306-07 (“[T]he only type of message that is expressly endorsed in the text [of the school policy] is an ‘invocation’—a term that primarily describes an appeal for divine assis- tance.”); Lee, 505 U.S. at 581-82, 598 (“[T]he State has . . . compelled attendance and participation in an explicit religious exercise [involving repeated thanks to God and requests for blessings] at an event of singular importance to every student.”); Wallace, 472 U.S. at 58 (“The wholly reli- gious character of the later enactment [of the Alabama statute] is plainly NEWDOW v. RIO LINDA USD 3889 [12] The purpose of public prayer is always active—to invite divine intercession, to express personal gratitude, to ask forgiveness, etc. On the other hand, the recitation of “one Nation under God” is a description of the Republic rather than an expression of the speaker’s particular theological beliefs, a recognition of the historical principles of governance, affected by religious belief, embedded in the Pledge. “[Our] institutions presuppose a Supreme Being.” Zorach v. Clausen, 343 U.S. 306, 313 (1952). The dissent states that the mere recitation of “under God” in the Pledge is an affirmation that God exists: it “ ‘requires affirmation of a belief and an attitude of mind’ to which young Roe does not subscribe: a belief that God exists and is watching over our nation.” Dissent at 3975 (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943)). If in fact the students were required to say the Pledge, the dis- sent would have a valid point. But the California legislature has already taken this consideration into account by allowing anyone not to say the Pledge, or hear the Pledge said, for any personal reason. What is at issue is not saying the Pledge or affirming a belief in God. What is at issue is whether Roechild can prevent other students, who have no such objec- tion, from saying the Pledge. [13] In contending the Pledge is an unconstitutional reli- gious exercise, plaintiffs erroneously fixate solely on the evident from its text.”); Edwards, 482 U.S. at 589 (striking down a Louisi- ana statute that had the “purpose of discrediting ‘ “evolution by counter- balancing its teaching at every turn with the teaching of creationism’ ”); Schempp, 374 U.S. at 210 (“The reading of the [Bible] verses, even with- out comment, possesses a devotional and religious character and consti- tutes in effect a religious observance.” (citation and internal quotation marks omitted)); Engel, 370 U.S. at 424 (“There can, of course, be no doubt that New York’s program of daily classroom invocation of God’s blessings as prescribed in the Regents’ prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty.”). 3890 NEWDOW v. RIO LINDA USD words “under God” and disregard the context in which those words appear. True, the words “under God” have religious significance. This, however, does not convert the Pledge into a prayer or other religious exercise. As the Supreme Court has explained, “Focus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause.” Lynch, 465 U.S. at 680. Under the dis- sent’s rationale, every government action that had any reli- gious component to it would violate the Establishment Clause. But that is clearly not the case, as the Supreme Court has repeatedly told us. See also discussion at pages 3875-76 supra. Where the very same religious symbols are displayed for traditional cultural purposes and in a context evoking themes and values other than religion, they have been found not to violate the Establishment Clause. See Van Orden v. Perry, 545 U.S. 677, 681 (2005) (upholding a Ten Commandments display on state capitol grounds among other historical monu- ments); Lynch, 465 U.S. at 670-71, 680, 687 (upholding a crèche displayed as just one part of a city’s annual Christmas display because the crèche depicted the “historical origins of this traditional event long recognized as a National Holiday”). The Supreme Court’s most recent pronouncements on the Establishment Clause, Van Orden and McCreary County, are instructive on the importance of context. Van Orden and McCreary County were decided on the same day in 2005. Although a display containing the Ten Commandments was at issue in both cases, the Court upheld the display in Van Orden, but invalidated it in McCreary County. The words dis- played were the same, but the context made all the difference: On the one hand, the Commandments’ text undeni- ably has a religious message, invoking, indeed emphasizing, the Deity. On the other hand, focusing on the text of the Commandments alone cannot con- clusively resolve this case. Rather, to determine the NEWDOW v. RIO LINDA USD 3891 message that the text here conveys, we must exam- ine how the text is used. And that inquiry requires us to consider the context of the display. Van Orden, 545 U.S. at 700-01 (Breyer, J., concurring) (emphasis in original). The Ten Commandments display in Van Orden was in a state park that contained both religious and secular monu- ments and historical markers. Van Orden, 545 U.S. at 681. In contrast, the Ten Commandments display in a Kentucky courthouse appeared alone and thus the “unstinting focus was on religious passages.” McCreary County, 545 U.S. at 870. Only after the display was challenged did the County add other displays to the area. Id. As we discuss, infra at page 3896, fn. 19, the 2002 Act is distinguishable from the actions of McCreary County. Just as the text of the Ten Commandments display may be constitutional in one context but not the other, the word “God” may violate the Establishment Clause when placed in one context, but not another. For example, a school district’s policy requiring teachers to lead students in reciting, “We give thanks to You, Lord, for keeping us alive, sustaining us and allowing us to reach this special, happy occasion,” consti- tutes a prayer or religious exercise violative of the Establish- ment Clause. Lee, 505 U.S. at 582 (citation and internal quotation marks omitted). There, the word “Lord,” like the Ten Commandments display in McCreary County, is placed in a wholly religious context and is surrounded by words whose “unstinting focus” are religious. Not so, the same word “Lord” on the granite monument in Van Orden, surrounded by other monuments and historical objects.16 Likewise, the The text of the Ten Commandments display in Van Orden was far more religious than the phrase “under God” at issue here: I AM the LORD thy God. Thou shalt have no other gods before me. 3892 NEWDOW v. RIO LINDA USD phrase “one Nation under God” in the Pledge appears as part of a pledge of allegiance to “the Flag of the United States of America, and to the Republic for which it stands,” not a per- sonal pledge of allegiance to God. The Pledge recitation is led by a teacher, not by a clergyman or other religious leader. Cf. Lee, 505 U.S. at 586, 587. The students doff baseball caps; they do not kneel, nor don yarmulkes, veils or rosaries. The Pledge is thus distinguishable from the school-sponsored prayers invalidated by the Supreme Court in Lee and Wallace. Nevertheless, the dissent would have us ignore the wording of the Pledge as a whole to focus only on one portion of the Pledge, the portion plaintiffs find objectionable, because in Wallace v. Jaffree, 472 U.S. 38 (1985), the Court examined an amendment to a statute to provide for prayer. We must dis- agree with the dissent as to its application of Wallace to this case. In Wallace, the parents of public school children chal- lenged an amendment to a state statute which had provided for a moment of silence at the beginning of each day in the public schools. The challenged amendment changed the pur- pose of the moment of silence from “meditation” to “medita- Thou shalt not make to thyself any graven images. Thou shalt not take the Name of the Lord thy God in vain. Remember the Sabbath day, to keep it holy. Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee. Thou shalt not kill. Thou shalt not commit adultery. Thou shalt not steal. Thou shalt not bear false witness against thy neighbor. Thou shalt not covet thy neighbor’s house. Thou shalt not covet thy neighbor’s wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor’s. Van Orden, 545 U.S. at 707 (Stevens, J., dissenting). NEWDOW v. RIO LINDA USD 3893 tion or voluntary prayer.” Id. at 58-59 (emphasis added); Ala. Code § 16-1-20.1 (1984). This statute was enacted the year before another statute, Alabama Code § 16-1-20.2, which pro- vided the text of a prayer to be said each day by the students.17 This combination of “voluntary prayer” and the suggested prayer to be said out loud left no doubt that the purpose of the statute was to promote religion. Focusing, as we must, on how the text of the statute is used, Van Orden, 545 U.S. at 701 (Breyer, J., concurring), we see that the addition of “or voluntary prayer” to the statute in Wallace was used to encourage students to participate in a religious exercise—the very prayer enacted in Alabama Code § 16-1-20.2. Here, the addition of “under God” was used to describe an attribute of the Republic, “one Nation under God” —a reference to the historical and religious traditions of our country, not a personal affirmation through prayer or invoca- tion that the speaker believes in God. Alabama Code § 16-1-20.2 provided: From henceforth, any teacher or professor in any public educa- tional institution within the state of Alabama, recognizing that the Lord God is one, at the beginning of any homeroom or any class, may pray, may lead willing students in prayer, or may lead the willing students in the following prayer to God: Almighty God, You alone are our God. We acknowledge You as the Creator and Supreme Judge of the world. May Your justice, Your truth, and Your peace abound this day in the hearts of our countrymen, in the counsels of our government, in the sanctity of our homes and in the classrooms of our schools in the name of our Lord. Amen. Wallace v. Jaffree, 466 U.S. 924 (1984) (holding Ala. Code § 16-1-20.2 violates the Establishment Clause). 3894 NEWDOW v. RIO LINDA USD 2. The legislative history shows Congress had a predominantly patriotic purpose when it enacted the Pledge. Lemon mandates our inquiry look to the “plain meaning of the statute’s words, enlightened by their context and the con- temporaneous legislative history [and] the historical context of the statute, . . . and the specific sequence of events leading to [its] passage.” McCreary County, 545 U.S. at 862 (quoting from Edwards, 482 U.S. at 594-95) (alteration in original). The dissent fails to do any of this. [14] In 2002, Congress reaffirmed the current Pledge, which now includes references to how it is to be recited and which specifically sets forth Congress’ reasons for the “plain meaning of the statute’s words.” See Pub. L. No. 107-293, 116 Stat. 2057 (codified as amended in 4 U.S.C. § 4, 36 U.S.C. § 302) (effective November 13, 2002). It is the 2002 statute—4 U.S.C. § 4—that sets forth our current Pledge. It is the contemporaneous legislative history of the 2002 Act which should tell us the purpose of the Congress in 2002 that is relevant to our inquiry because that is the statute that was in force when Roe Child-2 heard her schoolmates recite the Pledge and when Jan Roe brought this action. It remains the current statute. It is the “specific sequence of events” leading to the passage of the 2002 Act we must consider.18 The Dissent asserts that we should ignore the current statute in effect because it was not argued by the parties at oral argument. With respect, just because the Dissent does not like the 2002 Act does not mean we are free to ignore its legal effect. We are charged with conducting a correct legal analysis of this case whether the parties on appeal do or not. Indeed, often issues that are not discussed at oral argument are determinative of the case. For instance, prudential standing was not argued during the oral argument in this court in Newdow I, nor did this court hold further argu- ments before issuing Newdow III but the Supreme Court nevertheless cer- tainly found prudential standing to be the determinative issue in Elk Grove. 542 U.S. at 6. NEWDOW v. RIO LINDA USD 3895 In determining Congress’ purpose under the Lemon test, “[t]he starting point in every case involving construction of a statute is the language itself.” Edwards, 482 U.S. at 597-98 (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975) (Powell, J., concurring)). The primary flaw in the dissent’s reasoning is that, because the secular reasons given directly in the statute do not lead to the dissent’s desired result, the dissent ignores those reasons and instead focuses on the statements of individual legislators making statements in an election year. The Supreme Court has been very clear that we are not to do this: As an initial matter, the [text of the statute] is a suffi- cient basis for meeting the secular purpose prong of the Lemon test. See Edwards v. Aguillard, 482 U.S. 578, 586 (1987) ([The] Court “is normally deferen- tial to a [legislative] articulation of a secular pur- pose”); Mueller v. Allen, 463 U.S. 388, 394-95 (1983) ([The] Court is “reluctan[t] to attribute unconstitutional motives to the States, particularly when a plausible secular purpose for the State’s pro- gram may be discerned from the face of the statute”). . . . Even if some legislators were motivated by a conviction that religious speech in particular was valuable and worthy of protection, that alone would not invalidate the Act, because what is relevant is the legislative purpose of the statute, not the possibly religious motives of the legislators who enacted the law. Bd. of Educ. of Westside Comm. Sch. v. Mergens, 496 U.S. 226, 248-49 (1990) (emphasis added). With the 2002 Act, Congress “reaffirmed the exact lan- guage that has appeared in the Pledge for decades.” See Pub. L. No. 107-293, 116 Stat. 2057 at 2060 (codified as amended in 4 U.S.C. § 4, 36 U.S.C. § 302) (effective November 13, 2002). McCreary County tells us we must also consider the 3896 NEWDOW v. RIO LINDA USD legislative history of this act to determine its predominant purpose and effect.19 Congress chose to explain in great detail its purpose in reaf- firming the language of the Pledge, for although it did not amend the text of the Pledge, it did extensively amend the text of the statute enacting the Pledge, setting forth its specific purposes in the following extensive legislative findings:20 Congress finds the following: (1) On November 11, 1620, prior to embarking for the shores of America, the Pilgrims signed the May- flower Compact that declared: “Having undertaken, for the Glory of God and the advancement of the Christian Faith and honor of our King and country, a voyage to plant the first colony in the northern parts of Virginia,”. (2) On July 4, 1776, America’s Founding Fathers, after appealing to the “Laws of Nature, and of The reenactment of the Pledge here is distinguishable from the actions of the county in McCreary County for several key reasons. First and fore- most, in McCreary County it was the same governmental body which put up the challenged display, containing as “unstinting focus” on “religious passages”, that then added secular documents to camouflage that display only after an Establishment Clause challenge was brought. Here, Congress thought the Pledge as amended in 1954 was constitutional for 48 years. It re-enacted the text only because it thought that this court had mis- interpreted its original purpose. Further, only one member of Congress, Senator Byrd, served in both the 1954 and 2002 Congresses. Further, unlike the late-blooming additions to the display in McCreary County, the 2002 Legislature did not add any further secular content to the Pledge to dilute the challenged words. We presume the 2002 Legislature’s purpose is as stated, and is not a sham, because the 2002 Legislature has given us no reason to presume its stated reasons are not in fact its real reasons for the enactment. See Edwards, 482 U.S. at 586-87. The plaintiffs have not carried their burden to show otherwise. NEWDOW v. RIO LINDA USD 3897 Nature’s God” to justify their separation from Great Britain, then declared: “We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalien- able Rights, that among these are Life, Liberty, and the Pursuit of Happiness”. (3) In 1781, Thomas Jefferson, the author of the Declaration of Independence and later the Nation’s third President, in his work titled “Notes on the State of Virginia” wrote: “God who gave us life gave us liberty. And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these lib- erties are of the Gift of God. That they are not to be violated but with His wrath? Indeed, I tremble for my country when I reflect that God is just; that his justice cannot sleep forever.”. (4) On May 14, 1787, George Washington, as President of the Constitutional Convention, rose to admonish and exhort the delegates and declared: “If to please the people we offer what we ourselves dis- approve, how can we afterward defend our work? Let us raise a standard to which the wise and the honest can repair; the event is in the hand of God!”. (5) On July 21, 1789, on the same day that it approved the Establishment Clause concerning reli- gion, the First Congress of the United States also passed the Northwest Ordinance, providing for a ter- ritorial government for lands northwest of the Ohio River, which declared: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”. (6) On September 25, 1789, the First Congress unanimously approved a resolution calling on Presi- 3898 NEWDOW v. RIO LINDA USD dent George Washington to proclaim a National Day of Thanksgiving for the people of the United States by declaring, “a day of public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a constitution of government for their safety and happiness.”. (7) On November 19, 1863, President Abraham Lincoln delivered his Gettysburg Address on the site of the battle and declared: “It is rather for us to be here dedicated to the great task remaining before us —that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain— that this Nation, under God, shall have a new birth of freedom—and that Government of the people, by the people, for the people, shall not perish from the earth.”. (8) On April 28, 1952, in the decision of the Supreme Court of the United States in Zorach v. Clauson, 343 U.S. 306 (1952), in which school chil- dren were allowed to be excused from public schools for religious observances and education, Justice Wil- liam O. Douglas, in writing for the Court stated: “The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concern or union or dependency one on the other. That is the common sense of the matter. Otherwise the State and religion would be aliens to each other —hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render NEWDOW v. RIO LINDA USD 3899 police or fire protection to religious groups. Police- men who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclama- tions making Thanksgiving Day a holiday; ‘so help me God’ in our courtroom oaths—these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnos- tic could even object to the supplication with which the Court opens each session: ‘God save the United States and this Honorable Court.’ ”. (9) On June 15, 1954, Congress passed and Presi- dent Eisenhower signed into law a statute that was clearly consistent with the text and intent of the Con- stitution of the United States, that amended the Pledge of Allegiance to read: “I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.”. (10) On July 20, 1956, Congress proclaimed that the national motto of the United States is “In God We Trust”, and that motto is inscribed above the main door of the Senate, behind the Chair of the Speaker of the House of Representatives, and on the currency of the United States. (11) On June 17, 1963, in the decision of the Supreme Court of the United States in Abington School District v. Schempp, 374 U.S. 203 (1963), in which compulsory school prayer was held unconsti- tutional, Justices Goldberg and Harlan, concurring in the decision, stated: “But untutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that 3900 NEWDOW v. RIO LINDA USD noninterference and noninvolvement with the reli- gious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious. Such results are not only not compelled by the Con- stitution, but, it seems to me, are prohibited by it. Neither government nor this Court can or should ignore the significance of the fact that a vast portion of our people believe in and worship God and that many of our legal, political, and personal values derive historically from religious teachings. Govern- ment must inevitably take cognizance of the exis- tence of religion and, indeed, under certain circumstances the First Amendment may require that it do so.”. (12) On March 5, 1984, in the decision of the Supreme Court of the United States in Lynch v. Donelly, 465 U.S. 668 (1984), in which a city gov- ernment’s display of a nativity scene was held to be constitutional, Chief Justice Burger, writing for the Court, stated: “There is an unbroken history of offi- cial acknowledgment by all three branches of gov- ernment of the role of religion in American life from at least 1789 . . . [E]xamples of reference to our reli- gious heritage are found in the statutorily prescribed national motto ‘In God We Trust’ (36 U.S.C. 186), which Congress and the President mandated for our currency, see (31 U.S.C. 5112(d)(1) (1982 ed.)), and in the language ‘One Nation under God’, as part of the Pledge of Allegiance to the American flag. That pledge is recited by many thousands of public school children—and adults—every year . . . Art galleries supported by public revenues display religious paint- ings of the 15th and 16th centuries, predominantly inspired by one religious faith. The National Gallery in Washington, maintained with Government sup- port, for example, has long exhibited masterpieces NEWDOW v. RIO LINDA USD 3901 with religious messages, notably the Last Supper, and paintings depicting the Birth of Christ, the Cru- cifixion, and the Resurrection, among many others with explicit Christian themes and messages. The very chamber in which oral arguments on this case were heard is decorated with a notable and permanent—not seasonal—symbol of religion: Moses with the Ten Commandments. Congress has long provided chapels in the Capitol for religious worship and meditation.”. (13) On June 4, 1985, in the decision of the Supreme Court of the United States in Wallace v. Jaffree, 472 U.S. 38 (1985), in which a mandatory moment of silence to be used for meditation or vol- untary prayer was held unconstitutional, Justice O’Connor, concurring in the judgment and address- ing the contention that the Court’s holding would render the Pledge of Allegiance unconstitutional because Congress amended it in 1954 to add the words “under God,” stated “In my view, the words ‘under God’ in the Pledge, as codified at (36 U.S.C. 172), serve as an acknowledgment of religion with ‘the legitimate secular purposes of solemnizing pub- lic occasions, [and] expressing confidence in the future.’ ”. (14) On November 20, 1992, the United States Court of Appeals for the 7th Circuit, in Sherman v. Community Consolidated School District 21, 980 F.2d 437 (7th Cir. 1992), held that a school district’s policy for voluntary recitation of the Pledge of Alle- giance including the words “under God” was consti- tutional. (15) The 9th Circuit Court of Appeals erroneously held, in Newdow v. U.S. Congress (9th Cir. June 26, 2002), that the Pledge of Allegiance’s use of the 3902 NEWDOW v. RIO LINDA USD express religious reference “under God” violates the First Amendment to the Constitution, and that, there- fore, a school district’s policy and practice of teacher-led voluntary recitations of the Pledge of Allegiance is unconstitutional. (16) The erroneous rationale of the 9th Circuit Court of Appeals in Newdow would lead to the absurd result that the Constitution’s use of the express religious reference “Year of our Lord” in Article VII violates the First Amendment to the Con- stitution, and that, therefore, a school district’s pol- icy and practice of teacher-led voluntary recitations of the Constitution itself would be unconstitutional. 4 U.S.C. § 4 (2002). [15] These findings make it absolutely clear that Congress in 2002 was not trying to impress a religious doctrine upon anyone. Rather, they had two main purposes for keeping the phrase “one Nation under God” in the Pledge: (1) to under- score the political philosophy of the Founding Fathers that God granted certain inalienable rights to the people which the government cannot take away; and (2) to add the note of importance which a Pledge to our Nation ought to have and which in our culture ceremonial references to God arouse. The dissent contends that we must ignore the 2002 reaffir- mation in its entirety. See Dissent at 3973-78. But the Supreme Court has rejected this mode of analysis. Again, “[t]he eyes that look to purpose belong to an objective observer . . . competent to learn what history has to show,” McCreary County, 545 U.S. at 862-66 (quotations and cita- tions removed), and our observer’s competence will not sud- denly fail her when she is presented with the most recent legislative history of 4 U.S.C. § 4. Even if the dissent were correct that the focus of our inquiry should be the 1954 amendments to the text of the NEWDOW v. RIO LINDA USD 3903 Pledge, Wallace makes clear that the 2002 reaffirmation would still be relevant. In Wallace, the Court determined whether a school prayer statute had a secular purpose by look- ing at, among other things, the “character” of a subsequent statute, passed a year later, which the Court described as a “sequel” to the statute at issue. Wallace, 472 U.S. at 58. Determining the purpose of the Pledge requires understanding the history of the Pledge, and any such history is incomplete without the 2002 reaffirmation. 3. History supports Congress’ view of the Pledge. [16] Not only must we examine the words “under God” in the context of the rest of the Pledge, we must also examine them in the context of history. Without knowing the history behind these words, one might well think the phrase “one Nation under God” could not be anything but religious. His- tory, however, shows these words have an even broader meaning, one grounded in philosophy and politics and reflect- ing many events of historical significance. The words “under God” were added to the Pledge of Alle- giance in 1954 in response to the oppressive governments forming around the World. Congress wanted to emphasize that in America, the government’s power is limited by a higher power. But to understand this concept, we must look back to the beginning of our nation. Among the “self-evident truths” the Framers believed was the concept that all people are entitled to certain inalienable rights given to them by the “Laws of Nature and Nature’s God” and that the purpose of government should be “to secure these rights.” In the monarchies of Europe, it was believed that God gave the King his power, and the people had only such limited rights as the King graciously bestowed upon them. When drafting the Establishment and Free Exercise Clauses of the First Amendment, the Founders had this reli- gious history of Europe in mind: 3904 NEWDOW v. RIO LINDA USD [T]o the men who wrote the Religion Clauses of the First Amendment the ‘establishment’ of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity. In England, and in some Colonies at the time of the separation in 1776, the Church of England was spon- sored and supported by the Crown as a state, or established, church; in other countries ‘establish- ment’ meant sponsorship by the sovereign of the Lutheran or Catholic Church. See Engel v. Vitale, 370 U.S., at 428 n. 10, 82 S. Ct., at 1265. See gener- ally C. Antieau, A. Downey, & E. Roberts, Freedom from Federal Establishment (1964). The exclusivity of established churches in the 17th and 18th centu- ries, of course, was often carried to prohibition of other forms of worship. Walz v. Tax Comm’n, 397 U.S. 664, 667 (1970); see also Everson v. Bd. of Educ., 330 U.S. at 8-11 (“A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government favored churches. The centuries immediately before and contemporaneous with the coloniza- tion of America had been filled with turmoil, civil strife, and persecutions, generated in large part by established sects determined to maintain their absolute political and religious supremacy. . . . In efforts to force loyalty to whatever reli- gious group happened to be on top and in league with the gov- ernment of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed.”). In contrast, the Framers believed that God endowed people with certain inalienable rights, rights no government could take away and no church could regulate. These rights were inalienable by the government because they were derived from a source more powerful than, and entitled to more respect than, the government—even a democratically elected government. The government could regulate only those rights NEWDOW v. RIO LINDA USD 3905 the people gave to the government. This fundamental debate —whether government has only limited rights given to it by the people, or whether the people have only limited rights given to them by the government—remains one of the crucial debates around the world to this day. Whether government is limited or unlimited has a profound impact on people’s day- to-day lives. For instance, if the police arrest an individual, in many countries, the only question is whether there is a law forbidding the arrest. If there is no such law, the arrest is legal because the government is all powerful and not to be ques- tioned. In America, the question is what law allows the police to arrest the person. If there is no such law, then the arrest is unlawful and the person can petition the courts to be released because the government has only such power as the people have chosen to give it through their elected representatives. In 1776, limited government was a rare concept. If the new government of this nation would have only limited powers, what authority limited these powers? If the people would retain certain rights that did not emanate from the govern- ment, whence came those rights? The Framers referred to the source of the people’s rights as the “Creator,” the “Supreme Judge,” and “Nature’s God.” The Declaration of Indepen- dence, 1 U.S.C. § XLIII (1776). The name given to this unknowable, varied source was not crucial, but the source was a necessary prerequisite to the concept of limited government that formed the basis of our nation’s founding.21 After the Revolutionary War, a committee consisting of James Madi- son, Alexander Hamilton, and later Chief Justice Oliver Ellsworth drafted an “Address to the States, by the United States in Congress Assembled.” According to the Address, the Revolutionary War was won for the rights of human nature, rights that had an “Author”: Let it be remembered, finally, that it has ever been the pride and boast of America that the rights for which she contended were the rights of human nature. By the blessings of the Author of these rights on the means exerted for their deference, they have pre- vailed against all opposition, and form the basis of thirteen inde- pendent States. 3906 NEWDOW v. RIO LINDA USD Long before this nation could be founded, the Framers had to convince the people in the American colonies that their individual rights were important enough to start a war. Impor- tant enough to die for. Important enough to send their sons to die for. We must remember the Framers urged a rationale for committing treason against Great Britain. For this, they needed to draw upon every weapon in their intellectual arse- nal. They needed to call upon divine inspiration, as so many armies before them had.22 Alexander Hamilton argued in February 1775, “The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sun- beam, in the whole volume of human nature, by the hand of the Divinity himself, and can never be erased or obscured by mortal power.” Alexander Hamilton, The Farmer Refuted (1775). And so when the Second Continental Congress of the United States met on July 4, 1776, the original thirteen states sought to convince not only the Colonists, but also the world William Hickey, The Constitution of the United States of America 139-40 (1853) (emphasis added), cited in Anthony R. Picarello, Jr., Establishing Anti-Foundationalism Through the Pledge of Allegiance Cases, 5 First Amend. L. Rev. 183, 188 (2006) (filed as part of the brief for Defendant- Intervenor Carey). In his General Orders, George Washington invoked the phrase “under God” to inspire his troops when describing the fate of America if the King of Great Britain, with his unlimited powers, should win the Revolutionary War: The fate of unborn Millions will now depend, under God, on the Courage and Conduct of this army—Our cruel and unrelenting Enemy leaves us no choice but a brave resistance, or the most abject submission; this is all we can expect—We have therefore to resolve to conquer or die. George Washington, General Orders (July 2, 1776) (emphasis added), cited in Picarello, 5 First Amend. L. Rev. at 187. NEWDOW v. RIO LINDA USD 3907 that a higher power granted rights directly to the people, who would in turn grant only limited powers to their new govern- ment: When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the sepa- rate and equal station to which the Laws of Nature and of Nature’s God entitle them,23 a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separa- tion. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. The Declaration of Independence, 1 U.S.C. § XLIII (1776) (emphasis added). “The Declaration of Independence was the promise; the Constitution was the fulfillment.”24 The Constitution fulfilled the promise of the Declaration by creating a government of limited powers. The government was divided into three co- equal but separate branches that would check and balance one another to ensure the government remained limited, and the people’s rights secure. Here, Jefferson was referring to Cicero’s concept that “God himself” was the author, promulgator, and enforcer of the “universal law of jus- tice.” Marcus Tullius Cicero, De Republica III, xxii. Cicero, who lived from 106 BC to 43 BC, obviously was not a Christian. Thus, this concept of God and Nature bestowing rights upon the people is not confined to the traditions of Christianity, regardless of some of the proclamations of preachers and Congressmen in 1954. Charles Alan Wright, Warren Burger: A Young Friend Remembers, 74 Tex. L. Rev. 213, 219 (1995) (quoting Chief Justice Warren Burger). 3908 NEWDOW v. RIO LINDA USD While the Revolutionary War was waged against the abu- sive King of Great Britain, the Civil War was waged against abusive State governments.25 Many abolitionists asserted that slaves were also endowed by the Creator with certain inalien- able rights that could not be taken away by the government. During his Gettysburg Address, President Abraham Lincoln called upon this higher power, using the very same phrase— ”nation, under God”—to describe a belief in equality and lim- ited government: [T]he great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth. Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863) (emphasis added). The original Pledge of Allegiance was drafted by Frances Bellamy in 1892: “I pledge allegiance to my Flag and the Republic for which it stands: one Nation indivisible,26 with Liberty and Justice for all.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 6 (2004). It was published in a national youth magazine commemorating the 400th anniversary of Christopher Columbus’ arrival in America. Id. Following the Civil War, the Fourteenth Amendment was added, to limit the power of the States as against the rights of the people. In particu- lar, the Fourteenth Amendment was necessary to guard against states dis- regarding the prohibition against slavery found in the Thirteenth Amendment. Reinforcement of the idea that this nation is indivisible, a concept most Americans today would not even think was up for debate, reflects the fact that the Pledge was first drafted in 1892, not long after the Civil War. NEWDOW v. RIO LINDA USD 3909 During World War II, Congress formally codified the Pledge of Allegiance. Unlike Bellamy’s version, the 1942 Pledge referred expressly to the United States of America because there was a worry that a Pledge to “my Flag” would allow those who sympathized with other nations to appear to be supporting America, while secretly supporting Germany, Japan, or the like: “I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation indivisible, with liberty and justice for all.” Id. (citation and internal quotation marks omitted). Pub. L. No. 623, Ch. 435, § 7, 56 Stat. 380 (1942) (codified at 36 U.S.C. § 1972, now repealed). In the early 1950s America became involved in the war waged between North and South Korea. North Korea was aided by the communist regimes of the Soviet Union and China, while South Korea was aided by the United Nations, including the United States, Australia, and Great Britain. This was just one of many times when the West opposed the spread of communism. American soldiers had just fought and died in this war, not returning until after the cease fire in July 1953. Encyclopedia Britannica Online Ed. available at http:// search.eb.com/eb/article-9046072 (last visited August 4, 2009). Indeed, America still has troops in South Korea. The tensions over the differences in political systems continue today. Id. It was while the scars of the Korean War were still fresh that Congress decided to amend the Pledge again. [17] In 1954, during the escalating Cold War with North Korea, the Soviet Union and other communist countries, Con- gress further amended the Pledge by changing the phrase “one Nation indivisible” to “one Nation under God, indivisible.” Pub. L. No. 396, Ch. 297, 68 Stat. 249 (1954). The words “under God” were added as a description of “one Nation” pri- marily to reinforce the idea that our nation is founded upon the concept of a limited government, in stark contrast to the unlimited power exercised by communist forms of govern- ment. In adding the words “under God” to the Pledge, Con- 3910 NEWDOW v. RIO LINDA USD gress reinforced the belief that our nation was one of individual liberties granted to the people directly by a higher power: At this moment of our history the principles underly- ing our American Government and the American way of life are under attack by a system whose phi- losophy is at direct odds with our own. [O]ur Ameri- can Government is founded on the concept of the individuality and the dignity of the human being. Underlying this concept is the belief that the human person is important because he was created by God and endowed by Him with certain inalienable rights which no civil authority may usurp. H.R. Rep. No. 83-1693, 1954 U.S.C.C.A.N. 2339, 2340 (May 28, 1954). The House Report adopted this statement from Representative Rabaut: By the addition of the phrase ‘under God’ to the pledge, the consciousness of the American people will be more alerted to the true meaning of our coun- try and its form of government. In this full awareness we will, I believe, be strengthened for the conflict now facing us and more determined to preserve our precious heritage. More importantly, the children of our land, in the daily recitation of the pledge in school, will be daily impressed with a true understanding of our way of life and its origins. As they grow and advance in this understanding, they will assume the responsibilities of self-government equipped to carry on the tradi- tions that have been given to us. Id. at 2341.27 The dissent appears to think the historical context for the Pledge extends back no more than to the Sunday when Reverend Docherty gave NEWDOW v. RIO LINDA USD 3911 Undoubtedly, as the dissent sets forth in great detail, some members of Congress sought to promote religion and to com- bat atheism. We do not dispute that those motives do not com- port with the First Amendment. Where the dissent errs, however, is in focusing solely on what individuals say when they are making political statements to their constituencies and ending its analysis there instead of also looking at what Congress did when it enacted and amended the Pledge over time. The dissent ignores the plain language of the 2002 Act —the only evidence we have of what an overwhelming majority of both houses of Congress voted for.28 Why does the dissent ignore the language in the statute that Congress voted for? Because the Congressional findings set forth in the stat- ute do not lead to the result the dissent desires. The dissent his sermon. With respect, Reverend Docherty was never elected to office and, though he may indeed have delivered a moving sermon, the concept of this nation being “one Nation under God” extended back long before his time, at least to General Washington’s address to his troops in 1776 and to President Lincoln’s Gettysburg address in 1863. George Washing- ton, General Orders (July 2, 1776); Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863). We do not doubt some members of Congress were motivated to add the phrase “under God” to the Pledge to serve wholly religious ends. Never- theless, under Supreme Court precedent, our Establishment Clause inquiry focuses solely on “the legislative purpose of the statute, not the possibly religious motives of the legislators who enacted the law.” Bd. of Educ. v. Mergens, 496 U.S. 226, 249 (1990) (plurality opinion of O’Connor, J.); see United States v. O’Brien, 391 U.S. 367, 384 (1968) (“What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it.”). The Senate passed the 2002 Act with 99 Yeahs and 1 member not vot- ing. For the Senate vote, see http://www.senate.gov/legislative/LIS/ roll_call_lists/roll_call_vote_cfm.cfm?congress=107&session=2&vote= 00166 (last visited January 15, 2010). The House passed the Act with a vote of 401 Yeahs; 5 Nays; 4 members present; and 21 members not voting. For the House vote, see http:// thomas.loc.gov/cgi-bin/query/D?r107:36:./temp/r10777QQHb:: (last vis- ited January 15, 2010). 3912 NEWDOW v. RIO LINDA USD also ignores the inescapable fact that it is the 2002 Act that is in effect today. The dissent points to instances where individual Congress- men proclaimed, as politicians often do in election years, the obvious religious elements of the amendment. But we are cal- led upon to discern Congress’ ostensible and predominant purpose, not the purpose of an individual. See McCreary County, 545 U.S. at 867-68. That purpose is not the statement of one or more individual members of Congress, but what the committees putting forth the amendment actually stated and, more important, what the text of the statute says. Id.; Mer- gens, 496 U.S. at 248-49. One related point is important. The dissent attributes one meaning to the words “under God” and proclaims that is the end of the inquiry. We are called upon to discern Congress’ purpose. We first stated what we thought the purpose of the words was in Newdow III. Congress thought we misinter- preted its purpose. See page 3903 supra. Thus, Congress set forth its reasons in detail in the 2002 Act. Another related point is that: It cannot be the case that Congress may override a constitutional decision by simply rewriting the his- tory upon which it is based. For instance, Congress surely cannot negate the effect of a Fourth Amend- ment decision by penning its own account of the scope of lawful searches at the time of the Founding. Cf. Florida v. White, 526 U.S. 559, 563-64 (1999) (“In deciding whether a challenged governmental action violates the [Fourth] Amendment, we have taken care to inquire whether the action was regarded as an unlawful search and seizure when the Amendment was framed.”). United States v. Enas, 255 F.3d 662, 675 (9th Cir. 2001) (en banc). This principle applies when Congress is trying to re- NEWDOW v. RIO LINDA USD 3913 write history, not when Congress is trying to clarify our mis- understanding of its own purpose in enacting a statute. The 2002 Congress made it clear that we had misunderstood Con- gress’ purpose in our ruling in Newdow III. It was thus per- fectly appropriate for a different Congress to clarify its present purpose for us by setting forth its reasons in detail in the 2002 Act. And given the margins by which the 2002 Act passed, it is clear that virtually all of the members of Congress agreed we had misinterpreted the purpose of the words “under God.” The dissent calls the 2002 Congress’ purpose a sham but does not point to even one place where Congress is incorrect in its recitation of history. The dissent disregards the fact that the Supreme Court has also recognized that the Founders’ religious beliefs are a part of our nation’s history. “The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the May- flower Compact to the Constitution itself.” Schempp, 374 U.S. 213. Further, it makes sense that we must examine the purpose of the most recent Congressional enactment, since under the Lemon test we are required to examine purpose.29 Otherwise, One can certainly question the wisdom of trying to discern a legisla- ture’s unitary purpose and whether that purpose, even if it can be dis- cerned, should be a part of the relevant test for Establishment Clause claims. First, it is difficult if not impossible to say that members of a Con- gress act with one purpose. Second, litigants challenging a governmental action do not tend to care about the government’s purpose as much as the effect the governmental action has on their lives. Third, concentrating on the purpose can lead to either striking down a facially secular action that had a religious purpose, or upholding an action with religious content where the legislature was careful to set forth a secular purpose. Although both are remote possibilities because the Lemon test has three parts and does not focus solely on legislative purpose, both possibilities highlight the potential pitfalls of including purpose in the analysis. Nevertheless, as long as we are constrained by the Lemon test, we must attempt to examine the purpose of the legislature that enacted the statute in issue, which in this case is the 2002 statute. 3914 NEWDOW v. RIO LINDA USD a perfectly valid measure, with a predominantly secular effect, as is the Pledge, would forever be banned by the politically motivated statements of some legislators (or even someone who is not in the legislature, like Reverend Docherty). The dissent’s analysis would grant a heckler’s veto to anyone who made just enough noise in support of an enactment so as to defeat an otherwise valid measure. That is not the law. 4. Secular purposes that have a religious component to them can be constitutional. That certain enactments can have both secular and religious purposes and still be constitutional has been recognized by the Supreme Court. “A religious purpose alone is not enough to invalidate an act of a state legislature. The religious purpose must predominate.”30 Edwards, 482 U.S. at 598 (Powell, J., concurring). See also McGowan v. Maryland, 366 U.S. 420, 442 (1961) (“[T]he ‘Establishment’ Clause does not ban fed- eral or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation . . . . [T]he fact that [a policy] agrees with the dic- tates of the Judeo Christian religions while it may disagree with others does not invalidate the regulation.”). We must be “reluctant to attribute unconstitutional motives” to Congress when the stated purpose of the statute is a plausible secular purpose. Mueller v. Allen, 463 U.S. 388, 394-95 (1983). Both the purposes of inspiring and solemniz- Webster’s defines predominant as: 1. having ascendancy, power, authority, or influence over oth- ers; preeminent. 2. preponderant; prominent: a predominant trait; the predomi- nant color of a painting. See http://dictionary.reference.com/ browse/predominant (last visited January 20, 2010). NEWDOW v. RIO LINDA USD 3915 ing do have a religious element to them. Nevertheless, that does not make them predominantly religious in nature. The Supreme Court has recognized that sometimes a statute has a religious purpose mixed with a secular purpose, and yet the statute does not violate the Establishment Clause. Lynch, 465 U.S. at 680. Indeed, even in Wallace, both the majority and Justice Powell’s concurrence recognized that a statute can still be constitutional even when the statute has both secular and religious purposes. 472 U.S. at 56 & n.41 (majority) (holding that “even though a statute that is motivated in part by a reli- gious purpose may satisfy the first criterion . . . the First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion” and “a statute must be invalidated if it is entirely motivated by a pur- pose to advance religion.”; id. at 64 (Powell, J., concurring) (“We have not interpreted the first prong of Lemon, supra, however, as requiring that a statute have ‘exclusively secular’ objectives. . . . If such a requirement existed, much conduct and legislation approved by this Court in the past would have been invalidated.”). The preamble to the 2002 Act specifically mentions Zorach v. Clausen, 343 U.S. 306, 313 (1952). In Zorach, the plaintiffs brought a challenge under the Establishment Clause to a New York City program releasing children who wanted to attend classes on religion from attendance in public school for part of the day. As is the case here, no student was forced to par- ticipate in any religious exercises. Id. at 311-12.31 Similarly, in Marsh v. Chambers, the Court held that the opening of the Also, as is the case here, any coercion in Zorach was from fellow stu- dents, not any of the state employees. Again, the Court dismissed such coercion as not being controlled by the Establishment Clause: “The only allegation in the complaint that bears on the issue [of coercion] is that the operation of the program ‘has resulted and inevitably results in the exer- cise of pressure and coercion upon parents and children to secure atten- dance by the children for religious instruction.’ But this charge does not even implicate the school authorities.” Zorach, 343 U.S. 306, 312 n.7 (1952). 3916 NEWDOW v. RIO LINDA USD Nebraska legislature’s session with a prayer by a chaplain paid for with public funds was simply an acknowledgment of the role that religion played in our nation’s history. Marsh v. Chambers, 463 U.S. 783, 793 (1983). There, as the Court observed, the nation’s historical practices can outweigh even obvious religious concerns under the Establishment Clause: We turn then to the question of whether any features of the Nebraska practice violate the Establishment Clause. Beyond the bare fact that a prayer is offered, three points have been made: first, that a clergyman of only one denomination-Presbyterian-has been selected for 16 years; second, that the chaplain is paid at public expense; and third, that the prayers are in the Judeo-Christian tradition. Weighed against the historical background, these factors do not serve to invalidate Nebraska’s practice. Id. at 792-93 (footnotes omitted). The Court later invalidated opening a graduation ceremony with a prayer, citing the vulnerability of children. The reli- gious component of the words at issue was much stronger; Lee involved a religious exercise. Here, a patriotic exercise is involved which only mentions the concept of “God.” NEWDOW v. RIO LINDA USD 3917 Volume 2 of 4 NEWDOW v. RIO LINDA USD 3919 The dissent would have us strike down the Pledge because it is not exclusively secular, but contains the words “under God.” The Lemon test, however, asks whether a challenged statute or governmental action is predominantly religious or secular, not exclusively secular. McCreary County, 545 U.S. at 867-68. This formulation makes sense because oftentimes what one person considers secular, another considers reli- gious. For instance, even the dissent thinks the 1942 version of the Pledge was secular, yet that was the version challenged in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 626, 629 (1943). Dissent at 4028-29. To the Jehovah’s Wit- nesses in Barnette, even the version of the Pledge that did not contain the words “under God” violated their religious free- dom by causing them to pledge allegiance to something other than God. Id. In Barnette, Jehovah’s Witnesses challenged a school board regulation requiring students to recite the Pledge and salute the flag, contending that the regulation compelled them to violate their religious prohibition against bowing down to a graven image. 319 U.S. at 626, 629. Refusal to comply with the mandatory Pledge recitation resulted in the expulsion of the student from school and criminal penalties for his parents for the consequent truancy. Id. at 630. The school policy did not allow students to opt out for any reason, much less with- out explanation, as do the schools involved here. The Supreme Court held the school policy mandating recitation of the Pledge violated the Free Speech Clause of the First Amendment, because the policy forced the students, under threat of penalty, to recite the Pledge against their wishes. Id. at 633-34, 642. The Supreme Court did not, however, go as far as the dissent would here, and strike down the Pledge of Allegiance. The Supreme Court held that as long as recitation of the Pledge was optional, then the Pledge was constitu- tional. The same principle applies here. This is one of the great principles of our nation, when it comes to participating in non-violent religious exercises, or holding particular reli- gious views: All may, none must. 3920 NEWDOW v. RIO LINDA USD [18] In the context of the Pledge, the phrase “one Nation under God” constitutes a powerful admission by the govern- ment of its own limitations.32 Although the phrase also has religious connotations, “one Nation under God” in the Pledge is a reference to the historical and political underpinnings of our nation. As Justice Brennan noted, “[T]he revised pledge of allegiance, for example, may merely recognize the histori- cal fact that our Nation was believed to have been founded ‘under God.’ Thus reciting the pledge may be no more of a religious exercise than the reading aloud of Lincoln’s Gettys- burg Address, which contains an allusion to the same histori- cal fact.” Schempp, 374 U.S. at 304 (Brennan, J., concurring). [19] In light of the patriotic context in which the phrase “under God” is recited and the historical context in which that phrase has been enacted into law, we hold its voluntary recita- tion as part of the Pledge by school children, as practiced by the Rio Linda Union School District, does not violate the Establishment Clause. VIII. The Endorsement Test: The Pledge has neither the purpose nor the effect of endorsing religion. [20] For the same reasons we find the Pledge does not vio- late the Lemon test, we similarly find the Pledge does not vio- late the Endorsement Test, first articulated by Justice O’Connor in her Lynch concurrence and subsequently Whether Congress could have represented sufficiently the historical and political foundations of our nation with a wholly secular phrase instead of “one Nation under God” is not for us to say. The Establishment Clause does not require the government to show it has adopted the most narrow means of accomplishing its objectives by avoiding reference to religion or God wherever possible. In upholding the display of a crèche as part of a City’s annual Christmas display, the Lynch Court stated that “Justice [Brennan in dissent] argues that the City’s objectives could have been achieved without including the crèche in the display. True or not, that is irrelevant. The question is whether the display of the crèche violates the Establishment Clause.” Lynch, 465 U.S. at 681 n.7 (citation omitted). NEWDOW v. RIO LINDA USD 3921 adopted by a majority of the Court in County of Allegheny. 492 U.S. at 578-79. Under the Endorsement Test, we look to see whether the challenged governmental action has the pur- pose or effect of endorsing, favoring, or promoting religion, particularly if it has the effect of endorsing one religion over another. Id. at 593-94. “Endorsement sends a message to non- adherents that they are outsiders, not full members of the political community.” Lynch, 465 U.S. at 688 (O’Connor, J., concurring). [Under the Endorsement Test,] the question is what viewers may fairly understand to be the purpose of the display. That inquiry, of necessity, turns upon the context in which the contested object appears: A typ- ical museum setting, though not neutralizing the reli- gious content of a religious painting, negates any message of endorsement of that content. County of Allegheny, 492 U.S. at 595 (internal marks omit- ted). In other words, under the Endorsement Test, as under the Lemon Test, the words “one Nation under God” must be ana- lyzed in terms of the context of the Pledge, which the dissent once again fails to do. Thus, in Wallace v. Jaffree, the Court held Alabama’s moment-of-silence statute was unconstitutional because it was “enacted . . . for the sole purpose of expressing the State’s endorsement of prayer activities.” 472 U.S. at 60. Similarly, in County of Allegheny, the Court held a nativity display with a banner proclaiming “Gloria in Excelsis Deo” unconstitu- tional because it was intended to convey the message that the viewer should give glory to God for the birth of Christ, a spe- cifically Christian belief. 492 U.S. at 580. [21] Here, in contrast, as analyzed in detail above, both the purpose and effect of the Pledge are that of a predominantly patriotic, not a religious, exercise. The phrase “under God” is a recognition of our Founder’s political philosophy that a 3922 NEWDOW v. RIO LINDA USD power greater than the government gives the people their inalienable rights. Thus, the Pledge is an endorsement of our form of government, not of religion or any particular sect. [22] The dissent would have us analyze the Pledge in terms of what a child reciting it may or may not understand about the historical significance of the words being recited. But a child’s understanding cannot be the basis for our consti- tutional analysis. The Supreme Court has expressly rejected this approach: “We decline to employ Establishment Clause jurisprudence using a modified heckler’s veto, in which a group’s religious activity can be proscribed on the basis of what the youngest members of the audience might misperc- eive.” Good News Club v. Milford Central Sch., 533 U.S. 98, 119 (2001). Rather, the inquiry turns on how a reasonable observer would view the wording of the Pledge as a whole: “[B]ecause our concern is with the political commu- nity writ large, the endorsement inquiry is not about the perceptions of particular individuals or saving isolated nonadherents from . . . discomfort . . . . It is for this reason that the reasonable observer in the endorsement inquiry must be deemed aware of the history and context of the community and forum in which the [activity takes place].” Id. (emphasis added) (quoting Capitol Square Review & Advi- sory Bd. v. Pinette, 515 U.S. 753, 779-80 (1995) (O’Connor, J., concurring in part and concurring in the judgment)). We recognize some school children who are unaware of its his- tory may perceive the phrase “under God” in the Pledge to refer exclusively to a monotheistic God of a particular reli- gion. A reasonable observer, however, aware of the history and origins of the words in the Pledge would view the Pledge as a product of this nation’s history and political philosophy. NEWDOW v. RIO LINDA USD 3923 IX. The Coercion Test: The Pledge does not coerce students to support or participate in religion or in a religious exercise. This brings us to plaintiffs’ next contention, that the recita- tion of the Pledge in a public school classroom unconstitu- tionally coerces objecting students into affirming a belief in God. Even though the students in the school are not compelled33 to recite the Pledge by threat of penalty, are they nonetheless coerced into participating in a religious exercise? Relying pri- marily on the Supreme Court’s decision in Lee v. Weisman, plaintiffs ask us to find they are. We agree that the students in elementary schools are being coerced to listen to the other students recite the Pledge. They may even feel induced to recite the Pledge themselves. Although the School District’s Policy does not compel them to recite the Pledge, or even to listen to others reciting the Pledge, we recognize that elementary school children are unlikely to walk out of the classroom in protest. But the main distinction is this: Here, the students are being coerced to par- ticipate in a patriotic exercise, not a religious exercise. The Pledge is not a prayer and its recitation is not a religious exer- cise. The students are not being forced to become involuntary congregants listening to a prayer, as they were in Lee. 505 U.S. at 593. Under the School District’s policy, the recitation of the Pledge is purely voluntary. Students can choose not to recite the Pledge for any per- sonal reason and to keep that reason to themselves. No student is required to recite or even to hear the recitation of the Pledge, nor can any student be disciplined for refusing to participate. Students can also participate in the recitation of the Pledge and simply omit the words “under God” with- out fear of discipline. Thus, the free speech claim that was involved in Barnette, where the students were forced to say the Pledge, is not at issue in this case. 319 U.S. at 630. We note that even though the Barnette Court held students who considered it to be against their religion could not be forced to recite the Pledge, the Court nonetheless did not hold that those students could also prevent other students who had no such religious objection from reciting the Pledge, which is what plaintiffs seek here. 3924 NEWDOW v. RIO LINDA USD Children are coerced into doing all sort of things in school, such as learning to read and to solve mathematical problems. What they must not be coerced into doing is to support or par- ticipate in religion, or engage in a religious exercise. Lee’s indirect psychological coercion analysis, by its own terms, applies only to religion or to religious exercises, which carry “a particular risk of indirect coercion.” Lee, 505 U.S. at 592. In Lee v. Weisman, the Supreme Court addressed the con- stitutionality of an invocation and benediction prayer deliv- ered by a rabbi during a high school graduation ceremony. 505 U.S. at 580. The prayer contained repeated references and thanks to God and, throughout its opinion, the Court described the prayer as a “religious exercise.” See e.g., id. at 580-82, 588, 589, 598. In analyzing the constitutionality of the prayer, the Lee Court adopted and applied what is now known as the coercion test: “[A]t a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.” Id. at 587.34 The Supreme Court, in a divided 5-4 decision, held the prayer failed the coercion test and was unconstitutional. Although attendance at the graduation ceremony was volun- tary, the students’ participation in an event as important as a high school graduation ceremony was in a “fair and real sense obligatory.” Id. at 586, 595. Although the students were not compelled to say the prayers, the students in attendance would nonetheless be indirectly coerced to participate in the reli- gious exercise or at least maintain respectful silence. Id. at 593. Although plaintiffs do not raise the argument RoeChild-2 is required to “support or participate” in religion, the dissent calls attention to these words in Lee. It is difficult to see how RoeChild-2 supports or participates in religion when she is neither required to recite nor even to listen to the Pledge, and when it is stipulated by her attorneys that she has never said the Pledge. NEWDOW v. RIO LINDA USD 3925 The Court in Lee, however, expressly confined its holding to religious exercises. “These dominant facts mark and con- trol the confines of our decision: State officials direct the per- formance of a formal religious exercise at promotional and graduation ceremonies for secondary schools.” 505 U.S. at 586; see also id. at 599 (“The sole question presented is whether a religious exercise may be conducted at a graduation ceremony . . . .”) (emphasis added).35 The Lee Court noted the Pledge of Allegiance, with “under God” in it by then, was recited at the graduation ceremony before the challenged prayer. Lee, 505 U.S. at 583. Although not dispositive of our inquiry, we find it telling that the plaintiffs in Lee did not challenge, nor did the Court suggest, the recitation of the Pledge was unconstitutionally coercive. Lee did not rule that every mention of God or religion in public school is unconsti- tutionally coercive. Other Courts of Appeal examining this issue and applying Lee agree. In holding a school policy providing for the daily recitation of the Pledge by students does not violate the Establishment Clause, the Fourth Circuit explained: The prayers ruled unconstitutional in Lee, Schempp, and Engel . . . were viewed by the Court as distinctly religious exercises. It was the religious nature of these activities that gave rise to the concern that non- participating students would be indirectly coerced Eight years later, in Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000), the Court applied Lee’s indirect coercion test to invalidate a school policy that permitted, but did not require, students to elect a speaker to deliver “a brief invocation and/or message” before high-school football games. Id. at 298 n.6, 301-02. Once again, it was the nature of the activity —a prayer—that coerced those in attendance to participate in an unconsti- tutional exercise: “Even if we regard every high school student’s decision to attend a home football game as purely voluntary, we are nevertheless persuaded that the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship.” Id. at 312. 3926 NEWDOW v. RIO LINDA USD into accepting a religious message. The indirect coercion analysis discussed in Lee, Schempp, and Engel, simply is not relevant in cases, like this one, challenging non-religious activities. Even assuming that the recitation of the Pledge contains a risk of indirect coercion, the indirect coercion is not threat- ening to establish religion, but patriotism. Myers, 418 F.3d at 408 (emphasis added); see also Elk Grove, 542 U.S. at 31 n.4 (Rehnquist, C.J., concurring) (“[W]hatever the virtues and vices of Lee, the Court was concerned only with ‘formal religious exercise[s],’ which the Pledge is not.” (citation omitted)); Sherman, 980 F.2d at 444-47 (holding that the phrase “under God” does not turn the Pledge from a patri- otic exercise into a religious exercise, and finding that the state can coerce students into performing such patriotic exer- cises as reciting the Pledge). [23] Limiting Lee’s indirect coercion analysis to religious exercises is consistent with the purposes of the Establishment Clause. Where, as here, compulsion to recite is absent, gov- ernment action respects an establishment of religion only if the government coerces students to engage in a religious exer- cise. Coercion to engage in a patriotic activity, like the Pledge of Allegiance, does not run afoul of the Establishment Clause. The Supreme Court recognized this distinction in the earliest of the school prayer cases, Engel v. Vitale, 370 U.S. 421 (1962). In Engel, the Court considered a school’s policy directing children to say aloud a prayer written by state offi- cials. The Court found this policy violated the Establishment Clause because “[the] program of daily classroom invocation of God’s blessings as prescribed in the Regents’ prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious.” Id. at 424-25. The Court was also careful, however, to distinguish the prayer in Engel from a ceremonial reference to God in a footnote: NEWDOW v. RIO LINDA USD 3927 There is of course nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the com- poser’s professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or cer- emonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance. Id. at 435 n. 21. Thus, the Court drew an explicit distinction between patriotic mentions of God on the one hand, and prayer, an “unquestioned religious exercise,” on the other. Therefore, we hold the School District’s Policy providing for the voluntary recitation of the Pledge does not violate the Lee coercion test. X. Newdow III Does Not Constitute Binding Precedent. [24] Finally, we explain why Newdow III does not control our analysis. As all members of our panel agree, the district court erred by holding this court’s decision in Newdow III is binding precedent that district courts in this circuit and this court must follow. The Supreme Court in Elk Grove reversed the Newdow III decision, holding the sole plaintiff, Newdow, lacked prudential standing to challenge the constitutionality of the Pledge. Thus, the Supreme Court held Newdow III erred by reaching the merits of the case. [25] There is an important difference, overlooked by the district court, between a reversal on a merits ground (a ques- tion of substantive law) and a reversal on a threshold ground (a question whether the court has jurisdiction to reach the sub- stantive law claims). Merits questions may be independent of 3928 NEWDOW v. RIO LINDA USD each other; reversal on one merits ground may leave the deci- sions reached on other grounds intact. In contrast, when the Supreme Court reverses a lower court’s decision on a thresh- old question, such as prudential standing, it effectively holds the lower court erred by reaching the merits of the case. See Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005) (“[T]he prudential standing doctrine [is a] ‘threshold question.’ ”). This is pre- cisely what the Supreme Court did in Elk Grove. Because the Supreme Court held the Newdow III court erred by deciding the Establishment Clause question, Newdow III’s holding on that question is not precedential. To hold otherwise would give precedential effect to the determination of an issue that should never have been decided. Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (“[A] federal court has neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them.”) (cita- tions and internal quotation marks omitted).36 [26] Newdow III is not binding for another, more impor- tant, reason: The law has changed. Congress, in 2002, re- enacted the Pledge in response to this court’s opinion in New- dow I. It is the 2002 Congress’ purpose we are called upon to examine. The findings of the 2002 Congress make this a very different case from that evaluated by this court in Newdow I because the 2002 Congress detailed findings that make it clear The district court noted several courts have reached the merits of a case without deciding a disputed prudential standing question. True, courts have decided cases that presented “relatively easy” merits questions against the plaintiff without determining whether the plaintiff has stand- ing. See e.g., Am. Iron & Steel Inst. v. OSHA, 182 F.3d 1261, 1274 n.10 (11th Cir. 1999). Nevertheless, no court has ever bypassed a prudential standing question to rule in favor of the party lacking prudential standing, but attempting to invoke the court’s subject matter jurisdiction as to the merits. Because the Supreme Court ruled our Newdow III court should not have bypassed the prudential standing question to rule in favor of New- dow, Newdow III ‘s ruling on the merits is not binding. NEWDOW v. RIO LINDA USD 3929 the 2002 Act was enacted for secular reasons which are constitu- tional.37 Furthermore, the Supreme Court clarified the analysis to be applied to Establishment Clause cases in Van Orden and McCreary County, which came down in 2005 after our 2003 decision in Newdow III. These cases are instrumental in show- ing us that the majority in Newdow III (of which Judge Rein- hardt was a member) used an incomplete analysis when it concentrated solely on the two words “under God.” For the reasons we express herein, we simply cannot agree that this is the correct focus under the current Supreme Court law. XI. Conclusion [27] We hold that California Education Code § 52720 and the School District’s Policy of having teachers lead students in the daily recitation of the Pledge, and allowing those who do not wish to participate to refuse to do so with impunity, do not violate the Establishment Clause. Therefore, we reverse the decision of the district court holding the School District’s Policy unconstitutional and vacate the permanent injunction prohibiting the recitation of the Pledge by willing students. REVERSED. Although the 2002 Act was technically passed before issuance of Newdow III, neither the parties nor this court addressed the effect the 2002 Act had on the analysis. Newdow III, though decided after the 2002 Act, addressed the newly raised questions of whether Newdow had standing and authority to represent his child, and did not revisit the fundamental Establishment Clause analysis of Newdow I. 3930 NEWDOW v. RIO LINDA USD REINHARDT, Circuit Judge, dissenting: Contents Introduction ......................................................................3931 I. The Majority’s Fundamental Errors .......................3936 II. Historical and Factual Background .......................3939 A. Religious Origins of the “Under God” Amendment .....................................................3943 B. Congressional Enactment of the “Under God” Amendment ...........................................3948 C. The 1954 Amendment and America’s Schoolchildren .................................................3956 D. The 2002 “Reaffirmation” ..............................3966 E. Jan Roe and Her Child’s Constitutional Claim ...............................................................3974 III. The 1954 Amendment and This Appeal ...............3976 A. Recent Contrivance of the Majority’s Novel Theory ..................................................3979 B. Immateriality of the 2002 Legislation ...........3983 C. The Issue: The Constitutionality of the 1954 Amendment As Applied .......................3989 IV. Establishment Clause Tests ....................................3990 A. The Lemon Test and the “Under God” Amendment ..............................3992 B. The Endorsement Test and the “Under God” Amendment ...........................................4024 C. The Coercion Test and the “Under God” Amendment .....................................................4029 D. Application of the Tests to the 2002 Legislation .......................................................4042 V. The Inapplicability of Alternative Theories ..........4043 A. Supreme Court Dicta ......................................4044 B. Ceremonial Deism ..........................................4054 C. The De Minimis Theory ................................4060 VI. Conclusion ...............................................................4064 NEWDOW v. RIO LINDA USD 3931 Introduction Were this a case to be decided on the basis of the law or the Constitution, the outcome would be clear. Under no sound legal analysis adhering to binding Supreme Court precedent could this court uphold state-directed, teacher-led, daily reci- tation of the “under God” version of the Pledge of Allegiance by children in public schools. It is not the recitation of the Pledge as it long endured that is at issue here, but its recitation with the congressionally added two words, “under God” — words added in 1954 for the specific religious purpose, among others, of indoctrinating public schoolchildren with a religious belief. The recitations of the amended version as conducted by the Rio Linda Union and other school districts fail all three of the Court’s Establishment Clause tests: The recitation of the Pledge in its historic secular version would not fail any of them. Only a desire to change the rules regarding the separa- tion of church and state or an unwillingness to place this court on the unpopular side of a highly controversial dispute regard- ing both patriotism and religion could explain the decision the members of the majority reach here and the lengths to which their muddled and self-contradictory decision goes in order to reach the result they do. To put it bluntly, no judge familiar with the history of the Pledge could in good conscience believe, as today’s majority purports to do, that the words “under God” were inserted into the Pledge for any purpose other than an explicitly and pre- dominantly religious one: “to recognize the power and the universality of God in our pledge of allegiance;” to “acknowl- edge the dependence of our people, and our Government upon the moral direction and the restraints of religion,” 100 Cong. Rec. 7590-91 (1954); and to indoctrinate schoolchildren in the belief that God exists, id. at 5915, 6919. Nor could any judge familiar with controlling Supreme Court precedent seriously deny that carrying out such an indoctrination in a public school classroom unconstitutionally forces many young chil- dren either to profess a religious belief antithetical to their 3932 NEWDOW v. RIO LINDA USD personal views or to declare themselves through their silence or nonparticipation to be protesting nonbelievers, thereby sub- jecting themselves to hostility and ridicule. It is equally clear that no judge familiar with our constitu- tional history and the history of the Pledge could legitimately rely on a 2002 “reaffirmation” to justify the incorporation of the words “under God” into the Pledge in 1954 by a statutory amendment, or suggest that, in determining the question before us, we should not look to that amendment but only to the Pledge itself, as if the finite act in 1954 of transforming a purely secular patriotic pledge into a vehicle to promote reli- gion, and to indoctrinate public schoolchildren with a belief in God, had never occurred. Finally, no such judge could ignore the fact that in a clearly controlling decision that binds us here the Supreme Court has directed us, in deciding a con- stitutional question such as we now face, to examine the 1954 amendment and why it was adopted rather than to look to the pertinent statute, here the Pledge, as a whole. See Wallace v. Jaffree, 472 U.S. 38, 58-61 (1985). The undeniably religious purpose of the “under God” amendment to the Pledge and the inherently coercive nature of its teacher-led daily recitation in public schools ought to be sufficient under any Establishment Clause analysis to vindi- cate Jan Roe and her child’s constitutional claim, and to require that the Pledge of Allegiance, when recited as part of a daily state-directed, teacher-led program, be performed in its original, pre-amendment secular incarnation that served us so well for generations. Surely, our original Pledge, without the McCarthy-era effort to indoctrinate our nation’s children with a state-held religious belief, was no less patriotic. For pur- poses of this case, the only difference between the original secular Pledge and the amended religious version is that the former did not subject, and was not designed to subject, our children to an attempt by their government to impose on them a religious belief regarding the existence of God. We should indeed have had more faith in our country, our citizens, and NEWDOW v. RIO LINDA USD 3933 our Constitution than we exhibited at the peak of the McCar- thy era when we enacted the religious amendment to our Pledge of Allegiance, in part to inculcate in our children a belief in God. In doing so, we abandoned our historic princi- ple that secular matters were for the state and matters of faith were for the church. The majority does so again today, sadly, by twisting, distorting, and misrepresenting the law, as well as the issues that are before us. Today’s majority opinion will undoubtedly be celebrated, at least publicly, by almost all political figures, and by many citizens as well, without regard for the constitutional princi- ples it violates and without regard for the judicial precedents it defies and distorts, just as this court’s decision in Newdow I1 was condemned by so many who did not even bother to read it and simply rushed to join the political bandwagon. As before, there will be little attention paid to the constitutional rights of the minority or to the fundamental tenets of the Establishment Clause. Instead, to the joy or relief, as the case may be, of the two members of the majority, this court’s will- ingness to abandon its constitutional responsibilities will be praised as patriotic and may even burnish the court’s reputa- tion among those who believe that it adheres too strictly to the dictates of the Constitution or that it values excessively the mandate of the Bill of Rights. If a majority of the populace comes to believe in a patrio- tism that requires the abdication of judicial responsibility, if it comes to accept that we can only honor our nation by ignor- ing its basic values, if it comes to embrace a practice of bring- ing together the many by forfeiting the rights of the few, then Newdow v. U.S. Cong., 292 F.3d 597 (9th Cir. 2002) (“Newdow I”), amended by 328 F.3d 482 (9th Cir. 2003) (“Newdow III”), rev’d on other grounds sub nom. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004); see also Newdow v. U.S. Cong., 313 F.3d 500 (9th Cir. 2002) (“Newdow II”) (addressing a justiciability issue without making any change to Newdow I). 3934 NEWDOW v. RIO LINDA USD we clearly will have imposed an untenable burden not only on our nation in general but on the judiciary in particular. In such circumstances, adherence to constitutional principles by all members of this court and all members of the judiciary will become all the more important. I do not doubt that many Americans feel bound together by their faith in God, but whatever beliefs may be shared by a majority of our citizens, it is respect for the rights of minorities and for the Constitu- tion itself that must bind us all. That is not an easily achieved objective, as today’s decision shows, but it remains an essen- tial one. History leaves no doubt that Congress inserted the words “under God” in the Pledge of Allegiance in order to inculcate in America’s youth a belief in religion, and specifically a belief in God. No matter the majority’s attempts to obfuscate the question, the record on that point is clear. It is equally clear that the daily, state-sponsored, teacher-led recitation of the “under God” version of the Pledge in public schools, insti- tutions in which First Amendment rights are most in need of vigilant protection, violates the Establishment Clause, under any legal analysis in which this court may properly engage. If our constitutional principles are to be redefined in the man- ner the majority suggests (and I would hope that they would not be), only the Supreme Court may do so, not two members of an appellate court who for varying reasons wish to repudi- ate our earlier decision. The Constitution “has never meant that a majority could use the machinery of the State to practice its beliefs.” Sch. Dist. of Abington Twp. v. Schemp, 374 U.S. 203, 226 (1963). It was to forestall practices such as are currently engaged in by the Rio Linda and other school districts that the Founders adopted the Establishment Clause while deliberately omitting the term “God” from the Constitution. The Founders sought to preserve a strict division between the religious and the sec- ular, and between the Church and the State. As appellate NEWDOW v. RIO LINDA USD 3935 judges it is our duty to preserve that division, unless and until the Supreme Court instructs us to the contrary. The 2002 reaffirmation2 by Congress made no change in the Pledge as amended in 1954, but simply purported to reaf- firm the earlier Congress’s action fifty years before, when it added to it the additional phrase “under God”; it also sought to explain why it believed that the earlier Congress’s action was constitutional at the time it was taken, and why it thought that this court’s interpretation of the Constitution in Newdow I half a century after the amendment was adopted was wrong.3 Any effort to address the issue before us, however, must be based not on what happened in 2002, long after the “under God” amendment was adopted, but on the facts and circum- stances surrounding the enactment of that amendment in 1954, as well as on other relevant historical facts. There is simply no basis in law, constitutional or otherwise, for using an event that occurred many years later, let alone one of no legal significance, to attempt to rewrite history: here, the his- tory relating to the enactment of the amendment to the Pledge Throughout this dissent, the terms “reaffirmation” and “recodification” are used interchangeably when referring to the 2002 legislation. The for- mer term is appropriate because the legislation was entitled “An Act To reaffirm the reference to one Nation under God in the Pledge of Alle- giance.” Pub. L. No. 107-293, 116 Stat. 2057 (2002). The latter term is also appropriate because the act contained two “codification” sections, one of which recodified “the exact language that has appeared in the Pledge for decades” at 4 U.S.C. § 4, and the other of which recodified “the exact language that has appeared in the [National] Motto for decades” at 36 U.S.C. § 302. Id. at 2060-61. The only substantive change made by the 2002 recodification involves a minor modification of the manner in which the Pledge is to be recited. Although the majority implies that all of the statutory provisions that explain how the Pledge should be recited were added in 2002, maj. op. at 3894, those instructions were in fact added in 1976. See Pub. L. No. 94- 344, 90 Stat. 810 (1976). The 2002 Congress modified only the instruction that “men should remove their headdress” when reciting the Pledge, to read “men should remove any non-religious headdress.” Pub. L. No. 107- 293, 116 Stat. 2057, 2060 (2002) (emphasis added). 3936 NEWDOW v. RIO LINDA USD in 1954. History cannot be eradicated by a different Con- gress’s recitation long afterwards of its version of the events that preceded or followed the actions of an earlier body. If this is not apparent to all on its face, it is clear as a matter of law, because the Supreme Court has so squarely held. See McCreary County v. ACLU of Ky., 545 U.S. 844, 871-72 (2005). I. The Majority’s Fundamental Errors A reader of the majority opinion, if unfamiliar with the facts of this case and the law that intermediate courts are bound to apply to those facts, would be left with a number of misconceptions about both. It might be helpful to identify the most fundamental of those misconceptions at the outset, prior to engaging in the more detailed examination of the facts and the law that follows. Although the majority’s reasoning is far from clear, its conclusion that the state-directed, teacher-led, daily recitation of the “under God” version of the Pledge in public schools complies with the Establishment Clause appears to result from at least seven major errors in its legal analysis. First, this case involves only the phrase “under God” as recited by young children as part of a state-directed, teacher- led, daily program in public schools. Only those two words are at issue. The plaintiffs in this case do not ask us to “strike down the Pledge” or to prohibit its recitation, as the majority claims. Rather, they ask only that the two words be stricken and that the state-directed, teacher-led, daily recitation return to the original, purely secular Pledge of Allegiance that schoolchildren had recited long before Congress enacted it into law in 1942, and long before Congress added the reli- gious phrase at issue here by statutory amendment in 1954. Second, the majority asserts that “under God” as that term appears in the amendment to the Pledge is not a religious phrase, and was not inserted in the Pledge for a religious pur- NEWDOW v. RIO LINDA USD 3937 pose. Instead, the majority argues that “under God” is simply “a reference to the historical and political underpinnings of our nation,” that its purpose is to remind us that ours is a “lim- ited government” and, thus, that the term as adopted by Con- gress has a predominantly secular meaning and purpose. There is simply no basis in fact or law for so absurd an asser- tion. If the plain meaning of the words “under God” were not enough to demonstrate beyond any doubt that the majority’s contention borders on the irrational, and that the term is pre- dominantly, if not entirely, religious in both meaning and pur- pose, the overwhelmingly religious intent of the legislators who added the phrase to the Pledge, as shown by the unani- mous statements to that effect in the Congressional Record, would remove any possible doubt from the mind of any objec- tive person. Third, the majority states that in order to determine the con- stitutionality of the amendment adding the phrase “under God” to the Pledge, we must examine the Pledge as a whole and not the amendment. Well-established controlling Supreme Court law is squarely to the contrary. See Wallace v. Jaffree, 472 U.S. 38 (1985). Wallace makes it clear, beyond dispute, that it is the amendment and its language, not the Pledge in its entirety, that courts must examine when, as here, it is the amendment, not the Pledge as a whole, that is the sub- ject of the claim of unconstitutionality. The majority’s error in this respect causes it to analyze the legal issues improperly throughout its opinion. Examining the wrong issue inevitably leads the majority to reach the wrong result. Fourth, the amendment to the Pledge that added the phrase “under God” was, contrary to the majority’s contention, adopted in 1954, not in 2002. Congress’s reaffirmation of the “under God” amendment in response to this court’s Newdow I decision is of no legal consequence. Congress could not and did not change the meaning and purpose of the 1954 amend- ment in 2002 and did not purport to do so. It simply pro- claimed that we were wrong in our legal ruling and that we 3938 NEWDOW v. RIO LINDA USD erred in our constitutional analysis of the First Amendment issue. Although the 2002 Congress did not purport to suggest a different purpose for Congress’s 1954 action than did the earlier Congress, even had it sought to add a secular purpose, such as to remind us of our nation’s “limited government” or “historical principles of governance,” doing so would not have changed the overwhelmingly predominant religious meaning and purpose of the amendment. See McCreary County v. ACLU of Ky., 545 U.S. 844 (2005). Nor, certainly, would it have changed the effect of the amendment upon the schoolchildren who are subjected to the state-directed, teacher-led, daily recitations of the Pledge. Fifth, the majority suggests that the School District’s policy is constitutional because under that policy only “willing” stu- dents recite the Pledge. The majority does not and cannot make that argument explicitly, however, because it is well- established that the Constitution forbids governmental coer- cion, and not just compulsion, of religious belief. The major- ity acknowledges at a later point in its opinion that public schoolchildren are “coerced to participate” in the state- directed, teacher-led recitation of the “under God” version of the Pledge, but then excuses that coercion on other grounds that are as fallacious as its initial argument. Sixth, the majority repeatedly asserts that under the coer- cion test only “religious exercises” may be deemed unconsti- tutional. The majority’s “religious exercise” limitation conflicts with the express holding of Lee v. Weisman, 505 U.S. 577, 587 (1992), as well as the Supreme Court’s deci- sions in Stone v. Graham, 449 U.S. 39 (1980) (per curiam), and Edwards v. Aguillard, 482 U.S. 578 (1987). Coercion is prohibited with respect to participation in religious activities as well as other efforts to support or promote religion. More- over, the majority errs in its contention that because the Pledge constitutes a patriotic rather than a religious exercise, the religious component does not fail the coercion test. A reli- gious component included in a secular exercise, whether or NEWDOW v. RIO LINDA USD 3939 not a patriotic one, is subject to the same coercion rules as is any other religious practice to which public school students are subjected. Further, the majority’s assertion that the coerced recitation of the Pledge does not require “a personal affirmation . . . that the speaker believes in God” is not only contradicted within the majority opinion itself, but is fore- closed by the Supreme Court’s explicit statement that the Pledge “requires affirmation of a belief.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943). In any event, it is self-evident that one cannot profess to believe that our nation is “under God” without professing to believe that God exists. Seventh, the majority appears at several points in its opin- ion to imply that the use of the term “under God” in the Pledge may be justified by the doctrine of ceremonial deism. The theory of ceremonial deism has never been approved by the Supreme Court for use in Establishment Clause cases in general; the Court has, however, expressly disapproved the use of that doctrine to justify state-sponsored religious prac- tices in the public schools. Lee, 505 U.S. at 596-97. The majority’s suggestion that the doctrine may be applicable here is clearly erroneous. If the majority made only one or two of the seven funda- mental errors described above, its conclusion that the state- directed, teacher-led, daily recitation of the “under God” ver- sion of the Pledge is constitutional could not stand. With all seven errors, the majority sets an all-time record for failure to conform to any part of any of the three tests governing com- pliance with the Establishment Clause. Unless and until those tests are reversed or repudiated by the Supreme Court, an appellate court is not free to disregard the law and the Consti- tution in the manner that the two judges in the majority have in the case before us. II. Historical and Factual Background To begin with, this case concerns the daily recitation of a state-directed, teacher-led, religious version of the Pledge of 3940 NEWDOW v. RIO LINDA USD Allegiance in public schools, a setting that the Supreme Court has always considered especially significant to its Establish- ment Clause analysis. A proper constitutional analysis must give substantial weight to the critical fact that we are dealing with “young impressionable children whose school attendance is statutorily compelled.” Sch. Dist. of Abington Twp. v. Schemp, 374 U.S. 203, 307 (1963) (Goldberg, J., concurring); Edwards v. Aguillard, 482 U.S. 578, 584 (1987) (same). We must also bear in mind that the issue before us is whether those children may, regardless of their own fundamental views, be subjected to a daily Pledge that includes a religious component, as opposed to simply reciting the historic version of the Pledge that contained no reference to God. However, before discussing the complex case law regarding the Estab- lishment Clause, or the less complex case law regarding the relationship between the Establishment Clause and public schoolchildren, it is important to have a full understanding of the words at the heart of this controversy, the added two words of the amended Pledge, and the history of how the Pledge grew from twenty-nine to thirty-one words in 1954. For many Americans, the current version of the Pledge is the only version they have ever known. Some individuals not familiar with our political history may even be under the impression that its language dates back to the founding fathers.4 But those of us who attended school before the 1950s, includ- ing at least two members of this panel, may remember a dif- ferent Pledge of Allegiance, a wholly secular pledge that was based solely on patriotism and not on any attempt at religious indoctrination. That version of the Pledge, the original ver- sion, was written by Francis Bellamy in 1892. It read: “I pledge allegiance, to my flag, and to the Republic for which See, for example, the words of former Governor Sarah Palin of Alaska: “If [the Pledge] was good enough for the founding fathers, its [sic] good enough for me . . . .” Eagle Forum Alaska, 2006 Gubernatorial Candidate Questionnaire, July 31, 2006, http://irregulartimes.com/eagle-forum-2006- gubernatorial-candidate.html. NEWDOW v. RIO LINDA USD 3941 it stands — one Nation indivisible — with Liberty and Justice for all.” The Pledge achieved such popularity and acceptabil- ity that in 1942, Congress codified it, departing only slightly from Bellamy’s words by replacing “my flag” with “the flag of the United States of America,” thereby recognizing offi- cially the minor change that had been made in practice a gen- eration earlier.5 Neither Bellamy’s version nor the slightly modified official version, recited for many years by school- children throughout the land, contained any language even remotely associated with religious beliefs. It was not until 1954 that the provision amending the Pledge was enacted, inserting the words “under God” into the Pledge of Allegiance, and it is at this point that the majority’s version of history diverges sharply from the facts. In the majority’s view, the words “under God” were added to the Pledge for a predominantly secular purpose. That is simply not the case. Seizing on the fact that the amendment to the Pledge was adopted during the Cold War, the majority asserts that the “words ‘under God’ were added . . . to reinforce the idea that our nation is founded upon a concept of a limited government, in stark contrast to . . . communist forms of gov- ernment.” Maj. op. at 3909 (emphasis added).6 In the majori- Act of June 22, 1942, Pub. L. No. 77-623, §7, 56 Stat. 377, 380 (1942) (codified as amended at 4 U.S.C. § 4 (2006)). The change from “my flag” to “the flag of the United States” had already taken place informally in the 1920s when the American Legion and the Daughters of the American Revolution, “[c]oncern[ed] over the number of immigrants living in the United States,” modified the then-unofficial Pledge to emphasize that “my flag” meant the American flag. See Linda P. McKenzie, Note, The Pledge of Allegiance: One Nation Under God?, 46 ARIZ. L. REV. 379, 387 (2004); see also RICHARD J. ELLIS, TO THE FLAG: THE UNLIKELY HISTORY OF THE PLEDGE OF ALLEGIANCE 66 (2005) (noting that the central proponent of the change “felt that the ambiguity of ‘my flag’ allowed devious or disloyal immigrants to avoid pledging their allegiance to the United States”). The majority asserts that “under God” conveys the secular principle of “limited government” because it refers to “the Founding Fathers’ belief that the people of this nation are endowed by their Creator with certain 3942 NEWDOW v. RIO LINDA USD ty’s version of the facts, religion played at most only a minor part in the effort to amend the Pledge. Nothing could be fur- ther from the truth. As anyone with a whit of common sense will readily acknowledge, the word “God” carries predomi- nantly, indeed exclusively, religious significance. While dif- ferentiating the United States from the Soviet Union was certainly a factor motivating the amendment of the Pledge, even that differentiation was based largely on the Soviets’ purported belief in atheism and America’s belief in religion, and particularly in God. Indeed, the overwhelmingly predomi- nant purpose motivating the amendment of the Pledge was unqualifiedly religious in nature: Congress declared that “true” Americans believe in God and sought to imprint this belief on the minds of schoolchildren across the country. Were the majority to engage seriously with the history of the Pledge, it would be compelled to recognize beyond any doubt that the words “under God” were inserted with the explicit and deliberate intention of endorsing a particular reli- gious belief, of compelling nonadherents to that belief to pro- nounce the belief publicly or be labeled un-American, and of instilling the particular religious view in America’s youth through daily indoctrination in the public schools. For want of a respectable constitutional argument, the majority seeks to persuade us that “[i]t is the 2002 statute . . . that sets forth our current Pledge.” Maj. op. at 3894. That statement is, at best, misleading: the “current Pledge” was inalienable rights.” Maj. op. at 3873. The majority’s explanation of the phrase bears a suspicious resemblance to the platform of the Tea Party movement, which proclaims itself to be a “group of like-minded people who desire our God given Individual Freedoms which were written out by the Founding Fathers. We believe in Limited Government[!]” Tea Party Nation, http://www.teapartynation.com (last visited February 26, 2010) (emphasis added). But even the Tea Party has not suggested previously that the phrase “under God” was intended to refer presciently to its plat- form. NEWDOW v. RIO LINDA USD 3943 enacted in 1954, and its language has not changed in any respect since the words “under God” were added at that time. As I shall explain, see infra Part III, the majority’s attempt to use the 2002 legislation as the legal basis for the incorporation of the two additional words into the Pledge in 1954 is patently without merit and is contrary to logic, reason, and binding Supreme Court law. The “reaffirmation” by the later Congress does not in any way affect the constitutionality of the “under God” amendment as recited by public schoolchildren in the present or in any other circumstances. A. Religious Origins of the “Under God” Amendment For most of its 117 year existence, the Pledge of Allegiance existed, and was recited across the nation, in a purely secular form. The overwhelmingly religious purpose driving the deci- sion to amend the Pledge into its current form is apparent from the earliest efforts to do so. Those efforts began in 1951, when the Knights of Columbus, a “major Roman Catholic fra- ternal order,”7 adopted a resolution requiring that the words “under God” be included in the Pledge of Allegiance when said at organizational meetings.8 The following year, the Supreme Council of the organization passed a resolution urg- ing the United States Congress to adopt the Knights’ version of the Pledge, and within a few months Representative Louis Rabaut, a Catholic congressman from Michigan, sponsored a bill to do just that. That first bill, however, did not gain much traction, perhaps because the group backing its adoption was composed of Roman Catholics, who were, at the time, disdained as both foreign and ignorant by many segments of American society.9 EDWIN S. GAUSTAD, A DOCUMENTARY HISTORY OF RELIGION IN AMERICA 189 (1986). See JOHN W. BAER, THE PLEDGE oF ALLEGIANCE: A CENTENNIAL HISTORY, 1892-1992 at 62 (1992). See, e.g., JOHN T. MCGREEVY, CATHOLICISM AND AMERICAN FREEDOM: A HISTORY 166-88 (2003) (describing the view of American intellectuals in 3944 NEWDOW v. RIO LINDA USD No Catholic had been nominated for President of the United States by a major political party until 1928, when the Catholi- cism of Al Smith, the first member of that religion to become his party’s standard bearer, was a major issue in the presiden- tial campaign. Smith lost the election to Herbert Hoover by nearly twenty percentage points, and no other Catholic was again nominated until after the Pledge had been amended. Following Rabaut’s introduction of his bill, the Knights sent a second, identical resolution to every member of the House and Senate. ELLIS, supra note, at 131. Yet, “despite the [Knights’] best efforts . . . the movement to have the ‘under God’ clause added to the Pledge languished throughout 1953.” Id. at 132. Thus, the Catholic effort to place God in the Pledge appeared to be dead. The next year, however, the words “under God” received a full-throated endorsement from members of a more main- stream and popular Christian denomination — a major Protes- tant religion. On February 7, 1954, the Reverend George M. Docherty, a highly regarded Presbyterian minister, delivered a sermon on “the American way of life” to an august congre- gation at Washington’s prestigious New York Avenue Pres- byterian Church: many members of Congress were present, and seated in President Lincoln’s former pew were President and Mrs. Eisenhower. See 100 Cong. Rec. 1700 (1954). Rev- erend Docherty seized this opportunity to encourage the the 1950s that Catholicism and Catholic culture were anti-scientific and anti-democratic); John M. Breen, Justice and Jesuit Legal Education: A Critique, 36 LOY. U. CHI. L.J. 383, 405 n.93 (2005) (noting “the virulently anti-Catholic” sentiment of the 1940s); Thomas C. Berg, Anti-Catholicism and Modern Church-State Relations, 33 Loy. U. Chi. L.J. 121, 168-69 (2001) (noting that “explicit dislike of Catholicism” played an “over- whelming role in church-state debates . . . in the 1940s and 1950s”). For arguments that anti-Catholicism is still a strong force in American culture, see PHILIP JENKINS, THE NEW ANTI-CATHOLICISM: THE LAST ACCEPTABLE PREJUDICE(2003); MARK S. MASSA, ANTI-CATHOLICISM IN AMERICA: THE LAST ACCEPT- PREJUDICE (2003). NEWDOW v. RIO LINDA USD 3945 assembled national leaders to add the words “under God” to the Pledge of Allegiance, arguing that such a phrase was nec- essary to distinguish America from “militantly atheistic commu- nism,”10 and, more specifically, to distinguish the “Judaio- Christian” beliefs governing this nation from the “secularized Godless” philosophy that motivated our opponents in the “theological war” in which we were engaged. Contrary to the majority’s characterization of the purpose underlying the pro- posed insertion as predominantly secular, Reverend Docherty explicitly denied that the phrase “under God” emphasized a difference in political philosophies as the majority contends. Rather, he said: We face today a theological war. It is not basically a conflict between two political philosophies — Thomas Jefferson’s political democracy over against Lenin’s communistic state. Nor is it a conflict fundamentally between two economic systems[,] between, shall we say, Adam Smith[’s] “Wealth of Nations” and Karl Marx[’s] “Das Capital.” It is a fight for the freedom of the human personal- ity. It is not simply, “Man’s inhumanity to man.” It is Armageddon, a battle of the gods. It is the view of man as it comes down to us from the Judaio- Christian civilization in mortal combat against mod- ern, secularized, godless humanity. . . . [T]he pledge of allegiance . . . seems to me to omit this theological implication that is inherent within the “American Way of Life.” It should be All quotations from the sermon are from George M. Docherty, Pastor, The New York Avenue Presbyterian Church, Sermon Marking Lincoln Sunday (Feb. 7, 1954), available at http://tinyurl.com/DochertySermon. All emphases have been added. 3946 NEWDOW v. RIO LINDA USD “One nation, indivisible, Under God.” Once “Under God,” then we can define what we mean by “liberty and justice for all.” To omit the words “under God” in the pledge of allegiance is to omit the definitive character of the “American Way of Life.” Diverging for a moment from his theological thesis, Rever- end Docherty then paused to address those who “might assert this [proposed alteration] to be a violation of the First Amend- ment to the Constitution.” Reverend Docherty had at least some specific critics in mind, seeing as when he had made a similar proposal to amend the Pledge in a sermon two years earlier “several of [his] colleagues” in the clergy “declared it would violate the principle of separation of church and state.”11 In the Reverend’s view, however, as expressed in his church lecture to the President and the assembled members of Con- gress, it was “quite the opposite,” as the proposed insertion would not create a “state church in this land such as exists in England” nor would it discriminate between “the great Jewish Community, and the people of the Moslem faith, and the myr- iad denominations of Christians in the land.”12 The Reverend was mindful, however, that he omitted a group from his list: “What then of the honest atheist?” he asked rhetorically. Here his answer was simple: Kenneth Dole, Dr. Docherty Originated “Under God” in Flag Pledge, WASH. POST, Mar. 12, 1955, at 10. This statement demonstrates that the Reverend was a far better theolo- gian than he was a constitutional scholar, as the Supreme Court had explicitly held that the First Amendment prohibits more than simply the official establishment of a state church or the discrimination between vari- ous sects of Judeo-Christianity. Almost six years to the day before Docherty’s sermon, the Supreme Court had held that “[t]he ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government . . . . can pass laws which aid one reli- gion, aid all religions, or prefer one religion over another.” Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15 (1947) (emphasis added). NEWDOW v. RIO LINDA USD 3947 [A]n atheistic American is a contradiction in terms. . . . [T]hey really are spiritual parasites. . . . [They] are living upon the accumulated spiritual capital of a Judaio-Christian civilization, and at the same time, deny the God who revealed the divine principles upon which the ethics of this Country grow. . . . .... [I]f he denies the Christian ethic, [the atheist] falls short of the American ideal of life. The Reverend’s central message was clear: the American way of life “is defined by a fundamental belief in God. [It is a] way of life that sees man, not as the ultimate outcome of a mysterious concatenation of evolutionary process, but a sen- tient being created by God and seeking to know His will . . . .” Only by adding the words “under God” to the Pledge of Alle- giance could that oath truly be a pledge “to the United States of America.” The assembled legislators in Reverend Docherty’s pews were enraptured by his sermon. One was so inspired that he felt compelled to break the Sabbath in order to draft the his- toric bill amending the Pledge of Allegiance in time to intro- duce it the next morning: “The following day, one of Docherty’s petitioners [sic], Representative Charles Oakman, introduced a resolution in the House that would codify the inclusion of ‘under God’ in the Pledge. Two days later, Sena- tor Homer Ferguson presented an identical resolution to the Sen- ate.”13 Both legislators explicitly stated that they introduced Brian Wheeler, Note, The Pledge of Allegiance in the Classroom and the Court: An Epic Struggle over the Meaning of the Establishment Clause of the First Amendment, 2008 B.Y.U. EDUC. & L. J. 281, 286 (footnote omitted). 3948 NEWDOW v. RIO LINDA USD their proposed bills in direct response to Reverend Docherty’s sermon. See 100 Cong. Rec. 7759 (Rep. Oakman); id. at 6231 (Sen. Ferguson). Later that same week, Representative Rabaut, who had introduced the bill a year earlier that was “the grandaddy of them all,” id. at 7758, took to the floor of the House to comment on the inspiring impact of Docherty’s “eloquently” delivered sermon. See id. at 1700. Indeed, Docherty’s “sermon was so powerful that in its wake no fewer than seventeen bills were introduced to incorporate God into the Pledge of Allegiance.”14 B. Congressional Enactment of the “Under God” Amendment The strong religious sentiment driving the amendment to the Pledge only became more pietistic when the topic moved from the pulpit into the halls of Congress. The discussion of the proposed amendment could hardly be called a debate, as no one stood in opposition,15 but a parade of legislators still Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 COLUM. L. REV. 2083, 2119 (1996) (citing MARK SILK, SPIRITUAL POLITICS: RELIGION AND AMERICA SINCE WORLD WAR II 96 (1988)). All of the tributes paid to Reverend Docherty caused at least one group to feel slighted: “The [attention] drew a protest from Luke E. Hart, Supreme Knight of the Knights of Columbus . . . who pointed out that the Knights of Columbus was the first organization to use the modified pledge.” Who Placed “Under God” in Pledge to the Flag? WASH. POST, Mar. 26, 1955, at 8. The closest thing to opposition came from Congressman Keating, who “enthusiastically support[ed]” the Pledge amendment but cautioned that “in the future we should tread very lightly in this field” out of respect for the integrity of “American literature” and its “priceless gem[s] of Ameri- can prose.” 100 Cong. Rec. 7760-61. Congressman Keating’s statement reflects the fact that Francis Bellamy’s son, who was Keating’s constitu- ent, strenuously opposed the effort to amend the Pledge his father had authored on the ground that his father would have objected to such a clear conflation of church and state. Id. at 7761; see also ELLIS, supra note 5, at 121, 135. Bellamy’s great-granddaughter later echoed this sentiment, stating that her “great-grandfather . . . . [was a] deeply religious man, [but] NEWDOW v. RIO LINDA USD 3949 rose to offer spirited, deeply religious statements in support of the proposal. While it cannot fully recapture the fervent and undeniable religiosity so evident in the pages of the Congres- sional Record, even the limited report of the discussion that follows is extremely revealing. In an effort at completeness, this report includes statements from each and every legislator who commented on the proposed Pledge amendment in the Congressional Record.16 The discussion in Congress began five days after Reverend Docherty’s sermon, when Congressman Rabaut made his way to the floor of the House of Representatives to declare that “[w]ithout these [new] words . . . the pledge ignores a defini- tive factor in the American way of life and that factor is belief in God.” 100 Cong. Rec. 1700 (emphasis added). In the Con- gressman’s view, anyone who did not wholeheartedly endorse that “belief in God” was not a true American. As for Ameri- can atheists, Congressman Rabaut was unsparing in his con- demnation: From the root of atheism stems the evil weed of communism and its branches of materialism and political dictatorship. Unless we are willing to affirm our belief in the existence of God and His creator- creature relation to man, we drop man himself to the significance of a grain of sand and open the flood- gates to tyranny and oppression. was also a strict believer in the separation of church and state . . . . He intended the pledge to be a unifying statement for [our] children. By adding the phrase ‘under God’ to the Pledge of Allegiance in 1954, Con- gress . . . . divided our nation further rather than uniting its citizens.” Sally Wright, Letter to the Editor, Writing the Pledge: The Original Intent, N.Y. TIMES, July 14, 2002, at C14. The only legislator not quoted in the text is Congressman Eberharter, author of the 1942 Act that first codified the original Pledge, who rose only for a moment to express his “wholehearted support” for the proposed alteration. 100 Cong. Rec. 7758. 3950 NEWDOW v. RIO LINDA USD Id. (emphases added). At the close of the congressman’s jere- miad against non-believers, he let the following words, lifted from Reverend Docherty’s sermon, echo through the hall: “An atheistic American . . . is a contradiction in terms.” Id. (emphasis added). Once the seventeen separate House bills seeking to amend the Pledge were consolidated and favorably reported by the Judiciary Committee, the House proceeded to a floor discus- sion during which many congressmen rose to express their views. Congressman Angell, who had authored one of the many bills, said, “there should be embodied in the pledge our allegiance and faith in the Almighty God. The addition of the words ‘under God’ will accomplish this worthy purpose.” Id. at 6919 (emphases added). Representative Pillion, author of a separate bill, gave a statement “in support of any and all bills that would serve to recognize the power and the universality of God in our pledge of allegiance. . . . The inclusion of God in our pledge would acknowledge the dependence of our peo- ple, and our Government upon the moral direction and the restraints of religion.” Id. at 7590-91 (emphases added). Con- gressman Bolton, author of yet another of the bills, stated that: The significant import of our action today . . . is that we are officially recognizing once again this Nation’s adherence to our belief in a divine spirit, and that henceforth millions of our citizens will be acknowledging this belief every time they pledge allegiance to our flag. Id. at 7757 (emphases added). Congressman Brooks rose to declare that the proposed law “recognizes that all things which we have in the way of life, liberty, constitutional gov- ernment, and rights of man are held by us under the divine benediction of the Almighty.” Id. at 7758 (emphases added). Congressman Keating noted that: [W]e cannot too often be reminded of the spiritual values which alone have permanence . . . . When the NEWDOW v. RIO LINDA USD 3951 forces of anti-God and antireligion so persistently spread their dangerous and insidious propaganda, it is wholesome for us to have constantly brought to our minds the fact that . . . it is the strength of the spirit . . . to which we must ultimately look for salva- tion . . . . Id. at 7760 (emphasis added). Congressman Oakman proudly introduced into the record a letter from a constituent praising his authorship of one of the proposed bills, which described the bill as “a realistic recognition of the theological and philo- sophical truth — the existence of a Supreme Being.” Id. Con- gressman O’Hara observed that “what we are engaged in today is a sacred mission” and that in amending the Pledge the legislators were achieving a “victory for God.” Id. at 7762 (emphases added). Congressman Wolverton commented that the proposed amendment “sets forth in a mere two words, but, very strong and meaningful words, the fundamental faith and belief of America in the overruling providence of God and our dependence at all times upon Him.” Id. at 7763 (emphasis added). Congressman Rodino quoted scripture in order to best express “the spirit” of the proposed law, citing David the Psalmist for the proposition that Americans reciting the Pledge (including the public schoolchildren who were expected to recite it every day in the classroom, see infra Part II.C) “shall say to the Lord: Thou art my protector and my refuge: my God, in Him will I trust.” Id. at 7764. Congress- man Bolton rose to observe that the legislation “comes at a time in the world when we do well to once more publicly and officially affirm our faith.” Id. (emphasis added). At the close of the discussion, the final congressman to speak was Repre- sentative Addonizio, who said: We, who take the pledge of allegiance to the flag of the United States of America and raise our eyes toward that symbol of our faith, should bear in mind that our citizenship is of no real value to us . . . 3952 NEWDOW v. RIO LINDA USD unless we can open our souls before God and before Him conscientiously say, “I am an American.” Id. at 7765 (emphases added). The majority asserts that “[t]he words ‘under God’ were added as a description of ‘one Nation’ primarily to reinforce the idea that our nation is founded upon the concept of a lim- ited government, in stark contrast to . . . communist forms of government.” Maj. op. at 3909 (emphasis added). In my col- leagues’ view, any religious purpose associated with the amendment of the Pledge was merely incidental to the patri- otic, anti-Communist purpose driving the law. However, had my colleagues actually acknowledged the existence of the detailed historical record instead of ignoring it, they could not have failed to recognize that their historical assertion is pre- cisely backward: the anti-Communist sentiment associated with the amendment was clearly secondary to the overwhelm- ing and predominant religious purpose motivating the amend- ment. For one thing, the majority’s revisionist account ignores the fact that much of the anti-Soviet sentiment associated with the amendment was itself driven in large part by the congress- men’s religious disagreement with the Soviets’ purported atheism. For example, in rising to endorse the amendment, Congressman Wolverton stated that a virtue of the proposed amendment was that it “plainly denies the atheistic and mate- rialistic concepts of communism with its attendant subservi- ence of the individual.” 100 Cong. Rec. 7762 (emphasis added). Indeed, the original author of the bill to amend the Pledge stated that “the evil weed of communism and its branches of materialism and political dictatorship” stems “[f]rom the root of atheism.” Id. at 1700 (emphasis added). The majority’s revisionism is further refuted by that same original author, Congressman Rabaut, who explicitly stated: “You may argue from dawn to dusk about differing political, economic, and social systems, but the fundamental issue which is the unbridgeable gap between America and Commu- NEWDOW v. RIO LINDA USD 3953 nist Russia is a belief in Almighty God.”17 Id. (emphases added). This was seconded by Congressman Brooks, who declared that “One thing separates free peoples of the Western World from the rabid Communist, and this one thing is a belief in God.” Id. at 7758 (emphases added). Indeed, even the official House Report accompanying the bill demonstrates that the desire to underscore a political philosophy of anti- Communism was at most an ancillary aim of the bill, as it was listed as a second and separate rationale following the legisla- tion’s primary stated rationale: to “acknowledge the depen- dence of our people and our Government upon the moral directions of the Creator.” See H.R. REP. NO. 83-1693 at 2 (1954), reprinted in 1954 U.S.C.C.A.N. 2339, 2340. More- over, even that ancillary rationale stresses the religious under- pinning of the anti-Soviet sentiment, as the Report goes on to state: “At the same time, [the bill] would serve to deny the atheistic and materialistic concepts of communism . . . . ” Id., 1954 U.S.C.C.A.N. 2340 (emphasis added). After all of the congressmen made their intentions clear and the House moved to adopt its final bill, discussion opened across the Capitol in the well of the Senate. Initially, the Sen- ate version of the bill stalled in the Senate Judiciary Commit- tee, where it “seemed dead” because some “senators had concerns about the resolution’s implications for the separation In a hapless attempt to find some iota of support for its “limited gov- ernment” theory in the legislative history, the majority quotes a statement of Congressman Rabaut that was included in the House Report. Maj. op. at 3910. The majority suggests that when Congressman Rabaut discussed “our way of life and its origins,” he was referring to the concept of “lim- ited government.” If his explicit statements on the House floor were not enough to establish that he was instead referring to a belief in God, the sentence in the House Report that immediately follows his statement would make that absolutely clear: “Since our flag is symbolic of our Nation, its constitutional government and the morality of our people, the committee believes it most appropriate that the concept of God be included in the recitations of the pledge of allegiance to the flag.” H.R. REP. No. 83-1693 at 3 (1954) (emphasis added), reprinted in 1954 U.S.C.C.A.N. 2339, 2341. 3954 NEWDOW v. RIO LINDA USD of church and state.” ELLIS, supra note 5, at 134; see also id. at 257 n.40. However, in light of the zealous and unanimous parade of congressmen who endorsed the bill in the House, the Senate was forced to consider the matter. The senators who remarked on the bill from the floor of that chamber were fewer in number,18 though no less fervent in their religiosity than their counterparts in the House. Senator Wiley, rising to congratulate Senator Ferguson for authoring the Senate bill, said that “in these days of great challenge to America, one can hardly think of a more inspiring symbolic deed than for Amer- ica to reaffirm its faith in divine providence, in the process of restating its devotion to the Stars and Stripes.” 100 Cong. Rec. 5915 (emphasis added). When the final resolution was reported to the Senate, Senator Ferguson explained its pur- pose as follows: “the Pledge of Allegiance to the Flag which stands for the United States of America should recognize the Creator who we really believe is in control of the destinies of this great Republic.” Id. at 6348 (emphasis added). Evidence of the legislation’s overt religious purpose was not, as the majority claims, limited to individual statements proclaiming the “religious motives of the legislators who enacted the law.” Maj. op. at 3911 n.27 (citing Bd. of Educ. v. Mergens, 496 U.S. 226, 249 (1990) (plurality opinion of O’Connor, J.)). To the contrary, the House and Senate Reports accompanying the proposed bills also bear testament to the new Pledge’s indisputably religious purpose. The Sen- ate Report stated that one of the reasons for adopting the “under God” amendment was its recognition of “the funda- mental truth that a government deriving its power from the consent of the governed must look to God for divine leader- ship.” S. REP. NO. 83-1287 at 2 (1954) (emphasis added), reprinted in 100 Cong. Rec. 6231. The House Report empha- sized “the belief that the human person is important because Unlike the House, the Senate received and considered only one bill proposing that the words “under God” be inserted into the Pledge. See S.J.R. 126, 83rd Cong. (1954). NEWDOW v. RIO LINDA USD 3955 he was created by God and endowed by Him with certain inalienable rights which no civil authority may usurp. The inclusion of God in our pledge therefore would further acknowledge the dependence of our people and our Govern- ment upon the moral directions of the Creator.” H.R. REP. No. 83-1693 at 1-2 (1954) (emphasis added), reprinted in 1954 U.S.C.C.A.N. 2339, 2340. With these official reports attached to the bills, both the Senate and the House unanimously adopted the new Pledge by voice vote and sent it to President Eisenhower for his approval. The culmination of the legislative proceedings was carefully timed so that the joint resolution could be approved in time for the President to sign it on Flag Day, four short months after Reverend Docherty’s sermon. See, e.g., 100 Cong. Rec. 7759 (discussing scheduling of legislation in rela- tion to Flag Day). And so it was that on June 14, 1954, Presi- dent Eisenhower officially added his signature to the bill amending the Pledge of Allegiance, thereby changing funda- mentally the nature and purpose of the oath. After doing so, he proclaimed in his signing statement: From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural school house, the dedication of our Nation and our people to the Almighty. To anyone who truly loves America, nothing could be more inspiring than to contemplate this rededication of our youth, on each school morning, to our coun- try’s true meaning.19 Once the bill was signed into law, Senator Ferguson, Con- gressman Rabaut, the sixteen other sponsors of the “under Statement by the President Upon Signing Bill To Include the Words “Under God” in the Pledge to the Flag, PUB. PAPERS 563 (June 14, 1954) (emphases added), available at http://tinyurl.com/PubPapersUnderGod, reprinted in 100 Cong. Rec. 8618. 3956 NEWDOW v. RIO LINDA USD God” resolutions, and the Senate Chaplain gathered before an assembled audience at the Capitol and a national audience watching on television for what Walter Cronkite called a “stirring event.”20 As described in the Congressional Record, the legislators who amended the Pledge turned toward “the believer’s flag[,] the witness of a great nation’s faith” and recited the newly minted Pledge of Allegiance to “our Nation [and] to the Almighty.” 100 Cong. Rec. 8617. “Then, appro- priately, as the flag was raised a bugle rang out with the familiar strains of ‘Onward, Christian Soldiers!’ ” Id.: Onward, Christian soldiers, marching as to war, With the cross of Jesus going on before. Christ, the royal Master, leads against the foe; Forward into battle see His banners go! C. The 1954 Amendment and America’s Schoolchildren The foregoing history of the process by which the Pledge was amended — beginning in the pews of New York Avenue Presbyterian Church, continuing through speech after speech in the House and Senate declaring the need for America to “affirm our belief in the existence of God,” id. at 1700, fol- lowed by the President’s remarks regarding schoolchildren daily proclaiming their dedication to the Almighty, and con- cluding with the triumphant playing of Onward Christian Sol- diers on the Capitol steps to baptize the newly amended national oath — demonstrates beyond any shadow of a doubt that the purpose driving the amendment was predominantly, and indeed overwhelmingly, religious in nature. But there is more. Not only was the message underlying the new Pledge clear — “true” Americans believe in God and non-believers are decisively un-American — but so too was its intended audience: America’s schoolchildren.21 The Morning Show (CBS television broadcast June 14, 1954), reprinted in 100 Cong. Rec. 8617. A parallel campaign to influence higher education to become less sec- ular and more religious was led by a brilliant, young, and dedicatedly reli- NEWDOW v. RIO LINDA USD 3957 The legislators who set out to insert the words “under God” into the Pledge of Allegiance were fully aware that in 1954 the original Pledge was a commonplace scholastic ritual.22 Indeed, a primary rationale for inserting the explicitly reli- gious language into the Pledge of Allegiance, as opposed to into some other national symbol or verse, was that the Pledge was an ideal vehicle for the indoctrination of the country’s youth. The amendment’s chief proponents in Congress were not at all bashful about their intentions. Speaking from the well of the Senate, Senator Wiley endorsed the bill by saying, “What better training for our youngsters could there be than to have them, each time they pledge allegiance to Old Glory, reassert their belief, like that of their fathers and their fathers before them, in the all-present, all-knowing, all-seeing, all- powerful Creator.” Id. at 5915 (emphases added). Senator Ferguson, who authored the Senate bill, agreed that “we should remind the Boy Scouts, the Girl Scouts, and the other young people of America, who take [the] pledge of allegiance to the flag more often than do adults, that it is not only a pledge of words but also of belief.” Id. at 6348 (emphasis added). In the House, Congressman Rabaut, the original author of the first bill to amend the Pledge, declared that “from their earliest childhood our children must know the real meaning of America,” a country whose “way of life . . . sees gious Yale graduate who authored a highly influential book entitled God and Man at Yale. See WILLIAM F. BUCKLEY, GOD AND MAN AT YALE (Regn- ery, 1951). Buckley subsequently became an intellectual leader of the con- servative political movement and a prominent Catholic layman, who died only last year. Throughout the 1920s and 1930s, a “coordinated national propaganda campaign,” envisioned by Bellamy, the Pledge’s author, and carried out by various educational and civic organizations, transformed the Pledge into “a defining symbol of national patriotism.” ELLIS, supra note 5, at 79; see generally id. at 50-80. Because this campaign followed an earlier movement at the turn of the century to put a “flag over every school- house,” and later in every classroom, see id. at 2-9, by the time Congress turned its attention to amending the Pledge in 1954, regular recitation of the Pledge by schoolchildren across America was a common occurrence. 3958 NEWDOW v. RIO LINDA USD man as a sentient being created by God and seeking to know His will.” Id. at 1700 (emphases added). His colleague, Con- gressman Angell, argued that “the schoolchildren of Ameri- ca” should understand that the Pledge of Allegiance “pledge[s] our allegiance and faith in the Almighty God.” Id. at 6919 (emphases added). Similarly, Congressman O’Hara noted that the new Pledge’s “acknowledgment that God is the foundation of our Nation will be of incalculable value, all through the years, of ever keeping vividly before our . . . children[,] who from earliest childhood[ ] pledge their alle- giance to the flag, that the real source of our strength in the future, as in the past, is God.” Id. at 7763 (emphases added). Indeed, the last words said before the House passed the bill inserting “under God” into the Pledge emphasized “the mil- lions of school children who daily repeat the pledge of alle- giance.” Id. at 7766 (emphasis added). And of course, when President Eisenhower signed the law amending the Pledge, he declared that “[f]rom this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural school house, the dedication of our Nation and our people to the Almighty.”23 Id. at 8618 (empha- ses added). These statements reflect the unanimous expecta- tion on the part of both houses of Congress and the President of the United States that the new religious version of the Pledge would be recited regularly by “the schoolchildren of America.” Id. at 6919. Nor was it only the federal government that promoted the newly amended Pledge through legislation. At the time Con- gress first considered the amendment to the Pledge, only six states — Delaware, Massachusetts, Mississippi, New Jersey, The President’s words echoed the sentiments of his pastor, Reverend Docherty, who four months earlier had stated in his sermon proposing the amendment to the Pledge that the idea “came in a flash one day . . . when [his] children came home from school . . . [and described] what happened at school when they arrived there in the morning.” Docherty, supra note 10, at 4. NEWDOW v. RIO LINDA USD 3959 Rhode Island, and Washington — had statutes requiring stu- dents to recite the Pledge in school,24 even though the Pledge had, at that point, existed for over sixty years and had been “a defining symbol of national patriotism” for over three dec- ades. See ELLIS, supra note 5, at 79. However, once Congress inserted the words “under God” into the Pledge in 1954, the number of states statutorily providing for its recitation sky- rocketed: Within a few years of the congressional amend- ment, nine state legislatures passed laws either requiring or encouraging recitation of the Pledge in school with the newly inserted words “under God.”25 A steady march of legislatures See Act of Mar. 15, 1915, ch. 71, 1915 Wash. Sess. Laws 246; Act of April 15, 1925, ch. 180, 34 Del. Laws 440 (1925); Act of Apr 16., 1932, ch. 1927, 1932 R.I. Acts & Resolves 227; Act of May 2, 1932, ch. 145, 1932 N.J. Laws 260, amended by Act of Apr. 21, 1944, ch. 212, 1944 N.J. Laws 750; Act of May 13, 1935, ch. 258, 1935 Mass. Acts 306; Act of Dec. 28, 1953, ch. 26 § 8, 1953 Miss. Laws 120. A number of other states had laws prior to 1954 that required students to be taught proper respect for the flag. See Act of Jul. 10, 1935, 1935 Ill. Laws. 1345; Act of Apr. 5, 1927, ch. 85, 1927 Neb. Laws 253. Others still had statutes requiring students to perform a “flag salute.” See Act of Apr. 22, 1898, ch. 481, 1898 N.Y. Laws 1191; Act of Mar. 7, 1907, ch. 319, 1907 Kan. Sess. Laws 492; Act of Apr. 10, 1918, ch. 75, 1918 Md. Laws 121; Honoring Flag of U.S., ch. 164, 1923 Colo. Sess. Laws 550. That salute, however, was designed in 1890 by George Balch and was distinct from Bellamy’s pledge of allegiance. See generally ELLIS, supra note 5, at 38-43; see also 100 Cong. Rec. 7761. In fact, New York, which in 1898 became the first state to pass a statute requiring a flag salute, allowed for any one of five different pledges of allegiance to be recited along with the salute, only the last of which was Bellamy’s. ELLIS, supra note 5, at 54. Notably, none of the five pledges contained any reference to God or to religion. Id. The first states to act were those whose preexisting school-pledge stat- utes were rendered out of date by Congress’s amendment. See Act of June 24, 1954, ch. 83, 1954 N.J. Laws 464; Adding Words “Under God” to Salute to Flag, ch. 51, 51 Del. Laws 66 (1957); Act of Mar. 23, 1960, ch. 391, 1960 Miss. Laws 618; Flag Exercises, Salute, National Anthem, ch. 238, 1961 Wash. Sess. Laws 2066. But see Act of June 14, 1977, ch. 333, 1977 Mass. Acts 345 (inserting “under God” over Governor’s veto); Act of May 20, 1981, ch. 282, 1981 R.I. Pub. Laws 1102. 3960 NEWDOW v. RIO LINDA USD followed suit so that today all but seven states statutorily pro- vide for the teacher-led daily recitation of the “under God” version of the Pledge.26 As the proponents of the “under God” Florida, New York, California, Idaho, and Wisconsin, however, were inspired by Congress’s addition of the words “under God” to enact their very first school-pledge statutes quickly on the heels of Congress’s amendment. See Patriotic Programs, Rules, and Regulations, ch. 29764, sec. 47, § 230.45, 1955 Fla. Laws 390; Act of Mar. 23, 1956, ch. 177, 1956 N.Y. Laws 775; Act of May 1, 1961, ch. 254, 1961 Cal. Stat. 1201; National Flag and Colors, National Anthem, “America,” ch. 13, § 177, 1963 Idaho Sess. Laws 116; Act of May 23, 1963, ch. 65, sec. 2, § 40.47(1)(b), 1963 Wis. Sess. Laws 57. Hawaii, Iowa, Maine, Michigan, Nebraska, Vermont, and Wyoming do not have any statutes mentioning the national Pledge of Allegiance, nor do the District of Columbia or the commonwealth of Puerto Rico. The remainder of the states either require or encourage the daily recitation of the religious version of the Pledge in public schools. See ALA. CODE § 16- 43-5 (2001); ALASKA STAT. § 14.03.130 (2008); ARIZ. REV. STAT. § 15-506 (2002); ARK. CODE ANN. § 6-16-108 (2007); CAL. EDUC. CODE §§ 52720, 52730 (West 2006); COLO. REV. STAT. § 22-1-106 (2006); CONN. GEN. STAT. ANN. § 10-230 (West 2002); DEL. CODE Ann. tit. 14 § 4105 (2007); FLA. STAT. ANN. § 1003.44 (West 2009); GA. CODE ANN. § 20-2-310 (2005); IDAHO CODE ANN. § 33-1602 (2008); 105 ILL. COMP. STAT. ANN. 5/27-3 (West 2006); IND. CODE ANN. § 20-30-5-0.5 (West 2007); KAN. STAT. ANN. § 72-5308 (West 2008); KY. REV. STAT. ANN. § 158.175 (West 2006); LA. REV. STAT. ANN. § 17:2115 (2001); MD. CODE ANN., EDUC. § 7- 105 (West 2002); MASS. GEN. LAWS ch. 71, § 69 (2006); MINN. STAT. § 121A.11 (2008); MISS. CODE ANN. § 37-13-7 (2007); MO. REV. STAT. § 171.021 (Supp. 2008); MONT. CODE ANN. § 20-7-133 (2007); NEV. REV. STAT. § 389.040 (2007); N.H. REV. STAT. ANN. § 194:15-c (2008); N.J. STAT. ANN. § 18A:36-3 (West 1999); N.M. STAT. § 22-5-4.5 (Supp. 2008); N.Y. EDUC. LAW § 802 (McKinney 2000); N.C. GEN. STAT. §§ 115C- 47(29a), 115-238.29F, 116-69.1, 116-235 (2007); N.D. CENT. CODE § 15.1-19-03.1 (2003); OHIO REV. CODE ANN. § 3313.602 (West 2005); OKLA. STAT. tit. 70, § 1210.229-6 (2002 & Supp. 2008); ORE. REV. STAT. § 339.875 (2007); 24 PA. CONS. STAT. ANN. § 7-771 (West 1992); R.I. GEN. LAWS §§ 16-20-4, -22-11 (2001); S.C. CODE ANN. § 59-1-455 (2004); S.D. CODIFIED LAWS § 13-24-17.2 (2004); TENN. CODE ANN. § 49-6-1001 (2002); TEX. EDUC. CODE ANN. § 25.082 (Vernon 2006); UTAH CODE ANN. § 53A-13-101.6 (West 2004); VA. CODE ANN. § 22.1-202 (2006); WASH. REV. CODE ANN. § 28A.230.140 (West 2006); W. VA. CODE ANN. § 18-5- 15b (West 2002); WIS. STAT. § 118.06 (2008). NEWDOW v. RIO LINDA USD 3961 amendment stated early on, such “widespread support [for] the [new Pledge] . . . must bear testimony to a religious revival of significance.”27 Clayton Knowles, Big Issue in D.C.: The Oath of Allegiance, N.Y. TIMES, May 23, 1954, at E7 (emphasis added). Indeed, a number of states incorporate their school-pledge requirements into statutes that simultaneously endorse school prayer. Kentucky pro- vides that, “as an affirmation of the freedom of religion in this country . . . a local school district may authorize the recitation of the traditional Lord’s prayer and the pledge of allegiance to the flag in public elementary schools.” Act of Apr. 9, 1980, ch. 304, 1980 Ky. Acts 1029 (codified at KY. REV. STAT. ANN. § 158.175 (West 2006)). Until recently, New Hamp- shire had a nearly identical statutory provision. See Act of June 3, 1975, ch. 225, 1975 N.H. LAWS 195, amended by Act of May 18, 2002, ch. 77, 2002 N.H. LAWS 501 (codified at N.H. REV. STAT. ANN. §§ 194:15-a, -c (2008)). Similarly, North Dakota incorporates its pledge-recitation requirement into a statute setting aside time for silent prayer. See Act of Apr. 5, 2001, ch. 187, 2001 N.D. Laws 697 (codified at N.D. CENT. CODE § 15.1-19-03.1 (2003)). Louisiana has passed multiple acts over the past thirty years adding and altering school prayer provisions to a statute that also provides “for group recitation of the ‘Pledge of Allegiance to the Flag.’ ” See Act of July 23, 1980, ch. 519, 1980 La. Acts 1242, amended by 1987 La. Acts 1530, amended by 1989 La. Acts 1204, amended by 1992 La. Acts 919, amended by 1999 La. Acts 2527, amended by 2002 La. Acts 1250 (codified at LA. REV. STAT. ANN. § 17:2115 (2001 & Supp. 2008)). NEWDOW v. RIO LINDA USD 3963 Volume 3 of 4 NEWDOW v. RIO LINDA USD 3965 At the forefront of that revival was the state of California. While many other states, perhaps preoccupied with more pressing legislative business, took a decade or more to endorse state-directed, teacher-led, daily recitation of the reli- gious version of the Pledge in public schools, California did so in 1961, becoming one of the first states to adopt a school- pledge statute after Congress inserted the words “under God.”28 California’s Pledge-recitation bill was introduced on January 12, 1961, following an opening prayer in the California State Assembly to “Jesus Christ, our Lord and Redeemer.”29 Some legislators, apparently concerned over the religious content recently inserted into the Pledge by Congress, attempted to amend the proposed state bill in order to allow “any pupil” to be “excused from giving the pledge” if doing so “conflicts with [his] religious beliefs.”30 However, even this modest pro- tection for religious minorities was removed from the final version of the bill, over the dissenting votes of seven members.31 Thus, on May 1, 1961, when the final version of the bill was signed by Governor Edmund G. “Pat” Brown,32 California joined those states ensuring by force of law that the state- directed, teacher-led recitation of the “under God” version of the Pledge of Allegiance would occur daily in classrooms throughout the state. See Act of May 1, 1961, ch. 254, 1961 Cal. Stat. 1201. Florida and New York were the only states to precede California in enacting new school-pledge statutes following the congressional amendment. See supra note 22. 1961 CAL. LEG. ASSEMB. DAILY J. 223; see also Assemb. B. 292, 1961 Reg. (Gen.) Sess. (Cal. 1961). See Assemb. B. 292, 1961 Reg. (Gen.) Sess. (Cal. 1961) (as amended by S. Comm. on Education, Mar. 29, 1961, and again on Apr. 6, 1961). See Assemb. B. 292, 1961 Reg. (Gen.) Sess. (Cal. 1961) (as amended by Sen. on Apr. 11, 1961); see also 1961 CAL. LEG. SEN. DAILY J. 1559; 1961 CAL. LEG. ASSEMB. DAILY J. 2552. Not to be confused with the one-time seminarian and subsequent (and perhaps future) governor, Pat Brown’s son, Edmund G. “Jerry” Brown Jr. 3966 NEWDOW v. RIO LINDA USD D. The 2002 “Reaffirmation” Almost immediately after its amendment, the new Pledge was the subject of numerous constitutional challenges. See infra note 102. Those challenges continued consistently over the following decades, but met with little success until June 26, 2002, when this court held that the state-directed recita- tion of the “under God” version of the Pledge of Allegiance in California’s public schools violated the First Amendment. Newdow I, 292 F.3d at 612. In response to that constitutional ruling, lawmakers immediately took to the floor in both houses of Congress to condemn this court’s decision. Among them was Senator Robert Byrd, who proudly announced that he was “the only Member of Congress today, bar none, in either body, who was a Member of the House on June 7, 1954, when the words ‘under God’ were included in the Pledge of Allegiance.” 107 Cong. Rec. S6103. His comments, like those of the other Senators who spoke that day, made clear that his outrage over the Newdow I decision was not based on any devotion to principles of limited government: I, for one, am not going to stand for this country’s being ruled by a bunch of atheists. If they do not like it, let them leave. They do not have to worship my God, but I will worship my God and no atheist and no court is going to tell me I cannot do so whether at a school commencement or anywhere else. Id. That same afternoon, the Senate passed a resolution expressing its “strong[ ] disapprov[al]” of the Newdow I deci- sion. S. Res. 292, 107th Cong. (2002), reprinted in 107 Cong. Rec. S6105. The reason for that disapproval is readily appar- ent from the statements offered in the resolution’s support. Senator Robert Bennet, for example, announced that “[r]egardless of what the courts may say, the American people still trust in God. . . . [I]t is a correct statement of how we NEWDOW v. RIO LINDA USD 3967 feel, and it belongs in the Pledge of Allegiance to our flag.” 107 Cong. Rec. S6106 (emphasis added). Numerous other senators expressed similar views,33 including Senator Sam Brownback, who remarked upon the superiority of the United States, “a nation that honors God,” to North Korea, “a country that does not honor God.” Id. at S6109. Although the majority asserts that “virtually all of the members of Congress agreed” that we had misunderstood its purpose when we decided Newdow I, maj. op. at 3913 (emphasis added), not a single Senator expressed the view that our court had misunderstood the 1954 Congress’s pur- pose for enacting the “under God” amendment. Several Sena- tors, however, explicitly stated their disagreement with any interpretation of the Constitution under which that religious purpose would be impermissible. For example, Senator George Allen declared that the Pledge “should remain in our schools” because “the purpose of the Establishment Clause . . . was not to expunge religion or matters of faith from all aspects of public life.” Id. at S6108. Similarly, Senator John Ensign urged the Senate “to take it upon itself to correct what the Ninth Circuit has done” because “we need to reestablish in this country what this document — the Constitution of the United States — really says and really was about.” Id. at S6102.34 See also id. at S6107 (statement of Sen. Burns) (“We are a nation founded upon the acknowledgment of a Creator.”); id. at S6112 (statement of Sen. Smith) (“There are countless more examples of religion in Ameri- can public life. . . . . For this court to single out the pledge for including the phrase ‘One Nation, Under God,’ is simply incredible.”). See also id. at S6104 (statement of Sen. Sessions) (“[Newdow I] is a shocking culmination of a decade-long trend of liberal activist courts that have been misreading the first amendment of the Constitution.”); Id. S6106 (statement of Sen. Bennett) (“The word ‘God’ is sufficiently uni- versal and nonspecific as to allow those who use it to ascribe any quality, any gender, any doctrine, any position that those people might wish to ascribe to it. It is inconceivable to me that the Ninth Circuit should suggest that the generic term ‘God’ is somehow endorsement of a specific reli- gion.”); id. at S6109 (statement of Sen. Brownback) (“[T]he Establishment Clause is clearly misinterpreted by the entire legal system today.”). 3968 NEWDOW v. RIO LINDA USD Recognizing these strong sentiments, Senator Trent Lott stated when he introduced the resolution that additional mea- sures should be taken to reaffirm the actions of the 1954 Con- gress: [F]or our children to be allowed to invoke God’s blessing on our country in the Pledge of Allegiance is certainly something we want to do. If there is ever a time when we need this addi- tional blessing, perhaps it is now more than ever in our lifetimes. . . . . In [this resolution], we state that we disapprove of the decision by the Ninth Circuit . . . . Beyond that, to further make it clear, the Senate should consider a recodification of the language that was passed in 1954. There was no uncertainty or ambiguity about what was done in 1954. The Con- gress, in fact the American people, spoke through their Congress. We should make it clear once again. 107 Cong. Rec. S6105 (emphasis added).35 Each of the Senators quoted in the above paragraph and the one pre- ceding it, including in footnotes 33 and 34, co-sponsored the Pledge recodification statute, which was passed by the Senate the day after these statements were made. See 107 Cong. Rec. S6225 (listing co-sponsors). Other Senators went even further in expressing a religious basis for their disapproval of Newdow I and their approval of including the phrase “under God” in the Pledge. For example, Senator Joseph Lieberman stated that it might become necessary “to amend the Constitution to make clear that . . . we are one Nation because of our faith in God, [so] that the American people, children, forever forward will be able to stand and recite the pledge.” Id. at S6091 (emphasis added). Similarly, Senator Mary Landrieu stated that “we as a nation stand under God, acknowledging His presence . . . . [W]e collectively as a nation will in no way back down in acknowl- edging His presence and His divine creation.” Id. at S6107. NEWDOW v. RIO LINDA USD 3969 And so they did. The next morning, Senator Byrd called the Senate to order and invited the Reverend Lloyd J. Ogilvie, the Senate Chaplain, to lead “[t]he prayer to Almighty God, the supreme Judge of the world.” 107 Cong. Rec. S6177. In his invocation, Reverend Ogilvie declared that “[t]here is no sep- aration between God and State,” and proclaimed God as the “ultimate Sovereign of our Nation.” Id. He then described the Pledge as an expression of America’s trust in God: “It is with reverence that in a moment we will repeat the words of com- mitment to trust You which are part of our Pledge of Alle- giance to our flag: ‘One Nation under God, indivisible.’ ” Id. After the members of the Senate recited the Pledge, Senator Tom Daschle offered the chaplain both thanks and agreement: “I know I speak for all of our colleagues in thanking Chaplain Ogilvie for his wonderful prayer this morning. He spoke for all of us.” Id. The Senate then considered a recodification bill, entitled “An Act To reaffirm the reference to one Nation under God in the Pledge of Allegiance,” later that day. 107 Cong. Rec. S6225.36 The recodification bill served two ends: to express Not one Senator repudiated the religious motivations of the 1954 law- makers; indeed, more than one explicitly embraced them. Id. at S6102 (statement of Sen. Daschle) (“We added the language, ‘under God,’ in 1954. Then-President Dwight Eisenhower said: ‘In this way, we are reaf- firming the transcendence of religious faith in America’s heritage and future; in this way, we shall constantly strengthen those spiritual weapons which forever will be our country’s most powerful resource in peace and war.’ I agree with President Eisenhower.”); id. at S6109 (statement of Sen. Brownback) (“I thank those sincere leaders who in 1954 sought to reaf- firm . . . our ‘firm Reliance on the Protection of divine Providence.’ ”); id. at S6237 (statement of Sen. Allard) (“When President Eisenhower signed the law adding ‘under God’ to the pledge, . . . . [h]e was affirming that this nation has . . . consistently and thoroughly incorporated belief in and submission to God.”). While the Pledge was the primary focus of the bill, it also contained a section, entitled “reaffirming that God remains in our motto,” that reen- acted the statute declaring “In God we trust” to be the National Motto. See Pub. L. No. 107-293, 116 Stat. 2057, 2060-61 (2002). 3970 NEWDOW v. RIO LINDA USD the approval of the 2002 Congress of the 1954 Congress’s inclusion of “under God” in the Pledge, and to express its dis- approval of the constitutional interpretation of the First Amendment by this court in Newdow I.37 It did not make any change to the content of the Pledge or offer any different pur- pose for its adoption than the religious purpose that motivated the 1954 Congress. In support of the legislation, Senator Jeff Sessions made clear that he considered the Pledge an “expres- sion of faith,” that he approved wholeheartedly of what the 1954 Congress had done, and that the Senate should again express its approval of the inclusion of God in the Pledge. He stated that he disagreed not only with Newdow I, but with other limitations on religious expression in public schools: I am a cosponsor and helped draft this legislation. I would say this: This is not an itty bitty issue. This is a big issue. The Congress and States and cities have been expressing a desire to have, and be allowed to have, an expression of faith in the public life of America. The courts have been on a trend for decades now to constrict that. . . . . The Supreme Court . . . . has cracked down on some very small instances of public expression of faith. Our courts have made decisions such as con- straining a valedictorian’s address at a high school. Certainly our prayer in schools has been rigorously constricted or eliminated in any kind of normal classroom setting, as has the prayer at football games. I will just say we hope the courts will reconsider some of their interpretations of the establishment Senator Tim Hutchinson, the sponsor of the bill, explained its purpose: “[The Founders] were not advocating freedom from religion. . . . . By passing this legislation today the Senate will make clear that we under- stand the Founders’ intention.” 107 Cong. Rec. S6226. NEWDOW v. RIO LINDA USD 3971 clause and the free exercise clause of the first amendment and help heal the hurt in this country. Id. at S6226 (emphasis added). The Senate’s bill passed without opposition,38 and was then sent to the House for consideration.39 In its report on the bill, the House Judiciary Committee examined the historical events listed in the legislative findings, and explained why those events were relevant. It concluded that our interpreta- tion of the First Amendment was itself unconstitutional: Clearly, America has a rich history of referring to God in its political and civic discourse and acknowl- edging the important role faith and religion have played throughout our Nation’s history. Thus the Ninth Circuit’s analysis in the Newdow ruling cannot be supported by any reasonable interpretation of the Establishment Clause as their holding is inconsistent with the meaning given the Establishment Clause since America’s founding. H.R. Rep. 107-659, at 8 (2002). On October 7, 2002, the Act “To reaffirm the reference to one Nation under God in the Pledge of Allegiance” was brought before the full House of Representatives. 107 Cong. Rec. at H7029. Representative Jim Sensenbrenner, who chaired the Judiciary Committee and submitted the House The vote was 99-0. Senator Jesse Helms was absent, but Senator Don Nickles announced on his behalf “that if present and voting [he] would vote ‘yea.’ ” 107 Cong. Rec. S6226. In the meantime, the House had passed its own resolution condemning Newdow I. See H.R. Res. 459, 107th Cong. (2002) (“[I]t is the sense of the House of Representatives that . . . [t]he Ninth Circuit’s ruling is incon- sistent with the U.S. Supreme Court’s First Amendment jurisprudence . . . [and t]he phrase ‘One Nation, under God,’ should remain in the Pledge of Allegiance . . . .”). 3972 NEWDOW v. RIO LINDA USD Report, explained the purpose of the legislation. He, too, expressed his approval of the action of the 1954 Congress in inserting “under God” into the Pledge and said that he thought it necessary for the later Congress to endorse and approve what the earlier Congress had done: The Newdow ruling is troubling because its analysis . . . . is inconsistent with any reasonable interpreta- tion of the Establishment Clause of the First Amend- ment. Thus, it has become necessary for Congress to reaffirm its understanding that the text of both the Pledge and our national motto are legally and histori- cally consistent with a reasonable interpretation of the first amendment. Id. Only two other congressmen offered remarks on the bill. The first, Representative Robert C. Scott, stated that he “agree[d] with the dissent” in Newdow I, although he feared that the proposed legislation would further jeopardize the legal status of the amended Pledge “because if the courts look at the importance that we apparently affix to ‘one Nation under God’ . . . then it diminishes the argument that the phrase has de minimis meaning.” Id. at 7030. Representative Ronnie Shows then took to the floor to express his view that “[t]he values we teach at home and church are universal and should not be left outside the schoolhouse door . . . . I am happy that we are today considering a measure that reiterates the importance of our National Motto, and the presence of God in our lives.” Id. (emphasis added). The House voted on the legislation the following day, and it passed by an over- whelming margin.40 Id. at H7186. On November 13, 2002, President George W. Bush signed the bill into law.41 The vote was 401 to 5, with 4 representatives answering “present” and 21 not voting. 107 Cong. Rec. H7186. Although President Bush signed the bill into law without comment, he had expressed his views on Newdow I the day after the case was decided: NEWDOW v. RIO LINDA USD 3973 As this series of events illustrates, “Congress chose to explain in great detail its purpose in reaffirming the language of the Pledge.” Maj. op. at 3896. That 2002 Act’s legislative history makes clear that Congress’s view of the reference to “under God” in the Pledge had little to do with “political phi- losophy,” as the majority disingenuously claims, id. at 3902, and much to do with the concept of religion, including pro- moting the concept of God in the public schools. As the House Report, which even the majority accepts as competent evidence of purpose, see id. at 3912, explicitly states, the Pledge “is a recognition of the fact that many Americans believe in God.” H.R. Rep. 107-659, at 5. The purpose of the 2002 Act could not be clearer: Congress sought to condemn our decision in Newdow I, to defend the constitutionality of the original 1954 amendment that added “under God” to the Pledge, and to reaffirm “the presence of God in our lives,” and in our Pledge. In the end, the decision that the 2002 Congress went to such great lengths to condemn never took effect — though not, of course, because of Congress’s legislative action. After our circuit declined to rehear the case en banc, without a sin- gle judge so much as suggesting that the 2002 Act had any relevance to the constitutional analysis, the Supreme Court granted certiorari and reversed on prudential standing grounds — a lack of standing of a non-custodial parent to assert the rights of his minor daughter — without addressing the merits of the Establishment Clause question. See Elk Grove Unified America is a nation that values our relationship with an almighty. . . . . I think that the Almighty is, obviously, [an] important part of my life, but [an] important part of the life of our country. And that’s why the ruling of the courts was out of step with the tradi- tions and history of America. Press conference, June 27, 2002, transcript available at http:// transcripts.cnn.com/TRANSCRIPTS/0206/27/bn01.html. 3974 NEWDOW v. RIO LINDA USD Sch. Dist. v. Newdow, 542 U.S. 1 (2004). As a result, the state-directed, teacher-led recitation of the “under God” ver- sion of the Pledge has ever since 1954 continued, uninter- rupted, in public schools throughout the nation — just as the 1954 Congress intended. E. Jan Roe and Her Child’s Constitutional Claim Today, over six million students attend public school in the State of California.42 At least 190,000 of those students are Buddhist, Hindu or followers of a Native American religion and thus do not believe in traditional monotheism — that is, the existence of a single, non-metaphorical, supervisory God.43 Over half a million California students come from “secular” families44 — a population that has “nearly doubled” across the country over the past two decades.45 Most of these individuals “moved away from religious observance because they no lon- ger believe in God or religious teachings.”46 Indeed, Califor- The precise enrollment figure is 6,275,469. See California Dept. of Ed., State of California Education Profile, Fiscal Year 2007-08 available at http://tinyurl.com/CalEdProfile07-08. See The Pew Forum on Religion & Public Life, U.S. Religious Land- scape Survey 99 (2008) [hereinafter Pew Survey], available at http:// tinyurl.com/Pew08ReligionSurvey; see also The Pew Forum on Religion & Public Life, U.S. Religion Map and Religious Populations, available at http://religions.pewforum.org/maps [hereinafter Pew Forum Map]. Adher- ents to the Buddhist and Hindu faiths together comprise three percent of the California population. The percentage of Californians who subscribe to these faiths is over three times the national average. See Pew Survey at 5; see also U.S. Census Bureau, The 2007 Statistical Abstract, t. 73, avail- able at http://www.census.gov/prod/2006pubs/07statab/pop.pdf. Twenty-one percent of Californians are “unaffiliated” with any reli- gion. Pew Survey at 100. Nationally, forty percent of people who describe themselves as “unaffiliated” further describe themselves as “secular unaf- filiated.” Id. at 5. Laurie Goodstein, More Atheists Are Shouting It From the Rooftops, N.Y. TIMES, Apr. 27, 2009, at A1. Duke Helfand, Why Many Americans Change Faiths, L.A. TIMES, Apr. 28, 2009, at A12. NEWDOW v. RIO LINDA USD 3975 nia and the West Coast have “the largest proportion of atheists and agnostics” of any region in the country.47 In California’s public schools, over one million students are not sure whether they believe in God, and fully 439,000 students are avowed atheists.48 One atheist student who attends a California public school is the daughter of Jan Roe. Ms. Roe’s child was born at the turn of the millennium, and so in September of 2004 the time came for Ms. Roe, a resident of the Rio Linda Union School District, to put her five-year-old daughter on a school bus and send her off for her first day of kindergarten. In so doing, Jan Roe joined the millions of parents in California and across the United States who every September “entrust public schools with the education of their children.” Edwards v. Aguillard, 482 U.S. 578, 584 (1987). These parents hope the school teachers will look over their young children and keep them safe, but, just as important, they “condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.” Id. When the five-year-old Roe child arrived for her first day of kindergarten, her teacher, a state employee, asked the young students to stand, to place their hands on their hearts, and to pledge their allegiance to “one nation, under God.” Neither young Roe nor her mother, however, believe in God. Thus, having already learned that she should not tell a lie, young Roe simply stood silently, as her classmates recited in unison the version of the Pledge that requires its proponents to express their belief in God. Everyday thereafter, the chil- dren filed into school, and each morning they recited an oath of allegiance to “one nation, under God” — an oath that unde- Pew Survey at 8. See Pew Forum Map (seven percent of Californians “do[ ] not believe in God,” five percent are “not too certain, not at all certain,” or “unsure how certain” they are that God exists, and four percent “don’t know”). 3976 NEWDOW v. RIO LINDA USD niably “requires affirmation of a belief and an attitude of mind” to which young Roe does not subscribe: a belief that God exists and is watching over our nation. Cf. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943). For eight months, the five-year-old Roe faced, every morning, the daily “dilemma of participating” in the amended Pledge, with all that implies about her religious beliefs, or of being cast as a protester for her silent refusal. Lee v. Weisman, 505 U.S. 577, 593 (1992). On some days she quietly endured the gaze of her teacher and her classmates as she refused to say the Pledge, standing in silence as the classroom’s lone dissenter; on oth- ers she walked out of the room and stood in the hallway by herself, physically removed from the religious “adherents” — the “favored members of the [classroom] community,” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310 (2000), who were able to swear their fealty to the United States without simultaneously espousing a state-sponsored belief in God that was antithetical to their personal religious views. In April, 2005, Jan Roe filed this lawsuit on behalf of her- self and her child. Her claim is straightforward: The Constitu- tion of the United States, a nation founded by exiles who crossed an ocean in search of freedom from state-imposed religious beliefs, prohibits the purposefully designed, teacher- led, state-sponsored daily indoctrination of her child with a religious belief that both she and her daughter reject. III. The 1954 Amendment and This Appeal The history that I have just described permits only one con- clusion regarding the constitutionality of the state-directed, teacher-led, daily recitation in public schools of the “under God” version of the Pledge of Allegiance as amended by Con- gress in 1954. In order to avoid reaching that conclusion, the majority repeatedly and deliberately misstates the issue that is before us. First and foremost, the “hotly contested issue in this case” is not, as the majority asserts, “whether Congress’ purpose in NEWDOW v. RIO LINDA USD 3977 enacting the Pledge of Allegiance was predominantly patriotic or religious.” Maj. op. at 3885. For many years prior to 1942, indeed from since at least the 1930s, the Pledge of Allegiance was a patriotic and secular exercise widely recited in public schools and at various public events and in various public fora. It was officially adopted as such by Congress in 1942. It is undisputed and indeed indisputable that at that time the Pledge was solely patriotic and secular and contained no reli- gious component or element. In 1954 Congress amended the Pledge by inserting into that patriotic and secular instrument the religious phrase “under God.” The issue here is whether the amendment to the Pledge — the insertion of the phrase “under God” — was enacted for a predominantly religious purpose, not whether the Pledge as a whole was enacted for such a purpose. Second, the issue is not “whether [plaintiff] Roechild can prevent other students . . . from saying the Pledge.” Maj. op. at 3889; see also id. at 3888. Contrary to the majority’s asser- tion, this case presents no issue about whether young Roe can prohibit other five-year-olds from doing anything at all. Rather, the issue is whether the Constitution prohibits young Roe’s state-employed teachers from conducting the state- directed, daily recitation of the “under God” version of the Pledge in public schools. To be sure, as a member of the majority once wrote, prohibiting such recitations “deprives Christians [and other adherents to monotheistic religions] of the satisfaction of seeing the government adopt their religious message as [its] own, but this kind of government affiliation with particular religious messages is precisely what the Estab- lishment Clause precludes.” Cammack v. Waihee, 932 F.2d 765, 785 (9th Cir. 1991) (D. Nelson, J., dissenting) (second alteration original) (quoting County of Allegheny v. ACLU, 492 U.S. 573, 601 n.51 (1989)). Accordingly, the responsibil- ity for any dissatisfaction felt by “other students” cannot be placed, as the majority shamefully seeks to do, upon the shoulders of a kindergartener; it results from the requirements of the Constitution itself. 3978 NEWDOW v. RIO LINDA USD Third, the majority’s assertion that young Roe asks us “to prevent teachers from leading other students [in] reciting the Pledge of Allegiance,” maj. op. at 3874, like its related claim that I “would have us strike down the Pledge,” id. at 3919, is completely and utterly false. The issue presented by this case involves only the recitation of the words “under God” as a part of the Pledge of Allegiance — the words that Congress added to the Pledge in 1954 — and not the Pledge in its origi- nal, pre-amendment secular form. Had one more member of today’s panel ruled in favor of the plaintiffs, our decision would have held only that the 1954 amendment to the Pledge was unconstitutional as applied in the context of public schools implementing a state-directed program of daily teacher-led recitations. Public schools could have complied with that ruling simply by having teachers lead students in daily recitations of the Pledge in its pre-1954 form, without the added religious phrase “under God.” And our decision would not have held unconstitutional the recitation of any ver- sion of the Pledge — with or without the challenged phrase — outside of the public school context. Finally, as must be obvious even to the majority, the issue in this case is not the purpose of the 2002 Pledge recodifica- tion, which merely reaffirmed the 1954 amendment and Con- gress’s purpose in enacting it. The recodification also declared that our court’s First Amendment analysis was erro- neous and that Newdow I was wrongly decided. See supra Part II.D. The 2002 recodification is of no constitutional con- sequence, and no one but the two members of the majority has even purported to believe otherwise. Bafflingly, the majority declares that because the 2002 Congress adopted a provision that “reaffirmed the exact language that has appeared in the Pledge for decades,” maj. op. at 3895, “[i]t is the 2002 statute . . . that sets forth our current Pledge,” id. at 3894, and “[i]t is the 2002 Congress’ purpose we are called upon to exam- ine.” Id. at 3928. The majority’s reliance on the 2002 legisla- tion to obviate the purpose of Congress in 1954 is no more than a transparent tactic intended to divert attention from an NEWDOW v. RIO LINDA USD 3979 obvious constitutional violation towards a substance-less event of no legal consequence. The deliberate misstatement of the issue presented by a case is not an unusual tactic for a majority that seeks to mis- lead the reader, as well as other members of the judiciary, in order to prejudice the outcome of a constitutional question. Only twenty-four years ago, in Bowers v. Hardwick, 478 U.S. 186, 190 (1986), the majority misstated the issue before the Court as “whether the Federal Constitution confers a funda- mental right upon homosexuals to engage in sodomy.” The dissent correctly responded that the true issue was whether the Constitution protected “the fundamental interest all individu- als have in controlling the nature of their intimate associations with others.” Id. at 206 (Blackmun, J., dissenting). It took the Court seventeen years to overcome the majority’s unconstitu- tional conclusion, which followed inevitably from its falla- cious framing of the issue. The Court held in Lawrence v. Texas, 539 U.S. 558, 578 (2003), in unusually blunt terms, that “Bowers was not correct when it was decided, and it is not correct today.” The framing of the issue here is even more blatantly erroneous and misleading than was its framing in Bowers, and the majority here must be as aware of that fact as, one may fairly surmise, was the majority in Bowers. A. Recent Contrivance of the Majority’s Novel Theory Before the majority at some unknown point following the argument in this case conjured up its idea that “[i]t is the 2002 Congress’ purpose we are called upon to examine,” maj. op. at 3928, no one, lawyer or judge, had thought to offer such a bizarre argument or to attach any constitutional significance to the action of the 2002 Congress. The history of Newdow III makes this clear, as does all of the ensuing Pledge litigation, including the case before us. Three months after the reaffir- mation of the Pledge statute, this court issued an amended opinion superseding Newdow I and an order denying rehear- ing en banc, with two separate dissents and a concurrence in 3980 NEWDOW v. RIO LINDA USD the denial of rehearing en banc. See Newdow v. U.S. Cong., 328 F.3d 482 (9th Cir. 2003) (“Newdow III”), amending 292 F.3d 597 (9th Cir. 2002) (“Newdow I”), rev’d on other grounds sub nom. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004). In striking contrast to today’s majority, none of the twelve judges who participated in any of those opinions or orders thought the 2002 reaffirmation important enough even to mention.49 When the case was decided by the Supreme Court shortly afterwards, the opinion of the Court did not include any reference to the 2002 legislation; in fact, it stated that “the Pledge as we know it today” was the result of the 1954 amendment. Elk Grove, 542 U.S. at 7. Three jus- tices wrote concurrences that addressed the constitutional issue, but the 2002 legislation was mentioned in only one fleeting reference that simply noted its enactment. See id. at 26 (Rehnquist, C.J., concurring). Nor prior to the issuance of today’s opinion did any party, intervenor, amicus, or judge in the case presently before us, The majority’s attempts to explain away the conspicuous absence of any mention of the 2002 legislation in Newdow III would be ludicrous and unworthy of response if the constitutional rights of religious minorities were not at stake. The majority grudgingly concedes that “the 2002 Act was technically passed before issuance of Newdow III” in 2003. Maj. op. at 3929 n.37 (emphasis added). Of course, saying that 2002 is “technical- ly” before 2003 is like saying that a dog is “technically” not a cat — or, more pertinent here, that God is “technically” not a secular term. Unde- terred, however, the majority goes on to explain that Newdow III “ad- dressed the newly raised questions of whether Newdow had standing and authority to represent his child, and did not revisit the fundamental Estab- lishment Clause analysis of Newdow I.” Id. This is simply incorrect. Our court addressed “newly raised questions” about Newdow’s standing in Newdow II, a published order issued on December 4, 2002. See 313 F.3d at 502. When we issued Newdow III two months later, not only did the amended majority opinion make substantive changes to the reasoning and holding of Newdow I, but six judges joined a dissent in the denial of rehearing en banc that conducted a new and independent constitutional analysis. In short, our court in 2003 did “revisit the fundamental Establish- ment Clause analysis of Newdow I,” but everyone involved understood that the 2002 reaffirmation was wholly irrelevant to that analysis. NEWDOW v. RIO LINDA USD 3981 including the two in the majority, deem the 2002 reaffirma- tion to be of any legal significance or indeed even worthy of mentioning at any time during the litigation of this appeal. During the hour-long oral argument before this court, no judge, specifically including the two members of today’s majority, asked a single question or made a single reference of any kind to the 2002 reenactment. In fact, no one, including any of the counsel arguing the case, noted, referred to, or commented on it during that argument. To put it simply, no one, including the two judges in the majority, thought at the time of argument that the 2002 reaffirmation was in any way relevant. Furthermore, in the more than 500 pages of briefing filed by the parties, the intervenors, and the twelve amici, there were only two places at which the 2002 legislation was even noted, and at those places it was noted and nothing more. The brief of the United States includes one sentence in its history section recording the passage of the 2002 recodifi- cation and one citation to that legislative act in connection with the recodification of the motto, “In God We Trust.” In that brief, like in all others filed in this litigation, the filing party, here the United States, attached no legal significance to the 2002 reaffirmation of the 1954 amendment. In sum, the parties, intervenors, and amici entirely ignored the 2002 reaf- firmation in their discussions over whether the inclusion of “under God” in the Pledge rendered its daily recitation in pub- lic schools unconstitutional as applied; they all simply deemed the reaffirmation irrelevant. Accordingly, contrary to the suddenly developed nostra sponte view of two judges of this court, nowhere in the briefs or the oral argument was there any suggestion by the United States or anyone else that “[i]t is the 2002 statute . . . that sets forth our current Pledge,” id. at 30, that “[i]t is the 2002 Congress’ purpose we are cal- led upon to examine,” id. at 68, or indeed that the 2002 legis- lation had any relevance whatsoever to the question of the constitutionality of the recitation of the phrase “under God” as part of the Pledge. No one involved in this case suggested, even remotely, that the 2002 enactment shed any light on the purpose of Congress in amending the Pledge in 1954, or that 3982 NEWDOW v. RIO LINDA USD a new or different purpose now underlies the inclusion of the words “under God” in the Pledge. Nor, of course, did anyone suggest that because Congress disagreed with us as to the meaning of the First Amendment, we should yield to Con- gress’s view. Other courts have also heard Establishment Clause chal- lenges involving the Pledge of Allegiance in the years since the 2002 reenactment, but like our court, not one of them, not even a single judge, until today even mentioned the 2002 leg- islation when deciding such a claim. See, e.g., Myers v. Lou- don County Pub. Schs., 418 F.3d 395, 398 (4th Cir. 2005) (noting that “[t]he Pledge was amended in 1954” but making no reference to the 2002 statute); Freedom from Religion Found. v. Hanover Sch. Dist., ___ F. Supp. 2d ___, 2009 WL 3227860 (D.N.H. Sept. 30, 2009) (discussing the intent of the 1954 Congress but making no reference to the 2002 statute); Keplinger v. United States, 2006 WL 1455747 (M.D. Pa. May 23, 2006) (Unpub.) (addressing the 1954 legislative history but making no reference to anything that occurred in 2002); see also Croft v. Perry, 604 F. Supp. 2d 932 (N.D. Tex. 2009) (in an Establishment Clause challenge to the Pledge of Alle- giance to the Texas state flag, discussing the legislative his- tory of the 1954 federal Pledge amendment but making no reference to the 2002 legislation). Under these circumstances, one cannot help but wonder how, when, and why the majority decided to afford the 2002 reaffirmation the importance it attributes to it in today’s opin- ion. Rarely, if ever, does a court decide a case, let alone an important constitutional issue, on a ground that no party men- tioned, no party briefed, no party argued, the existence of which no intervenor or amicus including the United States deemed to be of any relevance, and as to which the court itself at no time made any inquiry or reference prior to issuing its decision. Certainly no court has ever done so on so spurious a ground as the 2002 reaffirmation, a ground supported by no colorable legal argument and contrary to so many decades of NEWDOW v. RIO LINDA USD 3983 constitutional and other federal law. The best guess as to the reason for the majority’s sudden, last-minute reliance on the 2002 reaffirmation is its belated recognition that its principal arguments with respect to the 1954 amendment, on which it had hoped to rely in order to reach its desired result, are all without merit and are easily refuted under controlling Supreme Court law. Nevertheless, I am compelled to address its Hail Mary argument.50 B. Immateriality of the 2002 Legislation The reasons that the majority may ultimately have been driven to rely on the 2002 enactment as a justification for the 1954 amendment’s addition of the phrase “under God” will become obvious in Sections IV and V, infra, where it is explained why the Constitution and the applicable Supreme Court precedent dictate the conclusion that all three Establish- ment Clause tests preclude the state-directed, teacher-led, daily recitation of the “under God” version of the Pledge in public schools. The reasons that no one but the two members of the majority has ever attempted to justify the 1954 insertion of the words “under God” into the Pledge on the basis of the 2002 “reaffirmation” are evident as well. The majority argues that “it makes sense that we must examine the purpose of the most recent Congressional enact- ment” because “[o]therwise, a perfectly valid measure . . . would forever be banned by the politically motivated state- ments of some legislators.” Maj. op. at 3913-14. This argu- ment ignores the actual content and legislative history of both the 1954 enactment of the “under God” amendment and the 2002 reaffirmation of that congressional action. Whether a In football, a Hail Mary is a last-minute desperation pass, the most famous being Doug Flutie’s, then a quarterback for Boston College, in a game against Miami in 1984. Sports analogies describing judging appear to be all the rage these days. Some have merit. Others, especially some involving baseball, clearly do not. 3984 NEWDOW v. RIO LINDA USD subsequent Congress could have rehabilitated the “under God” amendment by repudiating the actions of the 1954 law- makers and then reenacting the amended Pledge for entirely different reasons is not a question presented here: the 2002 Congress did exactly the opposite. The legislation it passed did not purport to do anything more than express disagree- ment with Newdow I, assert that we misunderstood the mean- ing of the Establishment Clause, and reaffirm the earlier 1954 congressional action. Neither of the first two pronouncements constituted a lawful exercise of Congress’s legislative powers and thus were without legal significance, and the third did not change in any way the facts or law regarding the constitu- tional question raised by Congress’s adoption of the “under God” amendment in 1954, and thus had no effect upon the outcome of this case. The 2002 Congress simply declared its approval of the 1954 amendment to the Pledge when, in response to Newdow I, it purported to reaffirm the earlier Congress’s action, neces- sarily including the purpose that underlay it. Members of Congress stated their disapproval of Newdow I, in statements on the House and Senate floors and in the text of the reaffir- mation itself, insisting that the 1954 law had been constitu- tionally adopted and applied. See supra Part II.D. Congress did not seek to nullify or change the earlier Congress’s origi- nal purpose in 1954; at no time did it expressly state that the purpose in 1954 was other than religious, and at no time did it expressly offer any purpose other than religion for its act of affirmation. Certainly, at no point did it suggest that the phrase “under God” was not religious. Rather, what it essen- tially did was to react, as Congresses have done in the past, to a judicial decision that it did not like by passing legislation or resolutions that attempted to overrule the scope of constitu- tional protections that the courts had afforded. See City of Boerne v. Flores, 521 U.S. 507 (1997). It did so here by sim- ply setting forth a set of “findings” reporting pre-1954 histori- cal events and a series of judicial decisions, all but one post- NEWDOW v. RIO LINDA USD 3985 1954, in order to explain why our court’s interpretation of the Constitution in Newdow I was in error. In its findings, Congress noted a number of times prior to 1954 that the religious term “God” had been used, such as Jef- ferson’s authoring of “Notes on the State of Virginia” and Lincoln’s Gettysburg Address, as well as the resolution call- ing for the proclamation of Thanksgiving Day. Pub. L. No. 107-293, 116 Stat. 2057, 2057-58 (2002). It then noted judi- cial decisions it apparently deemed inconsistent with Newdow I, id. at 2058-60, and it ended with its finding that Newdow I was “erroneous,” id. at 2060. Somewhere in the recitation of historical facts, the majority purports to discover an “abso- lutely clear” expression of Congress’s secular purposes, maj. op. 3902, and an equally clear statement “that we had misun- derstood Congress’ purpose in our ruling in Newdow III.”51 Id. at 3913. The majority does not identify those “absolutely clear” statements, and for good reason: they do not exist. Had Congress set forth its “secular reasons . . . directly in the statute,” as the majority claims, maj. op. at 3895, one would expect that my colleagues could and would simply quote those reasons directly from the statute. Had Congress made an “absolutely clear” statement of its secular purposes, id. at 3902, one would expect that the majority could and would provide an equally clear explanation of what those pur- poses were. The majority does neither, as Congress never identified any secular purpose underlying its 1954 adoption of the “under God” amendment or its 2002 reaffirmation of that amendment. Instead, the majority variously states that the 2002 Congress’s purpose in reaffirming the inclusion of the phrase “under God” in the Pledge was “to underscore the political philosophy of the Founding Fathers,” maj. op. at 3876, “to add [a] note of importance . . . [to the] Pledge,” id., Because the 2002 legislation was enacted prior to our 2003 decision in Newdow III, I assume that the majority intended to refer to Newdow I rather than Newdow III when making this assertion. 3986 NEWDOW v. RIO LINDA USD “to inspire patriotism,” id. at 3877, to “recogni[ze] . . . histori- cal principles of governance,” id. at 3889, “to describe an attribute of the Republic,” id. at 3891-94, to “reference . . . the historical and religious traditions of our country,” id. at 3893, and to “inspir[e] and solemniz[e],” id. at 3914. At no point, however, did Congress say in 2002 that it had any purpose in reaffirming the 1954 amendment to the Pledge other than to reaffirm the 1954 Congress’s effort to promote religion, espe- cially in the case of public schoolchildren. To the extent that the majority has inferred any specific reasons from the 2002 Act’s descriptions of various historical events, that methodol- ogy would provide equal support for the conclusion that Con- gress’s purpose was to promote “the Glory of God and the advancement of the Christian Faith”; to hold “that God is just”; to “declare[ ] . . . [r]eligion . . . necessary to good gov- ernment and the happiness of mankind”; and to “ac- knowledg[e] . . . the many signal favors of Almighty God.”52 The majority cannot support or even clearly express its claim of a secular congressional purpose because at no point was there any statement, in the 2002 Act or in its findings, that there was any purpose other than religion that motivated See Pub. L. No. 107-293, 116 Stat. 2057, 2057-58 (2002) (“Congress finds the following: (1) On November 11, 1620 . . . the Pilgrims signed the Mayflower Compact that declared: ‘Having undertaken, for the Glory of God and the advancement of the Christian Faith and honor of our King and country, a voyage to plant the first colony in the northern parts of Vir- ginia,’ . . . . (3) In 1781, Thomas Jefferson . . . in his work titled ‘Notes on the State of Virginia’ wrote: ‘. . . . I tremble for my country when I reflect that God is just; that his justice cannot sleep forever.’ . . . . (5) On July 21, 1789 . . . the First Congress of the United States also passed the Northwest Ordinance . . . which declared: ‘Religion, morality, and knowl- edge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.’ . . . . (6) On September 25, 1789, the First Congress unanimously approved a reso- lution calling on President George Washington to proclaim a National Day of Thanksgiving . . . by declaring, ‘a day of public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, the many signal favors of Almighty God . . . .’ ” (emphases added)). NEWDOW v. RIO LINDA USD 3987 the 1954 enactment of the “under God” amendment or the 2002 reaffirmation of that earlier congressional action. The 2002 Congress certainly disagreed with Newdow I, but its dis- agreement was based on our interpretation of the Establish- ment Clause. See supra Part II.D. Congress did not object to our decision on the basis that we had misunderstood its pur- pose; rather, it objected to our conclusion that the purpose we found was constitutionally impermissible. The Supreme Court has clearly and consistently stated that legislation seeking to change a court’s constitutional decision exceeds congressional authority; if it did not, “no longer would the Constitution be ‘superior paramount law, unchangeable by ordinary means.’ ” Boerne, 521 U.S. at 529 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803)). Notwithstanding any legislation Congress might choose to enact, “[t]he power to interpret the Constitu- tion in a case or controversy remains in the Judiciary.” Id. at 524. Accordingly, we are bound to evaluate the “under God” version of the Pledge enacted in 1954, without regard to any view that Congress may have expressed as to its constitution- ality in the 2002 reaffirmation or any view it may have expressed regarding any constitutional interpretation that we rendered in Newdow I: When [a court] has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is. . . . When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be under- stood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed. Id. at 536 (citing Marbury, 5 U.S. at 177). 3988 NEWDOW v. RIO LINDA USD Under these circumstances, it is difficult to comprehend how any reasonable judge could in good faith suggest that the 2002 recodification, even with its introductory recitation of historical events, provides any basis for disregarding the over- whelmingly predominant religious purpose of the 1954 amendment or substituting in its place some vague and incho- ate secular purpose, especially knowing that no lawyer in this case and no judge in any similar case has ever offered so unsupportable a theory. Even were we to consider what the majority appears at times to contend is the additional purpose, “add[ing a] note of importance” to the Pledge, maj. op. at 3876, or any other similar purpose to which it seems at other times to allude, such as proclaiming that ours is a “limited government,” any such additional purpose would be of mini- mal significance in light of the overwhelmingly predominant religious purpose evident from the entire legislative record let alone the plain meaning of the words “under God.” The majority’s approach is directly contrary to McCreary County v. ACLU of Kentucky, 545 U.S. 844, 871-72 (2005), in which the Supreme Court held that even the repeal of a prior enact- ment does not “erase[ it] from the record of evidence bearing on current purpose,” and that a government action taken with- out “repeal[ing] or otherwise repudiat[ing]” the previous action carries even less weight.53 The majority defies this binding precedent and seizes upon the 2002 recodification in order to make an “implausible claim that governmental pur- pose has changed.” McCreary, 545 U.S. at 874. That argu- ment “should not carry the day in a court of law any more than in a head with common sense.” Id. The majority’s attempts to distinguish McCreary, see maj. op. at 3896 n.19, are not only thoroughly unpersuasive, but completely irrelevant. Regardless of how many factual distinctions the majority could identify, this case would still be governed by the legal principles set forth in McCreary: whatever subsequent actions a governmental body takes, it cannot erase the past, and a failure to repeal or repudiate an earlier mea- sure renders any such argument of little or no force whatsoever. NEWDOW v. RIO LINDA USD 3989 The majority’s decision not only fails to disappoint the ille- gitimate expectations of the 2002 Congress, it surely exceeds those lawmakers’ highest hopes. It acquiesces completely in the congressional disagreement with the judicial interpretation we previously rendered, accepting the interpretation of consti- tutional law set forth in the legislative findings to the 2002 reaffirmation. Maj. op. at 3896-3902. It would appear, then, that the majority is no more willing to follow the rule of sepa- ration of powers than it is to adhere to the fundamental tenets of the Establishment Clause. C. The Issue: The Constitutionality of the 1954 Amendment As Applied “It cannot be the case that Congress may override a consti- tutional decision by simply rewriting the history upon which it is based.” United States v. Enas, 255 F.3d 662, 675 (9th Cir. 2001) (en banc). Nor can a court reach a constitutional con- clusion by rewriting the history of the government’s actions, or by selectively declaring some of those actions obsolete, as today’s majority does. Rather, it is the judiciary’s responsibil- ity to undertake an independent examination of both the his- torical facts and the law, and, ultimately, “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). Because the 2002 legislation made no effort to modify the wording of the amended Pledge, did not seek to change or dis- avow the purpose for which the words “under God” were inserted into the previously non-sectarian Pledge, and could not erase the legislative history underlying the 1954 amend- ment even if Congress so wished, the 2002 reaffirmation could, even under the majority’s interpretation, constitute nothing more than an ineffective effort by Congress to over- rule a judicial interpretation of the Constitution. The majority therefore does a disservice to the Constitution and the judi- ciary by purporting to rely on that Act to justify its position regarding the “under God” amendment. We must look to the 3990 NEWDOW v. RIO LINDA USD Pledge as it was amended in 1954 and to the purpose for which that amendment was made. That has, correctly, been the view of our court and all other courts hearing Establish- ment Clause challenges involving the Pledge; it is the view of the parties to this action, of the intervenors, and of the amici; and it appeared to be the view of the two members of the majority until sometime after oral argument, when my col- leagues must have thought that they had discovered, albeit belatedly, an argument that no one else had previously deemed worthy of consideration or had even mentioned — an argument that they hoped might somehow support the result that they desired to reach but could not otherwise attain. My colleagues would have far better performed their duty had they taken their chances and left it to the Supreme Court to revise the law governing the question now before us. For it is only if the Supreme Court were to decide to change its view of the Establishment Clause and overrule the precedent that now binds us, that the state-directed, teacher-led, daily recita- tion of the Pledge with the words “under God” included could be held to be in compliance with the Constitution. IV. Establishment Clause Tests I now turn to the real issue in this case: Does the Establish- ment Clause, as it has been construed by the Supreme Court, preclude the state-directed, teacher-led, daily recitation of the version of the Pledge, as amended by Congress in 1954, in public schools? The answer is crystal clear. Today’s majority not only ignores the historical record and the plain meaning of the words contained in the amendment to the Pledge; it also distorts — when it does not ignore — the applicable Supreme Court doctrine governing the constitutional issues before us. Although the Court’s Establishment Clause jurisprudence is often derided as inconsistent,54 the challenges in applying the See, e.g., Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 861 (1995) (Thomas, J., concurring) (“[O]ur Establishment Clause jurisprudence is in hopeless disarray . . . .”); Lynch v. Donelly, 465 U.S. 668, 699 n.4 (1984) (Brennan, J., dissenting) (“It seems the Court is will- ing to alter its analysis from Term to Term in order to suit its preferred results.”). NEWDOW v. RIO LINDA USD 3991 governing precedents ought not be treated as a license to dis- regard or rewrite the law that binds us, especially where those precedents unambiguously require a holding contrary to that which a majority of a panel of this court may desire to reach. The Supreme Court’s decisions do not merely provide “con- stitutional ‘signpost[s],’ to be followed or ignored in a partic- ular case as our predilections may dictate.” Wallace v. Jaffree, 472 U.S. 38, 69 (1985) (O’Connor, J., concurring in the judg- ment) (internal citation omitted). Rather, as members of an intermediate appellate court, our duty when existing doctrine clearly governs a case is to apply the law as it is written; “only [the Supreme] Court may overrule one of its prece- dents.” Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983) (per curiam).55 Nor is the considered judgment of this court something that should be lightly cast aside, especially when we have already decided the merits of the exact issue before us, as is the case here. See Newdow v. U.S. Cong., 328 F.3d 482 (9th Cir. 2003) (“Newdow III”), amending 292 F.3d 597 (9th Cir. 2002) (“Newdow I”), rev’d on other grounds sub nom. Elk Grove Uni- fied Sch. Dist. v. Newdow, 542 U.S. 1 (2004). No intervening decision by the Supreme Court or this court has changed the governing law or legal principles in any respect since we addressed a case seven years ago with the same facts and even many of the same parties as the one we address today. The majority’s contrary argument — that legislation enacted before our decision in Newdow III constitutes a subsequent change in the law — is nothing short of nonsensical. Maj. op. at 3928-29 & n.37; see also supra n.49. I agree that our prior decision is no longer binding, but it nonetheless “remains viable as persuasive authority, notwithstanding the Supreme Court’s vacatur.” Roe v. Anderson, 134 F.3d 1400, 1404 (9th Cir. 1998). It is thus entitled to at least some deference — certainly greater deference than it has received from the majority. In truth, the only reason this case is being decided differently today than it was seven years ago is that a ran- dom lottery drew the members of this panel to decide the issue. To those who question whether the results in constitutional and other cases depend on the membership of the panel, or whether the replacement of even a single Supreme Court justice can change the fundamental nature of the rights of all Americans with respect to matters as basic as . . . the nature of religious liberty, the result in the case currently before our panel . . . illustrat[es just] how the judicial system currently operates. 3992 NEWDOW v. RIO LINDA USD In the context of the Establishment Clause, circuit courts and scholars have recognized three separate “tests” that con- trol our analysis: the Lemon test, the endorsement test, and the coercion test. See, e.g., Borden v. Sch. Dist. of E. Brunswick, 523 F.3d 153, 175 (3d Cir. 2008); Mellen v. Bunting, 327 F.3d 355, 370-71 (4th Cir. 2003); DeStefano v. Emergency Hous. Group, Inc., 247 F.3d 397, 410-16 (2d Cir 2001); Doe v. Beaumont Indep. Sch. Dist., 240 F.3d 462, 468 (5th Cir. 2001). There is no need to evaluate the relative merits of the various tests. As the majority acknowledges, the law is clear that each is binding and that the failure to satisfy any one is fatal. See, e.g., Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806, 818 (5th Cir. 1999), aff’d 530 U.S. 290 (2000) (applying the tests independently); accord Newdow III, 328 F.3d at 487 (“We are free to apply any or all of the three tests, and to invalidate any measure that fails any one of them.”), rev’d on other grounds sub nom. Elk Grove, 542 U.S. 1 (2004). Here, the choice of test matters little, as the state-directed, teacher- led recitation of the “under God” version of the Pledge clearly fails to meet the constitutional standards under each of the tests, and thus is thrice unconstitutional. A. The Lemon Test and the “Under God” Amendment Despite repeated criticisms from various flanks, “[t]he Lemon test remains the benchmark to gauge whether a partic- ular government activity violates the Establishment Clause.” Access Fund v. U.S. Dep’t of Agric., 499 F.3d 1036, 1042 (9th Carver v. Lehman, 558 F.3d 869, 880 (9th Cir. 2009) (Reinhardt, J., con- curring in the judgment), amending 528 F.3d 659 (9th Cir. 2008) (Rein- hardt, J. joined by Ferguson, J.). In this case, a simple change in two of the judges, or to put it more accurately, a change in only one — as the views of Judge Fernandez, the original dissenter, are clearly shared by Judge Bea — results in a regretta- ble abandonment of constitutional principles and an unfortunate infringe- ment on our public schoolchildren’s rights to religious freedom. NEWDOW v. RIO LINDA USD 3993 Cir. 2007). The Supreme Court applied the Lemon test in its most recent Establishment Clause case, see McCreary County v. ACLU of Ky., 545 U.S. 844, 859-67 (2005), as well as its most recent Establishment Clause case involving public schools, see Santa Fe, 530 U.S. at 314. It has “particularly relied on Lemon in . . . case[s] involving the sensitive relation- ship between government and religion in the education of our children.” Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373, 383 (1985). Indeed, with the exception of Lee v. Weisman, 505 U.S. 577 (1992), see infra Part IV.C, “[i]n no case involv- ing religious activities in public schools has the Court failed to apply vigorously the Lemon factors.” Lee, 505 U.S. at 603 n.4 (Blackmun, J., concurring).56 The test itself is well-established: “First, the statute [or practice] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute [or practice] must not foster ‘an excessive entanglement with religion.’ ” Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (internal citation omitted) (emphases added) (quoting Walz v. Tax Comm’n, 397 U.S. 664, 674 (1970)). The secular purpose must predom- inate; it cannot be “merely secondary to a religious objective.” McCreary, 545 U.S. at 864. Failure to satisfy any one of the three prongs of the Lemon test is sufficient to invalidate the challenged law or practice. Particularly relevant to this case, a finding that a challenged statute or practice had a predomi- nantly religious purpose “make[s] it unnecessary, and indeed inappropriate, to evaluate [its] practical significance.” Wal- lace, 472 U.S. at 61. Thus, “[i]f the law was enacted for the purpose of endorsing religion ‘no consideration of the second or third criteria [of Lemon] is necessary.’ ” Edwards v. Aguil- lard, 482 U.S. 578, 585 (1987) (second alteration in original) In Lee, the Court concluded that the challenged practice violated the coercion test. Having done so, there was no need for it to apply the Lemon test as well. Still, Lee stands alone in the Court’s failure to employ Lemon rather than or in addition to one of the other two tests. 3994 NEWDOW v. RIO LINDA USD (quoting Wallace, 472 U.S. at 56)). Simply put, if the purpose of the statute or practice “is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.” Abington, 374 U.S. at 222. The majority does not disagree that Lemon is the law of the land, nor does it dispute that a statute or state-sponsored prac- tice that has a predominantly religious purpose necessarily violates the Establishment Clause. Rather, the fundamental error the majority makes that permeates its entire analysis is that it fails to comprehend that the Lemon test must be applied to the 1954 amendment that adds “under God” to the Pledge and not to the Pledge in its entirety. The majority’s attempt to ignore the amendment and instead base its analysis on “the Pledge as a whole,” maj. op. at 3876, is contrary to the legal principles that bind us for two reasons: First and foremost, the Supreme Court has determined how statutes amending provi- sions similar to the one before us shall be examined under Lemon and we are obligated to follow its holding. Second, it is the words “under God” contained in the amendment that Jan Roe and her daughter challenge. They raise no question as to the constitutionality of the state-directed recitation of the Pledge as it existed prior to the 1954 amendment, or as it would exist today if the two offending words were stricken; it is only the addition of the religious phrase that they contest. Yet, as evidenced by its deliberate decision not to discuss or even to acknowledge the explicitly religious legislative his- tory of the “under God” amendment to the Pledge, the major- ity simply refuses to examine the legislative enactment that was zealously supported and unanimously adopted by 531 Senators and Representatives, signed by the President of the United States, celebrated with the most bellicose and divisive of all religious hymns on the steps of the Capitol, and endorsed by forty-three state legislatures. Instead, my col- leagues contend that our analysis should examine “the entire wording of the Pledge as a whole,” id. at 3886 n.9 (emphasis added), i.e., the Pledge as it exists today, disregarding the fact NEWDOW v. RIO LINDA USD 3995 that it is only the application of the amendment that is chal- lenged as unconstitutional. Although the majority’s willful blindness toward the exis- tence and text of the amendment to the Pledge may be a nec- essary precondition to its reaching its desired outcome in this case, its refusal to follow controlling Supreme Court prece- dent reflects remarkable disdain for the law. The Supreme Court has explicitly held in a case that is indistinguishable from the one before us that our inquiry must center on the amendment and not the provision as a whole — in this case on the specific words Congress enacted in 1954 and inserted into the Pledge of Allegiance: “under God.” In Wallace v. Jaf- free, a secular and otherwise constitutional statute providing for a moment of silence in public schools was amended so as to add an explicitly religious provision stating that the moment of silence could be employed for prayer. The Supreme Court struck down that legislative amendment as violative of the Establishment Clause because of the “textual differences” introduced by the amendment: “The addition of [the words] ‘or voluntary prayer’ indicates that the State intended to characterize prayer as a favored practice.” Wal- lace, 472 U.S. at 60. The majority seeks to evade its obliga- tion to follow that binding precedent, but it is not free to set aside, overrule, or ignore it, or to avoid the conclusion that such binding precedent compels. If the majority followed the Court’s opinion in Wallace, as it is bound to do, it would be required to recognize that the previously secular Pledge of Allegiance was amended with the express purpose of promoting a state-sponsored belief in God and of indoctrinating schoolchildren with that belief. The only permissible conclusion my two colleagues could reach after acknowledging that fact would be that the amendment that results in the state-directed, teacher-led daily recitation of the religious version of the Pledge of Allegiance in public schools is, at the least, unconstitutional as applied. 3996 NEWDOW v. RIO LINDA USD 1. There is no escaping the fact that our decision today is con- trolled by the Supreme Court’s directly on-point analysis in Wallace v. Jaffree, 472 U.S. 38 (1985). The case is what law students and their professors used to call a “spotted cow.”57 The majority goes through numerous contortions in an effort to escape the unavoidable conclusion reached by Chief Justice Burger in dissent: Wallace “render[s] the Pledge unconstitu- tional.” Id. at 88 (Burger, C.J., dissenting).58 These contor- tions, however, cannot hide the fact that two judges of our circuit are simply disregarding binding Supreme Court law. In Wallace, the state of Alabama amended a statute that called for a moment of silence at the beginning of each school day by adding language clarifying that the moment of silence could be used for “voluntary prayer.” See Wallace, 472 U.S. at 40 n.2. Unlike here, there was no practical difference in Wallace between the original statute and the revised version that incorporated the amendment; in fact, the Court did not question that under the original statute students could volun- tarily pray during mandatory moments of silence if they so desired. Cf. id. at 59; id. at 72-74 (O’Connor, J., concurring in the judgment); id. at 85 (Burger, C.J., dissenting). Still, the Court struck down the statute containing the clarifying “vol- untary prayer” amendment as an unconstitutional establish- ment of religion, reasoning that the “textual differences” between the original and the revised statute conclusively established the religious purpose of the later enactment. Id. at 58 (majority opinion). Laying the two statutes side by side, See, e.g., Picker Int’l, Inc. v. Parten, 935 F.2d 257, 261 (11th Cir. 1991) (“a gray horse case or spotted cow case, meaning it’s exactly like the case that is before the Court now.”). By this brief statement, the Chief Justice obviously meant only that the Pledge was unconstitutional to the extent that it was pronounced with the words added by the amendment, as is the case with regard to plaintiff RoeChild and others similarly situated. NEWDOW v. RIO LINDA USD 3997 the Court noted that “[w]hen the differences between [the revised statute] and its . . . predecessor [were] examined,” id., it was readily apparent that the amendment “had no secular purpose,”id. at 56. As the Court explained: [T]he only significant textual difference is the addi- tion of the words ‘or voluntary prayer.’ . . . Appel- lants have not identified any secular purpose that was not fully served by [the law] before the enact- ment of [the amendment]. Thus, only two conclu- sions are consistent with the text of the [new law]: (1) the statute was enacted to convey a message of state endorsement and promotion of [religion]; or (2) the statute was enacted for no purpose. No one sug- gests that the statute was nothing but a meaningless or irrational act. Id. at 59 (emphasis added). In reaffirming Wallace, the Supreme Court has held that “[t]he plain meaning of [a] statute’s words . . . can control the determination of legislative purpose.” Edwards, 482 U.S. at 594. Here, as in Wallace, it does. The only two operative words the amendment contains, the only two words it added to the Pledge, are the words “under God.” The Pledge remains exactly the same except for the insertion of the two new words. Only the most extreme sophistry could permit a read- ing of those words, “under God,” that carries anything but a predominantly religious meaning and a predominantly reli- gious purpose. To be precise, the ordinary and plain meaning of the word “God” is undeniably religious.59 So it was in the beginning, is now, and ever shall be. Even the majority concedes that E.g., RANDOM HOUSE DICTIONARY OF ENGLISH LANGUAGE 606 (1979) (“God . . . n. 1. the one Supreme Being, the creator and ruler of the uni- verse.”). 3998 NEWDOW v. RIO LINDA USD examining the words “under God” in isolation would reveal a meaning that “could not be anything but religious.” Maj. op. at 3903. Yet despite acknowledging that the purpose inquiry requires us to examine “the plain meaning of the statute’s words,” id. at 3894, the majority purports somewhat incoher- ently to examine “Congress’ reasons for ‘the plain meaning of the statute’s words,’ ” id. (emphasis added), and to find in the context of the religious phrase a meaning directly opposite to its plain meaning. In so doing, the majority declines to apply the meaning of the words themselves, but instead sub- stitutes a statutory purpose of its own making. The majority asserts that although “the words ‘under God’ have religious significance,” maj. op. at 3890, the phrase “under God” in the Pledge conveys nothing more than the secular principle that “our nation is founded upon the concept of a limited government,” id. at 3909, an odd proposition that occurred to none of the authors or supporters of the amend- ment. Indeed, a simple reading of the legislative history, and specifically the Congressional Record pertaining to the 1954 amendment, would make it clear to any reasonable person, even to one who could not grasp the plain meaning of the words “under God,” that the phrase as used in the amendment is a religious phrase deliberately inserted in the Pledge of Allegiance by Congress for a religious purpose. The congres- sional authors and supporters of the amendment did not con- ceal their purpose; they proclaimed it proudly. Congress unequivocally professed its desire to promote religion and faith in a Supreme Being; it did not even hint at the idea that the amendment was intended to proclaim that this country had a government of limited powers. The majority’s concession that “under God” is in fact a reli- gious phrase simply highlights the absurdity of its argument that, when added to the Pledge, the phrase suddenly became a reference to “limited government.” Id. at 3909. Nothing in the plain meaning of the words “under God,” the legislative history of the statutory amendment, or the history of the NEWDOW v. RIO LINDA USD 3999 events leading up to its adoption in any way suggests any such meaning. With all due respect to my colleagues, their “limited government” argument is pure poppycock, fabricated by the members of the majority in order to obfuscate the issues before us and supported by neither the words of the amendment nor the purpose expressed by Congress. Whether added to the Pledge, inserted into a high school civics text- book, or used in any other manner, the religious phrase “under God” sets forth the proposition, not that our government is one of limited powers, but that our country is subordinate to the deity that rules over us — as in “Lord, our God, ruler of the universe.”60 The majority’s hapless attempt to give the phrase “under God” a predominantly secular construction serves only to underscore the fact that no relevant distinction between Wallace and this case can be drawn, and that the majority’s determination to reach the result it does knows no intellectual bounds. As in Wallace, once the original statute and its amendment are compared, or as that case puts it, laid side by side, the amendment’s religious purpose must become clear even to the members of the majority. In Wallace, Justice O’Connor found it particularly “notable that Alabama already had a moment of silence statute before it enacted” its amendment adding the words “voluntary prayer.” Wallace, 472 U.S. at 77 (O’Connor, J., concurring in the judgment). So too, here, the United States already had a patriotic Pledge of Allegiance before Congress added the words “under God” to it in 1954. Indeed, it is hard to “identif[y] any secular purpose that was not fully served by” the original Pledge “before the enactment of” its amendment. Id. at 59 (majority opinion) (emphasis added). The majority contends that the original Pledge did not adequately express the secular notion of “limited govern- ment,” but, as I have already pointed out, it is sheer sophistry to suggest that the words “one nation under God” somehow In Hebrew, Adonai Eloheinu Melekh Ha-Olam. 4000 NEWDOW v. RIO LINDA USD mean a nation with a “limited government,” rather than a nation subordinate to a higher religious being, or that the words “under God” were added to the Pledge for some other secular purpose. Certainly none of the amendment’s sponsors or supporters ever expressed so extraordinary an idea; indeed, they made it clear that their purpose was quite the opposite — to proclaim our nation’s dedication to the Almighty. See infra Part IV.A.2. The majority also suggests that the amendment to the Pledge advances the secular purpose of steeling Americans’ hearts and minds against Communism. But, again, it is diffi- cult to see how this secular purpose “was not fully served” by the original Pledge, Wallace, 472 U.S. at 59, which, like the current Pledge, emphatically began with the words, “I pledge allegiance to the flag of the United States of America.” In the midst of the Cold War, could there possibly have been a more forceful renunciation of the foreign doctrine of Communism? The man who wrote the Pledge certainly did not think so. In the 1920s, Francis Bellamy, who at that time was very “preoc- cup[ied] with subversives and radicals” in America, “espe- cially German-Americans . . . Communists, ‘Bolshevists,’ and anarchists,” wrote a manifesto that “spelled out his vision of how the Pledge of Allegiance” — that is, the original Pledge of Allegiance, without the words “under God” — “could be used to promote patriotism and ward off un-Americanism.” ELLIS, supra note 5, at 68-71 (emphasis added). Bellamy’s understanding of the words that he authored confirms the obvious: a pledge of allegiance to a national flag is, by defini- tion, supremely patriotic. Except in theocracies, such a pledge does not become more patriotic by amending it to include a personal affirmation of belief in God.61 Interestingly, thirteen states plus the commonwealth of Puerto Rico have enacted their own official pledges of allegiance. One state, Tennes- see, has enacted two. Each of these pledges expresses the declarant’s patri- otic pride in and love for his state or commonwealth. However, of all fifteen pledges, only five contain any mention of God or of religion. Com- NEWDOW v. RIO LINDA USD 4001 As the dissenting Chief Justice in Wallace stated, the court’s opinion in that case “render[s] the [amended] Pledge unconstitutional . . . . That [must] be the consequence of [its] method of focusing on the difference between [the current statute] and its predecessor statute . . . .” Wallace, 472 U.S. at 88 (Burger, C.J., dissenting). Chief Justice Burger was cor- rect, at least to the extent that public schoolchildren may not be subjected to the daily state-directed, teacher-led recitation of the version of the Pledge that includes the words “under God” as added by the statutory amendment. Rather, when the Pledge is recited by schoolchildren in such circumstances, it must be the traditional, purely patriotic version that they recited for decades prior to the enactment of the 1954 reli- gious amendment. The majority, however, seeks to avoid Wallace’s disposi- tive effect, employing three different tactics in its effort to escape the necessary consequence of its reasoning and hold- ing. First, the majority argues that the plaintiffs here lack the standing to challenge the 1954 amendment that added “under God” to the Pledge. Maj. op. at 3880-81. Second, it implies that Wallace has been effectively overruled. Id. at 3887-92. Finally, it purports to apply Wallace without ever actually applying its reasoning or holding. Id. at 3892-93. Each of these tactics is more contorted than the one that precedes it, pare ALA. CODE § 1-2A-2 (2009) (no mention of God); ARK. CODE ANN. § 1-4-102 (2008) (same); GA. CODE ANN. § 50-3-2 (2009) (same); MICH. COMP. LAWS § 2.29 (1979) (same); N.C. GEN. STAT. § 144-8 (2009) (same); OHIO REV. CODE ANN. § 5.013 (West 2009) (same); P.R. LAWS ANN. tit. 1, § 33a (2006) (same); S.C. CODE ANN. § 1-1-670 (2007) (same); S.D. CODIFIED LAWS § 1-6-4.1 (2008) (same), with KY. REV. STAT. ANN. § 2.035 (West 2008) (“grace from on High”); LA. REV. STAT. ANN. § 49:167 (2003) (“under God”); MISS. CODE ANN. § 37-13-7 (2008) (“under the guidance of Almighty God”); TEX. GOV’T CODE ANN. § 3100.101 (Vernon 2008) (“under God”). Tennessee has two state pledges of allegiance, one of which mentions God and one of which does not. See TENN. CODE. ANN. § 4-1-329 (2009). 4002 NEWDOW v. RIO LINDA USD and none even colorably provides any basis for freeing the majority from its obligation to follow binding Supreme Court law. The majority’s first attempt to avoid the result compelled by Wallace is simply a diversion. The majority haplessly argues that Jan Roe and her daughter lack the standing to challenge the 1954 amendment “because nothing in the Pledge actually requires anyone to recite it,” and therefore plaintiffs cannot show that its wording “causes them to suffer any concrete and particularized injury.” Maj. op. at 3881.62 The majority repeatedly emphasizes that no direct challenge to the wording of the Pledge is before us on appeal, and explains that “[o]nly California Education Code § 52720 and the School District’s Policy are at issue in this case.” Id. at 3880. How, then, does the majority manage to “hold that the Pledge of Allegiance does not violate the Establishment Clause”? Id. at 3877 (emphasis added). Has the majority admitted to rendering an unconstitutional advisory opinion? The answer, of course, is that the plaintiffs have challenged the “under God” version of the Pledge as applied to them through the School District’s policy. Accord maj. op. at 3884 (“Because the School District’s Policy states that recitation of the Pledge will fulfill the policy, we also examine the Pledge itself.”). Accordingly, all of the effort the majority expends discussing the Roes’ standing with respect to the 1954 amend- ment is entirely beside the point. No one disputes that Jan Roe and her daughter do have standing to challenge the applica- tion to them of the amendment at issue: the state-directed, teacher-led, daily recitation of the religious version of the Pledge in California’s public schools. “The Supreme Court The majority goes on to explain why it believes that Michael New- dow, who is no longer a party to this lawsuit, does not have standing to challenge the Pledge amendment. Maj. op. at 3880-81. Newdow’s claims were dismissed by the district court, the dismissal was not appealed, and the claims are therefore not before us on this appeal. NEWDOW v. RIO LINDA USD 4003 has repeatedly found federal jurisdiction for challenges to the activities of state agencies administering federal programs . . . . It has not mattered a jurisdictional whit that the agency was enforcing federal statutes, as well as pursuing state ends.”63 Green v. Dumke, 480 F.2d 624, 628 (9th Cir. 1973) (citing cases). Here, Congress explicitly intended the “under God” version of the Pledge of Allegiance to be employed as a tool of religious indoctrination by state employees in state institu- tions — i.e., public school teachers in public schools. In so doing, it embarked on “a federal-state cooperative venture,” id.; see also id. at n.6, a venture that when carried out every morning in Roe’s daughter’s classroom creates precisely the constitutional injury Roe and her daughter allege. The majori- ty’s confused and internally inconsistent discussion of stand- ing thus at best misperceives the nature of the inquiry before us. At worst, it is a deliberate attempt to obfuscate the fact that Wallace squarely controls the merits of this case. Before embarking on its second effort to avoid Wallace, the majority notes that the Wallace Court found evidence of an impermissible religious purpose not only in the “textual dif- ference” between the original statute and the subsequent amendment, but also in the legislative history of the amend- ment; the amendment sponsor’s testimony in district court; the court documents filed by the governor who signed the amendment into law; and a prayer statute passed one year after the amendment’s adoption. Maj. op. at 3886. One might expect, based on this explanation of Wallace, that the majority would go on to examine not only the textual difference between the 1954 amendment and the original Pledge statute, but also the legislative history of the 1954 amendment; the public comments of Representative Rabaut, the amendment’s sponsor, and the statements of President Eisenhower, who signed the amendment into law; as well as the other religiously-motivated laws passed within two years of the Standing is, of course, a “jurisdictional question.” E.g., Steel Co., 523 U.S. at 86. 4004 NEWDOW v. RIO LINDA USD amendment’s adoption. See infra Part IV.A.2; see also supra Parts III.B-C. Each of those sources compels the same conclu- sion: the 1954 Congress added “under God” to the Pledge for an overwhelmingly religious purpose. None of these sources, however, is examined by the majority. Unwilling to reach the result that Wallace would dictate, the majority, after ignoring the sources of information that Wallace identified as relevant, goes even further. It abandons its acknowledgment that Wallace requires an examination of the two words introduced by the Pledge amendment, and reverts to its original claim that we must “examine the Pledge as a whole.” Maj. op. at 3886. Although the majority does not provide a coherent explanation for its abrupt change in course, it appears to contend that Wallace has been tacitly overruled by later Supreme Court decisions. Specifically, the majority appears to assert that more recent Supreme Court cases have made “context” the touchstone of the Lemon analysis and that “context” now refers solely to the objects or words immedi- ately surrounding the religious item or phrase being chal- lenged — here, the twenty-nine other words in the Pledge of Allegiance surrounding the words “under God.” In short, the majority’s statement that the issue is the constitutionality of the Pledge as a whole, rather than the constitutionality of the amendment, is directly contrary to Wallace. As an initial matter, I note that it is the Supreme Court’s “prerogative alone to overrule one of its precedents.” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). My colleagues have no authority to “conclude [that the Supreme Court’s] more recent cases have, by implication, overruled an earlier precedent.” Agostini v. Felton, 521 U.S. 203, 237 (1997). To the contrary, “the Court of Appeals on its own authority should [not] take[ ] the step of renouncing” Supreme Court decisions; “[i]f a precedent of th[e Supreme] Court has direct application in a case . . . the Court of Appeals should follow the case which directly controls,” even if it believes, mistakenly or otherwise, that the controlling Supreme Court authority “appears to rest NEWDOW v. RIO LINDA USD 4005 on reasons rejected in some other line of decisions.”64 Rodri- guez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). Here, far from being implicitly “rejected in some other line of decisions,” Wallace’s reasoning and holding as to how to evaluate, for Establishment Clause purposes, an amendment to a statute, has been consistently and repeatedly reaffirmed by the Supreme Court in the intervening decades since it was decided.65 So, disregarding all those cases, my colleagues simply proceed with their untenable argument in derogation of another set of controlling Supreme Court deci- sions. In suggesting, probably out of a feeling of necessity, that Wallace has been overruled by some new definition of “con- text,” my colleagues do not rely on a majority opinion from the Supreme Court, or even on an opinion by a minority com- posed of one or more justices, involving an amendment to a statute. Rather, they rely on Justice Breyer’s one-judge opin- ion concurring in the judgment in Van Orden v. Perry, 545 U.S. 677, 698 (2005) (Breyer, J., concurring in the judgment), relating to an entirely different matter. Maj. op. at 3891, 3893. In Van Orden, Justice Breyer analyzed the constitutionality of the placement of a monument of the Ten Commandments on government property and considered a number of factors, such as its relationship to other monuments on the same prop- Until now, the decisions of our circuit have reflected a strict adherence to this principle. See, e.g., United States v. Grisel, 488 F.3d 844, 847 (9th Cir. 2007) (en banc) (“The fact that the Supreme Court has expressed some ambivalence about its own jurisprudence does not give us the power to change it.”); Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) (“A decision of the Supreme Court will control that corner of the law unless and until the Supreme Court itself overrules or modifies it. Judges of the inferior courts may voice their criticisms, but follow it they must.”). See, e.g., McCreary, 545 U.S. at 859-60 & n.9 (2005); Santa Fe, 530 U.S. at 316 (2000); Church of the Lukumi Babalu Aye, Inc. v. City of Hia- leah, 508 U.S. 520, 532 (1993); Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 9 (1989); Edwards, 482 U.S. at 583-89 (1987); Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481, 485-86 (1986). 4006 NEWDOW v. RIO LINDA USD erty. However, that case is in no way relevant to the question presented in Wallace or to the case presently before us. Jus- tice Breyer’s concurrence did not relate to the interpretation of a statute and certainly not to how courts should determine the purpose and intent of amendments to statutory provisions, which, of course, was the question in Wallace and is the ques- tion here. Indeed, given that hanging copies of the Ten Com- mandments in public-school classrooms indisputably violates the Constitution, see Stone v. Graham, 449 U.S. 39 (1980) (per curiam), it is clear that Justice Breyer’s concurrence in Van Orden regarding the placement of a monument contain- ing those commandments on the grounds of the Texas State Capitol has no bearing whatsoever on the state-directed, teacher-led daily recitation of the religious version of the Pledge in public schools. Moreover, this court has already held in Card v. City of Everett, 520 F.3d 1009, 1021 (9th Cir. 2008), that Van Orden must be limited to facts “closely analo- gous” to the placement of monuments on public land. Not only are the facts in Van Orden wholly unlike the facts in the case before us, but the legal questions involved are far differ- ent. Thus, the factors to which we look in our consideration of context must, as our court has already held, id., necessarily be considerably different. Under the majority’s new constitutional definition of “con- text,” the government may undertake any religious act so long as the preexisting nonreligious acts that are somehow related to the new act remain in effect. This approach is entirely inconsistent with common sense as well as with Establish- ment Clause jurisprudence.66 For example, if Congress Indeed, one of the members of the majority should be well aware of why the approach is unreasonable: The majority’s context argument is that Good Friday’s placement on the roll of public holidays amidst secular days diminishes its endorsing effect. . . . . Such an argument cannot be maintained. . . . . [U]nder the majority’s context rationale, the state could decide tomorrow that all of holy week or any of the numerous NEWDOW v. RIO LINDA USD 4007 decided to carve the face of Jesus onto Mount Rushmore, that act would certainly be unconstitutional despite the presence on that Mount of four nonreligious faces. It is the religious nature of the governmental action, not the previously secular context within which that action is placed, that determines the constitutionality of such a change. Under the majority’s rea- soning, it would be of no consequence whether Congress had inserted the words “under God,” or the words “under Jesus,” or “under the Father, the Son, and the Holy Ghost” into the Pledge of Allegiance, given the Pledge’s otherwise secular or patriotic context. The Pledge is a patriotic not a religious exercise, the majority tells us, and therefore a religious mes- sage may be inserted. Yet surely, not even the majority would hold that the insertion of the two additional religious phrases set forth above would be consistent with the Establishment Clause. Finally, after spending eight pages attempting to replace Wallace’s reasoning with its new definition of “context,” and a total of twenty-nine pages arguing that we must examine the Pledge “as a whole,” the majority ultimately purports to acknowledge that it must apply Wallace to the “under God” amendment itself — an effort to which it devotes a mere two sentences. Maj. op at 3893-94. One “who has a good con- science doesn’t walk so fast.”67 Indeed, the only two sentences saints’ days should be holidays and that their placement on the holiday roll would be balanced by all the other secular holidays. . . . . [But t]he reason that the holiday roll is filled with patriotic and secular days is because the state may not make any laws respecting the establishment of religion. Cammack v. Waihee, 932 F.2d 765, 787 (9th Cir. 1991) (D. Nelson, J., dis- senting). GEORG BÜCHNER, WOYZECK (Karl Emil Franzos ed., 1879), reprinted and translated in, DAVID GLEYRE RICHARDS, GEORG BÜCHNER AND THE BIRTH OF THE MODERN DRAMA 226 (1977). 4008 NEWDOW v. RIO LINDA USD in which the majority explains how Wallace applies to this case are rife with error and without legal support:68 Focusing, as we must, on how the text of the statute is used, Van Orden, 545 U.S. at 701 (Breyer, J. con- curring), we see that the addition of “or voluntary prayer” to the statute in Wallace was used to encour- age students to participate in a religious exercise — the very prayer enacted [one year later]. Here, the addition of “under God” was used to describe an attribute of the Republic, “one Nation under God” — a reference to the historical and religious traditions of our country, not a personal affirmation through prayer or invocation that the speaker believes in God. Id. In the end, the majority’s “analysis” consists only of a conclusion announced ex cathedra. In sum, the majority fails in its duty to follow Wallace; it cannot declare the case overruled or replace the Court’s rea- soning with its own contrary rationale. Under Wallace, the majority is required to examine, rather than ignore, the text of the amendment. An examination of that text and the plain meaning of its words clearly reveals the explicitly religious purpose motivating the amendment to the Pledge. The words “under God” are undeniably religious, and the addition to the Pledge of Allegiance of words with so plain a religious mean- ing cannot be said, simply because it might assist the majority in obtaining its objective, to be for a purpose that is predomi- nantly secular. The words certainly were not inserted for the purpose of “reinforc[ing] the idea that our nation is founded As an example of its legal errors, it asserts that the phrase “under God” in the Pledge is not a personal affirmation of the speaker’s belief in God, despite the Supreme Court’s explicit recognition in a case that binds us here that “[the] pledge requires affirmation of a belief.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943). NEWDOW v. RIO LINDA USD 4009 upon the concept of a limited government.” Maj. op. at 3909. As I have stated earlier in this dissent and as I reiterate here, the suggestion by the majority that the purpose of inserting the phrase “under God” into the Pledge was to remind us that we have a “limited government” finds no support in the record and is wholly without merit. Wallace explicitly requires us to compare the original stat- ute to the amended form and to examine what the amendment has added. Where the addition is religious, the addition must be invalidated. Here, Wallace unquestionably requires us to strike down as unconstitutional the state-directed, teacher-led daily recitation of the “under God” language in the Pledge of Allegiance in the public schools. Omitting the two words added by the 1954 amendment and returning to the recitation of the secular version of the Pledge that was used in public schools for decades prior to the adoption of the amendment would cure the violation of the Establishment Clause at issue here. 2. As I have explained above, the majority, in determining the purpose of the amendment, refuses to give the words “under God” their plain meaning, as required by Wallace, 472 U.S. at 58, by Edwards, 482 U.S. at 594, and by McCreary, 545 U.S. at 862, and indeed by elementary principles of statutory interpretation. As I have also explained, the majority has refused to follow controlling Supreme Court law with respect to examining the “context” of the amendment. Compare Wal- lace, 472 U.S. at 58-61 with maj. op. at 3886-92. In addition, the majority’s treatment of legislative history, which would alone be dispositive of the constitutionality of the “under God” amendment as applied, is even more startling, and is at least as defiant of binding precedent. Fully cognizant of the damning evidence contained in the pages of the Congressional Record and of the conclusion that the evidence compels, the majority boldly asserts that we are legally prohibited from so 4010 NEWDOW v. RIO LINDA USD much as considering the numerous, indeed unanimous, pro- religion statements offered by every senator and representa- tive who spoke on the subject of including the words “under God” in the Pledge of Allegiance. Maj. op. at 3895, 3912. All who spoke, as noted earlier, favored the insertion of the words and none opposed the proposal. The majority cites McCreary, 545 U.S. at 867-68, for the proposition that we may not con- sider “the statement of one or more individual members of Congress, but [only] what the committees putting forth the amendment actually stated.”69 Maj. op. at 3912. Nothing in McCreary remotely supports that assertion. What that binding Supreme Court precedent does state is that we must “rel[y] on a statute’s text and the detailed public comments of its sponsor[s], when we [examine] the purpose of a state law” challenged on Establishment Clause grounds.70 McCreary, The majority cites Mergens as additional support for this proposition, but fails to acknowledge that the portion of Mergens on which it relies did not command a majority of the Supreme Court. Maj. op. at 3912 (citing Bd. of Educ. v. Mergens, 496 U.S. 226, 248-49 (1990) (opinion of O’Connor, J.)); see also id. at 3895 (same). Moreover, that plurality opin- ion simply stated that courts should not attempt to divine the “possibly religious motives of the legislators who enacted [a] law” when those motives are unclear or inconclusive. Mergens, 496 U.S. at 249 (opinion of O’Connor, J.) (emphasis added). The legislative history in Mergens at most showed only what “some senators may have thought.” Id. at 243 (majority opinion). This case of course is the polar opposite. See supra Part II. Even in “ordinary” cases of statutory interpretation that do not impli- cate constitutional questions, the Supreme Court regularly examines both the official reports accompanying a bill as well as the statements of legis- lators memorialized in the Congressional Record. See, e.g., Atherton v. FDIC, 519 U.S. 213, 228-30 (1997); cf. Carpenters Health & Welfare Trust Funds v. Robertson, 53 F.3d 1064, 1067 n.7 (9th Cir. 1995). Indeed, Justice Scalia has criticized, in dissent, the Court’s practice of “often [rely- ing on] legislative history” comprised of “[t]he Congressional Record or committee reports.” Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 73 (2004) (Scalia, J., dissenting). Were this court to adopt Justice Scalia’s approach and rely strictly on a textual analysis, the resolution of the inquiry before us would be even more clear, if that is possible. Giving “God” its standard, plain meaning, no one could deny that the term “under God” is a religious term, a term that must be presumed to have been inserted into the previously nonreligious Pledge for religious purposes. See Am. Tobacco Co., 456 U.S. at 68. NEWDOW v. RIO LINDA USD 4011 545 U.S. at 862 (emphasis added) (citing Edwards, 482 U.S. at 586-88). I agree with the majority that “[w]hat motivates one legislator to make a speech about a statute is not necessar- ily what motivates scores of others to enact it.” Maj. op. at 3911 n.27 (quoting United States v. O’Brien, 391 U.S. 367, 384 (1968)). However, the Supreme Court has stated that in the ordinary course of determining “the interpretation of legis- lation, the Court will look to statements by legislators for guidance as to the purpose of the legislature.”71 O’Brien, 391 U.S. at 383 (emphasis added). Accordingly, when not only one legislator makes a speech expressing an explicitly reli- gious purpose for enacting a law but “scores of others” unan- imously, vociferously and zealously echo that very same purpose, we are not permitted to ignore such powerful evi- dence of legislative intent. When “openly available data sup- port[ ] a commonsense conclusion that a religious objective permeated the government’s action,” McCreary, 545 U.S. at 863, the congressional purpose may be said to be undeniably religious. Were the majority willing to follow controlling Supreme Court precedent and to acknowledge the legislative history of the Pledge that is detailed in this opinion, it could not deny that the history uniformly and overwhelmingly demonstrates a predominant religious purpose for the 1954 amendment. Here, the legislative history shows lockstep unanimity — each and every senator and representative to comment on the addi- tion of the words “under God” to the Pledge unequivocally and zealously proclaimed religious motivations for his actions. See supra Part II. The unanimous, uncontradicted words of our legislators are clear: “under God” was inserted The majority fails to acknowledge this statement in O’Brien despite quoting the sentence that immediately follows it. Maj. op. at 3911 n.27. Although the majority’s selective and misleading quotations might suggest otherwise, O’Brien only cautioned against relying on the statements of “fewer than a handful of Congressmen” to divine legislative intent. 391 U.S. at 384 (emphasis added). 4012 NEWDOW v. RIO LINDA USD in the Pledge to further the religious views and principles of millions of Americans, to reinforce their belief that God exists and to promote faith in his Being, indeed to reflect that we are subordinate to his Will. To those citizens who might be in doubt, the words were intended to let them know that such were the views and principles of all “true Americans,” to indoctrinate them firmly in those American beliefs, and to try to resolve the doubts they might possess. Most pertinent here, the words were inserted in the Pledge so that schoolchildren throughout the land would repeat them daily and become imbued with the religious concepts that guided the authors and sponsors of the amendment, the other members of Con- gress, and the President of the United States. As Senator Wiley proclaimed, the lawmakers believed that there could be no “better training for our youngsters . . . than to have them, each time they pledge allegiance to Old Glory, reassert their belief, like that of their fathers and their fathers before them, in the all-present, all-knowing, all-seeing, all-powerful Cre- ator.” 100 Cong. Rec. 5915. Accordingly, as President Eisen- hower declared when he signed the Pledge amendment into law, the lawmakers intended that “[f]rom [that] day forward, the millions of our school children [would] daily proclaim in every city and town, every village and rural school house, the dedication of our Nation and our people to the Almighty.” Id. at 8618. Indeed, when the drafters of the enactment offered a legal justification in defense of that statute’s validity under the First Amendment, they did not deny that the amendment was reli- gious in nature, but simply contended that the religious act on the part of the government was not prohibited by the Estab- lishment Clause. Specifically, the Senate Report asserts: Adoption of the resolution would in no way run con- trary to the provisions of the first amendment to the Constitution. This is not an act establishing a reli- gion. A distinction exists between the church as an institution and a belief in the sovereignty of God. NEWDOW v. RIO LINDA USD 4013 The phrase “under God” recognizes only the guid- ance of God in our national affairs . . . . Neither will this resolution violate the right of any person to dis- believe in God or reject the existence of God. The recognition of God in the pledge of allegiance to the flag of our Nation does not compel any individual to make a positive affirmation in the existence of God in whom one does not believe.72 As any law student will quickly recognize, both of the justifi- cations put forward in the Senate Report declaring the enact- ment constitutional have since that time been flatly rejected by the Supreme Court: It is indisputable that the First Amend- ment prevents more than simply the establishment of a state- sponsored “Church as an institution” and that the Bill of Rights’ protections extend beyond those instances in which the government actually “compels an individual to make a positive affirmation” of a religious belief. See, e.g., Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15 (1947); Abington, 374 U.S. at 233 (Brennan, J., concurring)(“[N]othing in the text of the Establishment Clause supports the view that the prevention of the setting up of an official church was meant to be the full extent of the prohibitions against official involvements in religion.”); see also Engel v. Vitale, 370 U.S. 421, 430 (1962) (“The Establishment Clause . . . does not depend upon any showing of direct governmental compulsion and is violated . . . whether . . . laws operate directly to coerce nonobserving individuals or not.”). Moreover, when we con- sider, as we do here, the application of the amendment to the state-directed, teacher-led, daily recitation of the amended Pledge in public schools, it is clear that the plaintiff and other like-minded children are compelled “to make a positive affir- mation in the existence of God in whom [they do] not S. REP. No. 83-1287, at 2 (1954) (emphases added), reprinted in 100 Cong. Rec. 6231; accord H.R. REP. No. 83-1693, at 3, reprinted in 1954 U.S.C.C.A.N. 2339, 2342 (citing Zorach v. Clauson, 343 U.S. 306, 312-13 (1952)). 4014 NEWDOW v. RIO LINDA USD believe,” or to become “outsiders, not full members of the . . . community.”73 Either way, they are deprived of their constitu- tional rights. See infra Part III.C. When the unconstitutional rationales for Congress’s enactment are stripped away, noth- ing remains, and the explanation in the Senate Report as to why including the religious phrase “under God” in the Pledge is constitutional is shown to be without legal foundation.74 Santa Fe, 530 U.S. at 309 (quoting Lynch, 465 U.S. at 688 (O’Connor, J., concurring)). The legislators inserted their “justification” into the legislative record in order to respond to concerns about the proposed enactment’s constitu- tionality. Such concerns were raised as early as Reverend Docherty’s first sermon, delivered in 1952, suggesting that the words “under God” be added to the Pledge. See supra note 11. I also noted previously the con- cerns that existed in Congress, where some senators on the Senate Judi- ciary Committee “had concerns about the resolution’s implications for the separation of church and state.” ELLIS, supra note 5, at 134 & 257 n.40. Once the bill was taken up by Congress, its constitutionality was ques- tioned widely by the public. See, e.g., Andrew Menick, Letter to the Edi- tor, L.A. TIMES, June 10, 1954, at A4 (“The pledge is an oath of loyalty . . . . It is not a confession of religious belief nor should it be . . . .”); C.S. Longacre, Letter to the Editor, WASH. POST, May 23, 1954, at B4 (“The current bill pending in Congress to insert the phrase ‘under God’ into the American Pledge of Allegiance has dangerous implications . . . . I see grave danger in . . . [the] law by a civil government that is pledged under our Constitution not to legislate upon religious matters.”); Kenneth H. Bonnell, Letter to the Editor, L.A. TIMES, May 30, 1954, at B4 (“I protest the inclusion of the words ‘under God’ in the pledge of allegiance. The inclusion of these words is a violation of the principle of separation of church and state.”); Richard S. Sartz, Letter to the Editor, WASH. POST, May 27, 1954, at 16 (“The insertion of ‘under God’ into the pledge [is] indeed . . . disturbing . . . . [The] freedom of religion in[ ] our Constitution . . . mean[s] freedom to believe according to one’s own convictions, whether or not this include[s] the worship of a God.”). In the legislators’ defense, many of the core Supreme Court precedents clarifying the Establishment Clause’s requirements and demonstrating the deficiency of Congress’s purported constitutional justification for the amendment were handed down after 1954. Prior to that time, the extent of the Constitution’s prohibition against religious activity by the government was less explicitly delineated. Cf. Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15 (1947); supra note 12. The supporters of the amendment obvi- NEWDOW v. RIO LINDA USD 4015 Finally, to the extent that “the circumstances surrounding [the] enactment,” Santa Fe, 530 U.S. at 315, are relevant here, the circumstances further support the obvious conclusion that the words “under God” exist in the Pledge to serve an over- whelmingly religious purpose. For starters, we have an enact- ment that was literally drafted in the pulpit: As the primary legislative sponsors of the 1954 Act all proudly proclaimed, Reverend Docherty “put God in [the] Pledge.”75 There can be no denying the tremendous impact of the Reverend who declared “theological war . . . against modern, secularized, godless humanity” — a war that Congress adopted as its own when it rewrote the Pledge of Allegiance. The majority dis- misses the impact Docherty had on his powerful congregation — which included the man who wrote the primary “under God” bill as well as the President who signed it — because “Reverend Docherty was never elected to office.” Maj. op. at 3911 n.27. He was never elected, but Congress enthusiasti- cally endorsed his proposal and wrote it into law, telling the nation plainly and clearly that it was his, and why it was adopting it. Moreover, in directing us to look at the “circum- stances surrounding” a statute’s enactment, Santa Fe, 530 U.S. at 315 (emphasis added), the Supreme Court tells us not to limit our inquiry to the motivations of the elected officials who actually enacted the statute. Nor are we supposed to ignore the socio- political climate of the time: During the two years surround- ously did not comprehend the full extent of the Establishment Clause’s prohibitions and thus had no reason to attempt to conceal that their pur- pose was predominantly, indeed entirely, religious. In fact, for that reason, they proclaimed their purpose proudly. Of course, the legislators’ inaccu- rate view of the law has no bearing on the merits of the plaintiffs’ claim in this case. The congressmen who segregated the schools in Washington, D.C. did so without the benefit of Brown v. Board of Education, 347 U.S. 483 (1954), or Bolling v. Sharpe, 347 U.S. 497 (1954), but the segregation of the schools was certainly impermissible after those rulings all the same. Kenneth Dale, Put God in Flag Pledge, Pastor Urges, WASH. POST, Feb. 8, 1954, at 12; see also supra p. 24. 4016 NEWDOW v. RIO LINDA USD ing the adoption of the revised version of the Pledge, Congress passed a law adding the words “In God We Trust” to all paper money, replaced “E Pluribus Unum” with “In God We Trust” as the national motto, mandated an annual National Day of Prayer that continues to this day,76 constructed a prayer room onsite at the Capitol building, and entertained, though it ultimately rejected, a constitutional amendment that read: “This nation devoutly recognizes the authority and law of Jesus Christ, Saviour and Ruler of Nations, through whom are bestowed the blessings of Almighty God.” See ELLIS, supra note 5, at 126. In this historical context, “[i]nserting the words ‘under God’ into the Pledge of Allegiance . . . must be understood as only one of many actions taken in the early years of the Eisenhower presidency that were designed to inject religious faith into public life.” Id. at 126-27. The pub- lic recognized this reality far more clearly than do my two colleagues in the majority: Thousands of citizens wrote to their congressmen expressing their view that the new version of the Pledge “reflected a spiritual awakening in our country.” 100 Cong. Rec. 7761.77 In 2009, the President of the United States drew criticism from some quarters for his decision to mark the National Day of Prayer by commun- ing privately with his God instead of using his elected office to exhort oth- ers to pray. See Obama’s Decision to Observe National Day of Prayer Privately Draws Public Criticism, FOX NEWS, May 6, 2009, http://tinyurl.com/FoxNewsPrayerDay. Others, however, saw the Presi- dent’s decision not to proselytize for his personal religious views as a res- toration of the constitutionally mandated distinction between our elected political leaders and our pastors, priests, rabbis and imams. See Kristi Keck, Obama Tones Down National Day of Prayer Observance, CNN, May 6, 2009, http://tinyurl.com/CNNPrayerDay. It is worth noting that, these statements in the Congressional Record notwithstanding, national opinion regarding the new version of the Pledge was hardly unanimous. According to a Gallup poll, twenty-one percent of the country opposed the change, with sixty-nine percent in favor and ten percent expressing no opinion. George Gallup, ‘Under God’ Favored in Flag Oath, L.A. TIMES, May 11, 1953, at 25. In the 1950s, a twenty-one percent disapproval rating reflected approximately thirty-five million Americans opposed to inserting “under God” into the Pledge. See Frank NEWDOW v. RIO LINDA USD 4017 Hobs & Nicole Stoops, U.S. Census Bureau, Demographic Trends in the 20th Century 11 (2002), available at http://www.census.gov/prod/ 2002pubs/censr-4.pdf. Nor was there unanimity among religious denominations regarding the legislation. In light of the strong Christian overtones surrounding the Pledge amendment, “Jews were substantially less likely to support the change, [though] a clear majority [still] favored [it].” ELLIS, supra note 5, at 131 (2005). The American Unitarian Association went so far as to pass a resolution expressing its disapproval of the revision to the Pledge on the ground that it “was an invasion of religious liberty.” Congress Proposals Hit by Unitarians, N.Y. TIMES, May 22, 1954, at 29. Speaking before the association, Washington author and civic leader Agnes Meyer said that “[t]he frenzy which has seized America to legislate Christianity into peo- ples [sic] consciousness by spurious methods . . . will harm the Christian religion more than the persecution it is now suffering under the tyranny of Communists.” Surpass Orthodoxy, Christianity Urged, N.Y. TIMES, May 23, 1954, at 30. NEWDOW v. RIO LINDA USD 4019 Volume 4 of 4 NEWDOW v. RIO LINDA USD 4021 In sum, even aside from the plain meaning of the words “under God” and the context in which we are required to examine them, the legislative history of the amendment to the Pledge and the surrounding circumstances provide over- whelming evidence that the state-directed, teacher-led, daily recitation of its religious version in public schools cannot pos- sibly pass muster under any sound application of the Lemon test. The unanimous statements made by every legislator to speak in the House and Senate and included in the official legislative reports unabashedly announced that the purpose of including the words “under God” in the Pledge was to “ac- knowledge the dependence of our people and our Government upon the moral directions of the Creator.” See H.R. Rep. No. 83-1693, at 2 (1954), reprinted in 1954 U.S.C.C.A.N. 2339, 2340. In light of the clear and open declaration of purpose, there can be no denying that “the enactment exceeds the scope of legislative power as circumscribed by the Constitution,” Abington, 374 U.S. at 222, or at the least does so when and as it is applied to state-directed, teacher-led, daily recitation of the amended Pledge in public schools. 3. The majority argues that the purpose of the amendment of the Pledge of Allegiance in 1954 was not predominantly reli- gious because the words “under God” are simply a reference to the limited powers of our national government. That is, of course, an argument dreamt up by my colleagues that can nowhere be found in the Congressional Record. In addition, my colleagues have apparently forgotten that it is the Consti- tution that sets forth the limitations on government power, not, as far as our laws are concerned, God. The limitations on the power of our government are found in the Ninth and Tenth Amendments, which reserve certain powers to the states and reserve all other powers not granted to the federal government to “We the People.” See U.S. CONST. pmbl., art. I §§ 8, 9, amends. IX, X. The Bill of Rights also limits the actions the government may take. There is, however, no men- 4022 NEWDOW v. RIO LINDA USD tion of God in the Constitution, nor of the theory that the gov- ernment has limited powers because it is “under God.” Indeed, the words “limited government,” as the majority uses them, appear to constitute an assertion that God granted cer- tain rights to the people and limited the rights that government could possess. Maj. op. at 3904-05. Right or wrong, this is in itself an expression of a religious viewpoint, perhaps one with which most people might agree, but an expression that never- theless would not further the majority’s argument that the pur- pose of adding “under God” to the Pledge was secular and not religious. The “omission of a reference to the Deity [from the Consti- tution] was not inadvertent; nor did it remain unnoticed.” Leo Pfeffer, The Deity in American Constitutional History, 23 J. CHURCH & STATE 215, 217 (1981). Although many early Americans strenuously opposed the Framers’ commitment to secularism and their decision to break with tradition by omit- ting God from the text of the Constitution, “[t]he advocates of the secular state won, and it is their Constitution we revere today.” ISAAC KRAMNICK & R. LAURENCE MOORE, THE GODLESS CONSTITUTION 28 (2d ed. 1997).78 The decision by the Found- ing Fathers cannot be reversed, nor the structure of the Con- stitution changed, as the majority suggests Congress did by inserting two words into the Pledge of Allegiance. Nor, cer- tainly, was that the intent of Congress when it sought to pro- mote a belief in God by making that belief a part of the Pledge. See also, e.g., Van Orden, 545 U.S. at 724 & n.23 (Stevens, J., dis- senting) (citing J. HUTSON, RELIGION AND THE FOUNDING OF THE AMERICAN REPUBLIC 75 (1998) (noting the dearth of references to God at the Philadel- phia Convention and that many contemporaneous observers of the Con- vention complained that “the Framers had unaccountably turned their backs on the Almighty” because they “found the Constitution without any acknowledgment of God”)); Marsh v. Chambers, 463 U.S. 783, 807 (1983) (Brennan, J., dissenting) (“Even before the First Amendment was written, the Framers of the Constitution broke with the practice [followed in] the Articles of Confederation and many state constitutions, and did not invoke the name of God in the document.”). NEWDOW v. RIO LINDA USD 4023 The majority’s contrived efforts to distort both history and binding Supreme Court law are inconsistent with our duty as judges, as defined by the Court. “[I]t is . . . the duty of the courts to ‘distinguis[h] a sham secular purpose from a sincere one.’ ” Santa Fe, 530 U.S. at 308 (second alteration in origi- nal) (quoting Wallace, 472 U.S. at 75 (O’Connor, J., concur- ring in the judgment)). This duty necessarily bars the courts themselves from superimposing a sham secular purpose onto an explicitly religious statute, as the majority does today.79 Twenty years ago, Justice O’Connor declared that she had “little doubt that our courts are capable of distinguishing a sham secular purpose from a sincere one.” Wallace, 472 U.S. at 75 (O’Connor, J., concurring in the judgment). Little did she anticipate that it would be a court that would create the sham secular purpose. The majority opinion demonstrates either that Justice O’Connor’s confidence in the ability of the courts to distinguish a religious from a secular purpose was misplaced, or that, even though their constitutional duty is clear, courts will in some circumstances not only be unwilling to perform it, but will themselves engage in the very actions against which she was confident that they would protect us.80 To the extent that, notwithstanding all the controlling legal principles to the contrary, one could accept the concept advanced by the majority that a purpose of the insertion of the words “under God” in the Pledge was to somehow celebrate our history or remind us that we have a “limited government” (and it is unlikely that a reasonable judge could do so) it defies reason to contend that the use of the term God did not To be clear, I do not “call[ ] the 2002 Congress’ purpose a sham,” as the majority claims. Maj. op. at 3913. It is the majority, not Congress, that has engaged in the fabrication of a sham secular purpose. The majority’s vague, unsupported, and self-contradictory assertions notwithstanding, the 2002 Congress did not state that either its purpose or that of the 1954 Con- gress was anything other than religious. See supra Part III.B. See also Myers v. Loudoun County Pub. Schs., 418 F.3d 395 (4th Cir. 2005); Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling, 980 F.2d 437 (7th Cir. 1992). 4024 NEWDOW v. RIO LINDA USD have a religious purpose as well. One would have to ignore all the applicable law and all the relevant facts to reach such a conclusion. That the predominant purpose was religious is demonstrated beyond dispute by the legislative history of the amendment. See supra Part II.A-C. Such a conclusion is also evident from simple logic and reason. The term “God” is a religious term in every sense of the word, as the majority admits. Moreover, the majority suggests no other instance in which the word “God” was used by a legislative body for a predominantly non-religious purpose. To conclude that Con- gress would use the term “God” for a predominantly secular purpose when amending the Pledge of allegiance surely defies common sense. Under the plain meaning of the words of the amendment to the Pledge, its context, the legislative history of its enactment, and all of the surrounding circumstances, there can be no doubt that the purpose of adding the words “under God” to the Pledge of Allegiance was predominantly, if not exclu- sively, religious and that the daily recitation in public schools of the Pledge in its amended form violates the Lemon test,81 and thus the Establishment Clause. B. The Endorsement Test and the “Under God” Amendment Although an objective application of the Lemon test that adheres to Supreme Court precedent requires, without more, a ruling in favor of Jan Roe and her child, I turn now to the remaining Establishment Clause tests to show that the Roes would prevail under each of them as well, and that with respect to each the majority’s reasoning seriously misper- ceives or misrepresents the nature and function of the First Amendment. The second Establishment Clause test The daily recitations also violate the “effects” prong of the Lemon test. I will discuss “effects,” however, in connection with the endorsement test. See infra Part IV.B. NEWDOW v. RIO LINDA USD 4025 announced by the Supreme Court, the endorsement test, is in essence “a gloss on Lemon that encompasse[s] both the pur- pose and effect prongs.” Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 714 (M.D. Pa. 2005). Under the endorsement test, “we must examine both what [the govern- ment] intended to communicate . . . and what message [it] actually conveyed. The purpose and effect prongs of the Lemon test represent these two aspects of the meaning of the [government’s] action . . . . An [impermissible] answer to either question should render the challenged practice invalid.” Lynch v. Donelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring). Accordingly, where, as here, a clear violation of the first Lemon prong exists, so too does a violation of the endorsement test. Still, the endorsement test is valuable in that it captures even more forcefully than Lemon the powerful sense of alienation nonadherents experience when the govern- ment embraces and broadcasts a religious belief: [T]he religious liberty protected by the Establish- ment Clause is infringed when the government makes adherence to religion relevant to a person’s standing in the political community. Direct govern- ment action endorsing religion or a particular reli- gious practice is invalid under this approach because it “sends a message to nonadherents that they are outsiders, not full members of the political commu- nity, and an accompanying message to adherents that they are insiders, favored members of the political community.” Wallace v. Jaffree, 472 U.S., 38, 69 (1985) (O’Connor, J., concurring in the judgment) (emphases added) (quoting Lynch, 465 U.S. at 688 (O’Connor, J., concurring)); accord Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 309-10 (2000) (same). How much greater must be the sense of exclu- sion in the case of a child in a schoolroom — a schoolroom where his classmates are the insiders and, because he is a non- 4026 NEWDOW v. RIO LINDA USD adherent, he will no longer be a “full member of the . . . com- munity.” Id. In conducting the endorsement analysis, “[t]he relevant question[ ] is whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of [religion].” Santa Fe, 530 U.S. at 308 (quoting Wallace, 472 U.S. at 76 (O’Connor, J., concurring in the judgment)). How could any- one “acquainted with the text and legislative history” of the statute that amended the Pledge in order to indoctrinate our children conclude anything other than that the state-directed, teacher-led daily recitation of the “under God” version of the Pledge “conveys a message of exclusion to all those who do not adhere to the favored beliefs”? Lee v. Weisman, 505 U.S. 577, 606 (1992) (Blackmun, J., concurring). An atheist famil- iar with the Pledge’s legislative history could hardly ignore the legislation’s chief proponents’ statements that “[a]n athe- istic American is . . . a contradiction in terms,” 100 Cong. Rec. 1700, that “the forces of anti-God and antireligion . . . spread . . . dangerous and insidious propaganda,” id. at 7760, or that “evil” stems “[f]rom the root of atheism,” id. at 1700. How could atheist, agnostic, Hindu, or Buddhist children asked every day by their state employed teachers to recite the amended version of the Pledge feel anything but “that they are outsiders,”82 Santa Fe, 530 U.S. at 309, when an author of the “under God” amendment to the Pledge publicly proclaimed that people’s “citizenship is of no real value . . . unless [they] can open [their] souls before God and before Him conscien- tiously say, ‘I am an American,’ ” or when the President of the United States has declared that anyone who “truly loves America” will proudly say the Pledge as amended? 100 Cong. Rec. 7765, 8618 (emphases added). The effect on young schoolchildren of the amendment under the policy of the Rio See infra note 89 (describing the range of religious beliefs with which the “under God” version of the Pledge conflicts). NEWDOW v. RIO LINDA USD 4027 Linda school district, and the policies of school districts throughout the nation, is undeniable. The majority agrees that some schoolchildren may perceive the amended Pledge as an endorsement of religion, but argues that under Good News Club v. Milford Central School, 533 U.S. 98, 119 (2001), “a child’s understanding cannot be the basis for our constitutional analysis.” Maj. op. at 3922. The majority’s reliance on Good News is directly contrary to that opinion’s express rationale. In Good News, the Court held that a private group’s use of a public school’s facilities for after- school religious events would not violate the Establishment Clause, despite “the possibility that elementary school chil- dren may witness the [group’s] activities on school premises.” Good News, 533 U.S. at 119. It expressly distinguished cases involving messages conveyed “by state teachers during the schoolday to children required to attend.” Id. at 117 (emphasis original). Unlike in those cases, because “members of the public writ large [were] permitted in the school after hours pursuant to [its] community use policy,” the Court did not limit its analysis to whether endorsement would be perceived by children, but also considered the perception of the school’s activities among the adult members of the community. Id. at 118. In short, Good News looked to the entire audience, not just to the children voluntarily in it. Here, young Roe’s state-employed teachers conduct the state-directed daily recitation of the Pledge in a public school classroom during school hours. Five-year-olds are not the “youngest members of the audience,” they are the entire audi- ence; “the public writ large” does not attend kindergarten classes. In fact, as the Supreme Court pointed out in Good News, “in the normal classroom setting” the children are “all the same age.” 533 U.S. at 118. In an as-applied challenge like the one before us, a practice must be analyzed in terms of those who actually experience its effects. As the majority is well aware, we are here examining only the effects of the daily classroom recitation of the religious version of the 4028 NEWDOW v. RIO LINDA USD Pledge on public schoolchildren and are not considering the constitutionality of the use of that version of the Pledge in other circumstances. Indeed, because it is alleged that the rec- itation of the Pledge in the classroom is designed to indoctri- nate schoolchildren with a religious belief, see supra Part II.C, it would make no sense to analyze its constitutionality in terms of its hypothetical effect on adults. It is, in fact, the children’s lackof understanding of the full meaning of the Pledge that renders it such a powerful tool of indoctrination. A study conducted twenty years after the Pledge was amended to include the words “under God” found that “grade school children make sense of the Pledge of Alle- giance by focusing on a word they understand, most com- monly ‘God,’ which leads them to such conclusions as ‘The most important part is . . . talking about God,’ or ‘We better be good cause God is watching us even if He is invisible.’ ”83 This result is precisely what the members of Congress who amended the Pledge intended when they confidently stated that “each time the[ children] pledge allegiance to Old Glory, [they will] reassert their belief . . . in the all-present, all- knowing, all-seeing, all-powerful Creator.” 100 Cong. Rec. 5915. It is also precisely what the Establishment Clause seeks to prohibit. For under our Constitution, the indoctrination of religious beliefs, including belief in God, is “committed to the private sphere,” Lee, 505 U.S. at 589 — i.e., to family and the Church (read, Synagogue, Mosque, Temple, et al.). Under no circumstances is that function to be commandeered by the State. It was over a half-century ago that Justice Jackson wrote the words that transformed the relationship of the state to the Emily Buss, Allocating Developmental Control Among Parent, Child and the State, 2004 U. CHI. LEGAL F. 27, 52 n.66 (omission in original) (emphasis added) (quoting Eugene H. Freund & Donna Givner, Schooling, The Pledge Phenomenon, and Social Control 12 (Am. Educ. Research Assoc. Working Paper, 1975)). NEWDOW v. RIO LINDA USD 4029 individual, words that have ever since marked our First Amendment jurisprudence: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, [or] religion . . . .” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Unfortunately, today the majority is clearly charting its course by a far different constellation with a far less enduring First Amendment. C. The Coercion Test and the “Under God” Amendment Because the state-directed, teacher-led daily recitation of the “under God” version of the Pledge “violate[s] both the Lemon test and the Endorsement test, we are not required to determine that [it] also run[s] afoul of the Coercion Test to hold [it] antithetical to the Establishment Clause.” Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806, 818 (5th Cir. 1999), aff’d 530 U.S. 290 (2000) (applying Establishment Clause tests independently). The coercion test, set forth in Lee v. Weisman, 505 U.S. 577 (1992), did not replace the Lemon analysis or the endorsement test. See id. at 587 (“[W]e do not accept the invitation . . . to reconsider our decision in Lemon v. Kurtzman.”); id. at 604 (Blackmun, J., concurring) (“[N]othing in [Lee is] inconsistent with the essential precepts of the Establishment Clause developed in our precedents.”). Rather, Lee created a third test with a separate threshold that a statute or practice must also meet in order to comply with the Establishment Clause: “[A]t a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise. . . .” Id. at 587 (major- ity opinion) (emphasis added). Accordingly, if a statute or practice fails to pass the coercion test, that is reason enough to hold it unconstitutional. See id. at 604 (Blackmun, J., con- curring) (“Although our precedents make clear that proof of government coercion is not necessary to prove an Establish- ment Clause violation, it is sufficient.”). 4030 NEWDOW v. RIO LINDA USD 1. The Supreme Court has been especially sensitive to the use of coercion in cases involving “young impressionable chil- dren” in public school. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 307 (Goldberg, J., concurring). As it stated in Edwards v. Aguillard, 482 U.S. 578, 585 (1987), when evaluating state-sponsored religious activity in the classroom we “must [be] mindful of the particular concerns that arise in the context of public elementary and secondary schools.” The Supreme Court has never lost sight of the spe- cial danger presented by the promotion of religious views by public school teachers: In over six decades of adjudicating Establishment Clause challenges, the Supreme Court has never once upheld a statute or practice that promotes religion or religious beliefs in public schools or that coerces students to express or adopt any religious views.84 In Lee, the Supreme Court emphasized the “heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.” 505 U.S. at 592. The coercive pressure inherent in the school setting played a central role in the Court’s analysis: Our decisions in [Engel and Abington] recognize, among other things, that prayer exercises in public The Court has, in a separate line of cases, sometimes upheld various institutional or financial relationships between public schools and religious institutions. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (tuition aid). But in every single case involving advancement of religious expression or religious beliefs in public schools, the Court has found the challenged practice to violate the Constitution. See Santa Fe, 530 U.S. 290 (prayer at football game); Lee, 505 U.S. 577 (graduation prayer); Edwards, 482 U.S. 578 (mandatory equal time for teaching creationism); Wallace, 472 U.S. 38 (moment of silence for voluntary prayer); Stone, 449 U.S. 39 (posting ten commandments in classroom); Epperson, 393 U.S. 97 (1968) (prohibition on teaching evolution); Abington, 374 U.S. 203 (bible reading); Engel, 370 U.S. 421 (school prayer). NEWDOW v. RIO LINDA USD 4031 schools carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. . . . What to most believers may seem nothing more than a rea- sonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a reli- gious orthodoxy. Id. (emphasis added; citations omitted). Because of that inher- ent pressure, the Court’s solicitude for the injury experienced by “the dissenter of high school age” was not lessened by the fact that it occurred at a graduation ceremony for which atten- dance was ostensibly voluntary. Id. at 593-94. Here, the plaintiff on appeal is a five-year-old child com- pelled by law to attend school. Every day her teacher, a state employee, leads her and her classmates in a state-directed exercise explicitly designed to inculcate a religious belief in each of them — a belief in God. Such deliberate indoctrina- tion exploits the fact “that children mimic the behavior they observe[,] or at least the behavior that is presented to them as normal and appropriate,” FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1813 (2009), and “that children are dis- inclined at this age to step out of line or to flout ‘peer group norms,’ ” Abington, 374 U.S. at 290 (Brennan, J., concurring). As the Supreme Court has repeatedly explained, the very nature of coercive activity is that it exerts enormous “pressure upon religious minorities to conform to the prevailing offi- cially approved religion” and its practices, even though they reject that officially endorsed religious belief. Engel, 370 U.S. at 431 (emphasis added). A child subjected to state-sponsored, teacher-led religious indoctrination has two choices: participation or refusal. The fact that a young, impressionable schoolchild recites the reli- gious Pledge does not necessarily mean that he does so “will- 4032 NEWDOW v. RIO LINDA USD ingly.” Contra maj. op. at 3874. To the contrary, rather than label himself an oddball, a troublemaker, and an outcast, rather than subject himself to humiliating name calling, harassment and derision, he may simply prefer to conform, formally pledging his adherence to a religious belief that is antithetical to his true philosophical views. For these children who conform unwillingly, coercion has had its effect: They have chosen to forego their constitutional rights rather than to face the consequences of not doing so. But the coercive effect is no less severe for those students who adhere to their princi- ples and refuse to affirm a state-held religious belief that is contrary to their own. Those students, including Jan Roe’s daughter, must either remain silent or leave the classroom, neither of which options avoids the injury they suffer or cures the constitutional violation to which they have been subjected. See Abington, 374 U.S. at 224-25. Rather, children who choose either of these options are separated from their class- mates either literally or by the silence they maintain, and, as a result, every day are in fact “ ‘outsiders, not full members of the . . . community.’ ” Santa Fe, 530 U.S. at 309 (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring)). The majority takes inconsistent positions regarding the coercive effect of religious indoctrination in public school classrooms. First, it asserts that allowing children the option of “participating in . . . religious exercises” in public schools demonstrates “one of the great principles of our nation.” Maj. op. at 3919. Later, however, it acknowledges that providing such an “option” does not render the state’s conducting of a religious practice constitutional, because the coercive pressure still remains. Id. at 3923. Under binding Supreme Court law, the latter position is unquestionably correct. The Free Exer- cise Clause “has never meant that a majority could use the machinery of the State to practice its beliefs.” Abington, 374 U.S. at 226. If it attempts to do so, “the fact that individual students may absent themselves [or remain silent] . . . fur- nishes no defense to a claim of unconstitutionality under the NEWDOW v. RIO LINDA USD 4033 Establishment Clause.” Id. at 224-25 (emphasis added). As the Court expressly stated in Lee, the government may not “place objectors in the dilemma of participating, with all that implies, or protesting. . . . . To recognize that the choice imposed by the State constitutes an unacceptable constraint only acknowledges that the government may no more use social pressure to enforce orthodoxy than it may use more direct means.” Lee, 505 U.S. at 593-94. The intense social and psychological pressure at issue, pressure that is enormous when brought to bear against a five- year-old child, leaves no doubt that a public school classroom is a coercive environment, as defined in Lee. Indeed, the majority ultimately concedes that every day that young Roe goes to school she is “coerced to participate” in the state- directed, teacher-led recitation of the “under God” version of the Pledge of Allegiance. Maj. op. at 3923. And so it must, as all nine of the Justices in Lee agreed that impermissible coercion occurs in a public-school classroom where atten- dance is mandatory, if that classroom is used to promote reli- gious beliefs or expression.85 2. Given that the majority inevitably concedes, as it must, that the classroom environment at issue in this case exerts signifi- cant coercive pressure to conform on children such as young Roe, and that allowing her the option of remaining silent or leaving the room would not cure the constitutional violation, The Lee majority ruled that a high school graduation ceremony was a coercive environment because there was “public pressure, as well as peer pressure, [to] attend[ ]” even though attendance was not strictly manda- tory. Lee, 505 U.S. at 593; see also Santa Fe, 530 U.S. at 310-12 (holding the same for football games). The four dissenting justices would not apply the coercion analysis to such a “voluntary” setting as a high school gradu- ation ceremony, but even they agreed that a public classroom where atten- dance is mandatory is an inherently coercive environment. Lee, 505 U.S. at 642-43 (Scalia, J., dissenting). 4034 NEWDOW v. RIO LINDA USD it is left with only two equally unpersuasive arguments as to why the daily recitation of the “under God” version of the Pledge does not violate the coercion rule. First, the majority contends that the Pledge is not a “religious exercise.” Accord Elk Grove, 542 U.S. at 31 (Rehnquist, C.J., concurring in the judgment). Second, the majority argues that the recitation of the Pledge is a “patriotic activity.” Maj. op. at 3926-27 (emphasis added). The majority’s analysis can in fact be boiled down to one sentence: “the Pledge is not a prayer.” Maj. op. at 3923. To meet the coercion standard, my colleagues first conclude that “Lee’s indirect coercion analysis” applies “only if the govern- ment coerces students to engage in a religious exercise.” Id. at 3926 (emphasis added). This may be the majority’s deter- mination in this case, but it most certainly is not the holding of the Supreme Court in Lee. To the contrary, in Lee the Court held that “[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise . . . .” Lee, 505 U.S. at 587 (empha- sis added). Apparently the same convenient willful blindness that prevents the majority from reading the Pledge’s legisla- tive history prevents it from reading the word “or” in the pre- ceding sentence. Otherwise, it would surely be forced to concede that Lee’s coercion analysis applies when the govern- ment coerces someone “to support or participate in religion,” and not just “to [participate in] religious exercises.” If the Lee majority’s word is not good enough for the majority in this case, Justice Scalia’s dissent, one part of which reflected the agreement of all members of the Court, should be sufficient. In that part, Justice Scalia said, “I have no quarrel with the Court’s general proposition that the Establishment Clause ‘guarantees that government may not coerce anyone to sup- port or participate in religion . . . .’ ” Id. at 642 (Scalia, J., dis- senting) (quoting id. at 587 (majority opinion)). NEWDOW v. RIO LINDA USD 4035 If the unanimous conclusion reached by the Court in Lee still does not persuade my colleagues that their holding today is erroneous, perhaps they should simply read once again the very cases that they contend support their overly narrow read- ing of Lee. The majority asserts with regard to those cases that “all” of the activities “have been invalidated by the Supreme Court as unconstitutional school-sponsored religious exer- cises.” Maj. op. at 3888 (emphasis added). But if the anticoer- cion rule applied only in the case of “religious exercises,” as the majority contends, then at least two important decisions would have to be erased from the U.S. Reports. In Edwards v. Aguillard, which was a coercion case,86 the Supreme Court struck down as violative of the Establishment Clause a statute mandating “instruction in ‘creation science’ ” in public schools. 482 U.S. at 581. A lecture in creation sci- ence, the Court held, supports religion through “the presenta- tion of a religious viewpoint.” Id. at 596. Of course, such a lecture contains none of the attributes of a “religious exercise” that have been identified by the majority. It does not “invite divine intercession,” “express personal gratitude,” or “ask for- giveness.” See maj. op. at 3889. It is “led by a teacher, not by a clergyman or other religious leader.” See id. at 3892. Stu- dents listening to the instruction “do not kneel, nor don yar- mulkes, veils, or rosaries,” see id., or make “a solemn avowal of divine faith and supplication for the blessings of the Almighty.” See id. at 3926 (quoting Engel, 370 U.S. at 424- 25). If there is a definition of “religious exercise” broad enough to encompass the teaching of “scientific critiques of In Edwards, the Supreme Court explicitly relied on the fact that the State, through its public school system, “exert[ed] great authority and coercive power through mandatory attendance requirements, and because of the students’ emulation of teachers as role models and the children’s susceptibility to peer pressure.” Edwards, 482 U.S. at 584 (emphases added). Indeed, the Court in Lee itself cited Edwards as an example of a case that demonstrates the “subtle coercive pressure in the elementary and secondary public schools.” Lee, 505 U.S. at 592 (citing Edwards, 482 U.S. at 584). 4036 NEWDOW v. RIO LINDA USD prevailing scientific theories,” Edwards, 482 U.S. at 593, the majority has not provided it. Similarly, Stone v. Graham, 449 U.S. 39 (1980) (per curiam), is another coercion case that did not involve a reli- gious exercise. In that case, the Court struck down a statute that “require[d] the posting of a copy of the Ten Command- ments . . . on the wall of each public classroom in the State.” Id. at 39. Surely, merely sitting in a room that has a copy of the Ten Commandments hanging on the wall does not consti- tute a “religious exercise.” See maj. op. at 3889 (a religious exercise “is always active”). In fact, the Court held that by being compelled to sit in the classroom with the Ten Com- mandments affixed to the wall, the students were subjected to a “religious practice.” Stone, 449 U.S. at 42. The Court struck down the statute because its “effect” was “to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the [Ten] Commandments.” Id. (emphasis added). Thus, there are at least two Supreme Court cases that inval- idated state practices supporting religion in the public schools as coercive, and therefore violative of the Establishment Clause, even though those practices did not constitute a “reli- gious exercise.” Accordingly, Lee must be understood to hold, as it explicitly states, “that government may not coerce any- one to support or participate in religion or its exercise,” Lee, 505 U.S. at 587 (emphasis added), and not simply, as the majority states, that the government may not coerce anyone to engage in religious exercises.87 In addition to being contrary to Lee’s text and the Supreme Court’s holdings in Edwards and Stone, the majority’s decision to limit the coer- cion test to religious exercises is also unworkable. It is highly significant that nowhere in the majority’s opinion does it provide a definition of a religious exercise, despite its acknowledgment that “oftentimes what one person considers secular, another considers religious.” Maj. op. at 3919. By basing its holding on this undefined yet in its view determinative con- cept, the majority forces courts to decide on a case-by-case basis what is NEWDOW v. RIO LINDA USD 4037 What might the Supreme Court have had in mind when it described government action that coerces someone “to sup- port or participate in religion”? Here, too, Lee provides the answer: “The First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State.” Id. at 589 (emphasis added). The notion that the State cannot coerce religious belief or expression is as old as the Court’s first Establishment Clause case, see Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15 (1947) (“The ‘establishment of reli- gion’ clause of the First Amendment means at least this: Nei- ther a state nor the Federal Government . . . . can force nor influence a person . . . to profess a belief or disbelief in any religion.” (emphasis added)), and as current as its most recent decision, see McCreary County v. ACLU of Ky., 545 U.S. 844, 881 (2005) (“This is no time to deny the prudence of understanding the Establishment Clause to require the govern- ment to stay neutral on religious belief, which is reserved for the conscience of the individual.” (emphasis added)), with an unbroken line of cases in between. In fact the very first case to strike down religious practices in public schools said, “When the power, prestige and financial support of govern- ment is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.” Engel, 370 U.S. at 431 (emphases added). and is not a religious exercise. In so doing, the majority recreates “the abhorred licensing system [that] . . . the First Amendment was intended to ban from this country” — a system in which judges must trade the black robes of neutrality for the ecclesiastical vestments of religious arbiters. Cf. First Nat’l Bank v. Bellotti, 435 U.S. 765, 801 (1978) (Burger, C.J., con- curring). Today’s majority thus creates an entirely new constitutional dilemma as, under its rule, federal courts will necessarily “risk greater ‘entanglement’ ” with religion “by attempting to enforce” the modified coercion test crafted today, a test that depends on what is or is not a reli- gious exercise. Widmar v. Vincent, 454 U.S. 263, 272 n.11 (1981). 4038 NEWDOW v. RIO LINDA USD As the Supreme Court has made clear, the Pledge requires an affirmation of a belief. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943) (“[The] pledge requires affirmation of a belief and an attitude of mind.”). Until its amendment in 1954, the Pledge was solely an affirmation of belief in, and loyalty to, one’s country. But the “under God” amendment added another component. Under the 1954 amendment, there is no conceivable way that the plain text, let alone the history, of the Pledge as amended can be read in any way other than as an affirmation of what the author of the amendment referred to as “the definitive factor in the Ameri- can way of life[:] . . . belief in God.” 100 Cong. Rec. 1700 (emphasis added). One simply cannot in good faith daily affirm loyalty to a nation “under God” if one does not believe that God exists, questions whether there is a God, or believes in polytheism. No one can deny that the Pledge requires the speaker to engage in a performative act that binds him to a particular belief — a belief in a nation “under God.”88 Indeed, even the majority appears to concede that one cannot recite the amended Pledge without “affirming a belief in God.” Maj. op. at 3923. A student reciting the Pledge of Allegiance to “one nation, under God” personally adopts that language, which expresses an undeniable and unavoidable religious tenet: God exists, and he is watching over our country. The conception of “God” espoused in that statement is inconsistent even with See BLACK’S LAW DICTIONARY 119 (8th ed. 2004) (“pledge, n. 1. A for- mal promise or undertaking.”); WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED (1996) (“pledge, vb . . . . 4a: to assure or promise the performance of . . . b: to promise seriously: undertake”). Because of this fundamental characteristic of an oath of allegiance, reciting the Pledge differs from “reciting historical documents . . . [or] singing officially espoused anthems which include the composer’s professions of faith.” Maj. op. at 3927 (quoting Engel, 370 U.S. at 435 n.21) (emphasis added). The simple fact that the Pledge is a pledge means that its recitation requires a profession of one’s own belief in a nation “under God,” not an acknowledgment of someone else’s. NEWDOW v. RIO LINDA USD 4039 many theistic, let alone atheistic or agnostic, religious philoso- phies.89 It is impossible to pledge allegiance to a “nation under God” without professing an unmistakably “religious belief,” Lee, 505 U.S. at 589: there is a God whom our nation is under, or to whom our nation is subordinate. Anyone coerced to express such a belief is, by definition, coerced to affirm a Although supporters of the Pledge often tout its “nonsectarian” nature, see, e.g., Elk Grove, 542 U.S. at 42 (O’Connor, J., concurring in the judg- ment), the God that the Pledge describes has clearly defined attributes that are rejected by many of the world’s largest religions, and many millions of religious Americans. As multiple scholars have noted, the Pledge amendment “commits the state to a variety of religious beliefs, for exam- ple, that there is a God[, ]rather than no god or many gods.” Mark Strasser, Establishing the Pledge: On Coercion, Endorsement, and the Marsh Wild Card, 40 IND. L. REV. 529, 555 (2007). “The Pledge also affirms [that] . . . God exercises some sort of broad superintending authority that an entire nation can be ‘under.’ The nature of this authority is not further specified . . . but . . . . [a] ‘Nation under God’ does not plausibly refer to . . . God as a name or metaphor for all the goodness immanent in the universe [or in nature].” Douglas Laycock, Theology Scholarships, The Pledge of Alle- giance, and Religious Liberty: Avoiding the Extremes But Missing the Lib- erty, 118 HARV. L. REV. 155, 226 (2004). Millions of devoutly religious individuals do not subscribe to these beliefs. For example, the world’s 900 million Hindus — 766,000 of whom live in the United States — and this country’s 106,000 adherents of Native American religions might take issue with the explicitly monotheistic nature of the Pledge. Further, the declaration that there is a “superintending” God likely would not sit well with the world’s 350 million Buddhists, including the one million in this country — not to mention our two million atheists, agnostics, humanists, and secularists and quarter million other believers in some form of spiritu- alism. The very fact that the religious belief now embodied in the Pledge is antithetical to the beliefs of millions of Americans, religious and irreli- gious alike, is why the Constitution prohibits the government from taking sides, and certainly from coercing schoolchildren to adopt and proclaim an officially prescribed belief. Global populations are based on percentages in CIA, THE WORLD FACTBOOK (2008), available at http://tinyurl.com/WorldFactbook-World, and on the global population clock, U.S. Census Bureau, U.S. and World Population Clocks, http://www.census.gov/main/www/popclock.html (last visited Sept. 10, 2008). American populations are based on U.S. Census Bureau, The 2007 Statistical Abstract, t. 73, (2007) http:// www.census.gov/compendia/statab/2007/population/religion.html. 4040 NEWDOW v. RIO LINDA USD belief in God and thus “to support . . . religion.” Id. at 587. Thus, the majority’s attempt to limit the coercion test to a reli- gious exercise fails. 3. In its second attempt to avoid the strictures of Lee, the majority argues that the prohibition against coercing school- children to embrace religion does not apply to the recitation of the amended Pledge because that recitation is simply a “pa- triotic exercise designed to foster national unity and pride.” Maj. op. at 3877 (quoting Elk Grove, 542 U.S. at 6); see also id. at 62. I do not dispute that the recitation of the Pledge both as originally written and as amended is a patriotic exercise or that the version codified in 1942 was indeed “designed to fos- ter national unity and pride.”90 But where a religious message is inserted into a patriotic exercise, or into any other secular exercise, in order to promote religion and, more particularly, to inculcate in children a religious belief, the exercise as I note that the state-sponsored recitation struck down in Lee itself was at least as patriotic as the Pledge of Allegiance: God of the Free, Hope of the Brave: For the Legacy of America where diversity is celebrated and the rights of minorities are protected, we thank You. May these young women grow up to enrich it. For the liberty of America, we thank You. May these new graduates grow up to guard it. For the political process of America in which all its citizens may participate, for its court system where all may seek justice we thank You. May those we honor this morning always turn to it in trust. For the destiny of America we thank You. May the graduates of Nathan Bishop Middle School so live that they might help to share it. May our aspirations for our country and for these young peo- ple, who are our hope for the future, be richly fulfilled. Lee, 505 U.S. at 581-82. NEWDOW v. RIO LINDA USD 4041 amended runs afoul of the Establishment Clause. Surely, as noted earlier, if Congress had amended the Pledge so as to describe the United States as “one nation under Jesus,” “one nation under Jesus Christ,” or “one nation under the Father, the Son, and the Holy Ghost,” even the majority, one might hope, would not contend that, because the recitation of the Pledge was and is a patriotic exercise, no unconstitutional coercion would result from the state-directed, teacher-led daily recitation of the Pledge in its amended form. The analy- sis can be no different for the recitation of the amended ver- sion of the Pledge, with the inserted phrase “under God.”91 In all those instances, the Pledge would be equally patriotic. It is irrelevant for purposes of the Establishment Clause whether a state-directed effort to indoctrinate schoolchildren with a belief in religion, or in this case, more specifically a belief in God, is incorporated into a patriotic or some other secular exercise or constitutes a stand-alone message all by itself. It is the content of the religious message not the vehicle in which it is contained that matters. Government is simply not permitted to engage in the indoctrination of religious beliefs, whatever the means by which it may choose to deliver them. The solution is obvious: excise the offending material from the patriotic or secular message. That is particularly easy to do where, as here, the religious component of the message has been separately inserted by a legislative amendment into existing, non-offending patriotic or other secular material. The majority’s reading of Lee ignores the fundamental principles underlying decades of Establishment Clause juris- prudence. In so doing, the majority deems religious indoctri- nation in public schools permissible under the coercion test so The Supreme Court has always held that atheists (and, a fortiori, agnostics) enjoy the same First Amendment protections as everyone else. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 52-55 (1985); Epperson v. Arkansas, 393 U.S. 97, 104 (1968); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 216 (1963); Torcaso v. Watkins, 367 U.S. 488, 495 (1961). 4042 NEWDOW v. RIO LINDA USD long as it is not part of a religious activity. This holding is dangerous and far-reaching, as well as unprecedented and unfounded. After today, if this court were to take the majori- ty’s holding seriously, or purport to follow it in relevant cases, public-school students in this circuit could be subjected to regular lectures promoting Christianity as the true religion, cf. Edwards, 482 U.S. 578 (creationism instruction), or required to enroll in “character development” programs that extolled the superiority of Jesus over all others as a spiritual leader. They would no longer have a claim under Lee v. Weis- man because the practices they would be challenging would be included within otherwise lawful secular programs. Surely this utter evisceration of the coercion test is not what the Supreme Court intended when it vindicated Deborah Weis- man’s constitutional rights. Moreover, religious minorities of all stripes would quickly suffer under the rule the majority propounds, were we to apply it beyond the narrow confines of the Pledge of Allegiance. It should be apparent to all that regardless of the majority’s heart-felt desire to justify the coercive recitation of the amended Pledge by California’s public schoolchildren and its willingness to ignore the con- trolling law in order to reach that objective, a proper applica- tion of the coercion test precludes not only religious exercises but all other state sponsored efforts to inculcate religious beliefs in America’s public schoolchildren, even if inserted in the middle of a course in mathematics or incorporated in any other secular or patriotic activity. D. Application of the Tests to the 2002 Legislation I have explained why the 2002 reaffirmation of the Pledge statute is of no relevance, as it simply sets forth Congress’s view that the 1954 amendment was constitutional and that our interpretation of the Constitution in Newdow I was erroneous — and thus it offers no different purpose for the adoption of the amendment. See supra Part III. However, the foregoing review of the Lemon, endorsement, and coercion tests demon- strates why, even had Congress advanced a secular purpose NEWDOW v. RIO LINDA USD 4043 for both the 1954 “under God” amendment and its 2002 reaf- firmation — including the secular messages that the majority purports to believe that Congress intended to convey: that we live under “limited government,” or more generally that we should recognize our nation’s “historical principles of gover- nance” — the amendment as applied in the case of the state- directed, teacher-led, daily recitation of the Pledge would still have failed to comply with the Establishment Clause. It would have failed the Lemon test because its principal purpose would still have been religious, and because the “principal or primary effect” of the amendment, the affirmation of a per- sonal belief in God, would still have unquestionably “ad- vance[d] . . . religion.” Lemon, 403 U.S. at 612-13 (citation omitted) (emphasis added). It would have failed the endorse- ment test because such recitations would still have sent the message to nonadherents of religion and to nonadherents of religions that embrace monotheism “that they are outsiders, not full members of the political community, and an accompa- nying message to adherents that they are insiders, favored members of the political community.” Santa Fe, 530 U.S. at 309-10 (quoting Lynch, 465 U.S. at 688 (O’Connor, J., con- curring)). Finally, it would have failed the coercion test because such recitations would still have coerced schoolchil- dren “to support or participate in religion,” and to profess a belief, whether held by them or not, in God. Lee, 505 U.S. at 587. In short, the “under God” version of the Pledge is, under all three tests, unconstitutional as applied, not only when con- sidered in light of Congress’s actual purpose in adopting the amendment in 1954, but even when considered in light of the purpose that the majority would erroneously impute to Con- gress in reaffirming the amendment in 2002. V. The Inapplicability of Alternative Theories As the foregoing analysis demonstrates, the state- sponsored, teacher-led daily recitation of the “under God” version of the Pledge in public schools is unconstitutional under any Establishment Clause doctrine that might be 4044 NEWDOW v. RIO LINDA USD applied. Ordinarily, one would expect an outcome required by binding Supreme Court precedent to end the debate. However, faced with the formidable outcry that would surely arise in defense of the “under God” version of the Pledge were the Constitution to be faithfully applied, judges both on this court and others, in an effort to sustain the unsustainable, have cast about in search of alternative theories — theories not grounded in any Establishment Clause principles announced by the Supreme Court. Such theories include the notions that appellate courts must uphold the state-sponsored recitation of the “under God” version of the Pledge on the basis of state- ments made in Supreme Court dicta or in individual concur- ring or dissenting opinions of some of the various justices, on the ground that the religious version of the Pledge is constitu- tional under the putative doctrine of ceremonial deism, and for the reason that any harm caused by its recitation in public schools is de minimis and therefore not worthy of our atten- tion. These alternative theories, one or two of which today’s majority may be relying on, at least in part, and the other of which is relied on by our colleagues on other circuits, provide no legitimate support for holding the “under God” version of the Pledge constitutional as applied. I will start with the least dangerous, the nose-counting dicta and dissents theory. The two which could cause serious harm to the First Amendment rights of minorities, and with at least one of which the major- ity appears to flirt at times, I will save for last. A. Supreme Court Dicta The majority proudly asserts that by its decision today we “join our sister circuits who have held [that] similar school policies do not violate the Establishment Clause.” Maj. op. at 3877. My colleagues properly do not, however, embrace the reasoning relied upon by the two other circuits that have so held. Both of those circuits predicate their conclusions on Supreme Court dicta or the views expressed by individual Supreme Court justices. See Myers v. Loudon County Pub. Schs., 418 F.3d 395, 402 (4th Cir. 2005); Sherman v. Cmty. NEWDOW v. RIO LINDA USD 4045 Consol. Sch. Dist., 980 F.2d 437, 446-48 (7th Cir. 1992). Because that is the only basis, other than that on which today’s majority relies, on which any circuit court has upheld state-directed, teacher-led daily recitations of the “under God” version of the Pledge, I explain why the majority here could not legitimately “join our sister circuits” in their erroneous reasoning. The argument set forth by the Fourth and Seventh circuits is essentially this: The Supreme Court has authored “repeated dicta . . . respecting the constitutionality of the Pledge,” Myers, 418 F.3d at 402, and those dicta “proclaim[ ] that [the] practice is consistent with the establishment clause,” Sher- man, 980 F.2d at 448; appellate courts, therefore, should fol- low the purported rule established in the dicta because “[i]f the Justices are just pulling our leg” we should “let them say so.” Sherman, 980 F.2d at 448. Cleverly or not cleverly worded as this argument may be, it fails in both its major and minor premises: First, the so-called dicta “respecting the con- stitutionality of the Pledge,” Myers, 418 F.3d at 402, in fact do not say that the Pledge is “consistent with the establish- ment clause,” Sherman, 980 F.2d at 448. Second, the Supreme Court’s holdings issued after each of the dicta was written do not support adherence to the “rule” that our colleagues on the Fourth and Seventh Circuit have read into preexisting dicta. It is those subsequent holdings that must control the reasoning and decisions of the courts of appeals. The assertion that the Supreme Court has “proclaim[ed] that [the Pledge] is consistent with the establishment clause,” id. (emphasis added), is inconsistent with the language of the purported dicta on which that assertion is based. Proponents of the dicta argument assert that “[t]he Supreme Court has spoken repeatedly on the precise issue we address today.” Myers, 418 F.3d at 409 (Motz, J., concurring in the judg- ment); id. at 402 (majority opinion) (relying on “repeated dicta from the Court”). However, in over six decades of Establishment Clause jurisprudence, the Supreme Court has in 4046 NEWDOW v. RIO LINDA USD fact made only two statements regarding the Pledge of Alle- giance in its opinions.92 The first of these appeared in Lynch v. Donelly, a case decided in 1984. In that case, the Court sim- ply notes, in a preliminary discussion, that the “under God” language in the Pledge is one among many “examples of ref- erence to our religious heritage” that is reflected in numerous well-established national customs and practices. Lynch v. Donnelly, 465 U.S. 668, 676 (1984). Contrary to what the Fourth and Seventh Circuits assert, the statement in Lynch in no way expresses the view that the Pledge passes any of the three Establishment Clause tests or that the practice of daily, state-directed, teacher-led recitation of the amended Pledge by public schoolchildren is constitutional. The sole mention of the Pledge amounts to no more than a single prefatory histori- cal reference, after which it is not discussed again.93 Moreover, as the author of that historical reference wrote soon thereafter, in his view intervening Supreme Court law — specifically, the Supreme Court’s decision in Wallace v. Jaf- free — rendered the version of the Pledge that includes the Obviously, in addition to the two cases to which I refer — Lynch v. Donelly and County of Allegheny v. ACLU — the Supreme Court men- tioned the Pledge of Allegiance in Elk Grove v. Newdow, a case closely related to the one presently before us. However, the Court in that case, in the words of its Chief Justice, “avoid[ed] reaching the merits of the consti- tutional claim.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 18 (2004) (Rehnquist, C.J., concurring in the judgment). Elk Grove therefore sheds little light on the issue before us. That case certainly does not con- tain any statements, in dicta or otherwise, suggesting that the state- directed, teacher-led daily recitation of the religious version of the Pledge of Allegiance in public schools passes constitutional muster. That is the precise question the Court left unanswered. Lynch also includes a dissent from Justice Brennan who did not declare that the Pledge was constitutional but said that, although he was inclined toward that view, he was “uncertain” about the question. Lynch, 465 U.S. at 716. He based his ruminations on the theory of “ceremonial deism,” a doctrine that has never been adopted by the Supreme Court and that would not be an appropriate basis for the majority’s holding today. See infra Part V.B. NEWDOW v. RIO LINDA USD 4047 phrase “under God” unconstitutional. Dissenting from the Court’s holding in Wallace, a case that ought to govern the majority’s analysis today, Chief Justice Burger wrote just one year after authoring the opinion in Lynch: Congress amended the statutory Pledge of Alle- giance 31 years ago to add the words ‘under God.’ Do the several opinions in support of the judgment today render the Pledge unconstitutional? That would be the consequence of their method of focus- ing on the difference between [the challenged stat- ute] and its predecessor statute . . . . Wallace, 472 U.S. at 88 (Burger, C.J., dissenting) (citation omitted); see also id. at n.3. Thus Wallace rendered any thought that the Chief Justice might have harbored that the amended Pledge was constitutional no longer valid. A dictum, let alone a mere reference, recognized by its own author as having no further validity cannot bind us at all and certainly could not do so in the face of subsequent holdings that strip the reference of any force or effect. Such subsequent opinions include not only Wallace but also Edwards v. Aguillard, Lee v. Weisman, and Santa Fe v. Doe, each of which made sub- stantial contributions to Establishment Clause jurisprudence, and each of which contained holdings that conflict with the tenets underlying Chief Justice Burger’s “dictum” in Lynch. The second purported dictum “proclaiming” the Pledge’s constitutionality is the following statement from County of Allegheny v. ACLU: Our previous opinions have considered in dicta the motto and the pledge, characterizing them as consis- tent with the proposition that government may not communicate an endorsement of religious belief. Lynch, 465 U.S., at 693 (O’Connor, J., concurring); id., at 716-717 (Brennan, J., dissenting). We need not return to the subject . . . because there is an obvi- 4048 NEWDOW v. RIO LINDA USD ous distinction between creche displays and refer- ences to God in the motto and the pledge. 492 U.S. 573, 602-03 (1989) (emphasis added). This passage is a far cry from an assertion by the Supreme Court, in dicta or otherwise, that the Pledge “is consistent with the establish- ment clause.” Sherman, 980 F.2d at 448. To the contrary, despite the Court’s unusual characterization of statements in a prior concurrence and dissent as “[o]ur previous opinions,” the Supreme Court in Allegheny simply reported the fact that a concurrence and a dissent in Lynch state in dicta that the amended Pledge is constitutional. However, neither that con- currence nor dissent spoke for the Court, and those are the only two opinions Allegheny cites when it refers to “[o]ur pre- vious opinions” characterizing the Pledge, in dicta, as consti- tutional. The Court in Allegheny itself expressly declined to comment on the validity of those prior “dicta” or on the Pledge’s constitutionality, recognizing that the issue was irrel- evant to the case before it. Id. Furthermore, like the “dictum” in Lynch, the statement in Allegheny was written in 1989, pre- dating Edwards v. Aguillard, Lee v. Weisman, and Santa Fe v. Doe, core holdings that govern our analysis today. Finally, neither the “dictum” in Allegheny nor the “dictum” in Lynch expressed a view on the merits of the constitutional question before us. A plain reading of the “dicta” and of subsequent Supreme Court decisions makes it apparent that the dicta argument relied upon by the Fourth and Seventh Circuits pro- vides a very slim reed indeed — in fact, no reed at all. There is also no merit to the minor premise asserted by the Fourth and Seventh Circuits that appellate courts should treat dicta as controlling. As all courts and judges have recognized, Supreme Court dicta, like all others, are not binding, and they certainly cannot serve as a justification for ignoring superven- ing Supreme Court precedent. Dicta or not, an intermediate court of appeals is required to follow binding Supreme Court cases unless and until the Supreme Court overrules them. Moreover, the only reason Supreme Court dicta enjoy greater NEWDOW v. RIO LINDA USD 4049 weight than the dicta of lower courts is that they are a “proph- ecy of what the Court might hold.” United States v. Montero- Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (internal quotations omitted). Prophecies may be of some value when there are no binding precedents that govern the outcome; they are of no relevance, however, when relying on them would require an intermediate appellate court to ignore Supreme Court law that is handed down after those prophecies, that is contrary to them and that controls the decision. If the value of a Supreme Court dictum lies in its forecasting ability, then surely when “what the Court might hold” turns out to be the opposite of what the Court later does hold the dictum must lose whatever authority it might once have had. Perhaps aware that the author of one of the two “dicta” acknowledged that his view had been rejected in a subsequent opinion of the Court, that the other “dictum,” like the first, does not actually speak to the merits of the issue in this case, and that the two dicta together do not carry any weight in light of the various intervening developments in the law, propo- nents of the dicta argument must rely on other data to bolster their claim that the Supreme Court has implicitly instructed lower courts how to decide the issue presently before us. The Fourth Circuit, in search of such additional data, based its val- idation of the “under God” version of the Pledge not just on the overruled purported dicta in Lynch and Allegheny, but also on the views of “individual Justices” whom it characterizes as “hav[ing] made clear that the Establishment Clause . . . does not . . . make unconstitutional the daily recitation of the Pledge in public school.” Myers, 418 F.3d at 405 (emphasis added). The Fourth Circuit goes on to cite a string of individ- ual concurrences and dissents from various justices before emphatically declaring “not one Justice has ever suggested that the Pledge is unconstitutional.” Id. at 406 (emphasis in original). Although some might consider a nose count of every jus- tice ever to have sat on the Supreme Court, past or present, 4050 NEWDOW v. RIO LINDA USD alive or dead, an absurd method of deciding a constitutional question concerning fundamental rights — or any other ques- tion for that matter — I need not comment on the propriety of the Fourth Circuit’s approach because it fails on its own terms.94 Only the judicial equivalent of Enron accounting could yield a conclusion that “not one justice” has ever stated that the Pledge is unconstitutional under the Supreme Court precedents that we, as intermediate court judges, are bound to follow. In fact, quite the opposite: the only current Justice to have ever directly addressed the merits of the issue before us concluded that I will, however, note at least one problem with that methodology: When justices write for themselves, as opposed to the Court, they are free at any point to change their minds, abandoning positions they once held without first obtaining the agreement of four of their colleagues. As a result, the fact that a justice holds a certain view on a question not pres- ently before him is far from conclusive evidence as to how that same jus- tice would rule when actually faced with the relevant issue and furnished with briefs and oral argument by all of the interested parties. For example, the Fourth Circuit relies in part on the fact that Justice Brennan, “among the most stalwart of separationists” of Church and State, Sherman, 980 F.2d at 447, stated in Lynch that “the references to God contained in the Pledge of Allegiance can best be understood . . . as a form of ‘ceremonial deism,’ protected from Establishment Clause scrutiny.” See Myers, 418 F.3d at 405 (citing Lynch, 465 U.S. at 716 (Brennan, J., dissenting)). Putting aside for a moment that Justice Brennan explicitly said in that same opinion that he was “uncertain” about the Pledge’s constitutionality, Lynch, 465 U.S. at 716 (Brennan, J., dissenting), it is worth noting that he also opined at one point that “[t]he saying of invocational prayers in legis- lative chambers, state or federal, and the appointment of legislative chap- lains, might well represent no involvements of the kind prohibited by the Establishment Clause,” Abington, 374 U.S. at 299-300, yet twenty years later, when actually presented with that issue, authored a strenuous dissent from the majority’s decision holding legislative prayers constitutional, directly acknowledging that he “was wrong” in Abington. See Marsh v. Chambers, 463 U.S. 783, 796 (1983) (Brennan, J., dissenting). Thus, when lower courts base constitutional analyses on nose counts of individual Jus- tices, not even our dicta-enhanced powers of “prophecy” may be sufficient in divining the appropriate count. NEWDOW v. RIO LINDA USD 4051 [a]dherence to Lee would require [a court] to strike down the Pledge policy, which, in most respects, poses more serious difficulties than the prayer at issue in Lee. A prayer at graduation is a one-time event, the graduating students are almost (if not already) adults, and their parents are usually present. By contrast, very young students, removed from the protection of their parents, are exposed to the Pledge each and every day. .... . . . . Whether or not we classify affirming the existence of God as a “formal religious exercise” akin to prayer, it must present the same or similar constitutional problems. Elk Grove, 542 U.S. at 46, 48 (Thomas, J., concurring in the judgment). Justice Thomas unequivocally rejected the holding issued by today’s majority that Lee turns entirely on whether a challenged practice constitutes a “formal religious exercise.” Cf. supra Part IV.C. Lest there be any confusion, Justice Thomas made his point crystal clear: “[A]s a matter of our precedent, the Pledge policy is unconstitutional.” Elk Grove, 542 U.S. at 49. Six other Justices have reached the same conclusion, four of them in opinions written after the two “dicta” in Lynch and Allegheny upon which the Fourth and Seventh Circuits so heavily rely. In Lee, Justice Scalia, joined by three of his col- leagues, declared: “[S]ince the Pledge of Allegiance has been revised since Barnette to include the phrase ‘under God,’ recital of the Pledge would appear to raise the same Establish- ment Clause issue as the invocation and benediction [invali- dated today] . . . . Logically, that ought to be the next project for the Court’s bulldozer.” See Lee, 505 U.S. at 639 (Scalia, J., dissenting, joined by Rehnquist, C.J., and White and 4052 NEWDOW v. RIO LINDA USD Thomas, JJ.). Similarly, in Allegheny, Justice Kennedy, writ- ing for himself and three other Justices, wrote: [B]y statute, the Pledge of Allegiance to the Flag describes the United States as “one Nation under God.” To be sure, no one is obligated to recite this phrase, but it borders on sophistry to suggest that the “reasonable” atheist would not feel less than a “full member of the political community” every time his fellow Americans recited . . . a phrase he believed to be false. 492 U.S. at 672 (Kennedy, J., dissenting, joined by Burger, C.J., and White and Scalia, JJ.) (internal citations omitted); see also Wallace, 472 U.S. at 88 (Burger, C.J., dissenting);95 Engel v. Vitale, 370 U.S. 421, 450 & n.9 (1962) (Stewart, J., dissenting).96 For those keeping score, an accurate nose count would thus contain more justices asserting that the Pledge is unconstitutional under existing Supreme Court precedents than justices expressing the contrary view.97 Were these jus- Quoted supra p. 4045. “In 1954 Congress added a phrase to the Pledge of Allegiance to the Flag so that it now contains the words ‘one Nation under God . . . .’ I am at a loss to understand the Court’s ipse dixit that th[is] official expres- sion[ ] of religious faith in and reliance upon a Supreme Being ‘bear[s] no true resemblance to the unquestioned religious exercise [of] the State of New York [invalidated] in this [case].’ ” As indicated in the text, at least seven justices have concluded that the Pledge is unconstitutional under governing Supreme Court precedent. Only six have expressed the contrary view. Four of those justices did so in a single dissent authored by Justice Brennan. See Lynch v. Donelly, 465 U.S. at 694 (Brennan, J., dissenting, joined by Marshall, Blackmun, and Stevens, JJ.). As I have already discussed, see supra note 93, that dissent explicitly expressed its “uncertainty” as to the Pledge’s constitutionality, but opined that the words “under God” might be upheld on the basis of “ceremonial deism,” a doctrine never embraced by a majority of the Supreme Court. See infra Part V.B. Moreover, Justice Brennan’s state- ment was written in 1984, well before the Establishment Clause’s jurispru- dential landscape was altered by Wallace v. Jaffree as well as Edwards v. Aguillard, Lee v. Weisman, and Santa Fe v. Doe. NEWDOW v. RIO LINDA USD 4053 tices to apply currently binding Supreme Court law, they would, without doubt, hold, unlike the majority today or the other two circuits to have decided the issue, that state- sponsored, teacher-led recitation of the “under God” version of the Pledge of Allegiance in public schools does not pass constitutional muster. How, then, does the Fourth Circuit conclude that “not one Justice has ever suggested that the Pledge is unconstitution- al”? Myers, 418 F.3d at 405 (emphasis in original). The answer to this question is quite revealing: The court construes the votes of Justice Thomas and the other justices cited above as “pro-Pledge” votes because those justices disagree The other two justices who expressed the view that the post-1954 ver- sion of the Pledge is consistent with governing Establishment Clause pre- cedents were Chief Justice Rehnquist and Justice O’Connor. See Elk Grove, 542 U.S. at 25-33 (Rehnquist, C.J., concurring in the judgment); id. at 33-45 (O’Connor, J., concurring in the judgment). However, these opinions were based on blatantly incomplete and erroneous information on a critical issue. Chief Justice Rehnquist wrote, “The [Pledge] amend- ment’s sponsor, Representative Rabaut, said its purpose was to contrast this country’s belief in God with the Soviet Union’s embrace of atheism. 100 Cong. Rec. 1700 (1954). We do not know what other Members of Congress thought about the purpose of the amendment.” Id. at 25-26 (emphasis added). Remarkably the late Chief Justice appears to have been aware of only the single page of the Congressional Record that he cites in his opinion, and indeed appears to have read even that page very selec- tively. Had he been aware of the remainder of the remarks made by con- gressmen and of the reports in the Congressional Record, he would have known of the history detailed earlier in this opinion, and would certainly have had to wrestle with that history in his reasoning. Perhaps he, like today’s majority, would have found some way to reach the desired out- come nonetheless, but surely an individual opinion that demonstrates so sweeping an unawareness of the historical record cannot be given signifi- cant weight. Justice O’Connor’s opinion is similarly flawed because it mistakenly relied on Chief Justice Rehnquist’s uninformed historical account. See id. at 33 (O’Connor, J., concurring in the judgment) (“[T]he history presented by the Chief Justice illuminates the constitutional prob- lems this case presents . . . .”). 4054 NEWDOW v. RIO LINDA USD with existing Supreme Court precedents, which some of them have stated they would overturn. In other words, these justices believe that intermediate appellate courts are required to hold the Pledge unconstitutional, regardless of whether they would exercise their own prerogative as Supreme Court justices to overrule the precedents that bind us today. Their opinions may not, of course, be counted in favor of the holding reached by the Fourth and Seventh Circuits. Although my colleagues have not made the error made by “our sister circuits” that they are proud to join, they could not have reached the result they do without disregarding clearly binding Supreme Court law, as recognized by a number of Supreme Court justices, past and present. Disregarding that binding Supreme Court law is not within the authority of cir- cuit court judges. Accordingly, my colleagues seriously err in reaching the result they do in this case. B. Ceremonial Deism It is unclear whether by its vague, disjointed, and indirect allusions to “ceremonial deism” the majority intended to rely on that theory. Ceremonial deism is itself a hazily defined, never formally adopted doctrine under which it may be asserted that phrases that would otherwise constitute unconsti- tutional establishment of religion have, with respect to the particular usage at issue, become so interwoven into Ameri- ca’s social fabric that they no longer convey a religious mes- sage of sufficient potency to offend the Constitution. The majority implicitly invokes this “doctrine” when it cites Marsh v. Chambers, 463 U.S. 783 (1983), for the proposition that “the nation’s historical practices can outweigh even obvi- ous religious concerns under the Establishment Clause.”98 As one of the members of the majority had once recognized, this prin- ciple has limited applicability, especially for a state practice with a history as brief as that of the recitation of the “under God” version of the Pledge in public schools: NEWDOW v. RIO LINDA USD 4055 Maj. op. at 3916. It also appears to endorse or at least approve Justice Brennan’s dissent in Lynch v. Donelly, which explic- itly relied upon ceremonial deism, id. at 22 n.11, although Justice Brennan himself expressed some uncertainty about his position.99 Whatever the merits of the majority’s “ceremonial refer- ences to God” approach in other contexts, Supreme Court pre- cedent precludes us from applying to this case the doctrine discussed by Justices Brennan and O’Connor and implicitly followed by the Court in Marsh: that in certain circumstances a practice with a sufficient historical acceptance is less sus- ceptible to, or more immune from, challenge on Establish- ment Clause grounds. Marsh approved the time-honored opening of a legislative session with a chaplain’s prayer. A teacher-led daily recitation of the religious version of the Pledge of Allegiance in public schools is, however, far differ- ent from the opening ceremony of a legislative session, and so the Court made clear in Lee. Lee explained that [i]nherent differences between the public school sys- tem and a session of a state legislature distinguish this case from Marsh v. Chambers, 463 U.S. 783 (1983). . . . The atmosphere at the opening of a ses- County of Allegheny points out that not ‘all accepted practices 200 years old and their equivalents are constitutional today.’ . . . . If 200 years does not necessarily suffice to sanitize an otherwise violative establishment of religion, then the fact alone that [a] practice has occurred for 50 years is similarly of little value. Cammack v. Waihee, 932 F.2d 765, 786 (9th Cir. 1991) (D. Nelson, J., dis- senting) (quoting County of Allegheny, 492 U.S. at 605). As indicated in a portion of Justice Brennan’s dissent, the decision in Marsh v. Chambers is the closest the Supreme Court has ever come to adopting the rationale underlying ceremonial deism. In that case, the Court, without explicitly using the phrase “ceremonial deism,” upheld the practice of opening legislative sessions with a formal prayer on the ground that the practice had a long and uninterrupted history in this country. 4056 NEWDOW v. RIO LINDA USD sion of a state legislature where adults are free to enter and leave with little comment and for any num- ber of reasons cannot compare with the constraining potential of the . . . school [environment, where] stu- dent[s must] attend. The influence and force of a for- mal exercise in a school . . . are far greater than the prayer exercise we condoned in Marsh. The Marsh majority in fact gave specific recognition to this dis- tinction and placed particular reliance on it in upholding the prayers at issue there. 463 U.S. at 792. Today’s case is different. [In school], teachers and principals must and do retain a high degree of con- trol over the precise contents of the program, . . . the movements, the dress, and the decorum of the stu- dents. . . . Our Establishment Clause jurisprudence remains a delicate and fact-sensitive one, and we cannot accept the parallel relied upon by petitioners and the United States between the facts of Marsh and the case now before us. Our decisions in Engel v. Vitale and School Dist. of Abington v. Schempp require us to distinguish the public school context. 505 U.S. at 596-97 (internal citations omitted). Thus, Lee pre- cludes the use of ceremonial deism to justify state-sponsored religious activity in public school classrooms, including teacher-led daily recitations of the “under God” version of the Pledge of Allegiance. There are two other reasons that the application of ceremo- nial deism to the amended version of the Pledge is not consis- tent with the principles underlying that so-called legal doctrine. First, historically speaking, the contention asserted by Justice O’Connor that the Pledge has settled into a secular social niche because it is a “practice [that] has been employed pervasively without engendering significant controversy” is simply inaccurate. Elk Grove, 542 U.S. at 38 (O’Connor, J., concurring in the judgment); cf. Allegheny, 492 U.S. at 631 (O’Connor, J., concurring). When the bill amending the NEWDOW v. RIO LINDA USD 4057 Pledge was first introduced in 1954, thirty-five million Ameri- cans opposed the addition of the words “under God” to the traditional oath.100 Today, that number is even larger: When this court issued its opinion in 2002 striking down the daily, teacher-led recitation of the “under God” version of the Pledge as unconstitutional, over thirty-nine million Americans agreed with our decision.101 Moreover, in the five and a half decades since the Pledge was amended to convey an explicitly religious purpose, numerous legal challenges have been filed seeking to remedy the purported constitutional harm suffered by millions of Americans who do not subscribe to a belief in God as prescribed by the “under God” version of the Pledge. Indeed, these challenges began shortly after the Pledge was amended and have been pursued consistently throughout the intervening decades.102 The fact that judges or justices may be willing to ignore the “significant controversy” the Pledge has engendered does not mean that the controversy does not exist or has not continued uninterruptedly over time.103 See supra note 77. See Linda Lyons, The Gallup Brain: “One Nation Under God,” GALLUP, Mar. 23, 2004 (reporting that 14% of Americans expressed “sup- port for court ruling Pledge unconstitutional”), available at http:// tinyurl.com/GallupUnderGod. See, e.g., Lewis v. Allen, 159 N.Y.S.2d 807 (N.Y. Sup. Ct. 1957), aff’d by, 207 N.Y.S.2d 862 (N.Y. App. Div. 1960), aff’d by, 200 N.E.2d 767 (N.Y. 1964); Smith v. Denny, 280 F. Supp. 651 (E.D. Cal. 1968), appeal dismissed, 417 F.2d 614 (9th Cir. 1969); Sherman v. Cmty. Consol. Sch. Dist., 714 F. Supp. 932 (N.D. Ill. 1989), vacated in part by, 980 F.2d 437 (7th Cir. 1992); Myers v. Loudoun County Sch. Bd., 251 F. Supp. 2d 1262 (E.D. Va. 2003), aff’d, 418 F.3d 395 (4th Cir. 2005); Myers v. Lou- doun County Sch. Bd., 500 F. Supp. 2d 539 (E.D. Va. 2007); Freedom Found. v. Cong., 2008 U.S. Dist. LEXIS 63473 (D.N.H. Aug. 7, 2008); see also Gladwin Hill, Suit Asks Change in Pledge to Flag, N.Y. TIMES, June 20, 1963, at 20 (detailing Los Angeles suit); Suit Over Allegiance Pledge Stirs County, L.A. TIMES, Oct. 23, 1963, at A1 (same); Mother Seeks Removal of ‘God’ in Flag Pledge, N.Y. TIMES, Apr. 7, 1964, at 9 (detailing Baltimore suit); New Suit Filed By Mrs. Murray, WASH. POST, Sept. 16, 1964, at B4 (detailing Honolulu suit). Surely, the simple fact that the Supreme Court has repeatedly declined to address the Pledge issue cannot support the proposition that it 4058 NEWDOW v. RIO LINDA USD Second, even if we were free to do so, this court could not reasonably adopt the doctrine of ceremonial deism in this case because that doctrine, at least as it would be applied here, would necessarily be predicated on a fundamentally illogical premise. Specifically, it makes no sense to state that in the context of the daily recitation of the amended Pledge in public schools the phrase “under God” has, over time, “lost through rote repetition any significant religious content.” Lynch, 465 U.S. at 716 (Brennan, J., dissenting). Prayers are regularly the subjects of “rote repetition,” and, if anything, grow only more religious over time. Those Christians who have recited the Lord’s Prayer for the past two thousand years would be shocked to learn that, by virtue of their doing so, the prayer has lost its religious significance. So too would Jews who have recited the Sh’ma, the Jewish declaration of faith, two times a day for approximately the same length of time, or Muslims who turn toward Mecca five times daily and repeat the Shahadah, reciting the words “There is no God but God, and Muhammad is his prophet.” The amended Pledge was intended to be regularly recited in schools across the nation in order to teach “the schoolchildren of America” to have “faith in the Almighty God,” 100 Cong. Rec. 6919 (1954), and to “train[ ] . . . our youngsters[,] . . . each time they pledge alle- giance[,] . . . [to] reassert their belief . . . in the all-present, all-knowing, all-seeing, all-powerful Creator,” id. at 5915. Moreover, fifty years after the Pledge was amended to incor- porate an explicitly religious message, forty-three state legis- latures had passed laws either encouraging or outright has attained longevity as a constitutionally valid practice. Cf. Lewis 200 N.E.2d 767, cert. denied 379 U.S. 923 (1964); Sherman, 980 F.2d 437, cert. denied 508 U.S. 950 (1993); Newdow, 292 F.3d 597, rev’d on other grounds sub nom., Elk Grove, 542 U.S. 1 (2004). Such an approach would allow the Court itself, through the mere exercise of its certiorari discretion, to dictate constitutional results. Cf. ANTONIN SCALIA, A MATTER OF INTERPRETATION 45, 47 (1998) (“Panta rei is not a sufficiently informative principle of constitutional interpretation. . . . If the Courts are free to write the Constitution anew, they will, by God, write it the way the majority wants[.]”). NEWDOW v. RIO LINDA USD 4059 requiring daily recitation of the amended version of the Pledge in public schools. Surely the drafters and promoters of the 1954 “under God” amendment, the Congress that so enthusiastically enacted the religious mandate, and the hun- dreds of state legislators who directed the incorporation into the school day of the religious version of the Pledge, did not promote its daily recitation by public school students in order to have the words “under God” become of less and less reli- gious significance each year. Next, no one would suggest that the remainder of the Pledge has lost its patriotic meaning as the years have gone by. It would seem particularly unreasonable, therefore, to sug- gest that the religious phrase in the Pledge would somehow lose its meaning through repetition while the patriotic themes would retain their force and continue to grow even stronger over time. See Sherman, 980 F.2d at 448 (Manion, J., concur- ring); cf. Van Orden, 545 U.S. at 696 (Thomas, J., concurring) (“Repetition does not deprive religious words or symbols of their traditional meaning. Words like ‘God’ are not vulgarities for which the shock value diminishes with each successive utterance.”). Perhaps most disappointed of all if the word “God” were to lose its religious significance would be Rever- end Docherty, the original proponent of the amendment, and President Eisenhower, who said when he signed the bill incor- porating the phrase “under God” in the Pledge that “millions of our school children will daily proclaim . . . the dedication of our Nation and our people to the Almighty” and added that “nothing could be more inspiring than” the “rededication of our youth” that would occur “on each school morning.”104 Thus, another argument for ceremonial deism would appear to be wholly without merit here. Statement by the President Upon Signing Bill To Include the Words “Under God” in the Pledge to the Flag, PUB. PAPERS 563 (June 14, 1954), available at http://tinyurl.com/PubPapersUnderGod, reprinted in 100 Cong. Rec. 8618. 4060 NEWDOW v. RIO LINDA USD The logical flaws inherent in the theory of ceremonial deism as applied to the recitation of the amended Pledge in public schools, as well as the erroneous historical assumptions on which application of that “doctrine” to the issue before us depends, explain why whatever the utility of the doctrine may be in other circumstances, it is of no possible use here. These infirmities may also explain why the theory has never actually been adopted elsewhere. As Thomas Paine so accurately observed, “a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises . . . a for- midable outcry in defence of custom.” THOMAS PAINE, COMMON SENSE 1 (Courier Dover Pub. 1997) (1776). In most cases, ceremonial deism represents mainly the judiciary’s less than courageous response to that outcry. Applying the doc- trine makes it possible to conclude that in some instances state-sponsored religious practices are not unconstitutional simply because they enjoy broad and longstanding support from a religious majority. One observer has written that the doctrine can only invite abuse and, over time, will “yield[ ] an ever expanding sphere of activities courts [will] f[i]nd to be permissible forms of” state-sponsored religious endorsement. Epstein, supra note 14, at 2087. Here, fortunately, we need not speculate about the wisdom or availability of such a pol- icy: As described supra at 4055, the Supreme Court has made it clear that the principle of ceremonial deism may not be applied in the case of religious practices in public schools. C. The De Minimis Theory The doctrine of ceremonial deism that the majority appears at times to embrace bears a close relationship to a final rescue theory supported by some members of this court and others. See, e.g., Newdow v. U.S. Cong., 328 F.3d 466, 490 (9th Cir. 2003) (Fernandez, J., dissenting);105 Rapier v. Harris, 172 The day after Newdow I was decided, a disagreement broke out on the floor of the House of Representatives over Judge Fernandez’s embrace of the de minimis theory in his dissent. See 107 Cong. Rec. H4125-27. NEWDOW v. RIO LINDA USD 4061 F.3d 999, 1006 n.4 (7th Cir. 1999). This theory, which is often referred to as the theory of the “de minimis constitu- tional violation,” would, if applicable, support the conclusion that the state-sponsored, teacher-led daily recitation of the “under God” version of the Pledge of Allegiance in public schools constitutes no more than an insignificant violation of the Constitution causing insignificant injury that can be over- looked or ignored. Like ceremonial deism, the de minimis the- ory operates on an ad hoc basis to protect the religious preferences of the majority when those preferences conflict with the constitutional rights of the minority.106 Of course, the Representatives Robert C. Scott and Sheila Jackson-Lee discussed the dis- sent with approval, but Representative Henry Hyde vehemently disagreed with its approach: “I do not think that it is trivial. I think acknowledging the primacy of almighty God is of transcendent importance, and I guess de minimis is in the minds of the analysts; but I could not disagree more.” Id. Although today’s majority does not embrace the de minimis theory, its decision is animated by the same misplaced concern. The majority seems offended that young “Roe . . . asks us to prohibit the recitation of the Pledge by other students,” the majority of students, who believe in a monotheistic God and have no problem regularly affirming His existence. Maj. op. at 3874 (emphasis in original); see also id. at 3889. In the majori- ty’s eyes, its decision today protects the rights of the religious majority from the interfering objections of children like young Roe who harbor minority views regarding religion. In this respect, my colleagues overlook the fundamental principle that [t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). Indeed, “[i]t is the highest calling of federal judges to invoke the Constitution to repudiate unlawful majoritarian actions and, when necessary, to strike down statutes that would infringe on fundamental rights . . . .” Newdow v. U.S. Cong., 328 F.3d 466, 471 (9th Cir. 2003) (Reinhardt, J., concurring in denial of petition for rehearing en banc). 4062 NEWDOW v. RIO LINDA USD more disenfranchised the religious minority, the more likely it is that such a defense will succeed. But our constitutional protections are of little value if courts refuse to employ them on behalf of members of the most marginalized and detested religious groups, such as atheist children like young Roe. In a 2005 survey conducted by the Pew Research Center, fully fifty percent of Americans said that they had either a “mostly unfavorable” or “very unfavorable” opinion of atheists.107 This is twice the number of people who harbored similar antipathy toward Muslims, the next least appreciated religious minority. Indeed, “atheists are ranked lower than any other minority or religious group when Americans are asked whether they would vote for or approve of their child marrying a member of that group.”108 Any plaintiff who has ever pursued an Establishment Clause challenge can attest to the very real prejudice atheists experience in America. See, e.g., ELLIS, supra note 5, at x. It is no accident that today’s plaintiffs are known only by aliases; in the United States, in the twenty-first century, members of a religious minority suing for their con- stitutional rights still face genuine danger of harassment or physical abuse. See id.; cf. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 294 n.1 (2000) (describing “intimidation” and “harassment” against plaintiffs). Embracing the de minimis theory here would countenance an injury to the disfavored atheist minority, as well as to oth- ers with “different” views, in order to sustain the religious preferences of the God-fearing majority. This illustrates the inevitable result of defining injury in the absence of empathy:109 Pew Research Center, Fewer Say Islam Encourages Violence 13 (2005), available at http://people-press.org/reports/pdf/252.pdf. Goodstein, supra note 45. Empathy, a much misunderstood term, even in the world of the judi- ciary, means “the intellectual identification with or vicarious experiencing of the feelings, thoughts, or attitudes of another.” RANDOM HOUSE DICTIO- NARY OF ENGLISH LANGUAGE 468 (1979). It is a quality that is most desir- able in, even if frequently absent from, today’s federal judges at all levels of the judicial system. NEWDOW v. RIO LINDA USD 4063 the harms I suffer justify redress, but the harms you suffer do not; my belief is worthy of constitutional protection, but your belief is of no consequence. In any event, however tempting it might be to resolve this case under the de minimis theory’s simple and direct approach, once again we are not free to do so. The Supreme Court has held that “the embarrassment and the intrusion of [a] religious exercise cannot be refuted by arguing that . . . [it is] of a de minimis character.” Lee v. Weisman, 505 U.S. 577, 594 (1992). The reasons for this are self-evident. As was made clear in Abington v. Schempp, “the measure of the seri- ousness of a breach of the Establishment Clause has never been thought to be the number of people who complain of it,” 374 U.S. at 264 (Brennan, J., concurring), nor is it any defense to urge that the religious practices here may be rela- tively minor encroachments on the First Amendment. That amendment is a fragile instrument. “The breach of neutrality that is today a trickling stream may all too soon become a rag- ing torrent and, in the words of Madison, ‘it is proper to take alarm at the first experiment on our liberties.’ ” Id. at 225 (majority opinion). For this reason, the “Constitution . . . requires that we keep in mind ‘the myriad, subtle ways in which Establishment Clause values can be eroded.’ ” Santa Fe, 530 U.S. at 314 (quoting Lynch v. Donnelly, 465 U.S. 668, 694 (1984) (O’Connor, J., concurring)). Finally, I note that there are those who would suggest that minor constitutional violations can be countenanced because the judiciary will always stand vigilant in the face of more “significant” threats against our liberty. Indeed, this was the approach that the Supreme Court itself adopted when, at a low point in its Establishment Clause jurisprudence, it announced with “abundant assurance that there is no real threat [to lib- erty] ‘while this Court sits.’ ” Marsh v. Chambers, 463 U.S. 783, 795 (1983) (quoting Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 223) (1928) (Holmes, J., dissent- ing)). But as the history of the Pledge of Allegiance as well 4064 NEWDOW v. RIO LINDA USD as other more significant events in judicial history demon- strate, that is not always the case. Although some might think that judges are capable of making all of their decisions strictly on the basis of objective legal analyses, today’s decision rep- resents but an example of how far they may stray from the governing law. The Marsh statement is at best aspirational. The threat to First Amendment safeguards still exists today. “[I]n the hands of government what might begin as tolerant expression of religious views may end in a policy to indoctri- nate and coerce.” Lee, 505 U.S. at 591-92. “[T]he First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943). We cannot, sadly, always count on today’s courts to protect First Amendment freedoms, at least not those of individuals. Sometimes the rea- sons are difficult to discern. Here, unfortunately, those rea- sons would appear to be fairly obvious. VI. Conclusion I end where I began. Today’s majority opinion will undoubtedly be celebrated by a large number of Americans as a repudiation of activist, liberal, Godless judging. That is its great appeal; it reaches the result favored by a substantial majority of our fellow countrymen and thereby avoids the political outcry that would follow were we to reach the consti- tutionally required result. Nevertheless, by reaching the result the majority does, we have failed in our constitutional duty as a court. Jan Roe and her child turned to the federal judiciary in the hope that we would vindicate their constitutional rights. There was a time when their faith in us might have been well placed. I can only hope that such a time will return someday. As a judge of an intermediate appellate court, I would hold that our decision is controlled by the binding Supreme Court precedents governing this case. We are required to follow those precedents regardless of what we believe the law should be or what we think that the Supreme Court may hold in the NEWDOW v. RIO LINDA USD 4065 future. Were today’s majority to examine the amended Pledge as applied “through the unsentimental eye of our settled doc- trine, it would have to strike it down as a clear violation of the Establishment Clause.” Marsh v. Chambers, 463 U.S. 783, 796 (1983) (Brennan, J., dissenting). Following settled prece- dents, I conclude that the state-directed, teacher-led daily reci- tation in public schools of the amended “under God” version of the Pledge of Allegiance, unlike the recitation of the his- toric secular version, without the two added words, contra- venes the rules and principles set forth in Lemon v. Kurtzman, Santa Fe v. Doe, and Lee v. Weisman. Accordingly, we are, in my view, required to hold that the amendment, as applied, violates the Establishment Clause of the United States Consti- tution. I should add that I firmly believe that the existing Supreme Court cases and doctrine reflect the true purpose and values of the Establishment Clause and of our Constitution as a whole, and that the holding that we should, but do not, reach best ensures the rights and liberties of the schoolchildren of this country. Finally, I firmly believe that any retreat from the existing Supreme Court doctrine and cases would constitute a most unfortunate diminution of the freedom of all our citi- zens. Had my views prevailed here, our decision would not pre- clude daily recitation of the Pledge of Allegiance by public schoolchildren. To the contrary, public schoolchildren would be free to recite the Pledge as it stood for more than sixty years, a patriotic Pledge with which many of us grew up — a patriotic Pledge that is fully consistent with the Establish- ment Clause. All that would be required would be the deletion of the two words added by an amendment designed to pro- mote religion and to indoctrinate schoolchildren with a reli- gious belief. As has long been agreed in this nation, the teaching of religious views is the function of the family and the Church, not the State and the public school system. As a judge of this court, I deeply regret the majority’s deci- sion to ignore the Pledge’s history, the clear intent and pur- 4066 NEWDOW v. RIO LINDA USD pose of Congress in amending the Pledge, the numerous Supreme Court precedents that render the school district’s course of conduct unconstitutional as applied, and the very real constitutional injury suffered by Jan Roe and her child, and others like them throughout this nation. Accordingly, I dissent.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MONSURU OLASUMBO TIJANI,  Petitioner, No. 05-70195 v.  Agency No. A27-431-266 ERIC H. HOLDER JR.,* Attorney General, OPINION Respondent.  On Petition for Review of an Order of the Board of Immigration Appeals Argued November 20, 2007 Submitted February 10, 2008 San Francisco, California Filed March 11, 2010 Before: John T. Noonan, A. Wallace Tashima, and Consuelo M. Callahan, Circuit Judges. Opinion by Judge Noonan; Partial Concurrence and Partial Dissent by Judge Tashima; Partial Concurrence and Partial Dissent by Judge Callahan *Eric H. Holder, Jr., is substituted for his predecessor, Michael B. Mukasey, as Attorney General of the United States, pursuant to Fed. R. App. P. 43(c)(2). 4070 TIJANI v. HOLDER COUNSEL Cecillia D. Wang, San Francisco, California, for the peti- tioner. Ada E. Bosque, Washington, D.C., for the respondent. OPINION NOONAN, Circuit Judge: Monsuru Olasumbo Tijani, a native and citizen of Nigeria, petitions for a review of a decision of the Board of Immigra- tion Appeals (the BIA), affirming a decision by an immigra- tion judge ordering his removal and denying him asylum. Central to the case is the place of credit in our economy. To the unsophisticated and sometimes to the sophisticate, the nature of credit is a mystery. It is not animal, mineral or vege- table. It is not real property. It is not a chattel. It is not money. Yet it is not a vapor. The one who uses it becomes a debtor, TIJANI v. HOLDER 4071 but becomes a debtor empowered to acquire wealth. The one who grants it, the creditor, puts his own wealth at risk. Credit comes into existence through confidence — confi- dence that one human being may rely on the representations of another human being. On this utterly unmechanical, uniquely human understanding, a credit economy is formed and wealth is created. To exploit, pervert and destroy the con- fidence that creates credit is a vicious act. The abuse of the distinctively human capacities to reason and to engage in rational speech, using these capacities to harm another human, may well be considered an act of moral turpitude. That, at least, is the conclusion most people in this country would reach once they knew the facts. Credit is today the most widespread means of acquiring wealth in this country. To suppose that it is not fraud to try to tap into this wealth by lies is to ignore the economic elements of the modern world. Credit card fraud not fraud? No, in the modern United States it is the paradigm of fraud. FACTS Tijani was born in Lagos, Nigeria on October 19, 1965. He entered the United States in 1982 on a student visa. He adjusted his status to lawful permanent resident in 1985. He was a student at California State University at Sacramento from 1982 to 1985 and has held several jobs in information technology and in biomedical laboratories. He is now married to a citizen of the United States. In 1986, the year after he achieved the status of lawful per- manent resident, Tijani was convicted of perjury in violation of Cal. Penal Code § 118 and of grand theft in violation of Cal. Penal Code § 487; he was sentenced to three years proba- tion. The next year, 1987, he was convicted of passing fraudu- lent checks in violation of Cal. Penal Code § 476a(a) and sentenced to one and one third years imprisonment. 4072 TIJANI v. HOLDER As a result of these felony convictions, the Immigration and Naturalization Services (now the Department of Homeland Security (DHS)) placed Tijani in deportation proceedings. He applied for a waiver of inadmissibility, submitting a letter on the letterhead of the Brotherhood of the Cross and Star, with its world headquarters indicated as Calabas, Nigeria, and its local headquarters indicated as Los Angeles. The letter was signed by “Pastor O. J. Omogi” and stated that Tijani had been a practicing member of this Christian church for two years. In 1989, an immigration judge granted the waiver. Two years later, in 1991, Tijani was convicted of violating Cal. Penal Code § 532a(1) by providing false information to obtain credit cards and using the cards to obtain goods; he was sentenced to prison for one and one-third years. One month later, on January 3, 1992, he was again convicted of filing false statements and had his prison sentence doubled. On June 9, 1999, Tijani was convicted of twelve counts under the same section of the criminal law which he had been found in 1991 and 1992 to have violated; the crimes this time had been committed between June 1996 and July 1998. This time he was sentenced to prison for nine years and ordered to pay $27,793.71 in restitution. PROCEEDINGS In 2003, Tijani was charged with being removable as an alien convicted of an aggravated felony and two crimes of moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii) and (iii), respectively. He applied for asylum, withholding of deporta- tion, and other relief. He testified that, brought up a Muslim, he had become a Christian in 1994 and that, on returning to his mother’s village in 1995, to her consternation he revealed his change of religion. She told neighbors, who told the Sharia police, who paid him a visit at her house and reproached him for his apostasy from Islam. He was struck on the head, a blow requiring seventeen stitches to repair and leaving a scar. TIJANI v. HOLDER 4073 He was summoned to explain his apostasy in court, but fled Nigeria three days after the incident. Prior to his removal hearing before the immigration judge in El Centro, California, Tijani filed a pro se motion for change of venue of the removal proceeding to San Francisco. The immigration judge denied his request.1 The immigration judge found the charges against Tijani true, rendering him removable. He found that the 1991 and 1999 convictions were crimes of moral turpitude and that the 1999 conviction was an aggravated felony. The immigration judge further found Tijani’s credit card frauds to be particu- larly serious crimes, hurtful to the credit structure on which the economy of the United States exists. The immigration judge ruled that considering the multiple lies to which his convictions witnessed and also the conflict between his story of his change of religion and the account given in Pastor Omogi’s letter, the immigration judge had “reason not to believe him.” The immigration judge did explicitly refuse to rule that Tijani was not credible, reasoning that he could “not find an inconsistency in [Tijani’s] testimony . . . to say that he [was] not credible.” At the same time, the immigration judge found “his words deserve no weight,” and described him as the Boy Who Cried Wolf. The judge concluded that Tijani had failed to prove eligibility for asylum, withholding of removal, or relief under the Convention Against Torture (“CAT”).2 Tijani argues that the BIA violated his due process rights by (1) deny- ing his motion to transfer venue and (2) using the streamlined procedure to affirm the immigration judge’s decision. Neither claim has merit. This court has held that streamlining does not violate an alien’s due process rights. Falcon Carriche v. Ashcroft, 350 F.3d 845, 848 (9th Cir. 2003). As to the motion to transfer venue, Tijani has not established that the proceed- ings were so “fundamentally unfair” that he was, in effect, “prevented from reasonably representing his case.” See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 9, opened for signature Dec. 10, 1984, 231465 U.N.T.S. 85. 4074 TIJANI v. HOLDER The BIA, using its streamlined procedure, affirmed the immigration judge’s decision without opinion. Tijani petitions for review. JURISDICTION We have jurisdiction to review the questions of law pres- ented by Tijani’s petition. Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 586-87 (9th Cir. 2005), as adopted by Fernandez- Ruiz v. Gonzales, 466 F.3d 1121, 1124 (9th Cir. 2006) (en banc). Among these questions are whether Tijani has been convicted of crimes of moral turpitude and whether he was required to corroborate his own testimony. ANALYSIS On this appeal, we must decide, first, whether the crimes of Tijani, a lawful permanent resident, made him removable. Second, we must decide whether, if removable, he has estab- lished his claim for asylum and other relief. The Crimes. Tijani’s string of crimes consisted in credit card fraud in violation of Cal. Penal Code § 532a(1) — a modern form of swindle particularly tempting because of the ease and the impersonality with which the crime may be car- ried out. Do they constitute removable offenses? The govern- ment argues that the BIA correctly affirmed the IJ’s decision holding that Tijani’s 1991 and 1999 convictions are crimes involving moral turpitude. It also argues that the 1999 convic- tion is an aggravated felony. [1] To determine whether a conviction constitutes a removable offense, this court applies the approach set out in Taylor v. United States, 495 U.S. 575 (1990); Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007). Counterfactual and counterintuitive though it often appears to be, we do not con- sider the particular facts of the convictions. We first ask whether the “full range of conduct” proscribed by Cal. Penal TIJANI v. HOLDER 4075 Code § 532a(1) meets the definition of a crime involving moral turpitude or an aggravated felony. Nicanor-Romero v. Mukasey, 523 F.3d 992, 999 (9th Cir. 2008) (“The issue is not whether the actual conduct constitutes a crime involving moral turpitude, but rather, ‘whether the full range of conduct encompassed by the statute constitutes a crime of moral turpi- tude’ ”). If the crime does prohibit conduct that does not nec- essarily involve moral turpitude, we turn next to the modified categorical approach, under which “We look beyond the lan- guage of the statute to a narrow, specified set of documents that are part of the record of conviction, including the indict- ment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings.” Id. at 1007 (citation omitted). Section 532a(1) provides: Any person who shall knowingly make or cause to be made, either directly or indirectly or through any agency whatsoever, any false statement in writing, with intent that it shall be relied upon, respecting the financial condition, or means or ability to pay, of himself, or any other person, firm or corporation, in whom he is interested, or for whom he is acting, for the purpose of procuring in any form whatsoever, either the delivery of personal property, the payment of cash, the making of a loan or credit, the extension of a credit, the execution of a contract of guaranty or suretyship, the discount of an account receivable, or the making, acceptance, discount, sale or indorse- ment of a bill of exchange, or promissory note, for the benefit of either himself or such person, firm or corporation shall be guilty of a public offense. [2] Tijani has argued that his convictions do not constitute crimes involving moral turpitude. His argument appears fore- closed by the frauds of which he stands convicted. The law is that “to be inherently fraudulent, a crime must involve know- 4076 TIJANI v. HOLDER ingly false representation to gain something of value.” Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1076 (9th Cir. 2007) (en banc). [3] When this standard is applied, any conviction under the California statute involves fraud; that is, the crime is commit- ted by making a false statement with the intent that it be relied upon to obtain “the delivery of personal property, the payment of cash, the making of a loan or credit . . . .” Cal. Penal Code § 532a(1). Fraud is implicit in the nature of a crime under sec- tion 532a(1). The statute of conviction does not explicitly list intent to defraud as an element. But we have held that “[e]ven if intent to defraud is not explicit in the statutory definition, a crime nevertheless may involve moral turpitude if such intent is implicit in the nature of the crime.” Carty v. Ashcroft, 395 F.3d 1081, 1084 (9th Cir. 2005). A crime under § 532a(1) is committed only when a person by a knowing falsehood obtains property, money, or credit. The fraudster intentionally seeks and obtains something of value by means of his misrep- resentation. See Tall v. Muskasey, 517 F.3d 1115, 1119 (9th Cir. 2008). Our dissenting colleague makes this argument as to the ele- ments of the California crime: As the BIA recognized in In re Kinney: “The intent that the false statement be relied upon is not necessarily an intent to do evil or work fraud because . . . one who intends that there be reliance upon his false statement may nevertheless also intend to pay for the goods he is attempting to obtain.” 10 I. & N. Dec. at 549 (citations omitted). The same benevolent interpretation could be extended to a borrower misrepresenting his credit-worthiness to a bank to get a loan: “I’ll get rich and pay it all back, the bank will ben- efit by my chicanery.” No court would accept such a defense. The intent of the fraudster is evil: to get what he has no right TIJANI v. HOLDER 4077 to get. The California Court of Appeal has rejected this same defense in analyzing California’s law of false pretenses, which does explicitly require an intent to defraud: [T]he fraudulent intent contemplated by the statute is the intent by the use of false representations to induce another to part with his property when other- wise he would not have done so . . . therefore, when the property is obtained under such circumstances, neither the promise to repay, the intention at the time to make the aggrieved party whole, nor repayment, will relieve the false and fraudulent act in obtaining the property of its criminality. People v. Hand, 16 P.2d 156, 158 (Cal. Ct. App. 1932), citing People v. Wieger, 100 Cal. 352 (1893) and People v. Bow- man, 142 P. 495 (Cal. Ct. App. 1914). Even if we were to accept the dissent’s argument, it would be inapplicable in Tijani’s case under the modified categorical approach. The mistaken argument is that Tijani’s conviction did not necessarily require an intent to defraud. The informa- tion filed in Tijani’s 1999 case shows that he was charged specifically with making false statements to procure “the extension of credit,” not goods or cash. Two assumptions are concealed in dissent’s argument where it is applied to a credit- seeker: (1) that the lying credit-seeker has not obtained some- thing of value when he gets credit and (2) that the lying credit-seeker harbors no evil intent to deprive the creditor of anything. Each assumption is fallacious. Creditors, like investors, transact in risk. An investor who, as a result of a person’s misrepresentations, receives a riskier asset than he bargained for, has suffered measurable and fore- seeable economic harm, and is the victim of fraud. Similarly, the creditor who is induced through misrepresentations to give credit suffers measurable and foreseeable harm the moment the creditor enters into the transaction with the fraudster. 4078 TIJANI v. HOLDER The harm is inflicted regardless of whether the customer intends to make timely payments or whether or not he eventu- ally makes them. The creditor’s contract with the customer has more than one parameter. Creditors extend a particular line of credit, including a specific credit limit, a specific inter- est rate, and particular provisions for late fees and penalties, based on the calculated credit-worthiness of a specific cus- tomer. A credit-seeker who misrepresents his credit- worthiness does so precisely with the intent of receiving a higher credit limit, a lower interest rate, lower monthly pay- ments, and more favorable late-fee and penalty provisions than he otherwise would — at the expense of the creditor. The creditor, in this situation, receives a riskier and less valuable investment than that bargained for, and therefore suffers mea- surable and foreseeable economic harm. He has been defrauded. The current economic crisis highlights the full impact of the misrepresentation of risk in the credit market. The impact is on creditors, consumers, and on the economy. When credi- tors take on too many risky contracts, whether due to their own carelessness or the misrepresentations of their customers, they are likely to suffer enormous economic harm, and the resulting effects on society can be devastating. Any assess- ment of the pecuniary harm suffered by the creditor of a fraudster will be incomplete if it is divorced from these eco- nomic realities. [4] In a word, to induce a creditor into a risky contract through misrepresentation, on terms to which the creditor would not have agreed if he had not been duped, is to commit fraud on the creditor. Precisely this type of conduct is prohib- ited under § 532a(1). Tijani’s conduct was “inherently fraudu- lent.” Further fraud is committed when the fraudster uses his fraudulently-obtained credit card to obtain goods. The seller of the goods is now the victim. The seller parts with property TIJANI v. HOLDER 4079 in return for a representation of credit to which the fraudster has no right. The harm is tangible and immediate. [5] The argument might be advanced that fraudulently using the card to obtain goods is not fraud on the merchant because he will be paid by the issuer of the card. But at the moment the merchant delivers the goods, he has parted with property on the basis of a lie: that is the fraud. That the mer- chant will be reimbursed is no more relevant than is insurance to the victim of a theft; the reimbursement does not mean that the victim was not deprived of his property. What is secured by the fraudster is the property he purchases. To argue that it is not fraud to obtain property by falsehood if one harbors the intent to pay for it at some future time is to suppose that any prosecution for fraud could be defeated by the swindler say- ing “I intended to pay all along and will now do so.” We held in a federal case involving fraud: “While an honest, good- faith belief in the truth of the misrepresentations may negate intent to defraud, a good-faith belief that the victim will be repaid and will sustain no loss is no defense at all.” United States v. Benny, 786 F.2d 1410, 1417 (9th Cir. 1986). When argument suggests that an intent to repay is a defense to a charge of fraud, it confuses a practical possibility with a legal defense. Of course if the fraudster does in fact pay his bills, he is probably not going to be prosecuted. Who would turn him in? His upright intent to repay does not absolve him of the lie by which he obtained what was not his. It is con- tended that the creditor could benefit from the fraud when the honest fraudster paid up. But no sane giver of credit would want to be lied to and be persuaded to make credit available or to deliver his goods on the basis of the lie. Any benefit that came from the fraudster turning honest would be a matter of chance. It is argued that our reading of § 532a(1) makes another section of the same statute, 532(a), redundant. This section criminalizes the act of one who “knowingly or designedly, by 4080 TIJANI v. HOLDER any false or fraudulent representation or pretense, defrauds any other person of money, labor, or property, whether real or personal . . . and thereby fraudulently gets possession of money or property, or obtains the labor or service of another . . . .” Cal. Penal Code § 532(a). This statute does not specify fraud in obtaining credit. Therefore, § 532(a) is not otiose. It criminalizes only fraud to obtain labor, money or property. Section 532a(1) aims at fraud in obtaining credit. Tijani cites People v. Hagedorn, 127 Cal. App. 4th 734 (Cal. Ct. App. 2005), applying Cal. Penal Code § 530.5(a) which criminalizes the use of another person’s identity “for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical infor- mation . . . .” For conviction under the statute, the court held an intent to defraud was not necessary. Id. at 742. But this case merely shows that identity theft is a crime that may not involve fraud. The statute criminalizes identity theft for “any unlawful purpose.” Barry v. Am. Express Publ’g, Inc., 54 Cal. Rptr. 3d 91, 94 (Ct. App. 2007) is worth comment. The question in this civil suit was whether a credit card was covered by the Consumer Legal Remedies Act (CLRA), Cal. Civil Code § 1750 et seq. The court held that the card fell neither within the definition of goods nor services, the two types of property protected by the CLRA. The court further noted that the legislature had dropped “money” and “credit” from what the CLRA pro- tected. Barry does not show that credit is valueless in Califor- nia; rather, the case establishes that credit is a distinct kind of valuable. Tijani calls our attention to Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962), which distinguished a fraudulent statement from a false one. The distinction is that a false statement could be made without the intent to induce reliance. The dis- tinction does not help Tijani. Section 532a(1) prohibits only false statements made in the expectation that credit or prop- TIJANI v. HOLDER 4081 erty will be given in reliance on them. Tijani’s false state- ments were made for that purpose. Marmolejo-Campos. Finally, we disagree with Judge Tashima’s assertion that our recent decision in Marmolejo- Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc) requires that we direct the BIA to adhere to its decision in In re Kinney, 10 I & N Dec. 548 (1964). Our decision in Marmolejo-Campos is inapposite to this petition and the con- trary suggestion opens the door to considerable mischief. Marmolejo-Campos concerned the deference this court should give a BIA opinion when reviewing a challenge to a BIA decision. We clarified that, pursuant to Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), “where . . . the board determines that certain conduct is morally turpi- tudinous in a precedential decision, we apply Chevron defer- ence.” 558 F.3d at 911. We concluded that “once the elements of the petitioner’s offense are established, our review of the BIA’s determination that such offense constitutes a ‘crime of moral turpitude’ is governed by the same traditional principles of administrative deference we apply to the Board’s interpre- tation of other ambiguous terms in the INA.” Id. The first step is that “the elements of the petitioner’s offense be established.” To establish the elements is to con- strue the statute of conviction. As we said: [1] The first inquiry requires the BIA to construe a state criminal statute. As the BIA has no statutory expertise in such state law matters, we review de novo its determination of the elements of the offense for which the petitioner was convicted. [2] The sec- ond inquiry requires the BIA to construe the INA by defining a particular removable offense and applying that definition to a petitioner’s state conviction. If, in resolving the second issue, the BIA has interpreted an ambiguous INA statutory term, and rendered its interpretation in a precedential decision intended to 4082 TIJANI v. HOLDER carry the force of law, we defer under Chevron U.S.A [ ], to the BIA’s definition so long as it is rea- sonable. See Fregozo v. Holder, 576 F.3d 1030, 1034-35 (9th Cir. 2009) (citing Marmolejo-Campos) (citations and internal quo- tations omitted). As the Marmolejo-Campos court explained: It is well established that we give no deference to the BIA’s answer to the first question. The BIA has no special expertise by virtue of its statutory respon- sibilities in construing state or federal criminal stat- utes and, thus, has no special administrative competence to interpret the petitioner’s statute of conviction. As a consequence, we review the BIA’s finding regarding the specific act for which the peti- tioner was convicted de novo. Marmolejo-Campos v. Holder, 558 F.3d 903, 907 (9th Cir. 2009) Deference is not due the agency in construing state law. We determine that an element of the California statute is fraud. Once that is determined, the conclusion is clear: “Crimes involving fraud are considered to be crimes involving moral turpitude.” See Matter of Correa-Garcia, 20 I. & N. Dec. 451, 453 (BIA 1992). The erroneous exposition of the elements of the crime in Kinney is not binding upon us. Kinney contains the proposi- tion that credit card fraud is not fraud because the fraudster might harbor the intent to repay the credit he fraudulently requires. That proposition, as our preceding analysis has dem- onstrated, is contrary to the law. Moral turpitude attaches to the fraud. “Without exception, federal and state courts have held that a crime in which fraud is an ingredient involves TIJANI v. HOLDER 4083 moral turpitude.” Jordan v. De George, 341 U.S. 223, 227 (1951). The dissent [page 4087] observes that the majority’s analy- sis is “contained in three sentences” and that the analysis is not “a reasoned analysis; it is patently ipse dixit.” These com- ments appear to be made without acknowledgment of the analysis in the majority opinion pages 4073-80 showing why Tijani was convicted of crimes of fraud. The dissent does not note that the first step specified in Marmolejo-Compos is for us to establish the elements of the offense. Our interpretation of Marmolejo is no canard, i.e. “a false or fabricated report.” Our interpretation simply repeats what the en banc court said. Intent to repay is not recognized as a defense by any Cali- fornia case we have been able to find or by California Model Jury Instructions for crimes charged under Penal Code § 532a. They read: To prove that the defendant is guilty of this crime, the People must prove that: . . . The defendant (made the statement/[or] caused the statement to be made) to obtain the (delivery of personal property[,]/[or] payment of cash[,]/[or] making of a loan[,]/[or] extension of credit[,]/[or] execution of a contract of guaranty or suretyship[,]/[or] discount of an account receivable[,]/[or] making, acceptance, discount, sale, or endorsement of a bill of exchange or promissory note) for ((his/her) benefit/the benefit of the (other person/corporation)). Judicial Council of Cal. Crim. Jury Instructions No. 2020 (emphasis added). Nowhere is there an instruction stating that an intent to repay is a defense. [6] Relief. Tijani has a fallback: he seeks asylum, with- holding of deportation, or CAT relief. There are reasons, set 4084 TIJANI v. HOLDER out strongly by Judge Callahan, for doubting Tijani’s credibil- ity in making these claims. Compelled by precedent, we none- theless accept his story. The immigration judge found that “the weight of his words is not sufficient to carry his burden of proving eligibility for asylum.” But the immigration judge explicitly refused to find Tijani not credible. Precedent holds that an adverse credibility finding does not require the recita- tion of a particular formula, yet the finding must be “explicit.” Mansour v. Aschcroft, 390 F.3d 667, 671-72 (9th Cir. 2004). Absent such explicit finding, an immigration judge cannot require corroboration evidence. Kataria v. INS, 232 F.3d 1107, 1113 (9th Cir. 2000). The Real ID Act of 2005 has remedied part of the problem created by our precedent. It permits an immigration judge to ask for corroboration of otherwise credible testimony. 8 U.S.C. § 1158(b)(1)(B)(ii). The proceedings in this case began before the effective date of the new law and are there- fore not governed by it. Sandoval-Lua v. Gonzalez, 499 F.3d 1121, 1132, n.10 (9th Cir. 2007). [7] Accordingly, we must remand to the agency to address the questions of whether Tijani would be in danger of perse- cution on account of his religion or would be entitled to other relief. Each party shall bear its own costs. AFFIRMED in part, REVERSED in part, and REMANDED. TIJANI v. HOLDER 4085 TASHIMA, Circuit Judge, concurring in part and dissenting in part: Because the majority employs an unauthorized non- categorical mode of analysis in concluding that the petitioner was convicted of a crime involving moral turpitude (“CIMT”), I respectfully dissent from the majority opinion, except for the section entitled Relief, commencing at Maj. op. 4083. In open defiance of our recent en banc holding in Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en banc), that the determination of whether a crime is a CIMT is committed to the Board of Immigration Appeals (“BIA”), the majority refuses to grant the BIA’s published, precedential decision that the crime involved here is not a CIMT the deference to which it is entitled and, instead, makes its own free-wheeling determination that the crime involved is a CIMT. It not only ignores the BIA’s precedential deci- sion, but fails to adhere to the categorical-approach analysis of Taylor v. United States, 495 U.S. 575 (1990). It ignores the accepted elements of the offense, concocts its own version of what offenses the crime categorically includes, and pays no attention to the state courts’ interpretation of the elements that constitute the crime. Granting the BIA’s decision the deference that it is owed, and requiring the BIA in a one-member, “streamlined” dispo- sition to follow its own binding precedent, I would hold that petitioner Monsuru Olasumbo Tijani is not removable and grant the petition for review. The pivotal issue in this case is whether a violation of Cal. Penal Code § 532a(1) is a CIMT. We recently held, en banc, that the BIA’s precedential decision determining that a crime is or is not a CIMT is entitled to Chevron1 deference. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). 4086 TIJANI v. HOLDER Marmolejo-Campos, 558 F.3d at 910-11. We there held that the BIA’s precedential determination of whether an offense meets the INA’s definition of moral turpitude “is precisely the type of agency action the Supreme Court instructs is entitled to Chevron deference.” Id. at 910 (citing INS v. Aguirre- Aguirre, 526 U.S. 415, 425 (1999)). The crime at issue here, entitled “False financial state- ments,” provides in relevant part: Any person who shall knowingly make or cause to be made, either directly or indirectly or through any agency whatsoever, any false statement in writing, with intent that it shall be relied upon, respecting the financial condition, or means or ability to pay, of himself . . . for the purpose of procuring in any form whatsoever, either the delivery of personal property, the payment of cash, the making of a loan or credit, the extension of a credit, the execution of a contract of guaranty or suretyship, the discount of an account receivable, or the making, acceptance, discount, sale or indorsement of a bill of exchange, or promissory note, for the benefit of [ ] himself . . . shall be guilty of a public offense. Cal. Penal Code § 532a(1).2 In In re Kinney, 10 I. & N. Dec. 548 (BIA 1964), a published, precedential opinion, in constru- ing a Connecticut statute that is identical to § 532a(1),3 the The majority mislabels this offense as “credit card fraud,” which it is not. The California Penal Code entitles the section “False financial state- ments.” Thus, by mislabeling the offense, the majority prejudges the issue of whether it is a CIMT, because all fraud offenses are CIMTs. See Jordan v. DeGeorge, 341 U.S. 223, 232 (1951) (“The phrase ‘crime involving moral turpitude’ has without exception been construed to embrace fraudu- lent conduct.”). But, as I explain below, fraud or a fraudulent intent is not an element of this offense. Although the majority asserts that In re Kinney contains an “erroneous exposition of the elements of the crime,” Maj. op. at 4082, it does not con- TIJANI v. HOLDER 4087 BIA held that procuring credit by way of a false statement is not morally turpitudinous. That should be the end of our inquiry. But in its perplexing interpretation of Chevron deference, the majority collapses the CIMT determination into the Taylor analysis of the elements of the offense. The majority’s entire “analysis” is contained in three sentences: Deference is not due the agency in construing state law. We determine that an element of the Cali- fornia statute is fraud. Once that is determined the conclusion is clear: “Crimes involving fraud are con- sidered to be crimes involving moral turpitude.” See Matter of Correa-Garcia, 20 I. & N. Dec. 451, 453 (BIA 1992). ¶ The erroneous exposition of the ele- ments of the crime in Kinney is not binding upon us. Maj. op. at 4082. But this interpretation of the statute is not a reasoned analysis; it is patently ipse dixit. Moreover, it is the majority’s “exposition of the elements of the crime” that is erroneous. It is also inconsistent with a Taylor categorical inquiry because fraudulent intent is not an element of the crime. Under California’s standard jury instructions, the only test that the elements of the Connecticut statute at issue in In re Kinney are identical to the elements of Cal. Penal Code § 532a(1). The statute at issue in In re Kinney provided: Any person who knowingly makes or causes to be made, either directly or indirectly or through any agency, any false statement in writing, with intent that it shall be relied upon, concerning the financial condition or means or ability to pay of himself . . . for the purpose of procuring . . . the delivery of personal property, the payment of cash, the making of a loan or credit, the extension of credit . . . shall be fined two thousand dollars or imprisoned not more than five years or both. In re Kinney, 10 I. & N. Dec. at 548-49 (quoting Conn. Gen. Stat. § 8698 (1949 Revision)). A comparison of the two statutes quickly reveals that they are, for all relevant purposes, identical. 4088 TIJANI v. HOLDER intent required for a conviction under § 532a(1) is that the defendant “intended that the statement be relied on.” CAL- CRIM 2020, 2 Judicial Council of Cal., Criminal Jury Instruc- tions (2009).4 When the crime at issue requires an intent to defraud, as in forgery, the Cal. Judicial Council Criminal Jury Instructions clearly require a fraud instruction, i.e., that “[s]omeone intends to defraud if he or she intends to deceive another person either to cause a loss of something of value, or cause damage to, a legal, financial, or property right.” CALCRIM 1901. Thus, the majority’s conclusory statement that “[w]e determine that an element of the California statute is fraud,” is clearly contrary to California’s construction of its own law and is unsupported by any California case or stan- dard jury instruction. It does not conform to Taylor’s categori- cal approach. The majority simply refuses to accept the elements of the offense as defined by California law. As the BIA recognized in In re Kinney: “The intent that the false statement be relied upon is not necessarily an intent to do evil or work fraud because . . . one who intends that there be reliance upon his false statement may nevertheless also intend to pay for the goods he is attempting to obtain.” 10 I. & N. Dec. at 549 (citations omitted). The majority labels this as a “benevolent interpretation” and asserts that “[n]o court would accept such a defense.” Maj. op. at 4076. But it is exactly the “defense” that is accepted by the California courts in California’s standard jury instructions; moreover, it is also exactly how the BIA, pursuant to its discretion recognized by Marmolejo-Campos, interprets the statute. Rather than making the categorical inquiry mandated by Taylor, the majority constructs an elaborate apologia of Wall Street and the banking industry and engages in speculation on Note that, while the majority also relies on and quotes this same stan- dard instruction, CALCRIM 2020, see Maj. op. at 4083, it carefully avoids mention of the mens rea element of the crime quoted above, which is not an intent to defraud. TIJANI v. HOLDER 4089 the causes of the “current economic crisis.” Maj. op. at 4078-79. These ruminations, however, have nothing to do with the question at hand and do not move us forward in the task with which we are charged: To examine the statute and to determine whether that statute, as construed by the Califor- nia courts, is categorically a CIMT.5 The majority’s subjective, non-categorical approach to interpreting the statute begins with its characterization of the crime as “a modern form of swindle,” Maj. op. at 4074, implying that the statute was recently enacted to combat credit card fraud “in the modern United States,” Maj. op. at 4071, ignoring that the statute was enacted in 1913. See 1913 Cal. Stat. c. 251, p. 437, § 1. It then concludes by stating that “[t]he erroneous exposition of the elements of the crime in Kinney is not binding upon us.” Maj. op. at 4082. But the majority simply misreads In re Kinney. In re Kinney accepts the crime as defined by state law. What it concludes is that the intent required by the statute does not amount to fraud. After agreeing with government counsel that the statute, like the California statute, “requires the false statement to be made with intent that it be relied upon,” the BIA goes on to observe: The intent to which moral turpitude adheres, is the intent to do evil or work fraud—this intent is absent in section 8698. The intent that the false statement be relied upon is not necessarily an intent to do evil or work fraud because as the special inquiry officer has pointed out, one who intends that there be reliance upon his false statement may nevertheless also The majority complains that my characterization of its “determination” that “an element of the California statute is fraud” ”is patently ipse dixit” does not “acknowledge[ ] the analysis in the majority opinion pages 4073-80 showing why Tijani was convicted of crimes of fraud.” Maj. op. at 4083. Obviously, however, those subjective ruminations, wholly divorced from the elements of § 532a(1) and unsupported by any citation to directly applicable California authority, are not an objective categorical analysis of the elements of the offense mandated by Taylor. 4090 TIJANI v. HOLDER intend to pay for the goods he is attempting to obtain. The fact that a person convicted under sec- tion 8698, intended to commit fraud, does not make a conviction under the section one involving moral turpitude. It is the moral obliquity of the crime and not of the individual that is the test under the law. In re Kinney, 10 I. & N. Dec. at 549. The majority also insists on labeling a violation of § 532a(1) as “credit card fraud,” e.g., Maj. op. at 4071, 4073, 4074, which is not an accurate categorical description of the elements of this 97-year-old statute, which was enacted dec- ades before the credit card was invented. Whatever else the majority’s fixation on “credit card fraud” as “a modern form of swindle” may be, it decidedly is not the categorical exami- nation of § 532a(1) mandated by Taylor.6 “The essence of moral turpitude is an evil or malicious intent.” In re Phong Nguyen Tran, 21 I. & N. Dec. 291, 293 (BIA 1996). Fraud is a crime of moral turpitude because evil intent is inherent in an intent to defraud. Goldeshtein v. INS, 8 F.3d 645, 647 (9th Cir. 1993); compare Hirsch v. INS, 308 F.2d 562, 567 (9th Cir. 1962) (“A crime that does not neces- sarily involve evil intent, such as intent to defraud, is not nec- essarily a crime involving moral turpitude.”). The evil intent inherent in an intent to defraud is simply missing where intent to deprive another of property is not an element of the offense. Thus, the crime of procuring credit by the use of a false statement is not categorically fraudulent, as the BIA rec- ognized in In re Kinney, because an individual need not have The majority also makes a half-hearted attempt to invoke the modified categorical approach, Maj. op. at 4077, but this attempt is as deficient as its categorical-approach analysis in that it also completely ignores the mens rea element of the offense. Moreover, because intent to defraud is a “missing element,” it cannot be supplied by turning to the modified cate- gorical approach. See Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007) (en banc). TIJANI v. HOLDER 4091 an evil intent to defraud in making a false statement in viola- tion of the statute, i.e., intent to defraud is not an element of the offense. Additionally, People v. Hagedorn, 25 Cal. Rptr. 3d 879 (Ct. App. 2005), evinces the California courts’ reluctance to read an intent to defraud into a statute that does not include it on its face. The statute there in question, an identity theft statute, criminalizes the use of personal identifying informa- tion belonging to another “for any unlawful purpose, includ- ing to obtain, or attempt to obtain, credit, goods, services, real property, or medical information.” Cal. Penal Code § 530.5(a). The court held that the statute “clearly and unam- biguously does not require an intent to defraud.” Hagedorn, 25 Cal. Rptr. 3d at 885. Hagedorn clearly illustrates that under the California courts’ mode of analysis, a fraud require- ment will not be implied into a statute that does not contain a fraud element on its face.7 Thus, reading § 532a(1) as not categorically including an intent to defraud is consistent with California law,8 as well as Moreover, the California Legislature has been explicit that when it intends fraud to be an element of an offense it includes it in the statute. See, e.g., Cal. Penal Code § 470(d) (forgery includes “with intent to defraud” as an element); Cal. Penal Code § 476a(a) (check kiting) (same); Cal. Penal Code § 548(a) (insurance fraud) (same). As the court observed in Hagedorn, “Obviously, if the Legislature meant for [the statute in ques- tion] to require an intent to defraud, it knew how to so provide.” 25 Cal. Rptr. 3d at 885. People v. Hand, 16 P.2d 156 (Cal. Ct. App. 1932), cited by the majority, exemplifies the California Legislature’s approach. The statute there involved, Cal. Penal Code § 484, unlike § 532a(1), as the majority concedes, “does expressly require an intent to defraud.” Maj. op. at 4077. Although the majority purports to address why Tijani cited Hagedorn, noting that “the court held that intent to defraud was not necessary” for a conviction under Cal. Penal Code § 530.5(a), Maj. op. at 4080 (citing Hagedorn, 25 Cal. Rptr. 3d at 885), it does not respond to my reason for citing the case — that Hagedorn’s mode of analysis demonstrates that California courts do not read an intent to defraud into a statute that does not include such a requirement on its face. 4092 TIJANI v. HOLDER with the BIA’s reasonable interpretation to which we must defer. The majority’s refusal to grant Chevron deference to In re Kinney and accept it as binding flies in the face of our recent en banc decision in Marmolejo-Campos. Under Marmolejo-Campos, we have no authority to ignore In re Kinney, as the majority purports to do. The majority characterizes Marmolejo-Campos as “inappo- site to this petition,” Maj. op. at 4081, but it reaches that con- clusion, as explained earlier, only by relying on its offhand, single-sentence “determination” that “an element of the Cali- fornia statute is fraud.” Maj. op. at 4082. Under our case law, like any other court or agency, the BIA, too, must follow the law. The BIA’s own regulations provide: Except as Board decisions may be modified or overruled by the Board or the Attorney General, decisions of the Board, and decisions of the Attorney General, shall be binding on all officers and employ- ees of the Department of Homeland Security or immigration judges in the administration of the immigration laws of the United States. 8 C.F.R. § 1003.1(g). As we explained in Hernandez v. Ashcroft, 345 F.3d 824, 846 (9th Cir. 2003), the BIA cannot simply ignore its own long-established precedent. We emphasized that “the regula- tions themselves limit the BIA’s discretion to operating within the law.” Id. (discussing § 1003.1). Thus, we held, “[a] non- precedential decision by the BIA in defiance of its own prece- dential case law simply cannot be classified as discretionary.” Id. In short, the “BIA has no discretion to make a decision that is contrary to law.” Id. TIJANI v. HOLDER 4093 The decision at issue here was an IJ’s decision which was adopted by one member of the BIA. As the majority con- cedes, Maj. op. at 4074, this was a “streamlined” decision, i.e., a decision by one member in which the BIA agrees with the result but does not endorse the reasoning. See 8 C.F.R. § 1003.1(e)(4); Falcon-Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003). Thus, the majority’s rejection of the con- trolling force of Marmolejo-Campos and, through it, of In re Kinney, is without foundation.9 Tijani was not convicted of a CIMT. Contrary to the major- ity’s ipse dixit, intent to defraud is not an explicit or implicit requirement of § 532a(1). Moreover, the BIA has reasonably determined in a precedential decision that this crime is not morally turpitudinous and, under Marmolejo-Campos, we owe deference to the BIA’s determination. Because Tijani has not committed a removable offense, I would hold that he is not removable and grant the petition. ***** Alternatively, I concur in that portion of the majority opin- Judge Callahan, in her concurring and dissenting opinion, offers a fur- ther reason for distinguishing In re Kinney and Marmolejo-Campos. She states that “Marmolejo-Campos, like all other cases following Chevron, recognizes that an agency may develop its positions through a ‘process of case-by-case adjudication.’ 558 F.3d at 908. This process inherently allows for differences over a period of forty-five years. The agency decision-making process envisioned by Congress allows for change over time, and nothing in Chevron or Marmolejo-Campos supports this court insisting that the BIA adhere to a forty-five year old precedent.” Callahan concur. and diss. op. at 4095 n.2. The problem with this assertion, although it may be true as a general proposition, is that neither Judge Cal- lahan nor the majority cites or identifies any precedential case of the BIA (or any circuit) in the 45 years since In re Kinney was decided that ques- tions Kinney. And, of course, the one-member, streamlined adoption of the IJ’s decision in this case is not entitled to Chevron deference. See Miranda-Alvarado v. Gonzales, 449 F.3d 915, 924 (9th Cir. 2006). 4094 TIJANI v. HOLDER ion holding that the IJ erred in requiring corroborating evi- dence in the absence of an explicit adverse credibility finding. Maj. op. at 4083-84. I would add only that on remand, under the cases cited in the majority opinion, when evaluating Tijani’s claims for relief from removal, the IJ must credit Tijani’s testimony as true. See Mansour v. Ashcroft, 390 F.3d 667, 672 (9th Cir. 2004) (“In the absence of an explicit adverse credibility finding, we must assume that [Petitioner’s] factual contentions are true.”) (quoting Kataria v. INS, 232 F.3d 1107, 1114 (9th Cir. 2000))). CALLAHAN, Circuit Judge, concurring and dissenting: Nonsuro Olasumbo Tijani, a native and citizen of Nigeria, has been convicted on four separate occasions for crimes of dishonesty and financial fraud: in 1986 for perjury, in 1987 for passing fraudulent checks, in 1991 for providing false information to obtain credit cards in violation of California Penal Code § 532, and in 1999 on twelve counts of again vio- lating § 532(a)(1) by providing false information to obtain credit cards and using the cards to obtain goods. The govern- ment, most reasonably, seeks to remove Tijani to Nigeria. I would affirm the decision by the Board of Immigration Appeals (“BIA”) to deny Tijani relief. I agree with Judge Noonan that Tijani was convicted of a crime involving moral turpitude.1 I also agree, albeit for slightly different reasons than expressed by Judge Noonan, that our opinion in Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc) does not require that we direct the BIA to adhere to its decision in In re Kinney, 10 I & N Dec. 548 (1964).2 I also agree that neither of Tijani’s due process claims have any merit. Even if In re Kinney were not distinguishable as set forth in Judge Noonan’s opinion, there are two features of Marmolejo-Campos that ren- TIJANI v. HOLDER 4095 However, I do not agree that because the Immigration Judge (“IJ”) may not have explicitly stated that Tijani was not credible, Tijani must be presumed to be credible, or that the IJ could not require that Tijani corroborate his unsupported testimony. At the very least, my colleagues needlessly pro- long Tijani’s removal proceedings. The greater harm, how- ever, lies in their reliance on technicalities to overcome the reality of the situation and to defeat the purpose and letter of our precedents. Because Judge Noonan and I agree that Tijani is remov- able, Tijani would only be entitled to relief if he made the req- uisite showings for asylum, withholding of removal, or protection against torture. However, Tijani’s eligibility for these forms of relief depends on his credibility. I read the record to show that the IJ held that Tijani was not credible and to contain substantial evidence supporting that determination. Moreover, the IJ properly held that Tijani had not carried his burden to show eligibility for asylum, withholding of removal, or protection against torture because he failed to proffer any evidence to support his incredible testimony. A. The Immigration Judge’s Opinion The best evidence that the IJ found that Tijani was not credible is the IJ’s decision. The IJ wrote: The respondent was admitted into the United States in 1985. The court finds the situation with the der it inapposite to the case at bar. First, the issue is what deference this court should give to an agency decision, not what deference an agency is required to give to its own precedent. See United States v. Mead, 533 U.S. 218, 229 (2001). Second, Marmolejo-Campos, like all the other cases fol- lowing Chevron, recognizes that an agency may develop its positions through a “process of case-by-case adjudication.” 558 F.3d at 908. This process inherently allows for differences over a period of forty-five years. The agency decision-making process envisioned by Congress allows for change over time, and nothing in Chevron or Marmolejo-Campos supports this court insisting that the BIA adhere to a forty-five year old precedent. 4096 TIJANI v. HOLDER respondent analogous to that of the boy who cried wolf. In 1986 the respondent was convicted of per- jury. Perjury is a crime under Section 118 of the Cal- ifornia Penal Code, which is essentially a crime for lying. In 1986 when the respondent in essence cried wolf a Judge in a court found that he did in fact lie and he was convicted and sentence[d] to 36 months probation. At the same time the respondent indicated his willingness to violate law and his lack of charac- ter by also being convicted of grand theft. As men- tioned above, it is not clear whether the respondent has two perjury convictions or one perjury convic- tion, two grand theft convictions or one. It is respon- dent’s burden of proof. In 1987 the respondent was convicted of insuffi- cient funds under Section 476A. This is the second time the respondent cried wolf. Again, a Judge was called upon to determine whether the respondent’s statements were true or not. The respondent wrote a check representing that he had funds in an account necessary to cover the expenses. He knowingly did not have the funds and therefore he was sentenced to 16 months in prison. This is the second time a Judge has found the respondent has not told the truth. In 1989 the respondent was in removal proceed- ings by the foreign Immigration Judge. The respon- dent submitted or had submitted on his behalf by his legal representative, who he was friendly enough with to attend church together, a letter to the Judge. The letter to the Judge is from a pastor. The letter represents that the respondent is a Christian and that he provided numerous dedicated services. The letter represents that respondent attended the church for two years. The letter provided the respondent had become a member of that church. The respondent now testifies that this letter that was sent to the Judge TIJANI v. HOLDER 4097 on his behalf is a lie. The respondent represents how that letter was written and he does not recall having seen the letter. In 1991 the respondent picked up a conviction for filing financial statements. In this case the respon- dent lied, used a fictitious name, fictitious social security number, fictitious business name and busi- ness address and falsely represented himself to be another person. In essence the respondent lied about his own identity. The respondent did so in such a manner that it was relied upon by Sears to extend benefits to him for which he was not entitled. This is the third time the respondent cried wolf. Again, a Judge was called upon and found that the respondent had in fact lied and the cry of wolf was not true. The Judge, as a result, sentenced the respondent to two years, 4 months in prison. 16 months for the lie and 1 year for the prior lies. Exhibit 3 reflects the respon- dent has another conviction, on January 23, 1992 in Santa Barbara, California for false financial state- ments. This was found to be the basis to sustain a one year prison enhancement. This is another instance, and in fact the fourth in the United States, where the respondent cried wolf and a Judge was called upon and determined that the respondent had lied again and this time the respondent was given appropriate sanctions. The respondent is now in front of me on 12 counts of again lying. The respondent was convicted in 1999 on 12 different counts of filing false financial statements. These lies occurred between 1996 and 1998. This is another 12 instances where the respon- dent cries wolf. And each time the Court and a Judge is required to come in and in each of these 12 instances that were alleged, the Judge found that the 4098 TIJANI v. HOLDER respondent had lied and this time imposed 9 years in prison. The respondent in front of me has testified in 1994 he was in college and that he decided to convert to Christianity. The respondent acknowledges that the Christian faith has as one of its [tenets, thou] shall not steal. The respondent based upon the record has committed numerous offenses of this section. The Court finds that this, at a minimum draws into ques- tion whether the respondent holds this faith. The Court also find[s] the fact that the respondent previ- ously has been in front of an immigration judge and someone on behalf of the respondent has submitted a very detailed letter written directly to the Judge saying the respondent had been a Christian and part of the Christian sect of Brotherhood of the Cross and Star [in] 1999 [sic]. Accordingly take notice, Judge Peters granted the respondent relief on May 12, 1989. The case before Judge Peters began in 1987. The respondent, however, distances himself from this letter saying he does not recall it and that it is not true. If it is not respondent in this case who is not telling the truth, someone is submitting lies to the Judge on his behalf. Now the respondent is coming before this Court. The respondent is requesting asylum in the United States. Although the respondent or someone in his behalf testified that he became a Christian in 1987 and submitted details regarding his practice and church attendance as well as his character during the two year period of [1987 to 1989] when he was allegedly a member of this Christian sect of Brother- hood of the Cross and Star. Respondent has testified to the contrary today that he did not become a Chris- tian until 1994 when he was in college. TIJANI v. HOLDER 4099 The respondent is claiming that he would be per- secuted and tortured upon return to Nigeria because of the fact that he [has] changed his religion. This time the respondent is not crying wolf. Instead on this occasion the respondent is crying an alligator is present. The respondent would like the United States and its Government to run and give him the neces- sary relief and believe him. The Court, however, finds that after a conviction for perjury, after false statements have been submitted to an Immigration Judge regarding the respondent in the past, the fact that the record contains conflicting evidence as to when the respondent did become [a] Christian, even if [he] did and based upon this case that the Court has reason not to believe the respondent this time. The 9th Circuit Court of Appeals has held that it is not necessary to corroborate one[’s] testimony if it is specific, credible and direct. This Court, however, finds for the reasons set forth above that there are a number of deficiencies in the respondent’s testi- mony. The Court also finds that when the little boy comes 16 times and cries wolf and each time it is verified beyond a doubt that he is telling a lie, the 17th time that he cries [that] he is afraid of an alliga- tor, that it is reasonable for the trier [of] fact, in this case myself, not to [believe] him. This Court is not going to specifically find for the record that the respondent is not credible because the Court cannot point to a single inconsistency in the record other than the fact that the respondent claims that in 1994 he was a Christian, although it appears that it has been represented to an Immigration Judge before, that occurred in 1987. But the Court finds based upon the respondent’s past lengthy detailed record of lying in this country, which has occurred on [a] con- tinuous and regular basis that the words of this respondent simply deserve no weight. This Court is not, after 16 occasions of crying wolf, going to 4100 TIJANI v. HOLDER believe the respondent at this time when he claims a different harm that necessitating asylum without requiring some type of corroboration. In essence what the Court is saying then is while it cannot find an inconsistency in the respondent’s testimony at this time to say that he is not credible, it finds that the weight of his words is not sufficient to carry his burden of proving eligibility for asylum. If the boy comes and claims alligator, this Court cannot say that after 16 prior lies that there is any way to deem the statement there is an alligator to be inconsistent. The Court, however, finds that the weight of those words, there is an alligator after 16 occasions of finding beyond a doubt that there is [a] lie sufficient to say to the boy well if there is an alligator this time, you need to prove it to me and demonstrate that your words are true. The Court simply finds that the respondent has not done so and has failed to meet his burden of proof. B. The IJ adequately explained his determination that Tijani was notcredible Even though the IJ’s perspective is certainly reasonable, if not compelling, my colleagues read the IJ’s decision as insuf- ficiently explicit to be a credibility determination. As author- ity they cite the statement in Mansour v. Ashcroft, 390 F.3d 667, 671 (9th Cir. 2004), that the Ninth Circuit “does not per- mit implicit adverse credibility determinations.” First, there is nothing implicit about the IJ’s determination. He finds that because Tijani has been found by judges to have lied on 16 prior occasions, he is not credible. The IJ con- cluded that “based upon the respondent’s past lengthy detailed record of lying in this country, which has occurred on a con- tinuous and regular basis that the words of this respondent simply deserve no weight.” Perhaps if the IJ had said no more, he would have been affirmed. The IJ, however, admit- TIJANI v. HOLDER 4101 ted that on Tijani’s seventeenth incredible claim, the only spe- cific inconsistency he found was Tijani’s prior representation (on which he was granted relief) that he had converted to Christianity in 1987 or 1988, rather than 1994, as he now claims. This too should be enough to deny Tijani relief. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992) (“To reverse the BIA finding we must find that the evidence not only supports that conclusion, but compels it.”) (emphasis in original). The majority opinion, however, seems to hold that because the IJ fails to find a more specific inconsistency in Tijani’s claim of religious persecution in Nigeria, we are bound by our precedent to accept Tijani’s representations as true. In other words, if an applicant spins a sufficiently clever yarn for which there is no direct contrary evidence, it must be accepted as true.3 I do not read our precedent as compelling this conclusion. This case presents a similar situation to that to which then Judge, now Chief Judge, Kozinski dissented in Kumar v. Gonzales, 444 F.3d 1043, 1060-61 (9th Cir. 2006) (Kozinski, J., dissenting), where he wrote: The larger problem with the majority’s opinion is its know-it-all approach, an error oft repeated when our circuit reviews immi- gration cases in which an IJ has made an adverse credibility determination. First, the majority lays out the applicant’s story as if it were the gospel truth, making it seem like denial of rehearing will cause a huge miscarriage of justice. Then the majority picks apart the IJ’s findings piece by piece, scrutinizing his every sen- tence as if it is completely unconnected to the rest of his opinion. Don’t agree with the IJ that the applicant is lying? Not to worry; just label the IJ’s finding “speculation and conjecture.” . . . Find- ing it difficult to dispute that the applicant is lying? No problem; just label the inconsistencies “minor,” or “merely incidental to [the] asylum claim.” . . . The net effect is that any asylum appli- cant who is a skillful enough liar — and many who aren’t — must be believed no matter how implausible or farfetched their story . . . . It also means that IJs, who are doubtless chary of being vilified by august court of appeals judges, become even more reluctant to make adverse credibility findings, even when they have good reason to believe the asylum applicant is lying. (footnote and internal citations omitted). 4102 TIJANI v. HOLDER Admittedly, our opinions have not been a model of clarity or consistency. In Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir. 2005), we explained: Under our case law, testimony that is “implausible in light of the background evidence,” Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir. 2001) (emphasis added), can support an adverse credibility finding. For example, a finding made by an IJ that a petition- er’s testimony is implausible given the evidence in a Country Report or other objective evidence in the record is accorded deference. However, when an IJ finds a petitioner’s testimony implausible based solely on “conjecture and speculation” that the testi- mony, though uncontroverted by any evidence that the IJ can point to in the record, is inherently unbe- lievable, then that “finding” should not automatically be accorded deference. See Vera-Villegas v. INS, 330 F.3d 1222, 1231 (9th Cir. 2003) (“The IJ’s view was based on mere speculation and conjecture, and . . . conjecture is not a substitute for substantial evi- dence.”) (quotation marks omitted). Although “speculation and conjecture” alone cannot sustain an adverse credibility finding, an IJ must be allowed to exercise common sense in rejecting a petitioner’s testimony even if the IJ cannot point to specific, contrary evidence in the record to refute it. Without such latitude, IJs would be bound to credit even the most outlandish testimony as long as it was internally consistent and not contradicted by inde- pendent evidence in the record. Unfortunately, a sur- vey of our precedent reveals no consistent line that has been drawn between an IJ’s legitimate applica- tion of common sense, on the one hand, and an IJ’s reliance on “speculation or conjecture” in determin- ing that a fact alleged by a petitioner is implausible on the other. TIJANI v. HOLDER 4103 It appears that a critical line regarding deference to an IJ’s determination that an applicant is not credible is whether the determination is based on “speculation or conjecture” or on compelling background evidence. In Mansour, we declined to defer to the IJ’s ambiguous adverse credibility determination because it was based on concerns as to inconsistencies in the evidence and questions as to whether the petitioner had pro- vided false information.4 Mansour, 390 F.3d at 671. Similarly, in Kataria v. INS, 232 F.3d 1107, 1111-13 (9th Cir. 2000), the IJ did not make an explicit adverse credibility determination, but expressed concerns about mistakes in Kataria’s applica- tion and inconsistencies in the evidence concerning his reli- gion and where he lived, which he failed to address by submitting supporting evidence. In the case at bar, the IJ was not concerned so much with inconsistencies in Tijani’s actual testimony or mistakes in his application but with the facts that: (1) on numerous prior occasions, Tijani had been judicially determined to have lied and had been criminally convicted for his lies; and (2) Tijani testified that he had not converted to Christianity until 1994 although in 1989, a prior IJ had granted Tijani adjustment of status based on his representation that he had converted to Christianity in 1987. This irrefutable “background” informa- tion suggests that no fact-finder should be compelled to accept Tijani’s unsupported testimony as true. C. The IJ properly denied Tijani relief because he failed to proffer any corrobative evidence I do not read our precedent as prohibiting the IJ in this case, where substantial evidence undermined the petitioner’s credi- bility, from requiring that Tijani provide supporting evidence of his claim of religious persecution. Our rule is that “the BIA The panel, however, ultimately found that even accepting Mansour’s testimony as true, he had not demonstrated past persecution. Mansour, 390 F.3d at 673. 4104 TIJANI v. HOLDER may not require independent corroborative evidence from an asylum applicant who testifies credibly in support of his application.” Kataria, 232 F.3d at 113. This rule, however, turns on a determination that an applicant’s testimony is cred- ible. We explained in Chebchoub: “Because asylum cases are inherently difficult to prove, an applicant may establish his case through his own testimony alone.” . . . That is, Chebchoub’s testimony, if credible, may be sufficient to sustain his burden of proof without corroboration. . . . How- ever, 8 C.F.R. § 208.13 plainly indicates that if the trier of fact either does not believe the applicant or does not know what to believe, the applicant’s fail- ure to corroborate his testimony can be fatal to his asylum application. Thus, the regulations unambigu- ously contemplate cases where an applicant’s testi- mony alone will not satisfy his burden of proof. 257 F.3d at 1042 (internal citations omitted). This case presents an instance where an applicant, who has been criminally convicted at least three times for lying, seeks asylum on the basis of his testimony alleging religious perse- cution which is inconsistent with the position he successfully presented to an IJ ten years earlier and for which he offers no corroborative evidence. Under these relatively unique circum- stances, the IJ could not know “what to believe,” and thus, even if not compelled to request corroborative evidence, can- not be faulted for doing so. Finally, I note that our rulings that an IJ must make an explicit adverse credibility determination and that credible evidence may be sufficient to support an asylum claim are based on sound concerns that are not applicable here. The IJ’s determination that Tijani is not credible was not based on speculation or conjecture,5 nor did the request for corroborat- For example, in Shoafera v. INS, 228 F.3d 1070, 1074 n.3 (9th Cir. 2000), which is cited in Mansour, 390 F.3d at 671, in support of the rule TIJANI v. HOLDER 4105 ing evidence seek information that was presumptively beyond Tijani’s reach.6 Instead, the IJ simply refused to accept the against implied adverse credibility determinations, the court explained: As we explained in Canjura-Flores v. INS, 784 F.2d 885, 888-89 (9th Cir. 1985), without an adverse credibility finding we accept a petitioner’s testimony as credible because “[a]ny other rule would put us in the position of second-guessing the credibility of the petitioner on appeal when no doubts have been raised by the Immigration Judge or the Board.” Consequently, the IJ “must have ‘a legitimate articulable basis to question the petitioner’s credibility,’ ” and must express “a specific, cogent reason for any stated disbelief.” Garrovillas [v. INS], 156 F.3d [1010] at 1013 [(9th Cir. 1998)] (emphasis added) . . . . Indeed, any such reasons for doubting a petitioner’s credibility must be “substantial and must bear a legitimate nexus to the finding.” Id. (citation omit- ted); Akinmade v. INS, 196 F.3d 951, 954 (9th Cir. 1999); Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir. 1987). “Generalized state- ments that do not identify specific examples of evasiveness or contradiction in the petitioner’s testimony” are insufficient. Gar- rovillas, 156 F.3d at 1013. Here, the IJ had “a legitimate articulable basis for questioning” Tijani’s credibility, the IJ explicitly stated his reasons, the reasons are substantial, and they bear a legitimate nexus to the IJ’s fact-finding mission. For example, in Smolniakova v. Gonzales, 422 F.3d 1037, 1047 (9th Cir. 2005), we held that the IJ committed legal error in holding that “Smolniakova’s credibility was undermined by her failure to corroborate her testimony about the May 1991 attack with a letter from the stranger who witnessed the assault.” The court held that “it is unreasonable to expect Smolniakova to have obtained a corroborating letter from an unidentified stranger.” Id. Similarly, in Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir. 1984), we held that an applicant cannot be required to present independent corroborative evidence of a specific threat to his life, and concluded that “[a]uthentic refugees rarely are able to offer direct corroboration of specific threats.” Here, however, the IJ only sought some corroboration of Tijani’s claim that he was attacked and injured while visiting his mother in Nigeria because of his conversion to Christianity. The corroboration could have been in the form of a letter or affidavit from his mother or his brother, or hospital records, or even statements from acquaintances that Tijani had the injury when he returned to the United States. Tijani offered no evidence of his claim other than his word, but due to his past misrepresentations, his word is not entitled to any presumption of credibility. 4106 TIJANI v. HOLDER unsupported testimony of an applicant who has several crimi- nal convictions for lying and who proffered a claim of reli- gious persecution that was inconsistent with the claim he had presented to an IJ ten years earlier. Because Tijani’s unsup- ported testimony was not entitled to any presumption of credi- bility, I would find that the IJ did not err in requiring that he produce some corroborative evidence. This case tests the extremes to which our precedent can be stretched. My colleagues appear to reason that because the IJ’s adverse credibility determination was not sufficiently explicit, Tijani’s testimony must be taken as true, and that because his testimony must be accepted as true, the IJ could not require corroborative evidence. In other words, contrary to the fable, in the Ninth Circuit, it does not matter how often an asylum applicant cries wolf, each new cry for relief must be treated as true because to do otherwise is arguably specula- tive and conjectural.7 Even assuming that our precedent could be stretched to this point, I dissent because it should not be. D. Conclusion Tijani has been convicted of four crimes since he came to the United States. After the first two, he prevailed upon an IJ to grant him a waiver of deportation because he had converted to Christianity and feared persecution if he returned to Nige- ria. Tijani continued to commit frauds and after two more convictions, the government again sought his removal to Nigeria. Tijani now claims, based only on his unsupported testimony, that he became a Christian in 1994, and that when he visited his mother in Nigeria in 1995 and told her he had It should be remembered that in the fable, the last time the boy cried wolf there really was a wolf, but the people ignored the cry. Thus, if those who had heard the call had not discounted the cry based on past events and had investigated the last cry, the boy might have been saved. The moral, however, is that society does not have any obligation to investigate the unsupported claim of a person who has repeatedly confirmed that he is a liar. TIJANI v. HOLDER 4107 converted to Christianity, he was attacked and injured by “a group of Sharia police officers and regular civil police offi- cers.” I agree with the IJ that Tijani’s record of lying to the courts in this country coupled with his revision of when he allegedly became a Christian is sufficient to strip his testi- mony of any credibility. Accordingly, the IJ properly required Tijani to provide some corroboration of his testimony, and properly denied him relief when he failed to do so. The peti- tion for review should be denied.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MICHAEL A. NEWDOW,  Plaintiff-Appellant, v. PETER LEFEVRE, Law Revision Counsel; UNITED STATES OF AMERICA; HENRY M. PAULSON, JR.,* No. 06-16344 Secretary of the Treasury; HENRIETTA HOLSMAN FORE, Director, United States Mint;  D.C. No. CV-05-02339-FCD THOMAS A. FERGUSON, Director, OPINION Bureau of Engraving and Printing; THE CONGRESS OF THE UNITED STATES OF AMERICA, Defendants-Appellees, PACIFIC JUSTICE INSTITUTE, Defendant-Intervenor-Appellee.  Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, District Judge, Presiding Argued and Submitted December 4, 2007—San Francisco, California Filed March 11, 2010 Before: Dorothy W. Nelson, Stephen Reinhardt, and Carlos T. Bea, Circuit Judges. *Henry M. Paulson, Jr. is substituted for his predecessor, John W. Snow, as Secretary of the Treasury, pursuant to Fed. R. App. P. 43(c)(2). 4198 NEWDOW v. LEFEVRE Opinion by Judge Bea; Concurrence by Judge Reinhardt COUNSEL Michael A. Newdow (argued), in pro per, Sacramento, Cali- fornia; for the plaintiff-appellant. Peter D. Keisler, McGregor W. Scott, Robert M. Loeb, Low- ell V. Sturgill Jr. (argued), Department of Justice, Washing- ton, D.C.; for defendants-appellees the United States of America et al. Kevin T. Snider (argued), Pacific Justice Institute, Sacra- mento, California; for defendant-intervenor-appellee Pacific Justice Institute. NEWDOW v. LEFEVRE 4199 Norman Goldman, Law Office of Norman Goldman, Los Angeles, California; for Atheists and Other Freethinkers as Amicus Curiae in Support of plaintiff-appellant. Edward L. White III, Thomas More Law Center, Ann Arbor, Michigan; for the Thomas More Law Center as Amicus Curiae in Support of the defendants-appellees. Erik W. Stanley, Mary E. McAlister, Liberty Counsel, Lynch- burg, Virginia; Mathew D. Staver, Anita L. Staver, Liberty Counsel, Maitland, Florida; for Liberty Counsel as Amicus Curiae in Support of the defendants-appellees. Jay Alan Sekulow, Stuart J. Roth, Colby M. May, Shannon Demos Woodruff, American Center for Law and Justice, Washington, D.C.; Douglass S. Davert, David C. Loe, Davert & Loe, Long Beach, California; John Casoria, Law Office of John Casoria, Coto de Caza, California; for American Center for Law and Justice et al. as Amici Curiae in Support of the defendants-appellees. Roy S. Moore, Gregory M. Jones, Benjamin D. Dupré, Foun- dation for Moral Law, Montgomery, Alabama; for the Foun- dation for Moral Law as Amicus Curiae in Support of the defendants-appellees. Gary G. Kreep, Vicki A. Rothman, D. Colette Wilson, United States Justice Foundation, Ramona, California; for the United States Justice Foundation et al. as Amici Curiae in Support of the defendants-appellees. Steven W. Fitschen, Barry C. Hodge, The National Legal Foundation, Virginia Beach, Virginia; for Wallbuilders, Inc., as Amicus Curiae in Support of the defendants-appellees. 4200 NEWDOW v. LEFEVRE OPINION BEA, Circuit Judge: This case calls upon us to decide whether the national motto of the United States, “In God We Trust,” and its inscription on the Nation’s coins and currency, violates the Establishment Clause of the First Amendment or the Reli- gious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb et seq, or both. We hold our decision in Aronow v. United States, 432 F.2d 242 (9th Cir. 1970), forecloses both claims. Accordingly, we affirm the district court’s order dis- missing this case under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. I. Factual and Procedural Background Plaintiff Michael A. Newdow (“Newdow”) is an ordained minister and founder of the First Amendmist Church of True Science (“FACTS”). Newdow and the members of FACTS are Atheists “whose religious beliefs are specifically and explicitly based on the idea that there is no god.” This case is part of a group of lawsuits Newdow has started challenging various government-sanctioned references to God.1 In this action, Newdow alleges the statute that establishes “In God We Trust” as the national motto, 36 U.S.C. § 302,2 and the statutes that require the motto’s inscription on the Named as Defendants in this case are the United States of America, the Congress of the United States of America, the Law Revision Counsel, the Secretary of the Treasury, the Director of the United States Mint, and the Director of the Bureau of Engraving and Printing (“Defendants”). The dis- trict court allowed the Pacific Justice Institute, a “Sacramento-based, non- profit organization dedicated to defending religious and civil liberties,” to intervene as a defendant. “ ‘In God we trust’ is the national motto.” 36 U.S.C. § 302. NEWDOW v. LEFEVRE 4201 Nation’s coins and currency, 31 U.S.C. §§ 5112(d)(1),3 5114(b),4 violate the Establishment Clause of the First Amendment and the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb et seq.5 Newdow asks this court to declare §§ 302, 5112(d)(1), and 5114(b) violate the Establishment Clause and RFRA. Newdow also requests injunctive relief to enjoin the Defendants from inscribing the motto on coins and currency, placing in the United States Code any act or law that references the motto, and “such and other further relief” as this court deems proper. The Defendants filed a motion to dismiss Newdow’s action under Federal Rule of Civil Procedure 12(b)(6). In their motion, the Defendants contended, inter alia, Newdow lacks standing to sue; his Establishment Clause claim is foreclosed by Ninth Circuit precedent; and he failed to allege facts suffi- cient to state a RFRA claim. The district court granted the Defendants’ Rule 12(b)(6) motion to dismiss. As an initial matter, the district court held Newdow had standing to bring his claims. According to the district court, Newdow suffered a cognizable injury-in-fact because the motto forced him repeatedly to confront a reli- gious symbol he found offensive. The district court further held a judicial declaration that the motto is unconstitutional would redress this injury. The district court dismissed the Legislative Branch Defen- dants (Congress and the Law Revision Counsel) as immune from suit under the Speech and Debate Clause of Article I of “United States coins shall have the inscription ‘In God We Trust.’ ” 31 U.S.C. § 5112(d)(1). “United States currency has the inscription ‘In God We Trust’ in a place the Secretary decides is appropriate.” 31 U.S.C. § 5114(b). Newdow also brought claims under the Free Exercise Clause, the Free Speech Clause, and the Equal Protection Clause, but he has abandoned those claims on appeal. 4202 NEWDOW v. LEFEVRE the United States Constitution. See U.S. Const. art. I, § 6, cl. 1 (“[F]or any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place.”). Newdow did not appeal this ruling. Turning to the merits of the case, the district court held our decision in Aronow forecloses Newdow’s Establishment Clause claim. The district court held Aronow also bars New- dow’s RFRA claim, because the RFRA claim rests on New- dow’s “assertion that the motto is blatantly religious” and thus “simply restate[s]” the Establishment Clause claim. There- fore, the district court dismissed Newdow’s complaint for failure to state a claim upon which relief can be granted. Newdow’s timely appeal to this court followed. II. Standard of Review We review de novo the district court’s grant of a motion to dismiss under Rule 12(b)(6). Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). When we review the grant of a motion to dismiss, “we accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Id. III. Standing [1] The Defendants contend Newdow lacks standing to challenge the statutes that adopt “In God We Trust” as the national motto and require its inscription on coins and currency.6 The “irreducible constitutional minimum of standing” con- tains three elements: (1) injury-in-fact; (2) causation; and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Standing to bring a RFRA challenge is “governed by the general rules of standing under article III of the Constitution,” 42 U.S.C. § 2000bb-1(c), so our standing analysis in this section applies equally to Newdow’s Establishment Clause and RFRA claims. NEWDOW v. LEFEVRE 4203 [2] Newdow has standing to challenge the statutes that require the inscription of the motto on coins and currency, 31 U.S.C. §§ 5112(d)(1) and 5114(b). Newdow alleges—given the ubiquity of coins and currency in everyday life—the placement of “In God We Trust” on the Nation’s money forces him repeatedly to encounter a religious belief he finds offensive. Under our precedent, “spiritual harm resulting from unwelcome direct contact with an allegedly offensive reli- gious (or anti-religious) symbol is a legally cognizable injury and suffices to confer Article III standing.” Vasquez v. L.A. County, 487 F.3d 1246, 1253 (9th Cir. 2007). That Newdow’s encounters with the motto are common to all Americans does not defeat his standing, because Newdow has alleged a con- crete, particularized, and personal injury resulting from his frequent, unwelcome contact with the motto. See FEC v. Akins, 524 U.S. 11, 24 (1998) (“[W]here a harm is concrete, though widely shared, the Court has found ‘injury in fact.’ ”). Further, Newdow’s unwelcome contact with the national motto is caused by the statutes requiring the placement of the motto on coins and currency, and is redressable by an injunc- tion ordering the removal of the motto from coins and currency.7 Thus, Newdow satisfies all three requirements for Article III standing as to his challenge to §§ 5112(d)(1) and 5114(b).8 The Defendants contend Newdow’s injury is not redressable because he requests injunctive relief that would prohibit the Defendants from con- tinuing to place the motto on coins and currency in the future. This injunc- tion, the Defendants assert, would leave untouched the vast quantities of currency already in circulation and thus would not “appreciably reduce” Newdow’s exposure to the motto. Nevertheless, Newdow’s complaint also asks for “such and other further relief” as we may deem proper, which could include an injunction requiring the replacement of currency already in circulation. The Defendants assert Newdow is collaterally estopped from alleging the placement of the motto on coins and currency causes him an injury-in- fact. In support, the Defendants cite our decision in Newdow v. Bush, 89 F. App’x 624 (9th Cir. 2004) (unpublished memorandum disposition), where we held Newdow lacked Article III standing to bring an Establish- ment Clause challenge to clergy-led prayer at the 2001 presidential inau- 4204 NEWDOW v. LEFEVRE [3] Nevertheless, Newdow lacks standing to challenge 36 U.S.C. § 302, which merely recognizes “In God We Trust” is the national motto.9 Unlike §§ 5112(d)(1) and 5114(b), § 302 does not authorize or require the inscription of the motto on any object. Without §§ 5112 and 5114, the motto would not appear on coins and currency, and Newdow would lack the “unwelcome direct contact” with the motto that gives rise to his injury-in-fact. Although Newdow alleges the national motto turns Atheists into political outsiders and inflicts a stig- matic injury upon them, an “abstract stigmatic injury” result- ing from such outsider status is insufficient to confer standing. See Allen v. Wright, 468 U.S. 737, 755-56 (1984). Newdow alleges, however, the injury caused by the national motto is personal, because he was “recently refused a job because of the [misperception] of his activism” and has given up hope of obtaining elected office because of government-perpetuated anti-Atheism bias. Nevertheless, these claims are insufficient to establish standing, because Newdow cannot show these claimed injuries are traceable to the Defendants, and not to the actions of third parties who are not before this court—i.e., the employer who denied Newdow a job or the electorate whom Newdow alleges would not elect him to public office.10 See Simon v. E. Ky. Welfare Rights guration, because Newdow failed to allege a “sufficiently concrete and specific injury.” The Defendants’ collateral estoppel argument lacks merit because Newdow v. Bush involved a different Establishment Clause chal- lenge from the present case. See Blackfoot Livestock Comm’n Co. v. Dept’ of Agriculture, Packers & Stockyards Admin., 810 F.2d 916, 922 (9th Cir. 1987) (holding a party cannot invoke collateral estoppel if “the factual issues litigated were different from those in the present case”). During oral argument, Newdow conceded he could not establish stand- ing to challenge § 302, were it not for the statutes requiring the inscription of the motto on coins and currency. Oral Argument (Dec. 4, 2007) at 7:00-8:30. Further, Newdow does not allege he ever sought public office, so any injury resulting from his failure to attain public office is purely hypotheti- cal and insufficient to show injury-in-fact. See Lujan, 504 U.S. at 560 (holding an injury must be “concrete and particularized,” and not “conjec- tural” or “hypothetical,” to give rise to Article III standing). NEWDOW v. LEFEVRE 4205 Org., 426 U.S. 26, 28, 41-42 (1976) (holding the indigent plaintiffs lacked standing to challenge an Internal Revenue Service Ruling that provided favorable tax treatment to hospi- tals who denied certain services to indigents, because it was “purely speculative” whether the denials of service could be traced to the Revenue Ruling or, instead, to decisions made by the hospitals without regard to any tax implications). [4] In sum, Newdow lacks standing to challenge § 302, but has standing to challenge §§ 5112(d)(1) and 5114(b). IV. The Establishment Clause [5] The Establishment Clause of the First Amendment states: “Congress shall make no law respecting an establish- ment of religion.” U.S. Const. amend. I. The Establishment Clause prohibits the enactment of a law or official policy that “establishes a religion or religious faith, or tends to do so.” Lynch v. Donnelly, 465 U.S. 668, 678 (1984). Newdow alleges the placement of “In God We Trust” on coins and currency violates the Establishment Clause. According to Newdow, the motto unconstitutionally places the government’s imprimatur on a belief in a monotheistic God. Newdow further alleges the national motto turns him and other Atheists into political outsiders by reinforcing the “twin notions that belief in God is ‘good,’ and disbelief in God is ‘bad.’ ” Thus, Newdow asserts the statutes requiring the inscription of the motto on coins and currency run afoul of the Establishment Clause. [6] Newdow’s Establishment Clause claim is foreclosed by our decision in Aronow v. United States, 432 F.2d 242 (9th Cir. 1970). In Aronow, we held the national motto, “In God We Trust,” and the statutes requiring its placement on coins and currency, do not violate the Establishment Clause. Id. at 243. We reasoned: 4206 NEWDOW v. LEFEVRE It is quite obvious that the national motto and the slogan on coinage and currency ‘In God We Trust’ has nothing whatsoever to do with the establishment of religion. Its use is of a patriotic or ceremonial character and bears no true resemblance to a govern- mental sponsorship of a religious exercise. * * * It is not easy to discern any religious significance attendant the payment of a bill with coin or currency on which has been imprinted ‘In God We Trust’ or the study of a government publication or document bearing that slogan. . . . While ‘ceremonial’ and ‘patriotic’ may not be particularly apt words to describe the category of the national motto, it is excluded from First Amendment significance because the motto has no theological or ritualistic impact. As stated by the Congressional report, it has ‘spiritual and psychological value’ and ‘inspirational quality.’ Id. at 243-44 (footnotes omitted).11 Newdow concedes his Establishment Clause challenge is “essentially identical” to the one raised in Aronow, but con- tends Aronow is not binding precedent. As a general rule, we, as a three-judge panel, are without authority to “overrule a circuit precedent; that power is reserved to the circuit court sitting en banc.” Robbins v. Carey, 481 F.3d 1143, 1149 n.3 (9th Cir. 2007). Nevertheless, “where the reasoning or theory Our sister circuits are in accord with Aronow. Indeed, every circuit to address the question has held the national motto does not violate the Establishment Clause. See, e.g., Lambeth v. Bd. of Comm’rs of Davidson County, North Carolina, 407 F.3d 266, 270-73 (4th Cir.), cert. denied, 546 U.S. 1015 (2005); Gaylor v. United States, 74 F.3d 214, 217-18 (10th Cir.), cert. denied, 517 U.S. 1211 (1996); O’Hair v. Murray, 588 F.2d 1144, 1144 (5th Cir.), cert. denied, 442 U.S. 930 (1979). NEWDOW v. LEFEVRE 4207 of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, a three- judge panel should consider itself bound by the later and con- trolling authority, and should reject the prior circuit opinion as having been effectively overruled.” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). Newdow asserts the reasoning and theory of Aronow is “clearly irreconcilable” with intervening Supreme Court pre- cedent. According to Newdow, the Supreme Court’s Estab- lishment Clause jurisprudence went through significant changes since Aronow was decided. Specifically, Newdow notes all of the Establishment Clause tests with which he asserts “In God We Trust” is “incompatible” were developed by the Supreme Court after Aronow was decided. Therefore, Newdow contends Aronow is no longer binding precedent. [7] We disagree. That the Supreme Court has developed new Establishment Clause tests does not render Aronow “clearly irreconcilable” with Supreme Court precedent. New- dow did not and cannot cite a single Supreme Court case that called into question the motto’s constitutionality or otherwise invalidated Aronow’s reasoning or theory. To the contrary, and consistent with Aronow, the Supreme Court has noted in dicta the national motto does not violate the Establishment Clause. See County of Allegheny v. ACLU, 492 U.S. 573, 602-03 (1989) (noting the motto is “consistent with the propo- sition that government may not communicate an endorsement of religious belief”); Lynch, 465 U.S. at 676 (noting the “sta- tutorily prescribed national motto ‘In God We Trust’ ” is a constitutional “reference to our religious heritage”); see also United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (“Supreme Court dicta have a weight that is greater than ordinary judicial dicta as prophecy of what that Court might hold; accordingly, we do not blandly shrug them off because they were not a holding.” (citation and internal quotation marks omitted)). 4208 NEWDOW v. LEFEVRE Alternatively, Newdow asserts Aronow is not binding pre- cedent because the district court in Aronow held the “plaintiff, as a taxpayer and citizen, lacked standing to challenge the validity of the statutes.” Aronow, 432 F.2d at 243. On appeal, however, the Aronow court decided the merits of the Estab- lishment Clause claim after assuming, but without deciding, the plaintiff had standing. Id. Newdow contends Aronow’s failure to address the standing question renders it without pre- cedential value, because a court lacks subject matter jurisdic- tion without Article III standing. See Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc). [8] This contention is without merit. The Supreme Court in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998), decided after Aronow, invalidated the practice of “hy- pothetical jurisdiction”—i.e., assuming jurisdiction for the purpose of deciding the merits of a case. Id. at 93-94. After Steel Co., a court cannot do what the Aronow court did: address the merits of a case without ensuring it has jurisdic- tion over the case. Nevertheless, the Supreme Court in Steel Co. did not overturn the holdings of every case that had been decided using the “hypothetical jurisdiction” approach; Steel Co. held only that courts may not decide cases using that approach in the future. Thus, Aronow’s failure to address whether the plaintiff had standing does not undermine the pre- cedential value of its holding that the national motto does not violate the Establishment Clause. [9] Accordingly, Newdow’s Establishment Clause chal- lenge is foreclosed by Aronow. V. Religious Freedom Restoration Act of 1993 (“RFRA”) [10] Under RFRA, the government cannot “substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the gov- ernment can show the rule is in furtherance of a “compelling NEWDOW v. LEFEVRE 4209 governmental interest” and is the “least restrictive means” of furthering that governmental interest. 42 U.S.C. § 2000bb-1. Newdow alleges the inscription of “In God We Trust” on coins and currency substantially burdens the free exercise of his religion in two primary ways. First, because Newdow’s religion prohibits him from carrying currency that bears the motto “In God We Trust,” Newdow is impeded in his ability to engage in religious activities that require cash payments— e.g., purchase of church attire, ingredients for the church liba- tion “The Freethink Drink,” and books for the church library; travel for religious purposes to locations that require cash payments; and raise funds through cash donations. Second, because Newdow cannot entirely avoid using money in his daily life, the inscription of the motto on coins and currency forces him to violate a basic tenet of his religion and requires him to evangelize for a religious belief he expressly decries. [11] The burdens Newdow contends are imposed by the motto rest on a single premise: the motto represents a purely religious dogma and constitutes a government endorsement of religion.12 During oral argument, Newdow confirmed his RFRA claim is dependent on his contention that the national motto represents a religious dogma and constitutes govern- mental sponsorship of religion. Newdow further confirmed he does not claim his religious exercise would be burdened even if the motto were not a purely religious dogma. For instance, the complaint makes the following allegations: “New- dow is forced to confront government-endorsed, purely religious dogma . . . .”; “Defendants have chosen to place purely ((Christian) monotheistic) religious dogma on the coins and currency . . . .”; “Defendants’ use of the purely religious, (Christian) monotheistic motto has also substantially bur- dened Newdow’s ability to meet and assemble with others for the purpose of furthering his ministry.”; “[Newdow is] forced to evangelize for (Chris- tian) Monotheism precisely as Congress and others envisioned.” New- dow’s opening brief in this court similarly alleges: “Defendants have essentially compelled [Newdow] to bear on his person items that make a purely religious claim . . . .”; and “Plaintiff is, in essence, forced to advo- cate for Monotheism, a religious belief system he expressly repudiates.”). 4210 NEWDOW v. LEFEVRE [12] As a result, Newdow’s RFRA claim is barred by Aro- now. Although Aronow was an Establishment Clause chal- lenge to the motto, and did not involve a RFRA claim, Aronow forecloses the central premise of Newdow’s RFRA claim: the motto is a purely religious dogma and a govern- ment endorsement of religion. Aronow held the national motto is of a “patriotic or ceremonial character,” has no “theological or ritualistic impact,” and does not constitute “governmental sponsorship of a religious exercise.” Aronow, 432 F.2d at 243-44. VI. Conclusion We hold Newdow lacks standing to challenge 36 U.S.C. § 302. Newdow’s Establishment Clause challenge against 31 U.S.C. §§ 5112(d)(1) and 5114(b) and his RFRA claim are foreclosed by binding Ninth Circuit precedent. We dismiss Newdow’s challenge to § 302 for lack of jurisdiction, and affirm the district court’s order dismissing the remaining causes of action for failure to state a claim upon which relief can be granted. AFFIRMED. REINHARDT, Circuit Judge, concurring in the result only: The majority opinion in Newdow v. Rio Linda Union School District, No. 05-17257, which has today become the law of the circuit, fails to comprehend the constitutional prin- ciples set forth in the relevant Establishment Clause cases that the Supreme Court has decided in the years following our decision in Aronow v. United States, 432 F.2d 242 (9th Cir. 1970). See Rio Linda dissent passim (Reinhardt, Circuit Judge). Because I am now required to follow that precedent, no matter how misguided, I am also now required to conclude that Newdow’s claims in this case are foreclosed by Aronow, NEWDOW v. LEFEVRE 4211 and therefore to concur in the result. I do not express any view as to what result I might have reached in the absence of the numerous errors of constitutional law that the majority made in Rio Linda, and the erroneous result it reached.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MILO MCCORMICK STANLEY,  No. 06-99009 Petitioner-Appellant, D.C. No. v.  CV-98-00430-PHX- DORA B. SCHRIRO, MHM Respondent-Appellee.  OPINION Appeal from the United States District Court for the District of Arizona Mary H. Murguia, District Judge, Presiding Argued and Submitted September 9, 2008—Pasadena, California Filed March 11, 2010 Before: Betty B. Fletcher, Andrew J. Kleinfeld, and Johnnie B. Rawlinson, Circuit Judges. Opinion by Judge Rawlinson; Concurrence by Judge B. Fletcher; Partial Concurrence and Partial Dissent by Judge Kleinfeld 4150 STANLEY v. SCHRIRO COUNSEL Gilbert H. Levy (briefed), Seattle, Washington, and Paula K. Harms (briefed and argued) and Sylvia Lett (briefed), Assis- tant Federal Public Defenders, Phoenix, Arizona, for the petitioner-appellant. Kent Cattani (briefed and argued), Chief Counsel, and J.D. Nielsen (briefed), Assistant Attorney General, Phoenix, Ari- zona, for the respondent-appellee. STANLEY v. SCHRIRO 4151 OPINION RAWLINSON, Circuit Judge: Petitioner Milo Stanley (Stanley) was convicted by a jury of first-degree murder of his wife and five-year-old daughter. The court sentenced Stanley to life in prison for the murder of his wife and to death for the murder of his daughter. Stan- ley’s conviction and sentence were affirmed by the Arizona Supreme Court on direct appeal and his state petitions for post-conviction relief were denied. He subsequently filed a petition for writ of habeas corpus in the district court and now appeals the district court’s denial of that petition. Stanley asserts three grounds for relief. First, Stanley con- tends that his Miranda1 rights were violated when officers ignored his attempted invocation of those rights and continued interrogating him until they secured a confession. Second, Stanley posits that trial counsel rendered ineffective assis- tance during the guilt phase of trial by failing to present read- ily available evidence to support an insanity defense and a lack of premeditation defense. Third, Stanley argues that trial counsel rendered ineffective assistance during the penalty phase of trial by failing to investigate and present readily available mitigating evidence. It is the last ground that gives us pause, as we take note of Justice O’Connor’s remarks in 2001 that prompted the New York Times to editorialize that the “legal representation afforded most indigent defendants in capital cases” is woefully inadequate. See Editorial, Justice O’Connor on Executions, N.Y. Times, July 5, 2001, at A16. Because we are convinced that defense counsel’s perfor- mance did not prejudice Stanley during the guilt phase of the trial, we AFFIRM the district court’s denial of Stanley’s habeas petition as to the first two grounds. However, because Stanley’s allegations raise serious questions and a colorable See Miranda v. Arizona, 384 U.S. 436 (1966). 4152 STANLEY v. SCHRIRO claim regarding the adequacy of counsel during the penalty phase of the trial, we REVERSE and REMAND that portion of the decision to allow the district court to conduct an evi- dentiary hearing. We simply cannot in good conscience con- tinue to send men to their deaths without ensuring that their cases were not prejudiced by inadequate legal representation at any phase of the proceedings. I. BACKGROUND A. Stanley’s Interrogation and Confession Stanley contacted the police on the evening of June 19, 1986, to report his wife and five-year-old daughter missing. See State v. Stanley, 809 P.2d 944, 946 (Ariz. 1991). The next afternoon, with the consent of both Stanley and his father, officers searched the pair’s auto repair shop, where Stanley’s wife’s sisters had reported discovering bloodstains and a spent shell casing in the wife’s car. See id. at 946-47. While officers searched the shop, Stanley was asked and agreed to accom- pany Officer Saravo (an investigator) to his office at the county building to be interviewed regarding the disappearance of his wife and daughter. See id. at 947. Stanley was specifi- cally informed that he was not under arrest and was not a sus- pect. Saravo initially approached the interview as a follow-up to a missing persons report, asking questions to reconstruct the family’s activities on the night of the disappearance. He also asked questions to determine where they might have gone. However, there were indications early in the hour-long inter- view that Saravo suspected Stanley’s involvement. Approximately fifteen minutes into the interview, Saravo began to ask Stanley questions related to the officers’ discov- ery of blood in his wife’s car. Approximately twenty minutes STANLEY v. SCHRIRO 4153 into the interview, Saravo turned to questions directed toward Stanley’s use of his gun in connection with the car. Approxi- mately twenty-five minutes into the interview, Saravo increased the pressure, but still did not reveal his suspicions. (“Can you tell me any reason why there would be blood on the outside of your vehicle?”); (“Can you tell me any reason why there would be blood on the inside of your vehicle?”); (“I want to tell you right now that there is blood on the vehicle.”). About thirty minutes into the interview, after advising Stan- ley of his Miranda rights, Saravo sought permission to search Stanley’s apartment, to which Stanley consented. Before read- ing the Miranda warnings, Saravo assured Stanley, “You weren’t under arrest and you’re not under arrest at this time . . .” He explained that the rights were being read “just because we’re going to ask you for a consent to search at this point.” After reading Stanley his rights, Saravo again stated, “you’re not under arrest at this time . . .” Stanley granted consent to the search approximately thirty- six minutes into the interview and was allowed to leave to get a drink. When Stanley returned, Saravo began to point out the holes he saw in the story Stanley had related. Finally, approxi- mately forty-five minutes into the interview, Saravo con- fronted Stanley with his suspicion: “Do you really think somebody actually surprised you (sic) wife at the shop, took your gun and put her in that car and took her out and killed her and brought the car back?” After Stanley answered in the affirmative, Saravo replied, “I don’t think that could have happened,” and then continued, “I think if that happened, if that in fact is what happened, that person almost had to have been you.” When Saravo then asked Stanley who the perpe- trator would have “had to have been,” Stanley answered, “[m]e.” At that point Stanley said, “I think I better talk to a lawyer. I don’t want to say any more.” After confirming that Stanley did not wish to answer questions, Saravo indicated that he was concluding the interview and stopped the record- ing. He did not tell Stanley that he was free to leave. 4154 STANLEY v. SCHRIRO After an unknown period of time elapsed, Saravo turned the tape recorder back on. He purported to recognize Stanley’s invocation of his rights (“You have requested to talk to an attorney, you don’t have to talk to me.”), then confronted Stanley with additional evidence and resumed questioning. (“It appears now that very strongly that your wife has met some foul play, understand?”); (“There’s nothing more that you would like to do to locate your wife and child?”). At least ten minutes passed with Stanley sobbing and Saravo coming and going from the room before the tape ran out. Subse- quently, Stanley apparently confessed to the killing. Our colleague in dissent assiduously catalogs every heinous detail of this gruesome crime. See Dissenting Opinion, p. 4177-79. There is no doubt that the facts of this case are repulsive. But that is true for every case where the death pen- alty is imposed. If the resolution of this case rested on the rel- ative heinousness of the offense, we would have no quarrel with our colleague in dissent. However, our charge is to look at the merits of the legal issues raised rather than to focus on the degree to which we are repulsed by the inevitably grisly details of the case. Indeed, our precedent leaves no doubt that the heinous nature of the underlying offense should not be the determining factor. See Stankewitz v. Woodford, 365 F.3d 706, 723 (9th Cir. 2004) (holding that “counsel’s failure to present mitigating evidence can be prejudicial even when the defendant’s actions are egregious”); see also Douglas v. Woodford, 316 F.3d 1079, 1091 (9th Cir. 2003) (“The grue- some nature of the killing did not necessarily mean the death penalty was unavoidable.” (citations omitted). B. Admission of the Confession In denying Stanley’s contention that his confession was wrongfully admitted into evidence, “[t]he trial court deter- mined there was neither a Miranda nor an Edwards [v. Ari- zona, 451 U.S. 477 (1981)] violation because Stanley was not in custody at the time of Saravo’s questioning.” Stanley, 809 STANLEY v. SCHRIRO 4155 P.2d at 948. On direct appeal, the Arizona Supreme Court agreed, stating that, “[w]hether one is in custody is deter- mined objectively: Under the circumstances, would a reason- able person feel deprived of his freedom of action? Factors indicative of custody include: (1) whether the objective indi- cia of arrest are present; (2) the site of the interrogation; (3) the length and form of the investigation; and, (4) whether the investigation had focused on the accused.” Id. (citations omit- ted). Applying these factors, the court concluded that Stanley was not in custody and, therefore, Miranda warnings were not required. See id. On that basis, the court rejected Stanley’s argument that, under Edwards, questioning should have ceased when he attempted to invoke his Miranda rights. See id. at 948-49. C. Dissociative Reaction and Insanity Following his confession, Stanley was arrested. The next day he was seen by Dr. Hammitt, the jail psychiatrist. Among other things, Stanley told Dr. Hammitt that at the time of the killing “he experienced the sensation that he was watching like he wasn’t even there.” “He told [Dr. Hammitt] that he flew off the wall and shot them.” The dissent represents that Dr. Hammitt “concluded that Stanley was . . . not even remorseful.” Dissenting Opinion, p. 4179. This characterization considerably overstates Dr. Ham- mitt’s report. As the dissent notes, Stanley “cried a great deal” during the meeting with Dr. Hammitt, which observation is somewhat inconsistent with a complete lack of remorse. In fact, Dr. Hammitt described Stanley as “quite emotionally dis- traught,” and “anguished, sobbing [and] unable to relate appropriately.” In addition, Dr. Hammitt did not report that Stanley lacked remorse. Her precise statements were that “[n]othing [Stanley] said indicated to me any degree of remorse per se” and that Stanley “never volunteered any com- ments about remorse . . .” That is a far cry from a definitive statement that Stanley lacked remorse. 4156 STANLEY v. SCHRIRO Prior to trial, defense counsel sought to exclude the notes regarding Dr. Hammitt’s interview of Stanley (the Hammitt interview) on the basis of doctor-patient privilege. The court granted the motion. Defense counsel did not provide informa- tion regarding the Hammitt interview to the defense mental health experts who evaluated Stanley. Upon learning of this information after trial, the defense experts declared that the information would have changed their opinions regarding Stanley’s mental state at the time of the killings. Had they been provided with the Hammitt inter- view, both experts would have testified that Stanley most likely suffered from a dissociative reaction at the time of the killings, making it unlikely that he acted with premeditation. II. STANDARDS OF REVIEW “We review de novo the district court’s denial of a petition for a writ of habeas corpus.” Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005), as amended (citation omitted). The dis- trict court’s factual findings are reviewed for clear error. See id. We review the district court’s determination that a peti- tioner is not entitled to an evidentiary hearing for abuse of discretion. See Schriro v. Landrigan, 127 S. Ct. 1933, 1939 (2007). Under the Antiterrorism and Effective Death Pen- alty Act of 1996 (AEDPA), . . . a federal court can grant an application for a writ of habeas corpus on behalf of a person held pursuant to a state-court judgment if the state-court adjudication resulted in a decision that was contrary to, or involved an unrea- sonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. STANLEY v. SCHRIRO 4157 Yarborough v. Alvarado, 541 U.S. 652, 655 (2004) (citation and internal quotation marks omitted). “[C]learly established law as determined by [the Supreme Court] refers to the hold- ings, as opposed to the dicta, of [the Supreme Court’s] deci- sions . . .” Id. at 660-61 (citation and internal quotation marks omitted). “[Courts] look for the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Id. at 661 (citation and internal quotation marks omitted). The court may grant relief under the ‘unreasonable application’ clause if the state court correctly identi- fies the governing legal principle from [the Supreme Court’s] decisions but unreasonably applies it to the facts of the particular case. The focus of [this] inquiry is on whether the state court’s application of clearly established federal law is objectively unrea- sonable, and [the Supreme Court] has stressed . . . that an unreasonable application is different from an incorrect one. Bell v. Cone, 535 U.S. 685, 694 (2002) (citations omitted). III. DISCUSSION A. Admission of Stanley’s Confession To be entitled to relief based on an alleged violation of his Miranda rights, Stanley must show that the state court’s deter- mination that he was not in custody when he attempted to invoke his right to silence and right to have an attorney pres- ent during questioning either was contrary to, or involved an unreasonable application of, clearly established federal law, or was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Stanley has failed to make this showing and, therefore, is not entitled to relief on this claim. 4158 STANLEY v. SCHRIRO [1] Under clearly established federal law, Miranda warn- ings are required “only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ ” Stans- bury v. California, 511 U.S. 318, 322 (1994) (citations omitted).2 The “ultimate inquiry” underlying the question of custody “is simply whether there was a formal arrest or restraint on free- dom of movement of the degree associated with a formal arrest.” Id. (citation and alteration omitted). To answer this question, the reviewing court looks to the totality of the cir- cumstances, id. at 322, that might “affect[ ] how a reasonable person in that position would perceive his or her freedom to leave.” Id. at 325. [2] On direct review, the Arizona Supreme Court identified eight facts which, together, rendered Stanley’s interview non- custodial.3 First, the investigation that led officers to question Stanley was initiated by Stanley’s report that his wife and daughter were missing. See Stanley, 809 P.2d at 948. Second, the interview took place at the county building rather than the police station. See id. Third, Stanley voluntarily agreed to the interview. See id. Fourth, he was told that he was not under arrest and was not a suspect. See id. Fifth, he was not dis- armed of his hunting knife. See id. Sixth, the investigation was focused “on a search for missing persons . . ., not on a homicide.” Id. Seventh, during the interview Stanley left the office, unaccompanied, to get something to drink and use the restroom. See id. Eighth, there was no display of weapons by police, and no use of physical force or threatening language. See id. Stanley contends that the state court failed to address the Although Stansbury was decided after the Arizona Supreme Court’s 1991 decision in State v. Stanley, the principles it discusses were clearly established federal law based on Supreme Court decisions announced prior to 1991. See Stansbury, 511 U.S. at 322-25. On habeas review we examine the last reasoned decision from the state courts. See Mejia v. Garcia, 534 F.3d 1036, 1042 (9th Cir. 2008). STANLEY v. SCHRIRO 4159 increasingly accusatory nature of the questioning to which he was subjected. This argument lacks merit. An officer’s expressed suspicions may be relevant to the issue of custody. See Stansbury, 511 U.S. at 325. However, [e]ven a clear statement from an officer that the per- son under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some sus- pects are free to come and go until the police decide to make an arrest. . . . In sum, an officer’s . . . beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individ- ual was in custody, but only if the officer’s views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave. Id. (emphasis added). [3] Although it is somewhat troubling that the court failed to explicitly address the accusatory nature of Saravo’s ques- tioning, the omission does not render the court’s application of federal law unreasonable. In the context of determining whether a state court has reasonably applied clearly estab- lished federal law to reach its determination, “the range of reasonable judgment can depend in part on the nature of the relevant rule.” Yarborough, 541 U.S. at 664. “The custody test is general,” id. at 665, and “[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by- case determinations.” Id. at 664 (citation omitted); see also Oregon v. Mathiason, 429 U.S. 492, 494-95 (1977) (per curiam) (holding that a suspect was not in custody despite being informed that he was a suspect and confronted with fab- ricated evidence linking him to the crime). Because the state court delineated and weighed factors comparable to those the Supreme Court has considered, cf. Yarborough, 541 U.S. at 4160 STANLEY v. SCHRIRO 664, we conclude that the Arizona Supreme Court reasonably applied federal law in determining that Stanley was not in custody when he confessed. B. Ineffective Assistance of Counsel: Guilt Phase [4] To establish a violation of his Sixth Amendment right to effective assistance of counsel, Stanley must show that (1) counsel’s performance fell below an “objective standard of reasonableness” and (2) he was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). If we conclude that the petitioner fails to satisfy one of the Strickland prongs, we need not address the other. See id. at 697. Because Stanley failed to demonstrate that he was prejudiced by trial counsel’s alleged shortcomings, he is not entitled to relief. [5] To establish prejudice, Stanley “must show that there is a reasonable probability that, but for counsel’s unprofes- sional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probabil- ity sufficient to undermine confidence in the outcome.” Id. (emphasis added). Where, as here, there is a contention that trial counsel’s performance was deficient due to failure to present evidence to support a defense, there must be a reason- able probability that the omitted evidence would have raised a reasonable doubt in jurors’ minds as to guilt. See id. at 695. [6] Stanley contends that he was prejudiced by counsel’s failure to present evidence revealed in the Hammitt interview to his experts. According to Stanley, the experts could then explain the significance of that interview to the jury to estab- lish an insanity or diminished capacity defense. However, Arizona law bars the admission of expert testimony regarding the mental state of the defendant at the time of the offense. See State v. Mott, 931 P.2d 1046, 1050 (Ariz. 1997). As a result, Arizona courts have “consistently refused to allow psy- chiatric testimony to negate specific intent.” Id. at 1051 (cita- STANLEY v. SCHRIRO 4161 tions omitted). “Arizona does not allow evidence of a defendant’s mental disorder short of insanity either as an affirmative defense or to negate the mens rea element of a crime.” Id.; see also Clark v. Arizona, 548 U.S. 735, 756, 779 (2006) (holding that exclusion of expert testimony regarding diminished capacity does not violate due process). This is a longstanding rule in Arizona. See Mott, 931 P.2d at 1050. [7] Much of the proffered testimony upon which Stanley relies falls within the scope of Arizona’s bar. For example, Dr. Bindelglas, one of the expert witnesses, stated in an affi- davit: Without regard to whether Stanley was insane under the requirements of Arizona law at the time the shooting of his wife and daughter occurred, there was a very real issue as to whether Stanley could premeditate his actions if they occurred during a Dis- sociative Reaction . . . . Had I been asked, I would have testified that a Dissociative Reaction is a spon- taneous, involuntary event and so there were very substantial doubts that Stanley premeditated his actions, regardless of whether he met the legal test for insanity in Arizona. Dr. Bindelglas declared that access to the Hammitt inter- view would have provided corroboration for his conclusion that Stanley had suffered a dissociative reaction. Similarly, another expert witness, Dr. Garcia-Bunuel, stated in an affida- vit that the Hammitt interview generated an “opinion that at the time of the killing of his wife and daughter, it is highly probable that Mr. Stanley was suffering from a Dissociative Reaction.” [8] Expert testimony that Stanley suffered a dissociative reaction at the time of the killing would not have been admis- sible to challenge premeditation. See Mott, 931 P.2d at 1051 (“Arizona does not allow evidence of a defendant’s mental 4162 STANLEY v. SCHRIRO disorder short of insanity either as an affirmative defense or to negate the mens rea element of a crime.”). No prejudice is suffered when counsel declines to pursue the development of testimony that would be inadmissible at trial. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999). Stanley attempts to re-frame the issue to avoid Arizona law limiting the admissibility of expert testimony on the issue of premeditation by describing the testimony as addressing “character traits.” An expert witness may testify as to “a per- son’s continuing general personality trait” (e.g., general ten- dency to act without reflection), but may not testify as to “a person’s probable state of mind at the time of the offense.” State v. Ortiz, 764 P.2d 13, 18 (Ariz. 1988) (citation omitted). Stanley’s reliance on this proposition is misplaced because the testimony of Drs. Bindelglas and Garcia-Bunuel would not be that Stanley had a “character trait of impulsivity,” as argued by Stanley. Rather, Dr. Bindelglas would have testified that “a Dissociative Reaction is a spontaneous, involuntary event and so there were very substantial doubts that Stanley pre- meditated his actions, regardless of whether he met the legal test for insanity in Arizona.” This testimony directly conflicts with Arizona’s limitation on expert testimony. See id. at 18 (“An expert witness may not testify specifically as to whether a defendant was or was not acting reflectively at the time of a killing.”) (citation, alteration and emphasis omitted). Like- wise, Dr. Garcia-Bunuel’s testimony would have focused impermissibly on the likelihood of a dissociative reaction “at the time of the killing of his wife and daughter.” In his subsequent declaration, in addition to opining that Stanley likely suffered a dissociative reaction, Dr. Garcia- Bunuel stated his “further opinion that as a result of [his Dis- sociative Reaction], it is highly probable that Stanley met the criteria for the M’Naughten standard of insanity.” Testimony to this effect would not have been barred, as Arizona allows expert testimony that a defendant meets the legal definition of insanity. See Mott, 931 P.2d at 1051. However, we conclude STANLEY v. SCHRIRO 4163 that the absence of testimony to this effect did not prejudice Stanley due to the overwhelming evidence that he was sane. Indeed, two of the other experts who testified at trial expressly disagreed with Dr. Garcia-Bunuel on this point. [9] Finally, despite the fact that trial counsel successfully petitioned the court to exclude Dr. Hammitt’s interview from admission into evidence, Stanley argues now that Dr. Ham- mitt’s interview should have been offered into evidence. Although observation evidence offered by an expert is admis- sible to rebut the prosecution’s evidence of mens rea, see Clark, 548 U.S. at 760, 765 n.34,4 we conclude that Stanley was not prejudiced by trial counsel’s failure to introduce the Hammitt interview into evidence. It is true that Dr. Hammitt made statements that could support a lack-of-premeditation defense. For example, she described Stanley as “quite emo- tionally distraught,” “anguished, sobbing, [and] unable to relate appropriately.” However, it is unlikely that Dr. Ham- mitt’s observation evidence would have overcome the sub- stantial evidence of premeditation presented at trial.5 [10] The district court specifically referenced the particu- lars of the shootings (“evidence of similarly-placed contact It would have been appropriate for Dr. Hammitt to offer observation evidence because she interviewed Stanley shortly after the murders were committed. See State v. Wright, 155 P.3d 1064, 1068 (Ariz. Ct. App. 2007) (noting that “[o]bservation evidence includes evidence of a defen- dant’s behavior, statements, and expressions of belief around the time of the offense.”) (citation omitted) (emphasis added). Premeditation requires a showing of actual reflection prior to the kill- ing; the decision to kill must “be more than just a snap decision made in the heat of passion.” State v. Thompson, 65 P.3d 420, 427 (Ariz. 2003). Premeditation may be proved through either direct or circumstantial evi- dence. See id. at 428. However, it is usually proved by circumstantial evi- dence. See id. “[T]he time needed for reflection is not necessarily prolonged, and the space of time between the intent [knowledge] to kill and the act of killing may be very short. It is the act of premeditation and not the length of time available that determines the question.” Id. at 428- 29 (internal quotation marks omitted). 4164 STANLEY v. SCHRIRO wounds”), the testimony of Officer Wright, and Stanley’s conduct after the shootings, as evidence “present[ing] chal- lenges to a defense based on absence of premeditation.” At trial, there was evidence that Stanley’s wife was shot three times: once to the top of her head, with the barrel of the gun pressed against her skull; once in the upper lip, from a dis- tance of less than one foot; and once behind the ear, from a distance of three or more feet. The evidence also indicated that his daughter was shot once: to the top of the head, with the barrel of the gun pressed against her skull. Officer Wright testified that Stanley said he shot his daughter “because she had seen what he had done.” This evidence is sufficient to show a lack of prejudice to Stanley because the Hammitt interview would not have changed the outcome given the evi- dence of premeditation. C. Ineffective Assistance of Counsel: Sentencing Phase Stanley asserts that trial counsel was ineffective during the sentencing phase because he “failed to offer the wealth of mit- igating evidence that was at his disposal.” There appear to be two parts to this argument. First, Stanley contends that coun- sel failed to “call a single mental health expert to testify at sentencing, despite the fact that all of the experts . . . agreed that Stanley’s mental capacities were impaired at the time of the crime,” and failed to offer testimony “regarding Stanley’s mental health, his low IQ, or to explain, from a scientific standpoint, how the drug and alcohol abuse could have affected his actions on the night of the crime.”6 Second, Stan- ley argues that trial counsel’s failure to investigate the signifi- cance of the Hammitt interview or provide that information to the mental health experts constituted ineffective assistance of counsel. Despite Stanley’s argument on appeal, in the district court he confined his challenge to counsel’s failure to offer the testimony of experts regard- ing his impairment due to substance abuse at the time of the offense. We limit our review to the issue raised in the district court. See Gallego v. McDaniel, 124 F.3d 1065, 1072 n.7 (9th Cir. 1997). STANLEY v. SCHRIRO 4165 During the guilt phase, the experts’ testimony focused on whether Stanley satisfied the legal standard of insanity, not on the broader effects of his substance abuse. Specifically, in his report to the court, Dr. Garcia-Bunuel stated that, “[h]ad [Stanley] not been under the influence of a combination of alcohol, marijuana and cocaine, the alleged crimes would not have been committed in that his ability to conform his con- duct to the requirements of the law would have been very seriously impaired.” At trial, Dr. Garcia-Bunuel testified that, “Defendant at the time of the commission of the alleged offense was under the influence of alcohol, marijuana, cocaine. He was not psychiatrically ill . . . [and] was able to appreciate the difference between right and wrong as applied to his actions.” Similarly, Dr. Bindelglas concluded in his report to the court that, “[a]t the time of the offense . . . the defendant’s ability to think clearly, reflect on the conse- quences of his actions and to control his activity were signifi- cantly impaired.” Neither expert testified regarding the cumulative effect of substance abuse on Stanley. But while the expert testimony during the guilt phase was clearly limited in its scope, Stanley provides no evidence to suggest what additional testimony would have been given by the experts if called during the sentencing phase to explain the cumulative effects of Stanley’s chronic substance abuse. [11] Stanley argued in his state petition for post-conviction relief that trial counsel rendered ineffective assistance by fail- ing to call mental health experts during the sentencing phase of trial. However, the state court did not address this issue. [12] “[W]hen it is clear that a state court has not reached the merits of a properly raised issue, we must review it de novo.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) (citations and footnote reference omitted). Nevertheless, because Stanley failed to present evidence to support his con- tention, other than the evidence presented at trial, he has failed to establish that counsel rendered ineffective assistance in failing to present evidence to explain the cumulative effects 4166 STANLEY v. SCHRIRO of Stanley’s chronic substance abuse. See Cox v. Del Papa, 542 F.3d 669, 681 (9th Cir. 2008) (“Without any specification of the mitigating evidence that counsel failed to unearth, [the petitioner’s] claim must fail.”) (citation omitted). [13] Stanley has a stronger argument regarding use of the Hammitt interview as mitigation evidence during the sentenc- ing phase. We pause for a moment to note our dissenting col- league’s disturbing argument that the passage of time should somehow militate against habeas relief. See Dissenting Opin- ion, pp. 4175-76. Indeed, Stanley has met all deadlines in fil- ing for post-conviction relief, including the restrictive AEDPA deadlines. After the Arizona Supreme Court affirmed Stanley’s conviction in 1991, Stanley filed a preliminary peti- tion for post-conviction relief in the trial court. The trial court took nearly five years to deny the petition even though it did not hold a hearing. Less than three weeks after the Arizona Supreme Court’s denial of Stanley’s state petition, Stanley filed his federal habeas petition. The district court took more than eight years to deny the petition. Stanley then promptly appealed to the Ninth Circuit. For the dissent to suggest that the lengthy process, none of it due to a lack of diligence on Stanley’s part, is reason to deny him an evidentiary hearing violates every sense of fairness and justice. Moreover, the increasing frequency with which innocent people have been vindicated after years of imprisonment counsels a different approach. See Samuel R. Gross et al., Exonerations in the United States 1989 through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 523-24 (2004) (noting that from 1989 through 2003 exonerated individuals “spent more than 3,400 years in prison for crimes for which they should never have been convicted . . .”). We note this phenomenon, not to imply that Stanley is innocent, but to emphasize that it is never too late to correct an injustice. [14] We also point out that because the district court addressed whether an evidentiary hearing was warranted, that issue is squarely presented on appeal. See Sechrest v. Ignacio, STANLEY v. SCHRIRO 4167 549 F.3d 789, 810 n.10 (9th Cir. 2008). Finally, it is important to keep in mind that our decision in no way affects Stanley’s conviction, and it may not affect his sentence. All this deci- sion does is give Stanley the opportunity to establish whether his counsel’s failure to fully inform the defense mental health experts undermines confidence in the sentence of death imposed. See Strickland, 466 U.S. at 694. [15] On post-conviction review, the Superior Court of the State of Arizona held that trial counsel’s decision to withhold the Hammitt interview was a reasonable tactical decision because “the possible harm to the defense which could be caused by use of Dr. Hammitt’s interview outweighed the possible benefits the use of the interview might produce.”7 State v. Stanley, No. CR 11909, at 7 (Ariz. Super. Ct. May 19, 1997). The court concluded that, “with regard to the issue of sentencing, Dr. Hammitt’s interview could have undermined the claim of a disassociative (sic) reaction . . .” Id. Without holding an evidentiary hearing or making any findings regard- ing the investigation underlying trial counsel’s decision, the court found that “[Stanley’s] determination not to waive the physician-client privilege was a matter of reasoned trial strat- egy and does not present a colorable claim that trial counsel was ineffective for failing to do so.” Id. [16] Where a petitioner has not failed to develop the fac- tual basis of his claim in State court, as required by 28 U.S.C. § 2254(e)(2), an evidentiary hearing on a habeas corpus peti- tion is required where the petitioner’s allegations, if true, would entitle him to relief, and the petitioner has satisfied the requirements of Townsend v. Sain, 372 U.S. 293 (1963). See Insyxiengmay v. Morgan, 403 F.3d 657, 670 & n.6 (9th Cir. 2005). A petitioner who has previously sought and been denied an evidentiary hearing has not failed to develop the The Superior Court rejected his claim on the merits, and the Arizona Supreme Court summarily denied review. Thus, the Superior Court’s deci- sion is the last reasoned decision of the state courts. 4168 STANLEY v. SCHRIRO factual basis of his claim and therefore satisfies § 2254(e)(2).8 See Estrada v. Schribner, 512 F.3d 1227, 1235 n.7 (9th Cir. 2008). Under Townsend, an evidentiary hearing is justified where, as here, “the material facts were not adequately devel- oped at the state-court hearing.” 372 U.S. at 313. Therefore, Stanley is entitled to an evidentiary hearing on his ineffective assistance claim if his allegations, if proved, would entitle him to federal habeas relief. See Insyxiengmay, 403 F.3d at 670. The standard we apply to determine whether the alleged facts would entitle Stanley to relief is the deferential standard of 28 U.S.C. § 2254. See Estrada, 512 F.3d at 1235. [17] “It is imperative that all relevant mitigating informa- tion be unearthed for consideration at the capital sentencing phase.” Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir. 1999), as amended. The emphasis of the sentencing phase of trial is different than that of the guilt phase. See id. (“The determination of whether to impose a death sentence is not an ordinary legal determination which turns on the establishment of hard facts.”) (citation omitted); see also Wallace v. Stewart, 184 F.3d 1112, 1117 n.5 (9th Cir. 1999) (“[T]he lawyer’s bur- den might differ at the guilt phase from that at the penalty phase . . .”). Even where the sentencer is aware of facts under- lying the defendant’s mitigation case, trial counsel may not necessarily rest on these facts. See Caro, 165 F.3d at 1227 (clarifying that although the jury had information regarding the defendant’s background, it did not “have the benefit of expert testimony to explain the ramifications of [this back- ground] on Caro’s behavior”). [18] Even if expert testimony regarding Stanley’s mental state at the time of the crime would not have been admissible to challenge premeditation, as discussed above, it would have been admissible and highly relevant at sentencing. Evidence that might not rise to the level of defense of a crime may In his state petition for post-conviction relief, Stanley sought an evi- dentiary hearing. His petition was denied without a hearing. STANLEY v. SCHRIRO 4169 nonetheless be important mitigating evidence. See Frierson v. Woodford, 463 F.3d 982, 993-94 & n.12 (9th Cir. 2006). [19] In Wallace, we held that trial counsel has an affirma- tive duty to provide mental health experts with all information relevant to the formulation of their conclusions. See Wallace, 184 F.3d at 1117. “A lawyer who knows of but does not inform his expert witnesses about essential pieces of informa- tion going to the heart of the case for mitigation does not function as ‘counsel’ under the Sixth Amendment.” Id. (cita- tion and alteration omitted). Although trial counsel’s lack of effectiveness was not prejudicial at the guilt phase, during sentencing, “where mitigation evidence may well be the key to avoiding the death penalty,” our analysis differs. Id. (cita- tion omitted). Indeed, if the district court were persuaded that rather than being a cold-blooded murderer, Stanley “snapped” and killed his wife and daughter, it is not at all unlikely that he could have avoided a death sentence. See, e.g., State v. Carlson, 48 P.3d 1180, 1197-98 (Ariz. 2002) (en banc) (reducing a death penalty to life in prison without the possibil- ity of parole based upon mitigating circumstances). As in Wallace, we conclude that Stanley “has made out a prima facie case” of ineffective assistance of counsel. See Wallace, 184 F.3d at 1118. In the dissent’s view “all that we are talking about” is sup- plementation of the defense experts’ “testimony with Stan- ley’s remark that ‘he felt like he was watching’ and like he wasn’t really there.’ ” Dissenting Opinion, p. 4183. We beg to differ. Both defense experts agreed that the information regarding Stanley’s apparent dissociative state would have completely changed their testimony in Stanley’s favor and would have permitted a credible argument against the alleged depravity that is so prominent in our dissenting colleague’s discussion. To warrant habeas relief, Stanley is also required to demon- strate that he was prejudiced by counsel’s failing. See Strick- 4170 STANLEY v. SCHRIRO land, 466 U.S. at 687. Prejudice is established by a showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Stanley need only show “a proba- bility sufficient to undermine confidence in the outcome.” Id. “In assessing prejudice, we reweigh the evidence in aggrava- tion against the totality of available mitigating evidence.” Stankewitz v. Woodford, 365 F.3d 706, 723 (9th Cir. 2004) (citations omitted). Stanley’s death sentence was based on the following aggra- vating circumstances: (1) Stanley was convicted of one other homicide in connection with the killing of his daughter; (2) at the time of the murder, Stanley was an adult and his daughter was under 15 years of age; and (3) Stanley committed the murder of his daughter in a depraved manner. These were bal- anced against the following mitigating circumstances: (1) Stanley had no prior felony record; (2) he “was an adequate family man;” (3) he made attempts to address his drug and alcohol problems; (4) “he had exhibited very little violent behavior or spousal abuse;” and (5) he was “remorseful for his crimes.” Stanley, 809 P.2d at 954. The court considered and rejected Stanley’s assertion that “his capacity to appreci- ate the wrongfulness of his conduct or his ability to conform his conduct to the requirements of the law” was “significantly impaired” at the time of the killings. Id. at 956. [20] The statements of Drs. Bindelglas and Garcia-Bunuel undermine confidence in the state court’s balancing. First, they introduce additional residual doubt regarding Stanley’s culpability for both killings by casting additional doubt on his premeditation. They also weigh against the court’s finding that Stanley killed his daughter in a depraved manner, because they suggest that he was not in control at the time of the kill- ings. In relation to the finding of depravity, a dissociative reaction would explain how Stanley could have been so inten- tional about concealing his wrongdoing after the killing, yet not have been intentional about the killing itself. Most signifi- STANLEY v. SCHRIRO 4171 cantly, with the support of the Hammitt interview, the state- ment of the experts would have supported a finding that Stanley could not “conform his conduct to the requirements of the law.” Therefore, we conclude that, if proved, Stanley’s allegation would establish that he was prejudiced by trial counsel’s failure to investigate and develop a mitigation case based on the Hammitt interview. [21] We cannot agree with our dissenting colleague that defense counsel’s failure to inform the mental health experts of Stanley’s statements to Dr. Hammitt was a reasonable tacti- cal decision at the sentencing phase of the trial. It was entirely reasonable to keep this evidence out at the guilt phase because Stanley was still challenging the admissibility of his confes- sion and testimony regarding his statements to Dr. Hammitt would have established an independent admission of guilt. However, that consideration evaporated once Stanley was convicted. Moreover, because the admission of expert testi- mony regarding the mental state of the defendant at the time of the offense is barred in Arizona, any attempt to introduce the expert testimony during the guilt phase would have been futile. Just the opposite was true for the sentencing phase. That was the time for defense counsel to muster all available mitigation evidence. Testimony from the defense experts would have countered Dr. Hammitt’s testimony on a two-to- one basis and explained how Stanley could have acted in such a depraved manner at the time of the killings. [22] Because Stanley’s allegation supported by expert tes- timony would entitle him to federal habeas relief, the district court abused its discretion in denying his petition without an evidentiary hearing. See Wallace, 184 F.3d at 1118 (remand- ing for an evidentiary hearing under similar circumstances). IV. CONCLUSION [23] For the foregoing reasons, we AFFIRM the district court’s denial of the petition for a writ of habeas corpus as to 4172 STANLEY v. SCHRIRO the Miranda claim and as to the claim of ineffective assis- tance during the guilt phase, and REVERSE the district court’s denial as to the claim of ineffective assistance during the sentencing phase. We REMAND for an evidentiary hear- ing on that claim. In so doing, we express no opinion as to the ultimate merits of Stanley’s petition. AFFIRMED in part, REVERSED in part, and REMANDED. B. FLETCHER, Circuit Judge, concurring: I concur in the majority opinion affirming the district court’s denial of the Miranda claim and the claim of ineffec- tive assistance during the guilt phase, and its reversal of the district court’s denial of the claim of ineffective assistance during the sentencing phase. I also concur in remanding for an evidentiary hearing on that claim. I write separately because I find an additional ground for reversal of the district court’s denial of the ineffective assis- tance claim during the sentencing phase. Stanley has alleged a colorable claim of ineffective assistance for the failure to call mental health experts during sentencing. He argues that competent counsel would have called mental health experts to testify to two types of evidence: “Stanley’s mental health, his low IQ . . . [and] how the drug and alcohol abuse could have affected his actions on the night of the crime.” Such evidence, properly presented, has a “reasonable probability” of affecting the outcome of the sentencing proceeding. Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, I would expand the scope of the evidentiary hearing on remand to include whether Stanley’s constitutional right to effective assistance of counsel was violated by his lawyer’s failure to call any mental health experts at sentencing. STANLEY v. SCHRIRO 4173 The majority does not include this aspect of Stanley’s appeal in its reversal for two reasons, each of which I will address in turn. First, the majority refuses to consider trial counsel’s failure to present expert testimony on Stanley’s gen- eral mental capacity because “in the district court he confined his challenge to counsel’s failure to offer the testimony of experts regarding his impairment due to substance abuse at the time of the offense. We limit our review to the issue raised in the district court.” Majority Op. 4164, n.6, citing Gallego v. McDaniel, 124 F.3d 1065, 1072 n.7 (9th Cir. 1997). But it was adequately raised. Stanley argued to the district court that his lawyers were ineffective in pursuing mitigation based on mental capacity. His Petition for Writ of Habeas Corpus stated that, In the sentencing hearing, trial counsel failed to call any of the mental health experts as witnesses. Fur- thermore, he failed cite [sic] the above conclusions of the experts in the sentencing hearing or argue that their reports established the existence of a statutory mitigating circumstance pursuant to ARS § 13- 703(G)(1). ARS § 13-703(G)(1) is not specific to drug abuse evidence, but pertains to mental incapacity in general: “The defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was signifi- cantly impaired, but not so impaired as to constitute a defense to prosecution.” The essence of Stanley’s argument on appeal is that his lawyers should have presented the available evi- dence of impaired capacity, evidence of his low IQ, the head trauma he suffered as a child, and his chronic substance abuse from an early age. It is true that in his Petition to the district court, Stanley referred specifically to his lawyer’s failure to present the mental health experts’ conclusions regarding his substance abuse. However, the underlying claim — ineffec- tive assistance based on failure to present expert witness testi- mony on impaired capacity (ARS § 13-703(G)(1)) — includes 4174 STANLEY v. SCHRIRO more than just that one type of evidence, and was raised in the district court. Moreover, even if I were to accept the majority’s view on this issue, I would still find that justice requires us to include it in our review. Waiver, after all, is not a jurisdictional limita- tion, and we retain discretion to consider issues for the first time on appeal. See, e.g., Myers v. Merrill Lynch & Co., 249 F.3d 1087, 1088 (9th Cir. 2001); Telco Leasing, Inc. v. Trans- western Title Co., 630 F.2d 691, 693 (9th Cir. 1980). The state was not prejudiced in its ability to respond to this issue and vigorously argued it on appeal. Second, the majority rejects Stanley’s claim of ineffective assistance for failure to present evidence to explain the cumu- lative effects of Stanley’s chronic substance abuse, because “he has failed to present evidence to support his contention, other than the evidence presented at trial.” Majority Op. 4165, citing Cox v. Del Papa, 542 F.3d 669, 681 (9th Cir. 2008) (“Without any specification of the mitigating evidence that counsel failed to unearth, [the petitioner’s] claim must fail.”) (citation omitted). I disagree. Stanley has argued that his counsel provided ineffective assistance at sentencing because, “[a]lthough a few witnesses did testify very briefly about drug use, there was no testimony . . . to explain, from a scientific standpoint, how the drug and alcohol abuse could have affected his actions on the night of the crime.” That is enough suggestion of “what additional testimony would have been given by the experts” to make out a colorable claim of preju- dice and to entitle Stanley to a hearing on the matter. Majority Op. 4165. See Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir. 1999) (as amended) (finding that although the jury had information on defendant’s background, it did not “have the benefit of expert testimony to explain the ramifications of [this background] on Caro’s behavior”); Frierson v. Wood- ford, 463 F.3d 982, 994 (9th Cir. 2006) (“The district court misapprehended the different purposes for the drug evidence at each phase of trial. Evidence of a history of chronic drug STANLEY v. SCHRIRO 4175 abuse may not have been sufficient to demonstrate that [defendant] lacked the requisite mental state for the crime, but the extent of [defendant’s] drug use from an early age was an important mitigating factor that the jury did not have an opportunity to consider.”) Therefore, while I concur in the majority opinion, I am compelled to set out these additional reasons for reversing the district court and remanding for an evidentiary hearing. KLEINFELD, Circuit Judge, concurring in part and dissent- ing in part: I concur in the majority’s rejection of Stanley’s claims that his confession was inadmissible, and that his lawyer rendered ineffective assistance in the guilt phase of his trial. I respect- fully dissent from the majority’s decision that Stanley is enti- tled to an evidentiary hearing on whether his lawyer rendered ineffective assistance in the penalty phase. Federal evidentiary hearings on state habeas petitions are limited and discretionary.1 This case shows one reason why. Murderers sentenced to death typically outlive many of the other participants at trial. Stanley murdered his wife and daughter in 1986 and the evidentiary hearing would take place, probably, in 2010, almost a quarter century later. Because the issue would be whether his lawyer rendered inef- fective assistance, the focus would be on asking his lawyer what he did, what he did not do, and why he acted or refrained from acting as he did. That cannot happen, because Stanley’s lawyer is dead. There is nothing unusual about a lawyer of the level of experience adequate to defend death penalty cases dying in the quarter century following trial, nor is there anything unusual about the decades between trial and Schriro v. Landrigan, 550 U.S. 465, 473 (2007). 4176 STANLEY v. SCHRIRO a favorable appellate decision in a § 2254 habeas case.2 If the lawyers are still alive, it is a stretch to pretend that they remember everything, even if they have retained their ancient notes. And in this case, even if he were alive, the lawyer’s responses could not justify relief.3 In this case, Stanley did not even ask the district court to hold an evidentiary hearing on his claim. He had asked for one in state court, so no doubt made a considered decision not to request one in federal court, perhaps because he had no See, e.g., Sechrest v. Ignacio, 549 F.3d 789 (9th Cir. 2008) (twenty- five years passed between state court conviction and grant of federal habeas relief); Frierson v. Woodford, 463 F.3d 982, 985 (9th Cir. 2006) (twenty-eight years passed between state court conviction and grant of federal habeas relief); Landrigan v. Schriro, 441 F.3d 638 (9th Cir. 2006) (eighteen years passed between state court conviction and grant of federal habeas relief), rev’d, 550 U.S. 465 (2007). The majority finds my comment about the passage of time “disturbing” because of “the increasing frequency with which innocent people have been vindicated after years of imprisonment.” See Majority Opinion at 4166. I can think of few tasks more important than freeing innocent people who have been wrongly imprisoned. Stanley does not claim to be among the innocent. The majority does not suggest any possibility that he is inno- cent. The delay matters here because the only issue is what may seem to be an unspoken rule in our circuit that anyone sentenced to death had ineffec- tive assistance of counsel during the sentencing phase of his trial or at least needs an evidentiary hearing decades after sentencing to find out. See, e.g., Pinholster v. Ayers, 590 F.3d 651 (9th Cir. 2009) (en banc); Bel- montes v. Ayers, 529 F.3d 834 (9th Cir. 2008), reversed, Wong v. Bel- montes, 130 S.Ct. 383 (2009); Landrigan v. Schriro, 441 F.3d 638 (2006), reversed, Schriro v. Landrigan, 550 U.S. 456 (2007). My colleagues and I share a concern with getting accurate results from the courts to avoid wrongful imprisonment of the innocent. We also ought to share a concern with getting accurate and reliable results on whether lawyers rendered ineffective assistance, a task best accomplished when the lawyers who rendered the assistance are alive to explain what they did and why they did it. I do not suggest that the delay is Stanley’s fault. My point is that the decades preceding an evidentiary hearing on what his lawyer did and why make the hearing unreliable where the lawyer cannot testify because he is dead. STANLEY v. SCHRIRO 4177 useful evidence to present. The district court nevertheless considered granting such a hearing, and concluded “after reviewing the record, that none of Petitioner’s claims warrants evidentiary development because the allegations, even if true, do not entitle Petitioner to habeas relief.”4 Yet somehow the majority concludes that the district court abused his discretion by not giving Stanley a hearing he did not ask for, and was not entitled to receive, at which findings would not entitle Stanley to relief. That is our error, not the district court’s.5 Facts Stanley took his wife and two children for a ride, and mur- dered his wife and older child. He shot his wife dead with three shots, one to the left side of her head, one under her lips, one through the top of her head, with the muzzle planted on her skull. And he murdered his five year old daughter. He put the muzzle of the gun on the top of her skull and pulled the trig- ger. The forensic pathologist testified that the shots Stanley fired through the tops of his wife’s and his daughter’s skulls were contact wounds, that is, the muzzle was touching their skulls.6 Stanley v. Schriro, No. CV-98-0430, 2006 WL 2816541, at *33 (D. Ariz. Sept. 27, 2006). See Landrigan, 550 U.S. at 481 (reversing the Ninth Circuit and hold- ing that a district court did not abuse its discretion in refusing to grant an evidentiary hearing to death row inmate where it determined that, even assuming the truth of all facts respondent sought to prove at the hearing, respondent was not entitled to federal habeas relief because the evidence respondent sought to introduce would not have changed the result). The majority opinion suggests that the heinous details of the two mur- ders are immaterial to the merits of the legal issues. That argument is mis- taken. The heinous details were why the judge sentenced Stanley to death. Our critical question is whether the trial judge would have sentenced Stan- ley to death if at the penalty phase the trial judge had heard Stanley’s statements to Dr. Hammitt, as well as the opinion from two doctors, 4178 STANLEY v. SCHRIRO Significantly, Stanley spared the baby. His eleven month old son was sitting next to his daughter, but Stanley did not shoot this child. The reason why affected his death sentence. Stanley shot his daughter because she otherwise might have testified against him, and spared his baby because the baby could not testify against him. After he killed them, Stanley dumped his wife’s and daugh- ter’s corpses by pulling over to the side of the road, carrying each body to the edge, and dumping it. Then he drove home, showered with his clothes on to wash out the blood, and drove his car to his father’s repair shop to clean it out. He hid the bloody seat cover and blanket in the trash, but he missed a bloody sock. Then he took the baby, his wife’s purse, and some groceries home, stopping off on the way for some beer. At home, Stanley changed the baby’s diaper, started a load of laundry, and put the baby to bed. Then he drove to a conve- nience store, rented a videotape, and set up a phony story. The store clerk remembered him because he rented one of the store’s few “racy” videos. Stanley asked if the clerk had seen a woman and little girl earlier that evening. When the clerk said he hadn’t seen them, Stanley remarked that his wife “must have gotten pissed off and taken off.” This was after he had murdered them, dumped their bodies, and washed away their blood, so he knew perfectly well that his wife had not “taken off.” instead of one doctor, that Stanley had a dissociative reaction. The details of the murder of the daughter together with the sentencing judge’s com- ments on that murder provide the answer. The trial judge had already heard testimony from one of these two doctors that Stanley had a dissocia- tive reaction, and from the other doctor that Stanley might have had a dis- sociative reaction. Having heard this testimony, the trial judge nevertheless sentenced Stanley to death because of the close-range execu- tion style of the killings, and because he killed his daughter in order to eliminate her as a witness to her mother’s murder. STANLEY v. SCHRIRO 4179 At around 11:30 pm, Stanley called his father and the police to report his wife and daughter “missing,” continuing the deception he had begun with the convenience store clerk. He told them his wife and daughter went for a walk with the family dog around 10:45 p.m. and had not returned. Stanley’s family and the police began searching the neighborhood. The phony “must have gotten pissed off and taken off” story fell apart the next day, when police found the bloody blanket and seat cover at the repair shop. The police brought Stanley in, and he confessed. Asked why he shot his daughter but not the baby, Stanley said it was “because she [the daugh- ter] had seen what he had done,” but the baby “could not tell anybody what he had done.” In Stanley’s VCR, the police found the videotape the convenience store had described, stopped partway through. The morning after his arrest, Stanley spoke with the jail psychiatrist, Karleen B. Hammitt, M.D. Dr. Hammitt con- cluded that Stanley was not insane, not psychotic, not even remorseful. Stanley told her that “he flew off the wall and shot them,” and “realized right away what he had done.” He also said that he felt “like he was watching and like he wasn’t really there” during the murders. Stanley denied ever having heard voices (i.e. no auditory hallucinations, tending to rule out psychosis). Dr. Hammitt said Stanley “never volunteered any comments about remorse or, you know, if I had just done this or that differently or gotten treatment for my drinking problem or done anything different,” during his meetings with her. Although Stanley cried a great deal during their initial meeting (48 hours after the murders), Dr. Hammitt told the defense investigator that “[n]othing [Stanley] said indicated to me any degree of remorse per se.”7 The majority opinion suggests that Dr. Hammitt’s statements that “[n]othing [Stanley] said indicated to me any degree of remorse per se” and that he “never volunteered any comments about remorse” are “a far cry from a definitive statement that Stanley lacked remorse.” See Majority 4180 STANLEY v. SCHRIRO Stanley was charged with first degree murder for the deaths of his wife and daughter. During the guilt phase of his trial, Stanley sought to avoid conviction for first degree murder by arguing that: (1) the police conducted a sloppy investigation resulting in only circumstantial evidence; (2) the police coerced Stanley’s confession; (3) Stanley lacked the capacity to premeditate or deliberate, having been too high and too drunk at the time to form the requisite intent; and (4) Stanley met the legal test for insanity. In support, the defense called two mental health experts. One thought Stanley had suffered a “dissociative reaction” and may have met the M’Naughten test for insanity at the time of the murders. The other thought a dissociative reaction was “unlikely,” but could not rule it out. The jury nevertheless convicted Stanley of first degree murder for the deaths of his wife and five-year-old daughter. After reviewing the entire file and all the testimony, the judge imposed a sentence of life imprisonment for the murder of Stanley’s wife. The judge imposed a sentence of death for the murder of Stanley’s five-year-old daughter.8 The judge based his decision to sentence Stanley to death for the murder of his five-year-old daughter (not his wife) on Opinion at 4155. The majority evidently would infer remorse despite what Dr. Hammitt said, because Stanley cried. I read Dr. Hammitt as taking special note that Stanley did not say a word indicating that he was remorseful. As for his crying, that could be for his wife and daughter, whom he had murdered, or himself, and Dr. Hammitt’s discussion appears to have meant to the sentencing judge that Stanley was not crying out of remorse for murdering his wife and daughter. In 1986 when Stanley was sentenced to death, Arizona death sentences were imposed by the judge, not the jury. The Supreme Court held in Ring v. Arizona that the Constitution precludes that procedure. 536 U.S. 584 (2002). The Court subsequently decided that Ring does not apply retroac- tively to cases such as this one where the convictions and sentences were final when Ring was decided. Schriro v. Summerlin, 542 U.S. 348 (2004). STANLEY v. SCHRIRO 4181 a combination of aggravating circumstances: (1) Stanley killed his daughter because she had witnessed him murder her mother and could tell what she had seen; (2) Stanley did not kill the baby because the baby was too young to talk about what he had seen; (3) the execution-style contact wound on Stanley’s daughter’s skull; (4) the brutality and senselessness inherent in killing one’s own family; (5) the testimony of the video store clerk indicating that Stanley did not appear to be under the influence of alcohol or drugs; and (6) the type of video Stanley rented shortly after hiding the evidence of his brutal crime. From this evidence, the judge concluded that Stanley’s decision to kill his daughter was the product of an intelligent, rational calculation, and showed the requisite hei- nousness and depravity to impose a death sentence. Here is the sentencing judge’s explanation: The Court will first note that it is convinced beyond a reasonable doubt that Defendant did state that he had killed his daughter because she had seen what he had done and that his son was too young to talk about what he had seen. The Court is likewise convinced beyond a reasonable doubt that when Defendant made these statements to the officers they were made entirely voluntarily and is further con- vinced beyond a reasonable doubt that these state- ments reflect the true state of mind of Defendant at the time of these murders. . . . . When Defendant’s statements are considered together with Dr. Keen’s testimony that the shooting of Susan Stanley was accomplished at very close range, including one contact wound, and the shoot- ing of Selest Stanley was with a single hard contact wound, the Court has concluded that Defendant deliberately excluded Chad from any danger based on his intelligent and rational conclusion that Chad could not relate to anyone what Defendant had done. ... 4182 STANLEY v. SCHRIRO Heinousness and depravity involve the killer’s mental state and attitude at the time of the killing. In State v. Gretzler, 135 Ariz. 42 (1983), our Supreme Court set forth a list of specific factors which could lead to a finding of heinousness or depravity. These factors included the senselessness of the crime and the helplessness of the victim. In addition, our Court in State v. Gillies, 142 Ariz. 564 (1984) stated that elimination of a witness as a motive for murder also illustrates heinousness and depravity. Addressing first the motive for the killing, as noted above, the Court is convinced beyond a rea- sonable doubt that Defendant murdered Selest to eliminate her as a witness. Addressing next the senselessness of the crime and helplessness of the victim, instructive in this regard is the recent case of State v. Wallace, 151 Ariz. 362 (1986). Here the Defendant brutally mur- dered a mother and her two children. As noted by the Supreme Court, Defendant committed these acts despite the fact that he claimed to have loved these people and that he had lived with them as a family for more than two years. Focusing in specifically on the children, the Court stated: “Moreover, the fact that Defendant killed two children, with whom he admittedly had no dispute and who posed no danger to him is additional evidence of his ‘shockingly evil state of mind.’ (Citation omitted) We therefore find that the statutory aggravating factor of heinous and depraved is present in the instant case.” 151 Ariz. at page 368. Finally bearing on Defendant’s state of mind is the videotape testified to. According to the testimony of STANLEY v. SCHRIRO 4183 Mr. Cook, within just a short time after the killings, disposal of the bodies and attempts to hide evidence, Defendant was at Mr. Cook’s place of business to rent a “racy” videotape, identified by Officer Saravo later as entitled “Best of Anything Goes”, a video dealing with a strip game show. Defendant did not appear to be under the influence of alcohol or any drug at the time he rented this videotape and appar- ently some time in the next twenty-four hours before he was arrested had watched part of it. When these factors are considered together, they paint the picture of a man so depraved that he could kill his helpless 5 year old child, who was com- pletely dependent on him and trusting of his good- will toward her, kill her for no reason other than to eliminate her as a witness, and then, after rolling her body down a mountainside, sought to idle away his time by indulging himself in watching a strip game show. Beyond a reasonable doubt, the State has proven that Defendant committed the murder of Sel- est Dawn Stanley in an especially depraved manner. As is plain from the judge’s remarks, he viewed Stanley’s murder of his daughter as a cold-blooded execution of a wit- ness to keep her from talking, and that was the most central fact on the judge’s mind in passing sentence. That would not have changed if the defense experts had supplemented their mental state testimony with Stanley’s remark that “he felt like he was watching and like he wasn’t really there.” And that is all that we are talking about.9 We lack authority to substitute The majority suggests that my view minimizes the effect of Stanley’s remark on the penalty phase of the trial. Majority Opinion at 4169. Rather, I believe that the majority mischaracterizes the effect of the remarks on the defense experts’ positions by saying that this information “would have completely changed their testimony in Stanley’s favor[.]” Majority Opin- ion at 4169. Dr. Bindleglass states that he would have testified that Stanley 4184 STANLEY v. SCHRIRO our view for the state sentencing judge’s on whether Stanley should be executed for murdering his daughter. Analysis. I. Standard of review. The district court had discretion, bounded by standards, whether to grant an evidentiary hearing. “In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to federal habeas relief.”10 Under AEDPA, the dis- trict court’s deference was also bounded by the deference it owed to the state court,11 and our review is bounded by the additional deference we owe to the district court.12 We have no warrant to jump over this triple deference. had a dissociative reaction, but that was already his position at trial. Dr. Bunuel states that he would have opined that Stanley had a dissociative reaction, as opposed to his position at trial that Stanley might have had a dissociative reaction. The state superior court judge, not Dr. Bindleglass or Dr. Bunuel, had sentencing responsibility. It is clear from the sentenc- ing judge’s remarks that Dr. Bunuel’s change from “might have had” to “did have” a dissociative reaction would not have changed the sentencing judge’s mind. The sentencing judge commented on various aspects of the evidence, but not this one. His explanation for the sentence focused on murder of Stanley’s helpless child because she might otherwise be a wit- ness, not on the psychological underpinnings of Stanley’s conduct. The trial judge was thus already presented with defense expert testimony regarding the dissociative reaction theory, and nevertheless sentenced him to death for the reasons discussed at length above. Moreover, we cannot only consider how Dr. Hammitt’s statements might have been favorable to Stanley in the sentencing phase, but also how Dr. Hammitt’s statements may have had hurt Stanley in the sentencing phase as well. Landrigan, 550 U.S. at 474. See 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 404-05 (2000). Landrigan, 550 U.S. at 468, 481 (reviewing for abuse of discretion the district court’s decision not to grant an evidentiary hearing). STANLEY v. SCHRIRO 4185 As the majority correctly points out, habeas relief for inef- fective assistance requires two things: deficient performance by the attorney under the Strickland v. Washington standard, and prejudice.13 Ineffective assistance of counsel in violation of the Sixth Amendment is representation that falls “below an objective standard of reasonableness” in light of “prevailing professional norms” at the time of the representation.14 Coun- sel’s actions are reviewed with a “ ‘strong presumption’ that counsel’s conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.”15 The Supreme Court has stated that “strategic choices made after thorough investiga- tion of law and facts relevant to plausible options are virtually unchallengeable.”16 Deficient performance by the attorney is not enough, how- ever, to establish a Sixth Amendment violation. The petitioner must also establish that he was prejudiced by the attorney’s deficient performance. The prejudice standard is “a reason- able probability that, but for counsel’s unprofessional errors, the result of the proceedings might have been different.”17 Wong v. Belmontes18 holds that we cannot consider merely the best evidence the defense might have presented, but instead must consider all of the evidence that would have come into a penalty phase of a trial (both mitigating and aggravating) if the lawyer had made a different choice.19 Strickland v. Washington, 466 U.S. 668, 694 (1984). Id. at 686; see also Bobby v. Van Hook, 130 S.Ct. 13, 16 -17 (2009). Bell v. Cone, 535 U.S. 685, 702 (2002) (quoting Strickland, 466 U.S. at 689). Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009) (quoting Strick- land, 466 U.S. at 690). Wong v. Belmontes, 130 S.Ct. 383, 386 (2009) (quoting Strickland, 466 U.S. at 693). 130 S.Ct. 383 (2009). Id. at 386. 4186 STANLEY v. SCHRIRO Thus, to reverse, we have to conclude that (1) Stanley’s lawyer’s conduct in not showing his expert witnesses the notes of what the jail psychiatrist said (Stanley’s “felt like he was watching” remark) fell below an objective standard of reasonableness, almost impossible since it was strategic; (2) the judge might have sentenced Stanley to life imprisonment instead of death had he heard Stanley’s experts testify after they had been informed by the jail psychiatrist’s observations; (3) the state court’s decision to the contrary was not merely incorrect but went beyond error to being “objectively unreason- able;”20 (4) even though Stanley’s habeas lawyer did not ask for an evidentiary hearing, the district judge abused his discre- tion by not conducting one anyway to determine whether the state court’s ineffective assistance decision was objectively unreasonable. The record does not support a single one of these requirements for reversal. II. Deficient performance. Because “strategic choices made after thorough investiga- tion of law and facts relevant to plausible options are virtually unchallengeable,”21 the state court cannot fairly be said to have unreasonably applied Strickland in determining that Stanley’s lawyer’s decision fell below “the wide range of rea- sonable professional assistance[.]”22 There is no claim that Stanley’s lawyer failed to investi- gate, or failed to discover, some sort of available psychologi- cal or psychiatric evidence. Stanley’s theory is that, knowing full well just what the jail psychiatrist had observed, his law- yer should have provided the jail psychiatrist’s notes and the transcript of his own investigator’s interview with the jail psy- Williams, 529 U.S. at 409-10; see also Woodford v. Viscotti, 537 U.S. 19, 22 (2003). Knowles, 129 S. Ct. at 1420 (quoting Strickland, 466 U.S. at 690). Strickland, 466 U.S. at 689. STANLEY v. SCHRIRO 4187 chiatrist to the two witnesses who testified for the defense about Stanley’s mental condition. The first question to be answered, applying Strickland to this case, is whether not providing the notes was strategic, because “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”23 The record admits of but one answer, yes. Stanley’s lawyer made an in limine motion to keep the jail psychiatrist’s evidence out of the trial, on the ground that it was protected by the physician-patient privilege. The prosecu- tion wanted her to testify, and the defense did not. Stanley prevailed in keeping her out. As the state court observed,24 he did so for the purpose of keeping the jury from hearing her unfavorable opinion that Stanley was neither psychotic nor remorseful. The state court reasonably concluded that if Stanley had disclosed Dr. Hammit’s interview or notes to third parties (the defense experts), Stanley would have waived the physician- patient privilege and could not have later successfully reas- serted it.25 Thus the jail psychiatrist could have testified. In addition, her opinion that Stanley was not psychotic and showed no remorse could have been brought out by prosecu- tion cross examination of Stanley’s own experts.26 He would have obtained one very bad prosecution witness and compro- Knowles, 129 S. Ct. at 1420 (quoting Strickland, 466 U.S. at 690). State v. Stanley, No. CR 11909, at *7 (Ariz. Superior Ct. Yavapai County May 20, 1997) (order denying state habeas petition). See State v. Mincey, 687 P.2d 1180, 1194 (Ariz. 1984). Ariz. R. Evid. 705 (“The expert may testify in terms of opinion or inference and give reasons therefor without prior disclosure of the under- lying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross- examination.”); State v. Hummert, 188 Ariz. 119, 126, 933 P.2d 1187, 1194 (Ariz. 1997) (“It is well established in Arizona that the basis for an expert’s opinion is fair game during cross-examination.”). 4188 STANLEY v. SCHRIRO mised his own two witnesses, had he disclosed the jail psychi- atrist’s information to his own witnesses. Dr. Hammit’s statements are devastating to Stanley’s case. Dr. Bindleglass testified for the defense that Stanley suffered a dissociative reaction, resulting in such marked impairment that Stanley was “truly incompetent” at the time of the mur- ders. Dr. Bunuel testified that Stanley showed remorse, and may have suffered a dissociative reaction. The jail psychia- trist, who saw Stanley the morning after he was arrested, came to the opposite conclusions. She told the defense inves- tigator that Stanley suffered from depression and she had advised the jail authorities to consider him at risk for self harm. Stanley told her that his wife had been yelling at him about his drinking, he flew off the wall, and he realized immediately what he had done. He had never heard voices, and she “found no indicators of psychotic thought process.” “There were no non sequiturs in his speech,” nothing “really off the wall” or “unrelated to what we were talking about,” “really nothing to make me think that there was a psychotic process going on.” Additionally, she noted that Stanley “never volunteered any comments about remorse.” The single remark by Dr. Hammitt that the majority thinks would have turned the whole case around had Stanley’s law- yer disclosed it to the defense experts was “he said it was like he was watching and like he wasn’t even there.” Asked if she thought that indicated psychosis, Dr. Hammitt said: “No. I thought it probably had something to with whatever state of intoxication he was involved in at the time as well as the fact that most people don’t ever believe that they themselves are going to be in the situation like he found himself in when he sobered up.” Thus Dr. Hammitt rejected the defense experts’ conclusion that this comment was evidence of a dissociative reaction. Dr. Hammitt considered the statement “within the continuum of things that are experienced by a person who is intoxicated.” STANLEY v. SCHRIRO 4189 It is hard to imagine a reason why, if he could keep this devastating evidence out, defense counsel would not do so. And he did. Before trial, defense counsel filed a motion in limine to exclude “the entirety of testimony, notes, materials, and reports secured, prepared, utilized and/or including the actual presence of” Dr. Hammitt, “in any aspect whatsoever of the case concerning Milo Stanley” based on the patient- physician privilege. Before the penalty phase, defense counsel reminded the court of his successful in limine motion and moved to strike references to Dr. Hammitt’s opinion from the presentence report. Thus keeping it out at sentencing was also a consid- ered decision, not an oversight. The court granted the defense request. It then ordered both parties to refrain from citing or referring to Dr. Hammitt during the penalty phase. Dr. Ham- mitt’s evidence, had defense counsel not succeeded in getting it stricken, would have tended to establish absence of remorse, absence of psychosis, and absence of “dissociative reaction” beyond what normal people have when they realize they have put themselves in a terrible situation. Because the “possible harm to the defense which could [have been] caused by use of Dr. Hammitt’s interview out- weighed the possible benefits the use of the interview might produce,” the state court concluded that counsel’s “determina- tion not to waive the physician-client privilege was a matter of reasoned trial strategy and does not present a colorable claim that trial counsel was ineffective for failing to do so.” It further found that Dr. Hammit’s interview “could have undermined the [defense’s] claim of dissociative reaction.” This is a sound application of the Strickland principle that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallenge- able.”27 Knowles, 129 S. Ct. at 1420 (quoting Strickland, 466 U.S. at 690). 4190 STANLEY v. SCHRIRO Capable lawyers evaluate not only what they ought to do, but what they ought not to do. Where action on behalf of a cli- ent has a considerable likelihood of backfiring, they avoid it.28 Just as lawyers have no duty to pursue defenses likely to fail,29 and no duty to pursue investigations likely to be “fruitless or even harmful,”30 they have no duty to inject evidence likely to open the door to additional evidence that would be harmful. Much of the strategic thinking a good lawyer does during a trial is about whether something helpful he would like to put in will open the door to something harmful his adversary will then be able to inject. Decisions not to open the door are “sound tactical reasons” for not calling a witness or present- ing certain evidence.31 Had Stanley’s attorney disclosed what Dr. Hammitt had said to his expert witnesses, he would have opened the door to devastating rebuttal testimony by Dr. Hammitt. His strategic decision not to do so is “virtually unchal- lengeable”32 and, far from the state court’s rejection of his deficient performance claim being unreasonable, it is our own majority opinion that unreasonably applies Strickland. Cf. Osborne v. State, 110 P.3d 986, 991 (Alaska App. 2005) (holding that where defense counsel believed client was guilty and there was a sub- stantial risk that test would prove the prosecution’s case, counsel’s deci- sion not to obtain highly discriminating DNA test was not ineffective assistance of counsel under Alaska law) (discussed in District Attorney’s Office for Third Judicial Dist. v. Osborne, 129 S.Ct. 2308, 2314 (2009)). Knowles, 129 S. Ct. at 1420-22; see also Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). Burger v. Kemp, 483 U.S. 776, 795 (1987) (quoting Strickland, 466 U.S. at 691). See Bell, 535 U.S. at 700-01; see also Williams v. Woodford, 384 F.3d 567 (9th Cir. 2004) (holding that when mitigating evidence is “not espe- cially helpful” and “would open the door to damaging rebuttal evidence,” it is reasonable for counsel to decide not to present it). Knowles, 129 S. Ct. at 1420 (quoting Strickland, 466 U.S. at 690). STANLEY v. SCHRIRO 4191 III. Prejudice. Even if we pretend that any reasonable lawyer would have educated his experts with Dr. Hammitt’s devastating opinion and opened the door to it at sentencing, Stanley would still have to surmount the impossible hurdle of showing that the sentence might have been different had he done so. That would require a record different from what we have, perhaps a sentencing judge who had said “if only I had seen some evi- dence that Stanley had a drinking problem or a fight with his wife or was depressed, then I would not sentence him to death for the murder of his little girl to keep her from talking.” Stan- ley’s argument seems to be that, had his experts known that he told the jail psychiatrist that he flew off the handle when his wife criticized his drinking, and felt “like he was watching and like he wasn’t really there,” his own experts might have persuaded the judge that he murdered his daughter because of a mental defect, even though the judge would also have known that Dr. Hammitt thought Stanley was remorseless, mentally normal except for depression, and not psychotic. That is not a plausible possibility, in light of what the sen- tencing judge said. He decided to give Stanley the benefit of the doubt on whether he had any remorse, and considered remorse as a mitigating factor (persuasive for the murder of Stanley’s wife), but Dr. Hammitt’s evidence would have made that less likely. Stanley’s problem establishing prejudice is that even if his own expert witnesses would have testified differently, the sentencing decision was not theirs to make, so improving their testimony but not the judge’s decision would be fruitless. It is not enough for the petitioner to show that counsel’s error had “some conceivable effect on the outcome.”33 Stanley must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings might have been different.”34 The sentencing judge’s remarks demonstrate that the outcome would have been the same. Strickland, 466 U.S. at 694 (emphasis added). Id. at 693. 4192 STANLEY v. SCHRIRO The sentencing judge was “convinced beyond a reasonable doubt that Defendant did state that he had killed his daughter because she had seen what he had done and that his son was too young to talk about what he had seen.” Together with his five year old daughter’s helplessness and the contact of Stan- ley’s gun’s muzzle with the top of her skull, he concluded that her murder was extremely heinous and depraved. Throwing the dead bodies of his wife and child and renting the “racy” videotape shortly afterwards contributed to this evaluation. Based on the convenience store clerk’s testimony as well as the other facts, the judge did not think Stanley was too drunk to know what he was doing. Stanley got his death sentence because of what he did to his daughter. Disclosure of what he told the jail psychiatrist to his defense experts would not have changed what Stanley did, and what he did persuaded the judge to impose a death sentence. Conclusion An evidentiary hearing on whether Stanley’s lawyer ren- dered ineffective assistance in this case is going to be a very odd proceeding. Because Stanley’s lawyer is dead, he cannot be asked to fall on his sword and testify about what a bad law- yer he was for not giving Dr. Hammitt’s notes and interview to his expert witnesses. Habeas counsel may be able to pro- duce an expert witness to testify that any competent lawyer would have done so, and will be able to have his two experts testify in accord with what they say in their affidavits, that it would have made a difference to what they said. But even in the unlikely event that all this persuades the district judge that Stanley’s lawyer did so bad a job that it was deficient despite being strategic, such a finding would be of no significance, because prejudice cannot be established. We already know the answer about whether the lawyer’s putatively deficient perfor- mance might have made a difference, because the record establishes that the judge sentenced Stanley to death for exe- cuting his daughter to keep her from talking. We do not have a legal justification for doing anything but affirming, because STANLEY v. SCHRIRO 4193 established habeas law precludes the federal courts from granting a writ against this state sentence.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT COYOTE PUBLISHING, INC., dba High  Desert Advocate; HOWARD COPELAN, Publisher of the High Desert Advocate; BOBBI A. DAVIS, dba the Shady Lady Ranch; DR PARTNERS, dba Las Vegas CityLife; STEVE SEBELIUS, Editor of Las Vegas CityLife, No. 07-16633 Plaintiffs-Appellees, D.C. No. v.  CV-06-00329- ROSS MILLER, in his official JCM/PAL capacity as Secretary of State of OPINION the State of Nevada; CATHERINE CORTEZ MASTO, in her official capacity as Attorney General of the State of Nevada; DAVID ROGER, in his official capacity as District Attorney of Clark County, Nevada, Defendants-Appellants.  Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding Argued and Submitted February 13, 2009—San Francisco, California Filed March 11, 2010 Before: John T. Noonan, Marsha S. Berzon and N. Randy Smith, Circuit Judges. COYOTE PUBLISHING v. MILLER 4113 Opinion by Judge Berzon; Concurrence by Judge Noonan COUNSEL Allen Lichtenstein, Lee Rowland & Margaret A. McLetchie, ACLU of Nevada for the plaintiffs-appellees. C. Wayne Howle, Esquire, Solicitor General of Nevada for the defendant-appellant. OPINION BERZON, Circuit Judge: [A]s long as poverty makes virtue hideous and the spare pocket-money of rich bachelordom makes vice 4114 COYOTE PUBLISHING v. MILLER dazzling, [the] daily hand-to-hand fight against pros- titution with prayer and persuasion, shelters and scanty alms, will be a losing one. —George Bernard Shaw, Preface to Mrs. Warren’s Profession viii (1902) The American experience with prostitution over the last hundred years is testament to the sagacity of Mr. Shaw. Even the coercive machinery of the criminal law, not yet arrayed against the sale of sexual services when Shaw penned Mrs. Warren’s Profession, has not extinguished the world’s oldest profession. The State of Nevada, alone among the states, accommo- dates this reality by permitting the sale of sexual services in some of its counties.1 Nevada combines partial legalization of prostitution with stringent licensing and regulation, including health screenings for sex workers, measures to protect sex workers from coercion, and — the aspect of Nevada law here challenged — restrictions on advertising by legal brothels. We must decide whether the advertising restrictions violate the First Amendment. From 1980 to 2009, so-called “indoor prostitution” was legal in Rhode Island. Due to a statutory amendment in 1980, prostitution itself was not expressly prohibited, although related activities such as “streetwalking” were. Whether this state of the law was an oversight is not altogether clear. Nevertheless, in 2009 the law was again amended and Rhode Island now outlaws prostitution as does every other state except Nevada. See R.I. Gen. Laws § 11-34.1-2 (2009); see also Lynn Arditi, Bill signing finally outlaws indoor prostitution in R.I., Projo 7 to 7 News Blog, available at http://newsblog.projo.com/2009/11/governor-carcieri-signed-into.html (last visited March 2, 2010). COYOTE PUBLISHING v. MILLER 4115 I. A. The sale of sexual services in Nevada is prohibited unless conducted in designated brothels licensed by a county. Nev. Rev. Stat. § 201.354(1). State law prohibits counties of more than 400,000 residents from issuing such licenses, Nev. Rev. Stat. § 244.345(8), and counties with fewer than 400,000 resi- dents are free to prohibit the sale of sexual services by local ordinance. The upshot is that licensed brothels do not operate in Clark County, which includes the city of Las Vegas, or in five of the fifteen remaining counties in Nevada. State law establishes a strict regulatory regime governing brothels in the eleven counties that choose to license them. Sex workers are subject to mandatory health screening for sexually transmitted diseases, including HIV, Nev. Admin. Code §§ 441A.800-802, and brothel owners are liable for damages resulting from exposure to HIV, Nev. Rev. Stat. § 41.1397. Condom use is mandatory, § 441A.805, and all brothels must so notify customers, § 441A.810. Several statutory provisions are directed to preventing coer- cion of sex workers by the operators of brothels and others. Section 201.300 makes criminal “pandering,” defined to include, among other acts, inducing, persuading, encouraging, inveigling, or enticing a person to engage in the sale of sexual services. Nev. Rev. Stat. § 201.300; see also Nev. Rev. Stat. § 201.360 (prohibiting “placing” a person in a brothel). Detaining a person in a brothel because of debt is also forbid- den. Nev. Rev. Stat. § 201.330. Section 201.320 makes it a crime to live from the earnings of a sex worker.2 Enforcement of these laws to protect sex workers appears to be lack- ing. Alexa Albert’s study of one prominent brothel reports that pimps remained common and some assaults against sex workers still occurred, yet the authorities were rarely notified of these criminal violations. See Alexa Albert, BROTHEL: MUSTANG RANCH AND ITS WOMEN 71-73, 153-54, 194 (2001). 4116 COYOTE PUBLISHING v. MILLER The state’s regulatory regime also restricts advertising by legal brothels. The principal restrictions are two: First, broth- els are banned from advertising at all in counties where the sale of sexual services is prohibited by local ordinance or state statute. Nev. Rev. Stat. § 201.440.3 Second, in counties where the sale of sexual services is permitted, brothels cannot adver- tise “[i]n any public theater, on the public streets of any city or town, or on any public highway.” Nev. Rev. Stat. § 201.430(1).4 Nev. Rev. Stat. § 201.440(1) provides: In any county, city or town where prostitution is prohibited by local ordinance or where the licensing of a house of prostitution is prohibited by state statute, it is unlawful for any person, com- pany, association or corporation knowingly to allow any person engaged in conduct which is unlawful pursuant to paragraph (b) of subsection 1 of NRS 207.030, or any owner, operator, agent or employee of a house of prostitution, or anyone acting on behalf of any such person, to advertise a house of prostitution in his place of business. Nev. Rev. Stat. § 201.430 provides: Unlawful advertising of prostitution; penalties 1. It is unlawful for any person engaged in conduct which is unlawful pursuant to paragraph (b) of subsection 1 of NRS 207.030 [prohibiting prostitution solicited on the street], or any owner, operator, agent or employee of a house of prostitution, or anyone acting on behalf of any such person, to advertise the unlawful conduct or any house of prostitution: (a) In any public theater, on the public streets of any city or town, or on any public highway; or (b) In any county, city or town where prostitution is prohib- ited by local ordinance or where the licensing of a house of prostitution is prohibited by state statute. 2. It is unlawful for any person knowingly to prepare or print an advertisement concerning a house of prostitution not licensed for that purpose pursuant to NRS 244.345, or conduct which is unlawful pursuant to paragraph (b) of subsection 1 of NRS 207.030, in any county, city or town where prostitution is prohib- ited by local ordinance or where the licensing of a house of pros- titution is prohibited by state statute. COYOTE PUBLISHING v. MILLER 4117 The statutes further provide that: Inclusion in any display, handbill or publication of the address, location or telephone number of a house of prostitution or of identification of a means of transportation to such a house, or of directions tell- ing how to obtain any such information, constitutes prima facie evidence of advertising for the purposes of this section. Nev. Rev. Stat. § 201.430(3). Persons in violation of the advertising restrictions are subject to criminal penalties, including fines and imprisonment. B. The publishers of two newspapers that circulate in areas of Nevada where prostitution is prohibited and the owner of a legal brothel in Nye County (all referred to, collectively, as Coyote Publishing) bring a facial challenge to Nev. Rev. Stat. §§ 201.430-440, alleging that the advertising restrictions vio- late the First Amendment of the U.S. Constitution and Article I, Section 9, of the Nevada Constitution.5 3. Inclusion in any display, handbill or publication of the address, location or telephone number of a house of prostitution or of identification of a means of transportation to such a house, or of directions telling how to obtain any such information, con- stitutes prima facie evidence of advertising for the purposes of this section. *** Article I, Section 9 of the Nevada Constitution provides, in relevant part: “Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” Because “Article I, Section 9 affords no greater protection to speech activity than does the First Amendment to the United States Constitu- 4118 COYOTE PUBLISHING v. MILLER On summary judgment, the district court declared the advertising restrictions unconstitutional. The court first held that in light of section 201.430(3), which defines prima facie evidence of advertising, the restrictions reach beyond pure commercial speech. The district court therefore applied strict scrutiny and determined that the state did not offer any com- pelling interest in support of its policy. The district court then concluded, alternatively, that even severing 201.430(3) from the rest of the statute, the restrictions still failed the standard of intermediate scrutiny applicable to commercial speech announced in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). Nevada appeals, arguing that (1) intermediate scrutiny (or some lesser level of scrutiny) applies; (2) at least in counties where brothels are prohibited, advertising of brothels does not relate to legal activity and is therefore not protected by the First Amendment; and (3) the substantial state interest in pre- venting the commodification and commercialization of sex vindicates the advertising restrictions. Taking into account the quite unique characteristics, legal and social, of prostitution, we conclude that Nevada’s regulatory scheme is consistent with the First Amendment and so reverse the ruling of the dis- trict court. II. The threshold question is whether the advertising regula- tions at issue are subject to strict scrutiny or, as Nevada con- tends, to some lesser scrutiny. tion[,] . . . under the Nevada Constitution, the appropriate analysis of . . . restrictions [on speech] is identical to that under the First Amendment.” Univ. & Cmty. Coll. Sys. of Nev. v. Nevadans for Sound Gov’t, 100 P.3d 179, 187 (Nev. 2004) (citations omitted). We therefore address the issues in this appeal under federal constitutional standards. COYOTE PUBLISHING v. MILLER 4119 [1] For much of our history the First Amendment was thought not to apply to advertising. See, e.g., Valentine v. Chrestensen, 316 U.S. 52, 54 (1942). More than thirty years ago, however, the Supreme Court determined that commercial speech is within the First Amendment’s purview, albeit afforded only “a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values.” Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978). Restrictions on commercial speech are now reviewed under the standard of intermediate scrutiny announced in Cen- tral Hudson Gas & Electric Corp. v. Public Service Commis- sion, 447 U.S. 557, 563-66 (1980).6 [2] Speech is “commercial” if it does “no more than pro- pose a commercial transaction.” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976) (citation omitted). Coyote Publishing contends that Nev. Rev. Stat. § 201.430(3), which provides that “prima facie evidence” of advertising consists of the publication of the address, location, or telephone number of a brothel, or of directions on how to obtain such information, restricts more than pure commercial speech. They suggest that any publica- tion containing information listed in § 201.430(3) — includ- ing, for instance, a hypothetical newspaper article covering the brothel industry — would be covered by the statutes.7 The Nevada courts have not expressly adopted any limiting construction of section 201.430(3) that cabins its reach to only commercial speech.8 Cf. Posadas de Puerto Rico Assocs. v. Several justices criticized Central Hudson in subsequent cases, and the Court as a whole has acknowledged that criticism. See Thompson v. W. States Med. Ctr., 535 U.S. 357, 367-68 (2002). Nevertheless, Central Hudson remains the governing precedent. See Metro Lights, L.L.C. v. City of Los Angeles, 551 F.3d 898, 903-04 (9th Cir. 2009). We note that such articles are not merely hypothetical. See, e.g., Steve Friess, Brothels Asked To Be Taxed, but Official Sees a Catch, N.Y. TIMES, Jan. 26, 2009, at A11 (featuring a picture of a brothel that reveals its web address and phone number). Princess Sea Industries, Inc. v. State, 635 P.2d 281 (Nev. 1981) sug- gests such a limitation but does not make it explicit. In that case, the 4120 COYOTE PUBLISHING v. MILLER Tourism Co. of Puerto Rico, 478 U.S. 328, 340 n.7 (1986) (relying on authoritative statutory constructions that limit the reach of advertising restrictions to purely commercial speech before applying intermediate scrutiny to the speech restric- tions). Still, we are not persuaded that section 201.430 bur- dens any significant quantum of fully protected, non- commercial speech. Importantly, section 201.430(1) prohibits only brothel owners or persons “acting on behalf of” a brothel owner from advertising. (Emphasis added.) Thus, on a plain reading of the statute, the publisher of a news account would not be liable. Moreover, under Nevada law, where a statutory provision makes certain facts “prima facie evidence” of other facts and the presumed facts establish guilt or an element of a criminal offense, a judge may only submit the presumption to the jury if “a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find guilt or the pre- sumed fact beyond a reasonable doubt.” Nev. Rev. Stat. § 47.230(2). In other words, only where the evidence, viewed as a whole, would permit a reasonable juror to conclude that the material was “advertising” would the prima facie provi- sion have effect.9 [3] For these reasons and in the context of the present facial challenge, we have no difficulty concluding that Nevada Supreme Court upheld the statutes at issue here against a First Amendment challenge, treating Bigelow v. Virginia, 421 U.S. 809 (1975), and other commercial speech precedents as controlling. See Princess Sea, 635 P.2d at 283. A concurring Justice “perceive[d] the advertisement as proposing no more than simply a commercial transaction, markedly differ- ent from advertising which contains factual material of clear ‘public inter- est.’ ” Id. at 287 (Manoukian, J., concurring) (citing Bigelow, 421 U.S. at 822). Plainly, therefore, the regulations may not be applied to newspaper articles — or, for that matter, postings on internet message boards — by individuals acting independently of the brothels. COYOTE PUBLISHING v. MILLER 4121 Nevada’s advertising restrictions target pure commercial speech. Strict scrutiny, therefore, does not apply.10 Nevada argues, conversely, that something less than the intermediate scrutiny of Central Hudson is applicable. Point- ing to Posadas, which upheld Puerto Rico’s restrictions on casino gambling advertising directed at its residents, 478 U.S. at 344, the state urges that legislatures have greater power to regulate the advertising of so-called “vice” activities, which derives from their power to prohibit the underlying activity all together. “Vice is treated differently,” the state contends, and because prostitution is particularly disfavored, the state’s power to completely ban the activity includes the ability to ban its promotion, maintains the state. Posadas certainly provides support for this proposition: “In our view,” the Supreme Court held, “the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling.” 478 U.S. at 345-46. Indeed, underscoring the applicability of this logic to the present case, Posadas endorsed the presumptive valid- ity of the very Nevada statutes at issue here: Posadas cited Nevada Revised Statute §§ 201.430 & 201.440 and noted that “[i]t would . . . surely be a strange constitutional doctrine which would concede to the legislature the authority to totally ban a product or activity, but deny to the legislature the authority to forbid the stimulation of demand for the product or activity through advertising by those who would profit from such increased demand.” 478 U.S. at 346. Coyote Publishing briefly argues that strict scrutiny applies because the advertising restrictions are content-based or because they comprise a total ban on truthful advertising. As to the first argument, “whether or not the . . . regulation is content-based, the Central Hudson test still applies because of the reduced protection given to commercial speech.” Metro Lights, 551 F.3d at 903 n.6. Plaintiff’s second argument is subsumed within the Central Hudson analysis, which considers at step four whether the restriction is “more extensive than . . . necessary.” Central Hudson, 447 U.S. at 566. 4122 COYOTE PUBLISHING v. MILLER Subsequent decisions, however, have cast severe doubt on the rule that restrictions on advertising of vice activity may escape the intermediate scrutiny of Central Hudson simply by virtue of the fact that they target vice. Edge Broadcasting, a case challenging restrictions on broadcast advertisements for state-run lotteries, did not reach the question, as it upheld the restrictions under the Central Hudson test. United States v. Edge Broad. Co., 509 U.S. 418, 425 (1993). In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), a plurality of the Court considered and rejected the argument that the power to ban a vice activity necessarily includes the power to ban the accompanying commercial speech. Id. at 511. The plurality expressly disavowed Posa- das, declaring that “it is no answer [to First Amendment chal- lenges] that commercial speech concerns products and services that the government may freely regulate . . . .” Id. at 512. [4] Decisions since 44 Liquormart have applied intermedi- ate scrutiny to strike down restrictions on the advertising of “vice activities,” indicating by necessary implication that a more lenient standard than Central Hudson is not applicable. See Greater New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 195-96 (1999) (gambling); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 566 (2001) (tobacco products). As we are constrained to follow Greater New Orleans Broadcast- ing and Lorillard, we may not apply a general “vice excep- tion” to the protections accorded to commercial speech. Nevada also argues for an exception specific to prostitu- tion. We agree that there are strong reasons why the sale of sexual services, in particular, ought to be treated differently than other advertising bans on “vice” activities. The first derives from the degree of disfavor in which pros- titution is held in our society, as reflected in law. In this respect, prostitution is sui generis. Forty-nine of the fifty COYOTE PUBLISHING v. MILLER 4123 states today prohibit all sales of sexual services. The federal government acknowledges the link between prostitution and trafficking in women and children, a form of modern day slavery. See U.S. Department of State, The Link Between Prostitution and Sex Trafficking (November 24, 2004). And federal law prohibits the transportation of persons in interstate or foreign commerce for the purpose of prostitution or other illegal sexual activity. White Slave Traffic Act, 36 Stat. 825, 18 U.S.C. § 2421-2124 (1910). Although Nevada has opted for partial legalization, Nevada too has taken significant steps to limit prostitution, including the total ban on the practice in by far the largest population center,11 the permission to other counties to ban the practice, and the advertising restrictions here at issue. The social condemnation of prostitution, therefore, is vastly more widespread — and vastly more consistent — than in the case of other categories of “vice” that courts have considered, such as alcohol, tobacco products, and gambling. This con- demnation may be relevant to the degree of scrutiny applica- ble to these advertising restrictions. The protection of commercial speech is at least in part instrumental, in the sense that courts are concerned about the efficient allocation of the underlying good or service. As the Supreme Court recognized in Virginia State Board, 425 U.S. at 765, [a]dvertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private eco- Clark County is home to 1,865,746 of the 2,600,167 people in Nevada, or approximately 72 percent of the state’s population. U.S. Cen- sus Bureau, Clark County, Nevada Quickfacts, http://quickfacts. census.gov/qfd/states/32/32003.html (January 21, 2010). 4124 COYOTE PUBLISHING v. MILLER nomic decisions . . . . To this end, the free flow of commercial information is indispensable. See also In re R. M. J., 455 U.S. 191, 201 n.11 (1982) (“The commercial speech doctrine is . . . based in part on certain empirical assumptions as to the benefits of advertising.”). When the underlying service is of extremely little value, as demonstrated by near consensus within our society, the need for its efficient allocation and distribution is less compelling. The nature of the market in sexual services, such as it is, provides an additional reason why the goal of efficiency applies with less force. In light of prevailing sexual mores, a highly transparent, and thus efficient, market for sex is a chi- mera. In this respect, sex is not a commodity.12 Commercial speech decisions routinely display concern over the risk of distortion of competitive markets. Greater New Orleans Broadcasting, 527 U.S. at 189-91, for example, struck down a restriction on advertising of gambling in large part because it favored tribal commercial casinos over non-tribal commer- cial casinos; 44 Liquormart, 517 U.S. at 502, invalidated a ban on price advertising of liquor that “like a collusive agree- ment among competitors . . . [would] tend to mitigate compe- tition and maintain prices at a higher level than would prevail in a completely free market”; and Central Hudson, 447 U.S. at 570, disapproved a ban on advertising electricity because of the risk that it would stifle innovation in the energy sector. In the context of the legal sale of sexual acts, in contrast, there is relatively little market competition to distort.13 Avoiding the complete commodification of sex is the state interest that Nevada asserts in support of its advertising restrictions. We assess the sub- stantiality of this interest in Part II-A of this opinion. We make this observation in part because of the limited extent of the market, but also because of the lack of transparency inherent in commer- cial sexual transactions. Even in legal brothels in Nevada, for example, prices typically are not agreed upon until after a sex worker and client have removed to a private room. See Alexa Albert, BROTHEL 19-20. COYOTE PUBLISHING v. MILLER 4125 Commercial speech doctrine also has been driven in part by objections to paternalistic regulatory policies, which assume that individual consumers need to be protected from their own choices. See Virginia State Bd., 425 U.S. at 770; 44 Liquor- mart, 517 U.S. at 503 (plurality opinion). Nevada’s advertis- ing restrictions, however, are not based on the premise that consumers of the advertising will act “irrationally” to their own detriment. See id. Instead, as developed later, a central premise of the restrictions is that the advertising of prostitu- tion is an integral aspect of, and exacerbates, the commodifi- cation of human sexuality on a society-wide basis. Regulations that are addressed to the third-party effects of pri- vate transactions, not to protecting people from themselves, are more likely to be consonant with First Amendment values. [5] Thus, two of the core justifications for protecting com- mercial speech — facilitating efficient market exchange and shunning paternalism — apply with less force in this context. Nevertheless, we follow the Supreme Court’s lead and apply Central Hudson where it provides “an adequate basis for deci- sion.” Lorillard, 533 U.S. at 554-55; Greater New Orleans Broad., 527 U.S. at 184. The distinctive contours of the prob- lem of prostitution outlined above are relevant to the Central Hudson analysis. But they do not require that we discard the overall standard altogether rather than incorporating the points of distinction where they fit when applying that stan- dard, as we shall do later in this opinion. We are, of course, aware of the existence of a vast illegal market in sex- ual acts, in Nevada and elsewhere. See id. at 171 (describing the abun- dance of advertisements for “Entertainers” in the Las Vegas Yellow Pages). Commercial speech doctrine, however, is not concerned with the efficient operation of illegal, “black” markets. See United States v. Wil- liams, 128 S.Ct. 1830, 1841 (2008) (“Offers to engage in illegal transac- tions are categorically excluded from First Amendment protection.”). In any event, these markets, precisely because they are illegal, are less trans- parent and efficient than their size would otherwise predict. 4126 COYOTE PUBLISHING v. MILLER [6] We therefore apply the familiar four-part test: At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be mis- leading. Next, we ask whether the asserted govern- mental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental inter- est asserted, and whether it is not more extensive than is necessary to serve that interest. Central Hudson, 447 U.S. at 566. Because, as will appear, Nevada’s interest in limiting the commodification of sex is important to the analysis at each step, we begin by assessing the substantiality of that interest. We then turn to the remaining steps of Central Hudson. A. We first consider whether Nevada has asserted substantial state interests in support of its advertising restrictions. Nevada relies largely on an asserted interest in limiting the commodi- fication of sex.14 In their submissions, Coyote Publishing characterizes this interest as “not allowing minors to learn of the existence of legal brothels.” We do not understand Nevada’s argument to be so narrow. Nevada’s opening brief explains that the advertising restrictions serve to “limit[ ] prostitu- tion’s profile in society.” Thus, although Nevada does argue in particular that children should not be exposed to prostitution advertisements, the state’s concern over sex commodifying advertisements goes beyond chil- dren to encompass society in general. To the extent that Nevada asserts an interest in protecting minors from age-inappropriate messages, the advertising restrictions may well be over- broad with respect to such an interest because not sufficiently tailored to avoid infringing on advertising directed to adults. See Lorillard, 533 U.S. COYOTE PUBLISHING v. MILLER 4127 We are aware of no case that considers the substantiality of a state’s interest in preventing commodification — the turning of a good or service into a commodity to be bought and sold — for purposes of constitutional balancing. But the bedrock idea that “[t]here are, in a civilized society, some things that money cannot buy” is deeply rooted in our nation’s law and public policy. See In re Baby M, 537 A.2d 1227, 1249 (N.J. 1988). The Thirteenth Amendment to the U.S. Constitution enshrines the principle that people may not be bought and sold as commodities. Payment for consent to adoption of a child is widely prohibited. E.g., Cal. Pen. Code § 273; see also In re Adoption of Paul, 550 N.Y.S.2d 815, 817-18 (N.Y. Fam. Ct. 1990). In many states, surrogacy contracts are unen- forceable, e.g., Mich. Comp. Laws § 722.855 (“A surrogate parentage contract is void and unenforceable as contrary to public policy.”), and payment of money in exchange for sur- rogacy is prohibited, e.g., Ariz. Rev. Stat. § 25-218 (abrogated on other grounds by Soos v. Superior Court, 897 P.2d 1356 (Ariz. Ct. App. 1994)); see generally Noa Ben-Asher, The Curing Law: On the Evolution of Baby-Making Markets, 30 CARDOZO L. REV. 1885, nn.128-131 (2009). Federal law for- bids the sale of human organs. National Organ Transplant Act, Pub. L. No. 98-507, 98 Stat. 2339, 42 U.S.C. § 274e (1984).15 at 564-65; see also Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 73-74 (“The level of discourse reaching a mailbox simply cannot be lim- ited to that which would be suitable for a sandbox.”). We need not decide whether that is so or not, as we conclude that the restriction is valid with- out regard to the asserted state interest in protecting children in particular. We do not mean by recording these somewhat analogous circum- stances to suggest that the same considerations that apply to evaluating bans on advertising prostitution would apply with equal force in other con- texts. As to surrogacy, for example, there are swiftly evolving public pol- icy approaches in various states, including an extensive, fully legal market. See Gestational Surrogacy Act, 750 Ill. Comp. § 47/1514-190.9 (2003); N.H. Rev. Stat. § 168-B:16 (1990). Many of the key consider- ations we rely on here with regard to prostitution therefore do not apply. 4128 COYOTE PUBLISHING v. MILLER These public policies may be motivated in part by concerns about the indirect consequences of permitting such sales, but they are also driven by an objection to their inherent com- modifying tendencies — to the buying and selling of things and activities integral to a robust conception of personhood. See Baby M, 537 A.2d 1227, 1234 (declaring paid surrogacy contracts “potentially degrading to women”); see also Marga- ret Jane Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1912 (1987) (“[W]e accept an inferior conception of personhood . . . if we suppose people may freely choose to commodify themselves.”). Whether the law ought to treat sex as something, like babies and organs, that is “market-inalienable,” or instead should treat it as equivalent to the sale of physical labor, is a question much contested among legal academics and philoso- phers. Compare Radin at 1924-25 (advocating a system of incomplete commodification of sexuality in which decrimi- nalization of prostitution is coupled with restrictions on capi- talist entrepreneurship and advertising — a system much like Nevada’s) with Ann Lucas, The Currency of Sex: Prostitution, Law, and Commodification, in RETHINKING COMMODIFICATION 248, 254-58 (Ertman & Williams eds., 2005) (arguing that the idea that the sale of sex is damaging to personhood is cultur- ally contingent and paternalistic). And it may well be that lim- iting the commodification of human sexuality is in some tension with other ostensible goals of Nevada’s scheme, such as protecting women from being forced into prostitution and empowering them to make choices in the course of selling sexual services. See Martha C. Nussbaum, Taking Money for Bodily Services, in RETHINKING COMMODIFICATION 243, 246-47 (Ertman & Williams eds., 2005) (arguing that failure to recog- nize that the sale of sexual services is akin to the sale of any other manual labor is the largest obstacle to improving condi- tions for sex workers). But these questions are not for us to decide. In most cases that we can imagine — slavery, given the Thirteenth Amendment, being an obvious exception — including this one, it belongs to the political branches to fix COYOTE PUBLISHING v. MILLER 4129 the boundary between those human interactions governed by market exchange and those not so governed. In every state but Nevada, that boundary has been drawn so as to forbid such transactions entirely, including the proposing of such transac- tions through advertising. Nevada has, uniquely for this coun- try, delineated a more nuanced boundary, but still seeks to closely confine the sale of sex acts, geographically, through restrictive licensing where legal, and through the advertising restrictions.16 We conclude that the interest in preventing the commodification of sex is substantial. We emphasize that our holding is grounded in two distinc- tive characteristics of prostitution, each of which is critical to our conclusion: [7] First, prohibitions on prostitution reflect not a desire to discourage the underlying sexual activity itself but its sale. Prostitution without the exchange of money is simply sex, which in most manifestations is not a target of state regula- tors. But cf. Lawrence v. Texas, 539 U.S. 558 (2003). The risk that states will cite the risk of commodification as a fig leaf for hostility to the underlying “product,” so to speak — which might be present if an anti-commodification rationale were advanced to justify bans on other types of advertising — is minimal here. More fundamentally, this genuine objection to buying and selling means that in the context of prostitution an advertisement is an integral aspect of the harm to be avoided. In contract terms, an advertisement is an invitation to deal and may operate as an offer, though in the typical case it does not bind the seller. See Joseph M. Perillo, I CORBIN ON Nevada’s approach of partial legalization and strict regulation does find analogues in several foreign jurisdictions. See, e.g., Prostitution Reform Act 2003, 2003 S.N.Z. No. 28 (N.Z.); Prostitution Act, 1992 (Austl.); Mohamed Y. Mattar, Trafficking in Persons, Especially Women and Children, in Countries of the Middle East: The Scope of the Problem and the Appropriate Legislative Responses, 26 FORDHAM INT’L L. J. 721, 735 (2003) citing Law of 6 February 1931, art. 7 (Leb.). 4130 COYOTE PUBLISHING v. MILLER CONTRACTS § 2.4 (1993). Speech that “does no more than pro- pose a commercial transaction,” see Virginia Bd. of Phar- macy, 425 U.S. at 762, is particularly susceptible to regulation when the state’s objection is to the commercial transaction itself. [8] Second, public disapproval of prostitution’s com- modifying tendencies has an impressive historical pedigree. In the minds of early opponents, prostitution was closely bound up with slavery — the paradigmatic case of a dehumanizing market transaction. See Maude E. Miner, The Slavery of Pros- titution: A Plea for Emancipation ix (1916) (doctoral thesis at Columbia University) (“[Women Offenders’] demoralization of character has constituted moral enslavement.”); Amy Dru Stanley, FROM BONDAGE TO CONTRACT 219 & 237 (1998) (cit- ing Massachusetts Bureau of Statistics of Labor, Third Annual Report 117 (1872) (lamenting that prostitution implied “the necessity of making merchandise of body and soul”)). The sale of sex was not widely criminalized for much of our nation’s history. Prostitution was instead covered only by prohibitions on vagrancy and “streetwalking”; the bans did not extend to brothels or other indoor locations in which sale of sex occurred. See Howard B. Woolston, PROSTITUTION IN THE UNITED STATES 25 (1920); Ruth Rosen, THE LOST SISTERHOOD 36 (1982). The legal condemnation of prostitution as such did not arrive until after the Civil War, when a coali- tion of prominent abolitionists and feminists defeated attempts to license houses of prostitution in several states. David J. Pivar, PURITY CRUSADE: SEXUAL MORALITY AND SOCIAL CONTROL, 1868-1900, 52, 55, 67 (1973). William Lloyd Garrison lent his name to anti-licensing efforts, id. at 67, which often explicitly invoked slavery and the evils of commodification, see Stanley, FROM BONDAGE TO CONTRACT at 257-58 (quoting Elizabeth Blackwell, The Purchase of Women: The Great Economic Blunder (1916) (originally pub- lished 1886) (“[T]he slaveholding principle that the human COYOTE PUBLISHING v. MILLER 4131 body may be an article of merchandise is still applied to women.”)). The anti-commodification orientation of the early oppo- nents of legalized prostitution was reflected in the nature of the criminal prohibitions adopted early in the twentieth cen- tury. Criminal laws were not directed at women themselves but at those profiting from “commercialized forms of vice.” See Woolston at 32. “Between 1911 and 1915, . . . practically every state in the Union [passed] laws punishing those guilty of forcing girls and women into prostitution, those guilty of pandering, and those living off the earnings of prostitution.” Id. In 1910, Congress passed the White Slave Traffic Act, underscoring the extent to which policymakers associated prostitution with involuntary servitude and the overriding concern with commercial manifestations of the practice, espe- cially interstate and international trafficking in women. 36 Stat. 825 (1910). [9] Though attitudes towards the sale of sexual services have continued to change and evolve since the early twentieth century, this history reinforces the conclusion that Nevada’s objection is genuinely to the buying and selling of sex. Ban- ning commodification of sex entirely is a substantial policy goal that all states but Nevada have chosen to adopt. Uniquely among the states, Nevada has not structured its laws to pursue this substantial state interest to the exclusion of all others. Rather, it has adopted a nuanced approach to the sale of sex- ual services, grounded in part in concern about the negative health and safety impacts of unregulated, illegal prostitution. By permitting some legal prostitution, Nevada has been able to subject a portion of the market for paid sex to extensive regulation, while continuing severely to limit the diffusion of sexual commodification through its banning of prostitution where by far most Nevadans live (and where most outsiders visit), Clark County.17 We note that although official enforcement of some of the prostitution regulations may be inconsistent, see supra note 2, the sociological evi- 4132 COYOTE PUBLISHING v. MILLER [10] Nevada has therefore struck its own idiosyncratic bal- ance between various important but competing state interests. The state’s dual approach does not make its asserted interest in limiting commodification of sex any less substantial than in the states that ban commercial sex transactions entirely. Instead, it is the other primary aspects of the Central Hudson analysis that may be implicated by Nevada’s divided approach — whether the speech regulations “directly and materially” advance the state’s interest in limiting commodifi- cation of sex, and whether the regulations are narrowly tai- lored. See Greater New Orleans Broad., 527 U.S. at 188. Before addressing those questions, however, we pause briefly to consider whether prostitution is “legal activity” in Nevada, a threshold requirement for speech to receive consti- tutional protection under Central Hudson, concluding that the complexities of Nevada’s regulatory scheme make the ques- tion a difficult one and one unnecessary to decide in this case. B. Central Hudson specifies that if the regulated speech con- cerns illegal activity or is misleading, the First Amendment extends no protection and the analysis ends. 447 U.S. at 563-64. Nevada does not assert that the advertising of prosti- tution is false, deceptive, or misleading, so we confine our discussion at this step to the legality of prostitution. Nevada contends that the advertising at issue is unpro- tected, at least in those counties where prostitution is prohib- dence suggests that the effort to fight sexually transmitted diseases and violence in brothels has been highly successful overall. See Alexa E. Albert, David Lee Warner & Robert Hatcher, Facilitating Condom Use with Clients during Commercial Sex in Nevada’s Legal Brothels, 88 AM. J. PUB. HEALTH 643, 644 (1998); Alexa Albert, BROTHEL at 153; Barbara Brents & Kathryn Hausbeck, Violence and Legalized Brothel Prostitution in Nevada: Examining Safety, Risk, and Prostitution Policy, 20 J. INTERPERSONAL VIOLENCE 270, 286 (2005). COYOTE PUBLISHING v. MILLER 4133 ited, because prostitution is not legal activity in those counties. Prostitution is legal, however, in the counties that house licensed brothels, and it is made legal pursuant to the laws of Nevada, not the laws of some other jurisdiction. The question whether a state can ban advertising of a trans- action legal where it is finally carried out but not where it is proposed through advertising does not arise in the typical commercial speech case. Often, the two jurisdictions are one and the same. See, e.g., Lorillard, 533 U.S. at 533-34 (consid- ering intra-state tobacco advertising and sales). In other instances, the laws of the two jurisdictions do not materially differ. For example, in Bigelow v. Virginia, involving a chal- lenge to Virginia’s attempt to restrict the advertising of abor- tion services available in New York, there was “[n]o claim . . . that the advertisement . . . related to a commodity or service that was then illegal in either Virginia or New York.” 421 U.S. 809, 828 (1975). In both Edge Broadcasting and Greater New Orleans Broadcasting, involving challenges to federal restrictions on gaming advertisements, individual states had banned the gaming activities at issue, but it was the federal government that was regulating speech, and federal law did not ban the activities. 509 U.S. at 426; 527 U.S. at 180, 183. Here, by contrast, the regulating jurisdiction — the state of Nevada — has made prostitution illegal, at least in its major population center. Moreover, in Bigelow, Edge Broadcasting, and Greater New Orleans Broadcasting, the interests asserted to justify the restrictions had nothing to do with the direct effects of the advertising at the time and place of consumption of those advertisements, i.e., in the jurisdiction where the advertised activity was illegal. Rather, those restrictions were justified in terms of the negative consequences that might flow from resi- dents of one state traveling to another to obtain a service. See Bigelow, 421 U.S. at 824 (“A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be 4134 COYOTE PUBLISHING v. MILLER affected when they travel to that State.”); Edge Broad., 509 U.S. at 433-34 (describing the restrictions’ purpose as “dis- couraging [non-lottery state residents’] participation in lot- teries”); Greater New Orleans Broad., 527 U.S. at 185 (describing the restrictions’ purpose as “reducing the social costs associated with [casino gambling]”).18 It is consistent with fundamental precepts of our federal system that the law of the jurisdiction where the transaction is proposed should govern the legality of those transactions, as citizens of one state ordinarily are free to travel to another state and have their behavior governed by the law of that second state. See Saenz v. Roe, 526 U.S. 489, 500-02 (1999). Nevada’s asserted interest in limiting commodification of sex differs in a significant respect from the interests consid- ered in Bigelow, Edge Broadcasting, and Greater New Orle- ans Broadcasting. An advertisement that proposes the sale of a sexual act does not merely create a risk that a consumer of that message will travel in pursuit of such a transaction. Instead, an advertisement for sex itself creates the commodifi- cation harm that Nevada seeks to limit. The regulating juris- diction thus has a different and greater interest, vis-a-vis the jurisdiction where the transaction is proposed, in the context of prostitution than in other commercial speech contexts. There may, therefore, be some merit to Nevada’s novel argument that the legality of prostitution ought to be assessed by reference to the law of the counties in which the advertis- ing occurs, rather than the law of the counties in which the proposed transaction would take place. We need not decide, In Washington Mercantile Association v. Williams, 733 F.2d 687, 691 (9th Cir. 1984), we upheld a restriction on the advertising of drug para- phernalia under Central Hudson. In the course of that decision, we observed, “[T]he advertiser who proposes a transaction in a state where the transaction is legal is promoting a legal activity.” As in the Supreme Court cases we have discussed, the regulating state in Washington Mer- cantile did not assert any interest in preventing harms inherent in the advertising messages. COYOTE PUBLISHING v. MILLER 4135 however, how the illegality concept applies in this case. Even if we agreed with Nevada, the fact remains that Nevada’s position on the legality of prostitution in much of the state is essentially agnostic: county governments are free to license or prohibit brothels at their option. See Nev. Rev. Stat. § 244.345. We would therefore have to proceed to the remain- ing steps of the Central Hudson analysis in any event. And as we develop in the ensuing discussion, the Nevada advertising restrictions are valid — because narrowly tailored to advance the interest in limiting commodification of sex — even if we assume that the speech in question is accorded commercial speech protection, rather than ousted from any protection under the illegal transaction exception. There is therefore no need to decide whether some of the advertising is entirely unprotected speech under the Central Hudson illegality prong, and we do not do so. C. At step three of Central Hudson, we ask whether Nevada’s commercial speech restrictions “directly and materially advance[ ]” its asserted interest in limiting the commodifica- tion of sex. See Greater New Orleans Broad., 527 U.S. at 188. [11] Increased advertising of commercial sex throughout the state of Nevada would increase the extent to which sex is presented to the public as a commodity for sale. The advertis- ing restrictions advance the interest in limiting this commodi- fication in two closely related ways. First, they eliminate the public’s exposure — in some areas entirely, and in others in large part — to advertisements that are in themselves an aspect of the commodifying of sex. As the harm protected against occurs in part from the proposal of the transaction, banning or restricting the advertising directly reduces the harm. [12] Second, the advertising restrictions directly and mate- rially advance Nevada’s interest in limiting commodification 4136 COYOTE PUBLISHING v. MILLER by reducing the market demand for, and thus the incidence of, the exchange of sex acts for money, which by definition is commodifying of sex. Nevada might be able to reduce the buying and selling of sex acts to a greater degree by institut- ing a complete ban on prostitution (although there has been no showing that the actual incidence of acts of prostitution, legal and illegal, in Nevada is greater than it would be under a total ban). But it has chosen to take an approach to reducing demand that will not short-circuit the health and safety gains that come with partial legalization. Nevada’s chosen approach directly and materially advances the state’s policy of limiting commodification without under- mining its competing health and safety goals. Common sense counsels that advertising tends to stimulate demand for prod- ucts and services. Conversely, prohibitions on advertising tend to limit demand. See Edge Broad., 509 U.S. at 434 (“[T]he Government may be said to advance its purpose [of reducing demand for lotteries] by substantially reducing lot- tery advertising . . . .”); Posadas, 478 U.S. at 344; Valley Broad. Co. v. United States, 107 F.3d 1328, 1334 (9th Cir. 1997); see also Rubin v. Coors Brewing Co., 514 U.S. 476, 489 (1995) (“It is assuredly a matter of ‘common sense’ . . . that a restriction on the advertising of a product characteristic will decrease the extent to which consumers select a product on the basis of that trait.”). Reducing the demand for commer- cial sex acts in turn limits the commodification of sex. At the same time, Nevada’s decision to legalize prostitution obviously contributes to some extent to the commodification of sex. See Michael Shapiro, Regulation as Language: Com- municating Values by Altering the Contingencies of Choice, 55 U. PITT. L. REV. 681, 687 (1994). Yet, as will appear from our discussion of tailoring, infra, this is not a case where the advertising restrictions themselves contain exceptions that so “undermine and counteract” the asserted interest that the restrictions fail the tailoring requirement. See Metro Lights, L.L.C. v. City of Los Angeles, 551 F.3d 898, 905 (9th Cir. COYOTE PUBLISHING v. MILLER 4137 2009) (quoting Rubin, 514 U.S. at 487); cf. Greater New Orleans Broad., 527 U.S. at 194-95. As the cases bearing on tailoring illustrate, incoherence in the operation of speech reg- ulations can be fatal to the constitutionality of a scheme of regulation. In contrast, the fact that banning the underlying activity outright would also promote the interest advanced by restricting advertising does not by itself render a commercial speech regulation unconstitutional. To so hold would be tanta- mount to requiring that government utilize the least speech restrictive means, which the Supreme Court has made clear is not a sine qua non under Central Hudson. See Greater New Orleans Broad., 527 U.S. at 188. Rather, at step three of Cen- tral Hudson, we need only examine the contribution that the advertising restrictions make to advancing the interest. Here, the restrictions on prostitution advertising directly and materi- ally advance Nevada’s interest in limiting the commodifica- tion of sex. Coyote Publishing suggests that Nevada’s interest in limit- ing commodification is not materially advanced by the ban on brothel advertising in the counties where they are not legal because sexually suggestive material is already widely dis- played in Nevada. The argument misses the point. Nevada seeks to limit the message that sex may be bought and sold. It does not object to sex per se, or to messages that utilize sex- ual innuendo to sell other products. The persistence of those other elements in Nevada society does not defeat Nevada’s interest. To be sure, there are goods and services for sale in the state of Nevada whose advertisement may contribute to the com- modification of human sexuality but that escape the advertis- ing ban at issue here — for example, shows featuring nude dancers. But Nevada asserts an interest in limiting the com- modification of sexual acts; the buying and selling of nude images is a different concern. Nor is this distinction too fine for purposes of the First Amendment. It is the very distinction 4138 COYOTE PUBLISHING v. MILLER that drives the legislative choices of the many states that per- mit nude dancing but not prostitution.19 [13] In sum, we conclude that Nevada’s substantial interest in limiting the commodification of sex is directly and materi- ally advanced by the restrictions on brothel advertising. D. [14] Finally, we must assess whether the restrictions on advertising are “more extensive than necessary” in light of Nevada’s interests. Central Hudson, 447 U.S. at 566. “The Government is not required to employ the least restrictive means conceivable,” but “it must demonstrate narrow tailor- ing of the challenged regulation to the asserted interest — a fit that is not necessarily perfect, but reasonable . . . .” Greater New Orleans Broad., 527 U.S. at 188 (internal quotation marks omitted). [15] Nevada bans brothel advertising completely in coun- ties where prostitution is illegal. In light of the fact that prosti- tution advertisements are themselves an aspect of the commodification harm that Nevada seeks to limit, we have no trouble concluding that the advertising restrictions are nar- rowly tailored. Every advertisement for prostitution that is not seen contributes to limiting the commodification of sex, both directly and by reducing demand. Coyote Publishing points to no application of the law that would fail to advance Nevada’s interest. Cf. Lorillard, 533 U.S. 561-64 (striking down restric- tions on tobacco advertising justified only with respect to pro- tecting children because the restrictions infringed See Cal. Penal Code § 318.5; N.C. Gen. Stat. Ann. § 14-190.9; Mass. Gen. Laws Ann. ch. 140, § 183A; Federal Heights Mun. Code ch. XII, art. XII, § 12-12-11(B), cited in Essence, Inc. v. City of Fed. Heights, 285 F.3d 1272, 1279 n.5 (10th Cir. 2002) (Colorado). COYOTE PUBLISHING v. MILLER 4139 substantially on communications that targeted adults, not chil- dren).20 Nevada’s approach in counties where prostitution is legal is less straightforward. In those counties, legal brothels may advertise, but may not do so “[i]n any public theater, on the public streets of any city or town, or on any public highway.” Nev. Rev. Stat. § 201.430(1)(a). This aspect of Nevada’s scheme requires a more in-depth analysis of tailoring, which has proven the most exacting requirement of Central Hudson in recent cases. In 44 Liquormart, for example, the opinions that made up the Court’s fractured disposition agreed that Rhode Island had offered no satisfying reason why its pur- ported goal of increasing liquor prices was better served by advertising restrictions than by “obvious” alternative means. See 517 U.S. at 507, 530. And in Greater New Orleans Broadcasting, the regulatory scheme failed the tailoring requirement because it arbitrarily discriminated between tribal and non-tribal commercial casinos and fell short of “a rough approximation of efficacy.” 527 U.S. at 189-91, 194-95. Nevada’s scheme does not suffer from these infirmities. Nevada’s choice to pursue its state interests by regulating advertising rather than the alternative means of banning all prostitution directly is a unique one in this country, but not one without a well-developed policy basis: partial legalization and regulation serves Nevada’s competing, substantial inter- We note that for a state that uniformly prohibits both prostitution and prostitution advertising, the tailoring inquiry would end there. There can be no question that a decision by California or Arizona to ban within their borders the advertising of prostitution legal in Nevada would survive this step — and the foregoing steps — of Central Hudson, just as there can be no question that the United States would not be prevented by the First Amendment from banning advertising within its borders of child prostitu- tion establishments located in an overseas jurisdiction where such estab- lishments are legal. Where a regulating jurisdiction seeks to limit the commodification of sex, a uniform ban on prostitution advertising is well- tailored to that goal. 4140 COYOTE PUBLISHING v. MILLER ests in preventing the spread of sexually transmitted disease and protecting sex workers from abuse. Cf. 44 Liquormart, 517 U.S. at 530 (“The ready availability of [alternatives]—at least some of which would far more effectively achieve Rhode Island’s only professed goal, at comparatively small additional administrative cost—demonstrates that the fit between ends and means is not narrowly tailored.”) (O’Connor, J., concurring) (emphasis added). The First Amendment does not require that a regulatory regime single- mindedly pursue one objective to the exclusion of all others to survive the intermediate scrutiny applied to commercial speech regulations. [16] In permitting some unobtrusive, non-public forms of advertising in counties where brothels are legal, Nevada has achieved “a fit that is not necessarily perfect, but reasonable.” Greater New Orleans Broad., 527 U.S. at 188. By keeping brothel advertising out of public places, see Nev. Rev. Stat. § 201.430(1)(a), where it would reach residents who do not seek it out, but permitting other forms of advertising likely to reach those already interested in patronizing the brothels, Nevada strikes a balance between its interest in maintaining economically viable, legal, regulated brothels and its interest in severely limiting the commodification of sex. [17] Especially in light of the fact that this is a facial chal- lenge, we are unable to strike down these regulations. As we held in rejecting another First Amendment challenge to adver- tising restrictions, “the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the stat- ute’s plainly legitimate sweep to justify invalidating the stat- ute on its face.” Wash. Mercantile, 733 F.2d at 692 (internal quotation marks omitted). Nevada has tailored its restrictions on advertising to attain a reasonable fit between ends and means. COYOTE PUBLISHING v. MILLER 4141 III. [18] In sum, we hold that the restrictions on brothel adver- tising contained in Nevada Revised Statute §§ 201.430-440 are consistent with the First Amendment. REVERSED. NOONAN, Circuit Judge, concurring: I agree with the result of Judge Berzon’s thoughtful opin- ion. I take a different route to reach it. Nevada states that its advertising restrictions are intended to protect minors. But such a rationale scarcely suffices to jus- tify restrictions on speech intended for adults. See, e.g., Reno v. Am. Civil Liberties Union, 521 U.S. 844, 875 (1997) (The “governmental interest in protecting children from harmful materials . . . does not justify an unnecessarily broad suppres- sion of speech addressed to adults.”). Nevada’s other articula- tion of Nevada’s interest in restricting advertising in Nevada by brothels licensed as lawful by Nevada counties is that Nevada seeks “to limit the profile of prostitution” in Nevada. Obviously that limitation is the purpose of the Nevada stat- utes. But the purpose of the statutes is not the same as the interest that the state is seeking to protect. Nevada, in the pre- sentation of its case to us, has not articulated the state’s inter- est as fully as one might hope. Neither Judge Berzon nor I takes this failing to be the end of state’s case. Judge Berzon finds the state’s interest implicit in its other arguments. The state, she says, has an interest in preventing the sale of sexual intercourse by human beings. The state could prohibit such sale entirely. Forty-nine states and six Nevada counties, including the county containing Las Vegas, do. But the state may take a half-step: it may ban the 4142 COYOTE PUBLISHING v. MILLER advertising of brothels in counties where they are unlawful, and limit the advertising of brothels where they are permitted. I agree with the offered rationale, but recognize that to use it we are relying on a kind of state interest not heretofore addressed in the Central Hudson line of cases. We recognize that the sexual intercourse of human beings is not like gam- bling, drinking, or smoking. As Nevada tells us in its brief, it is sui generis. It is an act performed in private. It is an act not usually engaged in with strangers. It is an act limited by law as to age and blood relationship. It is the way that human life is usually propagated. It is the way that families are usually formed. It is the way in which human love finds its fullest physical expression. The state of Nevada has proclaimed its interest in this activ- ity by its statutes regulating the creation of marriage, Nev. Rev. Stat. §§ 122.002-122.270; by its statutes governing the dissolution of marriage, id. §§ 125.005-125.560; by its stat- utes specifying the devolution of intestate property, id. §§ 134.005-134.210; by its statutes governing the emancipa- tion of minors, id. §§ 129.080-129.140; and by its statute shielding spouses from testifying against each other, id. § 49.295. The network of laws setting off married couples from unmarried individuals testifies to the central role of sex- ual intercourse in civil society in Nevada as elsewhere in the United States. Nevada’s interest in preventing advertisements for the sale of an activity central to the domestic life of its inhabitants does not need to be spoken by its attorney general. Its interest is stated in its statutes. No need to go further to defend the Nevada statutes at issue. I strengthen the argument by noting Footnote 20 of Judge Berzon’s opinion. It states, there is no question that California or Arizona could constitutionally ban the advertis- ing of the legal Nevada brothels and that the United States similarly could ban the advertisement of child prostitution that was lawful in a foreign jurisdiction. I agree. But why can such COYOTE PUBLISHING v. MILLER 4143 activity lawful in one jurisdiction be kept from being adver- tised in another jurisdiction? The answer, implicit in Judge Berzon’s opinion, is that California, Arizona, or the United States may constitutionally suppress speech that offers sexual intercourse for sale.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MARYLOU PRIMIANO; CHARLES  PRIMIANO, Plaintiffs-Appellants, No. 06-15563 v. D.C. No. YAN COOK; STRYKER CORPORATION; ROBERT J. TAIT M.D.,  CV-03-00373- JCM/PAL Defendant, OPINION HOWMEDICA OSTEONICS CORPORATION, Defendant-Appellee.  Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding Argued and Submitted February 13, 2008 Submission Withdrawn and Supplemental Briefing Requested March 3, 2008 Resubmitted July 15, 2009 San Francisco, California Filed March 10, 2010 Before: Dorothy W. Nelson, Andrew J. Kleinfeld, and Michael Daly Hawkins, Circuit Judges. Opinion by Judge Kleinfeld 3804 PRIMIANO v. HOWMEDICA OSTEONICS COUNSEL Peter C. Wetherall, Las Vegas, Nevada, for plaintiffs- appellants Marylou and Charles Primiano. Frederick D. Baker (argued), Wayne A. Wolff, San Francisco, California; Ralph A. Campillo, Los Angeles, California, for defendant-appellee Howmedica Osteonics Corporation. OPINION KLEINFELD, Circuit Judge: We address admissibility under Daubert1 of medical testi- mony. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). PRIMIANO v. HOWMEDICA OSTEONICS 3805 I. Facts Marylou Primiano has suffered a miserable ordeal since she had elbow surgery. The question raised by her litigation2 is whether her ordeal resulted from a defective product, the arti- ficial elbow Howmedica Osteonics Corporation manufac- tured. The district court granted summary judgment against her and dismissed her case, but that result could not have occurred had her medical expert’s testimony been considered. His testimony would have established a genuine issue of material fact, because he thought the plastic bearing between the metal parts of the artificial elbow wore out so quickly that it must have been defective. The district court ruled that his testimony was inadmissible, leaving Primiano with inade- quate evidence to establish a genuine issue of fact. The ques- tion before us is whether excluding Primiano’s expert’s testimony was an abuse of discretion. Ms. Primiano, an active 36-year-old woman, fell in her kitchen and broke her elbow. The injury, serious for anyone, was especially serious for her, because she has had rheuma- toid arthritis for years. Unlike osteoarthritis, a degenerative process of wear and tear on the joints, rheumatoid arthritis is a chronic inflammatory disease of the connective tissue in the joints.3 Her physician, Robert J. Tait, M.D., performed sur- gery April 18, 2000, two days after her fall. He replaced her elbow joint with a device made by the defendant, How- medica, consisting of titanium pieces to replace the bone and polyethylene components to prevent the metal from rubbing against metal. The complaint also names Mr. Primiano as a plaintiff, for his deriva- tive claim for loss of consortium etc., and names Stryker Corporation as owner of Howmedica Osteonics Corporation, Robert J. Tait M.D., the sur- geon who operated on Ms. Primiano, and Yan Cook, a Howmedica sales representative. Only the Primianos’ appeal challenging the summary judg- ment and exclusion of evidence in favor of Howmedica is before us. Blakiston’s Gould Medical Dictionary 1353 (3d ed. 1972). 3806 PRIMIANO v. HOWMEDICA OSTEONICS Two thirds of the way through surgery, Dr. Tait discovered that Howmedica had made a mistake in the packing and ship- ping, so even though he was replacing Ms. Primiano’s right elbow, the humeral component (the humerus is the arm bone running from the elbow to the shoulder) sent to him was labeled for the left arm. He consulted Howmedica’s represen- tative (“Did I kill him? No, I didn’t.”) with Ms. Primiano’s arm open on the table and was told that the components are symmetrical, identical in every respect except that the locking pin goes in the opposite side of the left humeral component, so the component he had could be used. The hole had to be drilled in Ms. Primiano’s bone from the inside instead of the outside, but the artificial joint would be equally functional. Dr. Tait completed the operation, and it appeared to be a suc- cess. But by July, Ms. Primiano’s elbow squeaked, and by December, Dr. Tait could hear the metal-on-metal contact, which he confirmed in an x-ray. In February, Dr. Tait per- formed a second surgery addressing the evident failure of the implant and risk of metallosis (a destructive immune response of the body to flecks of metal shaved off by metal-on-metal contact), replacing the humeral component with a longer one. He used Howmedica’s left arm humeral component again, though the long instead of the standard, to avoid having to redrill the remaining bone. He observed massive metallosis and “severe polyethylene wear” on the bearing surrounding the pin. Again, the surgery appeared to go fine. But the next month, Ms. Primiano was having trouble controlling her arm and the joint had a “cracking” sound. She obtained a second opinion from an orthopedic surgeon who concluded that the components appeared “to be adequately fixed and in good position.” But in June her problems with the joint had not gone away, so she consulted a third orthopedic surgeon, who recommended a third surgery. In July this surgeon replaced her Howmedica device with one from its competitor, Zimmer. That surgeon performed a fourth surgery the next April to cor- PRIMIANO v. HOWMEDICA OSTEONICS 3807 rect loosening. A pin backed out of position, so she needed yet another surgery, her fifth, in September. Primiano sued Howmedica, Dr. Tait, and others in state court for negligence, strict liability, breach of warranty, and loss of consortium.4 Howmedica removed the case to federal court based on diversity. All that is before us now is the prod- ucts liability case. In the summary judgment papers, Howmedica’s experts, an orthopedic surgeon and a chemist, provided opinions that the polyethylene was as it should be, and the rapid failure of the prosthesis and excessive wear on the polyethylene compo- nents resulted from “malalignment of the prosthesis” along with increased risk of complication because of Ms. Primi- ano’s rheumatoid arhtritis and her age. The product literature distributed to physicians said that the prosthesis would not restore function to the level expected with normal healthy bone, and was vulnerable to excessive loading from activity. Evidently, younger patients such as Ms. Primiano may do worse because they are more active. The manufacturer’s liter- ature says “[w]hile the expected life of the total elbow replacement components is difficult to estimate, it is finite.” Primiano’s expert witness, Arnold-Peter Weiss, M.D., declared that the polyethylene bushing had worn through in less than eight months, “not a usual or expected circum- stance.” Though finite, the typical lifespan of elbow prosthe- ses “far exceeds” how long this one lasted. Dr. Weiss testified in his deposition that although wear starts immediately, elbow prostheses last as long as ten or fifteen years, even twenty, and the earliest he had seen them wear out was around five to eight years, varying with the patient’s activity level. Though misalignment could cause excessive wear, he had looked at the x-rays and found no significant misalignment. Primiano’s complaint says that she is not suing Dr. Tait for malprac- tice, just as an agent of Howmedica in selling the prosthesis. 3808 PRIMIANO v. HOWMEDICA OSTEONICS Nor would ordinary daily activity produce such extraordinar- ily rapid wear. Nor could he find technically inappropriate use of the prosthesis by Dr. Tait. His opinion was that the extraor- dinarily rapid wear was caused by abrasive wear and genera- tion of debris from movement of the titanium against the polyethylene. And he concluded that the prosthesis failed to perform in a manner reasonably to be expected by a surgeon using it, because it failed too early. The district court granted defendants’ motion to exclude Dr. Weiss’s testimony as not meeting the Daubert standard and granted summary judgment. The court concluded that Dr. Weiss’s testimony would not be helpful to the jury. The judge reasoned: “Well, I mean it’s like res ipsa loquitur, the elbow failed. Now, why did it fail? Maybe it was malpractice, maybe it was Dr. Tait.” The evidence of rapid wear “doesn’t make it defective.” “I think [Dr. Tait’s] opinion is weakened by the fact that he didn’t see the plaintiff. He didn’t examine her. He didn’t talk to her.” “[T]here’s no peer review . . . no publication . . . there’s got to be an objective source that he relies on.” The court rejected plaintiff’s argument, that testi- mony that the premature failure was not attributable to over- use, medical malpractice, “her physiology,” or other factors external to the device, would assist the jury. II. Analysis We review summary judgment de novo.5 The substantive question the jury would have to answer, in this diversity case arising out of state tort law, is established by Nevada law. The question whether evidence is admissible, though, is governed by federal law. The Federal Rules of Evidence “govern pro- ceedings in the courts of the United States.”6 That is generally true in diversity cases because the Federal Rules of Evidence Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001). Fed. R. Evid. 101. PRIMIANO v. HOWMEDICA OSTEONICS 3809 are statutes enacted by Congress.7 Though there are excep- tions, such as state substantive law in the guise of an evidenti- ary rule,8 no exception applies here. [1] Ms. Primiano’s burden was to establish a defect in the manufacture of the artificial elbow. In Nevada, “those prod- ucts are defective which are dangerous because they fail to perform in the manner reasonably to be expected in light of their nature and intended function.”9 A plaintiff need not “pro- duce direct evidence of a specific product defect [or] negate any alternative causes of the accident.”10 An “unexpected, dangerous malfunction” suffices.11 [2] Federal Rule of Evidence 702 controlled admissibility of Dr. Weiss’s opinion. That rule establishes several require- ments for admissibility: (1) the evidence has to “assist the trier of fact” either “to understand the evidence” or “to deter- mine a fact in issue”; (2) the witness has to be sufficiently qualified to render the opinion: If scientific, technical, or other specialized knowl- edge will assist the trier of fact to understand the evi- dence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experi- ence, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testi- mony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and Sims v. Great Am. Life Ins. Co., 469 F.3d 870, 878-79 (10th Cir. 2006). See Feldman v. Allstate Ins. Co., 322 F.3d 660, 666 (9th Cir. 2003); Wray v. Gregory, 61 F.3d 1414, 1417 (9th Cir. 1995) (per curiam). Allison v. Merck & Co., 878 P.2d 948, 952 (Nev. 1994) (internal quota- tion marks omitted); Ginnis v. Mapes Hotel Corp., 470 P.2d 135, 138 (Nev. 1970) (internal quotation marks omitted). Stackiewicz v. Nissan Motor Corp., USA, 686 P.2d 925, 927 (Nev. 1984). Id. at 928. 3810 PRIMIANO v. HOWMEDICA OSTEONICS methods, and (3) the witness has applied the princi- ples and methods reliably to the facts of the case.12 Though Daubert is sometimes loosely spoken of as though it established the court’s “gatekeeping” function, that is not quite right. Trial courts have always had a gatekeeping func- tion for opinion evidence. Daubert held that Federal Rule of Evidence 702 replaces the old Frye13 gatekeeping test, “gen- eral acceptance in the particular field,” with a different test which is, in some respects, more open to opinion evidence.14 [3] The requirement that the opinion testimony “assist the trier of fact” “goes primarily to relevance.”15 For scientific opinion, the court must assess the reasoning or methodology, using as appropriate such criteria as testability, publication in peer reviewed literature, and general acceptance, but the inquiry is a flexible one.16 Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.17 In sum, the trial court must assure that the expert testimony “both rests on a reliable foundation and is relevant to the task at hand.”18 Kumho Tire Co. v Carmichael holds that the Daubert frame- work applies not only to scientific testimony but to all expert testimony.19 It emphasizes, though, that the “test of reliability is ‘flexible’ and Daubert’s list of specific factors neither nec- Fed. R. Evid. 702. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Daubert, 509 U.S. at 588 (“Nothing in the text of [Rule 702] estab- lishes ‘general acceptance’ as an absolute prerequisite to admissibility.”); id. at 589 (“That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials.”). Id. at 591. Id. at 592-4. Id. at 596. Id. at 597. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); see also White v. Ford Motor Co., 312 F.3d 998, 1007 (9th Cir. 2002). PRIMIANO v. HOWMEDICA OSTEONICS 3811 essarily nor exclusively applies to all experts or in every case.”20 The “list of factors was meant to be helpful, not definitive,”21 and the trial court has discretion to decide how to test an expert’s reliability as well as whether the testimony is reliable,22 based on “the particular circumstances of the particular case.”23 [4] We further interpreted Daubert on remand.24 In that case, the evidence proffered was scientific epidemiological evidence, of insufficient reliability for admissibility. We took pains to point out that the problem was methodology, not the conclusion to which the evidence would lead. “[T]he test under Daubert is not the correctness of the expert’s conclu- sions but the soundness of his methodology.”25 Under Daubert, the district judge is “a gatekeeper, not a fact finder.”26 When an expert meets the threshold established by Rule 702 as explained in Daubert, the expert may testify and the jury decides how much weight to give that testimony. Testimony by physicians may or may not be scientific evi- dence like the epidemiologic testimony at issue in Daubert. The classic medical school texts,27 Cecil28 and Harrison,29 explain that medicine is scientific, but not entirely a science. Kumho Tire, 526 U.S. at 141. Id. at 151. Id. at 152. Id. at 150. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1313 (9th Cir. 1995). Id. at 1318. United States v. Sandoval-Mendoza, 472 F.3d 645, 654 (9th Cir. 2006). Jock Murray, Neurology Texts for Internists, 123 Annals of Internal Med. 477, 477-79 (1995). Cecil Textbook of Medicine 1 (James B. Wyngaarden & Lloyd H. Smith Jr. eds., 17th ed. 1985). Harrison’s Principles of Internal Medicine 3 (Dennis L. Kasper et al. eds., 16th ed. 2005). 3812 PRIMIANO v. HOWMEDICA OSTEONICS “[M]edicine is not a science but a learned profession, deeply rooted in a number of sciences and charged with the obliga- tion to apply them for man’s benefit.”30 “Evidence-based medicine” is “the conscientious, explicit and judicious use of current best evidence in making decisions about the care of individual patients.”31 “Despite the importance of evidence- based medicine, much of medical decision-making relies on judgment—a process that is difficult to quantify or even to assess qualitatively. Especially when a relevant experience base is unavailable, physicians must use their knowledge and experience as a basis for weighing known factors along with the inevitable uncertainties” to “mak[e] a sound judgment.”32 When considering the applicability of Daubert criteria to the particular case before the court, the inquiry must be flexi- ble. Peer reviewed scientific literature may be unavailable because the issue may be too particular, new, or of insuffi- ciently broad interest, to be in the literature.33 Lack of cer- tainty is not, for a qualified expert, the same thing as guesswork.34 “Expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the perti- nent inquiry. And it is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline.”35 “[T]he factors identified in Daubert may or may not be pertinent in assessing reliability, depend- ing on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.”36 Reliable expert testimony Cecil Textbook of Medicine, supra, at 1. Harrison’s Principles of Internal Medicine, supra, at 3. Id. Clausen v. M/V New Carissa, 339 F.3d 1049, 1056, 1060 (9th Cir. 2003). Id. at 1059. Sandoval-Mendoza, 472 F.3d at 654 (internal quotation marks and citation omitted). White v. Ford Motor Co., 312 F.3d 998, 1007 (9th Cir. 2002) (internal quotation marks omitted). PRIMIANO v. HOWMEDICA OSTEONICS 3813 need only be relevant, and need not establish every element that the plaintiff must prove, in order to be admissible.37 [5] We have some guidance in the cases for applying Dau- bert to physicians’ testimony. “A trial court should admit medical expert testimony if physicians would accept it as use- ful and reliable,” but it need not be conclusive because “medi- cal knowledge is often uncertain.”38 “The human body is complex, etiology is often uncertain, and ethical concerns often prevent double-blind studies calculated to establish sta- tistical proof.”39 Where the foundation is sufficient, the liti- gant is “entitled to have the jury decide upon [the experts’] credibility, rather than the judge.”40 We held in United States v. Smith that even a physician’s assistant was qualified based on experience to offer his opinion.41 [6] Other circuits have taken similar approaches focusing especially on experience. The Sixth Circuit held that a district court abused its discretion by excluding a physician’s testi- mony based on extensive, relevant experience even though he had not cited medical literature supporting his view.42 Like- wise the Third Circuit pointed out that a doctor’s experience might be good reason to admit his testimony.43 Thus under our precedents and those of other circuits, the district court in this case was pushing against the current, but that alone does not imply an abuse of discretion. See Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir. 2007). Sandoval-Mendoza, 472 F.3d at 655. Id. Id. at 656. 520 F.3d 1097, 1105 (9th Cir. 2008). Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., 388 F.3d 976, 982 (6th Cir. 2004). Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 406-07 (3d Cir. 2003). 3814 PRIMIANO v. HOWMEDICA OSTEONICS [7] A close look at the foundation for Dr. Weiss’s opinion, the nature of medical opinion, and the question posed by Nevada law does. Dr. Weiss is a board certified orthopedic surgeon and a professor at Brown University School of Medi- cine in the Division of Hand, Upper Extremity and Microvascular Surgery, department of Orthopedics. He has published over a hundred articles in peer-reviewed medical journals including several specifically on the elbow and at least one somewhat related to this case, “Capitellocondylar Total Elbow Replacement: A Long-Term Follow-up Study.”44 He has years of experience implanting various elbow pros- thetics and has performed five to ten revisions of total elbow replacements that had been performed by other physicians. He has examined the various types of prosthetics available, and has maintained familiarity with the peer-reviewed literature. He testified that the very short lifespan of Ms. Primiano’s arti- fical elbow is “outside of my review of the known literature.” He conceded on cross examination that there was “no pub- lished peer-reviewed article that [I’m] aware of that states a strict minimum lifespan of a polyethylene component in a total elbow system,” but explained that “I wouldn’t expect any literature, because you don’t see it. It’s hard to write a paper about something that doesn’t occur. I mean, this is really bizarre.” [8] A court would have to find that Dr. Weiss is “qualified as an expert by knowledge, skill, experience, training, or educa- tion”45 to render an opinion on elbow replacements. The dis- trict court appears to have rejected the opinion based in part on two elements of Rule 702, whether his opinion would assist the trier of fact, and whether it was based upon suffi- cient facts or data. Andrew J. Weiland, Arnold-Peter C.Weiss, Robert P. Wills & J. Rus- sell Moore, Capitellocondylar Total Elbow Replacement: A Long-Term Follow-up Study, 71 J. of Bone & Joint Surgery, 217, 217-22 (1989). Fed. R. Evid. 702. PRIMIANO v. HOWMEDICA OSTEONICS 3815 [9] The district court thought Dr. Weiss’s opinion would not assist the jury because Dr. Weiss could not say why the plastic part of the artificial elbow failed so quickly. The “will assist” requirement, under Daubert, “goes primarily to rele- vance.”46 What is relevant depends on what must be proved, and that is controlled by Nevada law. Nevada law establishes that “those products are defective which are dangerous because they fail to perform in the manner reasonably to be expected in light of their nature and intended function.”47 In Nevada, a plaintiff need not “produce direct evidence of a specific product defect [or] negate any alternative causes of the accident.”48 An “unexpected, dangerous malfunction” suf- fices.49 Since Dr. Weiss, with a sufficient basis in education and experience, testified that the artificial joint “fail[ed] to perform in the manner reasonably to be expected in light of [its] nature and intended function,” that was enough to assist the trier of fact. He did not have to know why it failed. [10] The district court’s other concerns, that Dr. Weiss never saw or talked to Ms. Primiano, and there was no publi- cation supporting his opinion that the device failed extraordi- narily early, both might be useful to the jury as impeachment, but neither furnished an adequate basis for excluding his opin- ion. What he most needed to see was what was inside her arm, not outside it, and he did. He saw the x-rays. He also saw the polyethylene from the implant installed in Primiano’s first surgery. As for lack of a publication backing his opinion up, Daubert offers several reasons why an opinion unsupported by peer-reviewed publication may be admissible,50 and Dr. Daubert, 509 U.S. at 591. Allison v. Merck & Co., 878 P.2d 948, 952 (Nev. 1994) (internal quo- tation marks omitted); Ginnis v. Mapes Hotel Corp., 470 P.2d 135, 138 (Nev. 1970) (internal quotation marks omitted). Stackiewicz v. Nissan Motor Corp., USA, 686 P.2d 925, 927 (Nev. 1984). Id. at 928. Daubert, 509 U.S. at 593. 3816 PRIMIANO v. HOWMEDICA OSTEONICS Weiss furnished another one, that the phenomenon is so extraordinary that the specialists who publish articles do not see it in their practices. [11] Dr. Weiss’s background and experience, and his explanation of his opinion, leave room for only one conclu- sion regarding its admissibility. It had to be admitted. Once admitted, the opinion precluded summary judgment, because if the jury accepted it, then the Howmedica prosthesis “fail- [ed] to perform in the manner reasonably to be expected.”51 His methodology, essentially comparison of what happened with Ms. Primiano’s artificial elbow with what surgeons who use artificial elbows ordinarily see, against a background of peer-reviewed literature, is the ordinary methodology of evi- dence based medicine: “not a science but a learned profession deeply rooted in a number of sciences,”52 “the conscientious, explicit and judicious use of current best evidence in making decisions about the care of individual patients”53 and “rel[y- ing] on judgment—a process that is difficult to quantify or even to assess qualitatively. Especially when a relevant expe- rience base is unavailable, physicians must use their knowl- edge and experience as a basis for weighing known factors along with the inevitable uncertainties” to “mak[e] a sound judg- ment.”54 [12] The jury may reject Dr. Weiss’s opinion. It may con- clude that Ms. Primiano’s level of activity, or error by Dr. Tait in performing the surgery, caused the failure. Or it may conclude that the negligence that matters was in the packing and shipping department of Howmedica, when they sent the wrong pieces to the hospital. But those possibilities bear on Allison, 878 P.2d at 952. Cecil Textbook of Medicine 1 (James B. Wyngaarden & Lloyd H. Smith Jr. eds., 17th ed. 1985). Harrison’s Principles of Internal Medicine 3 (Dennis L. Kasper et al. eds., 16th ed. 2005). Id. PRIMIANO v. HOWMEDICA OSTEONICS 3817 the merits of Ms. Primiano’s claim, not the admissibility of Dr. Weiss’s opinion. Given that the judge is “a gatekeeper, not a fact finder,”55 the gate could not be closed to this rele- vant opinion offered with sufficient foundation by one quali- fied to give it. REVERSED. Sandoval-Mendoza, 472 F.3d at 654.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FELIX SOLORIO VALDOVINOS,  No. 08-15918 Petitioner-Appellant, v.  D.C. No. 4:02-CV-01704-CW JOE MCGRATH, OPINION Respondent-Appellee.  Appeal from the United States District Court for the Northern District of California Claudia Wilken, District Judge, Presiding Argued and Submitted September 1, 2009—San Francisco, California Filed March 10, 2010 Before: Betty B. Fletcher and Andrew J. Kleinfeld, Circuit Judges, and Kevin Thomas Duffy,* District Judge. Opinion by Judge B. Fletcher *The Honorable Kevin Thomas Duffy, United States District Judge for the Southern District of New York, sitting by designation. VALDOVINOS v. MCGRATH 3823 COUNSEL Christopher J. Cannon, Sugarman & Cannon, San Francisco, California, for the petitioner-appellant. Edmund G. Brown, Jr., Dane R. Gillette, Gerald A. Engler, Peggy S. Ruffra, and Jeremy Friedlander, San Francisco, Cali- fornia, for the respondent-appellee. OPINION B. FLETCHER, Circuit Judge: Petitioner-Appellant Felix Solorio Valdovinos appeals from the district court’s denial of his amended habeas corpus peti- tion challenging his jury conviction of first degree murder. He contends that the government withheld potentially exculpa- tory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that his trial counsel’s performance fell below the level required under Strickland v. Washington, 466 U.S. 668 (1984). Because a reasonable probability exists that the undis- closed Brady material could have altered the result of the pro- ceeding, we reverse in part and remand with instructions to the district court to issue a writ of habeas corpus. I. On December 1, 1998, a jury convicted Valdovinos of the first degree murder of Nelson Caballero. On May 11, 1998, Caballero was shot outside a San Jose nightclub. The shooter 3824 VALDOVINOS v. MCGRATH fired two shots from a .380 caliber semi-automatic handgun, hitting Caballero once in the stomach and once in the head. The murder investigation ultimately led to the arrest of Val- dovinos in Oregon in June 1998. At trial, the prosecution relied heavily on eyewitness testi- mony implicating Valdovinos in the killing. The prosecution called as eyewitnesses four of Caballero’s acquaintances who were present at the shooting. Three of these witnesses identi- fied Valdovinos as the shooter at both the preliminary hearing and trial. One witness, Joaquin Diaz, testified that the shooter wore a black cowboy hat and a black leather jacket, and had a mus- tache. Diaz stated that the gunman was approximately the same height as Diaz, who stood five feet, six inches. Diaz also testified that one of the shooter’s companions wore cowboy garb and a hat, but was taller than Diaz, and that a third man talking to Caballero at the time of the shooting did not wear any cowboy apparel and was Diaz’s height. Tracy Castro and Kyong “Say” Miranda also witnessed the shooting outside the club. At trial, Castro testified that, as she exited the club that night, she observed a man wearing a white cowboy hat, jeans, and a black waist-length jacket shoot Caballero in the stomach and then in the temple. Castro also testified that the shooter was six feet tall. After the shooting, Castro saw the shooter leave with another person in a gray car. Miranda testified at trial that the shooter was a Hispanic male wearing a light tan straw cowboy hat, a short leather jacket, and jeans. She said he was tall and slender and had a mustache, and that he drove away in a gray car with a male passenger. Caballero’s girlfriend, Blanca Torres, told the police the shooter wore a black hat, a dark jacket, was a bit muscular, and had a mustache. VALDOVINOS v. MCGRATH 3825 Diaz, Castro, and Miranda all identified Valdovinos as the shooter at both the preliminary hearing and trial. Torres could not identify the shooter. During the course of the investigation, Detective Ernesto Alcantar presented two of the eyewitnesses each with two photographic lineups. A few days after the shooting, Detec- tive Alcantar showed Castro and Diaz each a photo lineup of six Hispanic males with mustaches and short to medium black hair. At that time, Castro did not identify Valdovinos but selected another photograph. Diaz chose the photo of Val- dovinos but said he was not certain of the identification. Several months later, in advance of the preliminary hearing, Detective Alcantar showed Castro and Diaz each a second photographic lineup using a different photograph of Val- dovinos. Again, Diaz chose Valdovinos’s photo but said he was not sure and Castro identified someone other than Val- dovinos. At the preliminary hearing, Valdovinos’s defense attorney, in the presence of the prosecutor and Detective Alcantar, requested a blackboard preliminary hearing, in which a screen prevents the witnesses from seeing the defendant.1 Defense counsel made the request based on a review of police reports indicating the witnesses had never seen a lineup or photo lineup. Neither the prosecutor nor Detective Alcantar informed the court or defense counsel that the witnesses already had seen photo lineups including Valdovinos’s photo, or that Diaz tentatively had identified Valdovinos’s photo whereas Castro had chosen different photographs. The court denied the defense attorney’s request. A blackboard preliminary hearing takes place when the witnesses have not made any prior identifications of the defendant. A screen blocks the witness’s view of the defendant so that when the witness later is asked to make an identification at trial, the witness will not already have seen the defendant at the preliminary hearing. 3826 VALDOVINOS v. MCGRATH Defense counsel did not learn of the photo lineups until cross-examination of Diaz during trial. Detective Alcantar later testified he had administered two separate photo lineups. Upon learning of the non-disclosure of the previous photo- graphic lineups, defense counsel moved for a dismissal. The trial court determined that the non-disclosure of the photo lineups fell within the purview of Brady v. Maryland, 373 U.S. 83 (1963). However, the court denied the motion to dis- miss because it found that the prosecution did not intention- ally conceal the exculpatory evidence and therefore did not act in bad faith. The court read a corrective jury instruction and offered defense counsel a continuance, which counsel did not take. Also at trial, the prosecution read into the record the pre- liminary hearing testimony of Aurelio Lopez and his unsworn statement to the police. Lopez and another man, Isidro Garcia, both of whom resided with Valdovinos, were at the club on the night of the shooting. Lopez was scheduled to testify for the prosecution at trial, but could not be located once the trial started. Defense counsel objected to the court declaring Lopez unavailable and permitting the introduction of his preliminary hearing testimony, but did not object to the admission of Lopez’s out-of-court statement. As part of the investigation, Detective Alcantar and Police Sergeant Pete Ramirez visited Valdovinos’s apartment. Val- dovinos was not home, but Lopez and Garcia were present. The police received consent to search the apartment and found an ounce of methamphetamine and a nine millimeter gun in Lopez’s bedroom. They arrested Lopez on an outstand- ing warrant for drug and gun possession. Police never brought new gun and drug possession charges against Lopez. The same day, the detectives interviewed Lopez and Garcia at the police station. When they asked Lopez if he had seen Valdovinos with a weapon on the night of the shooting, Lopez VALDOVINOS v. MCGRATH 3827 said he did but did not know what kind. When questioned fur- ther, Lopez stated that the weapon was a gun. Lopez later contradicted this statement while testifying at the preliminary hearing. At trial, Garcia testified that many people at the nightclub on the night of the shooting were dressed similarly, and that both Valdovinos and Lopez wore hats and black jackets. Gar- cia was wearing a black leather jacket, black pants, and boots, but no hat. Garcia testified that he and Lopez were exiting the club when Caballero was shot. Garcia said he had heard two shots and had seen Caballero on the ground. At the preliminary hearing, Lopez admitted that he told Detective Alcantar that he had seen Valdovinos with a gun, but testified that his statements to Detective Alcantar were not truthful. Lopez explained that he was afraid that he himself might be a suspect and told Detective Alcantar what he wanted to hear. Detective Alcantar did not include a photo- graph of Lopez in either lineup, but testified at trial that Lopez was similar in size and stature to Valdovinos. At trial, Detective Alcantar testified that Sergeant Ramirez had found methamphetamine and a gun in Lopez’s bedroom when police arrested Lopez. This testimony was the first time defense counsel had heard of the methamphetamine and gun found in Lopez’s bedroom. Again, based on the untimely disclosure of favorable evi- dence, Valdovinos’s defense counsel moved for a mistrial, arguing that Lopez’s possession of the gun and drugs could have been used to impeach his testimony at the preliminary hearing and that, without this evidence, counsel had been unable to cross-examine Lopez effectively at the preliminary hearing. The court denied the request for a mistrial, finding that the prejudicial impact of the untimely disclosure did not warrant a mistrial. The jury convicted Valdovinos at the close of the seven-day trial. 3828 VALDOVINOS v. MCGRATH A state appellate court affirmed the judgment on August 23, 2000. Valdovinos filed a pro se petition for a writ of habeas corpus in the California Supreme Court on June 29, 2001, which the state Supreme Court denied on December 19, 2001. Valdovinos’s pro se federal habeas corpus petition fol- lowed on April 10, 2002. The district court appointed habeas counsel for Valdovinos. After a review of the prosecution’s case file yielded additional undisclosed evidence, Valdovinos’s habeas counsel amended the habeas petition to include this new evidence. In a traverse accompanying the amended petition, counsel pointed to four types of newly discovered evidence. First, the prosecutor’s case file contained an undisclosed anonymous letter purportedly sent to Caballero’s family stat- ing that Caballero’s murder was a contract killing over a debt. Second, habeas counsel obtained a written statement from a man named Juan Ledezma stating that Lopez had told Ledezma that Lopez had two guns of different calibers, Lopez had killed someone at a bar in San Jose and blamed Val- dovinos, and Lopez had told his brother to throw out the gun used in the killing. The third piece of newly discovered evi- dence was a photograph from the police file taken by police on the night of the shooting. The man in the photo, identified as Jose Mongia, is wearing a black hat and black leather jacket in the photo — the same items eyewitnesses testified the shooter wore. Habeas counsel also included in the amended petition additional information regarding the gun and drugs found in Lopez’s possession during the apartment search in 1998. The district court found the new evidence rendered Val- dovinos’s claims unexhausted and ordered a stay on Decem- ber 3, 2004, to allow Valdovinos to exhaust his remedies in state court. Nine months later, on September 9, 2005, Val- dovinos filed his second state habeas petition, this time con- taining the previously unexhausted claims. The Supreme VALDOVINOS v. MCGRATH 3829 Court denied this petition on July 26, 2006. On August 23, 2006, the district court ordered Valdovinos to file a motion to amend the stayed petition within two weeks. Valdovinos filed his motion to amend three weeks later, on September 14, 2006. The district court denied relief on March 12, 2008, and cer- tified two issues for appeal: (1) whether the Brady violations denied Valdovinos due process; and (2) whether Valdovinos’s trial counsel provided ineffective assistance by failing to object to the prosecution’s introduction of Lopez’s out-of- court statements.2 In addition, the state appeals the district court’s decision to allow Valdovinos to amend his habeas peti- tion.3 We have jurisdiction under 28 U.S.C. § 2253. II. We first determine whether the district court erred in stay- ing Valdovinos’s petition while he exhausted additional claims in state court and allowing Valdovinos to amend his habeas petition. We review for abuse of discretion a district court’s stay and abeyance of a mixed petition containing both exhausted and unexhausted claims. Rhines v. Weber, 544 U.S. 269, 279 (2005). We also review for abuse of discretion a dis- trict court’s decision to allow a habeas petitioner to amend his petition. Hebner v. McGrath, 543 F.3d 1133, 1136 (9th Cir. 2008). We find the district court did not abuse its discretion in granting the stay or allowing the amendment. A. The district court ordered a stay on December 3, 2004, to permit Valdovinos to exhaust his remedies in state court. Nine Valdovinos raises an uncertified issue in his opening brief. We decline to expand the scope of the COA to include the uncertified issue. The state is not required to obtain a COA before raising an issue on appeal. Fed. R. App. P. 22(b)(3). 3830 VALDOVINOS v. MCGRATH months later, on September 9, 2005, Valdovinos filed a sec- ond state habeas petition containing the unexhausted claims with the California Supreme Court. The state Supreme Court denied this petition on July 26, 2006 and, on August 23, 2006, the district court ordered Valdovinos to file a motion to amend the stayed petition within two weeks. Valdovinos filed his motion to amend on September 14, 2006. The state opposed the motion to amend, arguing that Val- dovinos did not act within a reasonable time to exhaust his state remedies because he did not file his second state habeas petition until nine months after the district court entered the stay. The district court rejected this argument, finding that the delay provided insufficient grounds upon which to deny Val- dovinos’s motion to amend the petition. [1] In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court examined the manner in which courts should treat mixed petitions containing both exhausted and unexhausted claims in light of the Antiterrorism and Effective Death Pen- alty Act’s (“AEDPA”) one-year time limit on the filing of federal habeas corpus petitions. The Supreme Court held that a district court has discretion to grant a stay and abeyance of a mixed petition so that a petitioner may exhaust the unex- hausted claims in state court before returning to federal court for review of a “perfected petition.” Id. at 278. Rhines struck a balance between the congressional intent behind AEDPA — to “reduce delays in the execution of state and federal crimi- nal sentences, particularly in capital cases,” id. at 276 (cita- tions omitted) — and the preservation of petitioners’ rights to federal review of their claims. Id. at 277. Rhines opined that a district court would likely abuse its discretion in denying such a stay where “the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory tactics.” Id. at 278. Although Rhines directed district courts to “place reasonable VALDOVINOS v. MCGRATH 3831 time limits on a petitioner’s trip to state court and back,” id. at 278, the Court left the determination of that time limit to the discretion of the district court. [2] Here, the district court did not abuse its discretion in finding Valdovinos satisfied the elements of Rhines. First, the Supreme Court decided Rhines after the district court here issued the stay without imposing a specific time limit within which Valdovinos had to file his petition in state court. The district court reasoned that retroactively imposing a time limit would have been inappropriate and emphasized that Val- dovinos had not engaged in dilatory tactics and had no moti- vation for delay, as he is not a capital defendant. The court also noted that Valdovinos did not bear the blame for omitting the additional evidence rendering his claims unexhausted because he had no knowledge of it due to the misconduct of the prosecution. We agree. Thus, we hold that the district court did not abuse its discretion in allowing the amendments to the original habeas petition. B. We next must determine if the amendments arise “from the same core facts as the timely filed claim” such that they relate back to the original, timely petition. Mayle v. Felix, 545 U.S. 644, 657 (2005). Following the Supreme Court’s test in Mayle, we hold that the new evidence in the amended habeas petition properly relates back to the claims raised in the initial petition. [3] Federal Rule of Civil Procedure 15(c) governs amend- ments to pleadings in habeas proceedings, which are charac- terized as civil in nature. 28 U.S.C. § 2242. Rule 15(c) instructs: “An amendment of a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading.” Fed. Rule Civ. P. 15(c). In Mayle, the 3832 VALDOVINOS v. MCGRATH Supreme Court held that “claims added by amendment [must] arise from the same core facts as the timely filed claims,” and must not be “separate in both time and type from the origi- nally raised episodes.” Mayle, 545 U.S. at 657 (quotation and citation omitted). Thus, we review the district court’s finding that the new claims related back under the Mayle standard. 1. We first examine Valdovinos’s Brady claims. The original petition alleged that Valdovinos was denied due process and a fair trial by the prosecution’s withholding of the prior photo lineups, evidence of the drugs and gun found in Lopez’s pos- session, and the favorable treatment Lopez received for his testimony. The amendments seek to add that the prosecutor violated Brady by not disclosing the anonymous letter and the Mongia photograph. The district court held that Valdovinos’s revised Brady claim related back to the Brady claim in the original petition. We agree. This case is similar to Mandacina v. United States, 328 F.3d 995 (8th Cir. 2003), which the Mayle court cited with approval. Mayle, 545 U.S. at 664, n.7. In Mandacina, the original petition alleged that the government had failed to dis- close exculpatory evidence. Mandacina, 328 F.3d at 1000. The petitioner sought to amend his habeas petition to include the “Borland Report,” to which the original petition made no reference. Id. The Eighth Circuit concluded that the amended claim related back to the original petition because the content of the report was “evidence of other suspects obtained by” the police department during the murder investigation. Id. at 1001. [4] Here, both the original and amended claims pertain to suppressed exculpatory evidence originating from materials from the police investigation. Each claim, therefore, is of the VALDOVINOS v. MCGRATH 3833 same type — exculpatory information the government had in its file — that the government failed to disclose at the required time. As in Mandacina, “[t]he Brady claims in the original [petition] . . . satisfy Rule 15(c) by providing the gov- ernment with the notice that the statutes of limitation were intended to provide.” Id. Therefore, we hold that the district court did not abuse its discretion in permitting the amend- ments to the Brady claims. 2. [5] We next examine Valdovinos’s ineffective assistance of counsel claim. The original petition alleged ineffective assistance of counsel; the amended petition seeks to add new evidence supporting the claim. The claim has not changed, but habeas counsel argues the four pieces of newly discovered evidence “provide a more concrete basis for demonstrating prejudice” under Strickland v. Washington, 466 U.S. 668 (1984). The four new pieces of evidence are: (1) the photo- graph of Mongia; (2) the statement by Ledezma implicating Lopez; (3) the anonymous letter; and (4) police documents concerning the drugs and gun found in Lopez’s possession. [6] The district court found that the amended claim arose from the same conduct, transaction, or occurrence as set forth in the original pleading, and that the government had received notice of the claim in the original pleading. The original inef- fective assistance of counsel claim alleged counsel did not adequately investigate suppressed exculpatory evidence upon learning of it. The amended petition simply adds more evi- dence that counsel did not uncover in its original investiga- tion. The original petition provided notice of this claim, as the district court found. Therefore, the district court did not abuse its discretion in permitting amendment of the original habeas petition to add newly discovered evidence supporting both the Brady and the ineffective assistance of counsel claim. 3834 VALDOVINOS v. MCGRATH III. In accordance with the standard set forth in AEDPA, a court may grant a writ of habeas corpus only if the state court’s ruling: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). “The question under AEDPA is not whether a federal court believes the state court’s determina- tion was incorrect but whether that determination was unrea- sonable — a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams v. Tay- lor, 529 U.S. 362, 410 (2000)). Habeas relief is warranted only if the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Penry v. John- son, 532 U.S. 782, 795 (2001) (quotations and citations omit- ted). In the event that the state court issues a summary denial of the habeas petition, the district court conducts an independent review of the record. Richter v. Hickman, 578 F.3d 944, 952 (9th Cir. 2009) (en banc). This court reviews de novo the dis- trict court’s denial of habeas relief. Id. A. [7] We turn now to the substance of Valdovinos’s Brady claim. As the Supreme Court recently articulated, “[a]lthough the State is obliged to ‘prosecute with earnestness and vigor,’ it ‘is as much [its] duty to refrain from improper methods cal- culated to produce a wrongful conviction as it is to use every VALDOVINOS v. MCGRATH 3835 legitimate means to bring about a just one.’ ” Cone v. Bell, ___ U.S. ___, 129 S. Ct. 1769, 1782 (2009) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). The Court has long held that the suppression of evidence favorable to an accused violates due process of law, regardless of whether the prose- cution suppresses the evidence in good or bad faith. Brady, 373 U.S. at 87. As the Supreme Court explained in Brady, “[s]ociety wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” Id. Thus, “when the State withholds from a criminal defendant evidence that is material to his guilt or punishment, it violates his right to due process of law in violation of the Fourteenth Amendment.” Cone, 129 S. Ct. at 1782 (citing Brady, 373 U.S. at 87). [8] A Brady claim is composed of three necessary ele- ments: “(1) [t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching, (2) that evidence must have been suppressed by the State, and (3) prejudice must have ensued.” Jackson v. Brown, 513 F.3d 1057, 1071 (9th Cir. 2008) (quotations and citation omitted). “To determine whether prejudice exists, we look to the materiality of the suppressed evidence.” Id. “[E]vidence is ‘material’ within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been differ- ent.” Cone, 129 S. Ct. at 1783; United States v. Jernigan, 492 F.3d 1050, 1053-54 (9th Cir. 2007) (en banc). In other words, a defendant need not show that he “would more likely than not have received a different verdict with the evidence.” Jernigan, 492 F.3d at 1054 (quotation and citation omitted). Instead, he must show only that “the government’s evidenti- ary suppression undermines confidence in the outcome of the trial.” Id. (quotation and citation omitted). A court must con- sider the materiality of the Brady violations collectively rather than item by item. Kyles v. Whitley, 514 U.S. 419, 436-37 (1995). 3836 VALDOVINOS v. MCGRATH The four new pieces of evidence are: (1) the photograph of Mongia; (2) the anonymous letter; (3) police documents con- cerning the drugs and gun found in Lopez’s possession; and (4) the Ledezma statement implicating Lopez. The last piece of evidence, however, is not Brady material because it was obtained by Valdovinos’s habeas counsel and never was part of the prosecution’s file. 1. Valdovinos’s habeas counsel stated in a declaration in sup- port of the amended petition that the prosecution’s file con- tained photographs of several of the witnesses police interviewed at the nightclub on the night of the shooting. One such photo shows a man named Jose Mongia wearing a black cowboy hat and a black leather jacket, the same items alleg- edly worn by the shooter. Valdovinos argues that the prosecution’s failure to disclose the Mongia photograph was material because the state court found that Valdovinos was the only one at the crime scene consistently described as wearing a cowboy hat. The district court rejected Valdovinos’s Brady claim as to the Mongia photo because any evidence indicating the authenticity of the photograph is lacking and therefore the court could not con- clude the photograph would have affected the trial in any way. The state contends that the non-disclosure was not mate- rial because Mongia cannot be the shooter because several witnesses stated the shooter fled the scene of the crime; Mongia did not flee since he was available for questioning. [9] In conducting its Brady analysis, the district court ignored the possibility that the disclosure of the photo could have added uncertainty to the identifications of Valdovinos as the shooter. Various inconsistencies existed between the wit- nesses’ testimony about the shooter’s appearance: one witness testified the shooter wore a black cowboy hat and a black leather jacket, stood five-and-a-half feet tall, and had a mus- VALDOVINOS v. MCGRATH 3837 tache; another testified that the shooter wore a white cowboy hat, a black leather jacket, and was six feet tall, and initially insisted the shooter had no facial hair; a third witness testified that the shooter wore a light tan straw hat, a black leather jacket, and stood over six feet; and a fourth witness hesitantly described the shooter as wearing a black hat and black leather jacket. These inconsistencies bolster a finding of materiality with regard to the Mongia photo. The photograph has the potential to undermine the significance of the single common- ality of these descriptions — the cowboy hat — that the court identified as one of the stand-out characteristics of the shooter. The fact that many people at the scene that night actually shared this characteristic, including Mongia, tends to “undermine[ ] confidence in the outcome of the trial.” Kyles, 514 U.S. at 434 (quotation and citation omitted). Furthermore, had the prosecution fulfilled its obligations under Brady and turned this photograph over in a timely manner, the defense could have elicited testimony from the police to authenticate it. 2. The second piece of evidence added in the amended peti- tion is an anonymous letter addressed to Eulalio Caballero found in the prosecution’s file. The letter suggests that Nelson Caballero owed a debt to someone named Ramon Balemos, and that Balemos paid someone with money and drugs to kill Caballero. Valdovinos’s trial attorney stated in a declaration that he had never seen the letter. The district court found that the letter qualified as Brady material, but rejected the claim because its disclosure did not raise any doubt about the verdict, given that the letter was ambiguous and anonymous and thus inadmissable. The dis- trict court further concluded the letter would not have led to any admissible exculpatory evidence. Valdovinos puts forth several arguments tending to show the letter’s materiality. First, he argues that the prosecution’s 3838 VALDOVINOS v. MCGRATH non-disclosure prevented the defense from conducting a proper investigation, and there is no way to know whether the trial could have been affected by the results of that investiga- tion. Valdovinos next argues that the letter impeached the tes- timony of Detective Alcantar, who testified that there was no evidence in the case indicating that the murder was drug related. Defense counsel argued during closing arguments that Caballero was a drug dealer and that Lopez was a known drug user, and that drugs could have been the motive for the crime. In addition, police found a small baggy of a powdery sub- stance containing cocaine between two cars near a corner of the club. And blood reports showed that Caballero had ingested cocaine and methamphetamine in the hours before his death. [10] Undeniably, the letter at this point is unauthenticated and unreliable. Nonetheless, the letter could have been of some value to the defense, particularly if disclosed at the time police received it. Given the conflicting identification testi- mony and a letter pointing to another culprit, the non- disclosure of the letter denied the defense important investiga- tive opportunities that had the potential to lead to admissible evidence. Moreover, only law enforcement officials are in a position to authenticate the letter, to say how and when the letter came to be in the file — a task that might have been possible had the prosecution disclosed the letter when it was received. 3. We next turn to the suppressed evidence revealed during trial. The prosecutor did not disclose before trial that, when arrested, Lopez was found in possession of an ounce of methamphetamine and a handgun. Defense counsel learned of this evidence during the direct examination of Detective Alcantar. Defense counsel immediately moved for a mistrial, which the trial court denied. VALDOVINOS v. MCGRATH 3839 Valdovinos’s direct appeal raised this issue in the form of a Confrontation Clause issue, arguing that the non-disclosure prevented a meaningful opportunity to cross-examine Lopez at the preliminary hearing. The California Court of Appeals rejected this argument because it found that a cross- examination of Lopez that included this information would not have affected the trial. The court reasoned that defense counsel raised the issue at closing and suggested to the jury that Lopez might be the killer, that Lopez’s statements at the preliminary hearing were conflicting and indicated Lopez might have been covering for Valdovinos, and that defense counsel used the information to argue to the jury that Lopez was telling the authorities what they wanted to hear to escape charges for this possession. [11] The Supreme Court has held that a Brady violation is material if it “undermines confidence in the outcome of the trial.” Kyles, 514 U.S. at 434 (quotation and citation omitted). Here, the appellate court found that further impeachment of Lopez would not have affected the trial or outcome. On its own, this finding is neither contrary to nor an unreasonable application of established federal law. However, we include the prosecutor’s failure to disclose the gun and methamphet- amine in the cumulative analysis below. 4. We now review the materiality of the suppressed evidence collectively. Kyles, 514 U.S. at 436; see also Jackson, 513 F.3d at 1071. The California court did not have cause to con- sider the cumulative Brady impact because it had before it only the Brady claim based on the undisclosed photo lineups. The district court considered the collective impact of the photo lineups, the Lopez impeachment information, the anon- ymous letter, and the photograph of Mongia. The district court concluded that, given the strength of the evidence against Valdovinos, the cumulative impact of the evidence did not cast doubt on the trial verdict. 3840 VALDOVINOS v. MCGRATH This court reviews the district court’s holding de novo. Richter, 578 F.3d at 951. In conducting the prejudice inquiry, “[w]e may find a ‘reasonable probability’ [of a different result] even where the remaining evidence would have been sufficient to convict the defendant. Moreover, we may find a ‘reasonable probability’ without finding that the outcome would more likely than not have been different.” Jackson, 513 F.3d at 1071 (citations omitted). The question is whether, in light of the suppressed evidence, the defendant “received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Id. at 1079 (quotation and citation omitted). [12] When considered collectively, the suppressed evi- dence undermines confidence in the verdict. The Mongia pho- tograph has the potential to weaken the identification testimony by showing that the stand-out characteristic of the shooter — the cowboy hat — was not unique to Valdovinos. The district court relied on the fact that the anonymous letter and the photograph would have been inadmissible at trial. But that conclusion is a product of the circumstances under which they were discovered — belatedly, in the prosecution’s file at a police station, by an associate habeas counsel. And while the non-disclosure of the photo lineups did not result in a finding of materiality on its own, as this court has noted, “each additional . . . Brady violation further undermines our confidence in the decision-making process.” Id. at 1072. [13] Significantly, both the state court and the district court’s findings of no prejudice relied heavily on the “strong” eyewitness testimony. But the eyewitness testimony was con- tradictory about the shooter’s physical appearance, his size, build, and what he was wearing. The photo lineup evidence renders the identifications questionable. Castro identified Val- dovinos as the shooter at the preliminary hearing, but she picked a person other than Valdovinos in both lineups. Diaz also identified Valdovinos at the preliminary hearing, but could not identify him from the photo lineups with any degree of certainty. And Valdovinos was the only person included in VALDOVINOS v. MCGRATH 3841 both photo lineups, despite the fact that Lopez, who also was present at the nightclub that night, was similar in build and stature to Valdovinos. The failure to disclose the gun and drugs found in Lopez’s possession, even if not prejudicial on its own, only further solidifies our finding of collective preju- dice. [14] We find the cumulative effect of the suppressed evi- dence denied Valdovinos a fair trial. The prosecution’s repeated failure to disclose evidence favorable to the defense leads us to conclude that Valdovinos did not receive a fair trial resulting in a verdict worthy of confidence. Thus, we reverse with regard to the Brady claim and remand with instructions to the district court to issue a writ of habeas cor- pus. B. Valdovinos claims his trial counsel provided ineffective assistance by failing to object to pre-trial statements that Lopez made to investigating police, which the prosecution introduced through the testimony of Sergeant Ramirez. Valdovinos initially raised this claim in the state appellate court, challenging the trial court’s decision to permit the intro- duction of Lopez’s out-of-court statements. In its ruling, the court first held that Valdovinos had waived the right to appeal the introduction of Lopez’s statement to police. The court then held that, “[a]ny argument that counsel was ineffective for failing to object is also unavailing.” [15] To prevail on an ineffective assistance of counsel claim, a petitioner must establish: (1) that counsel’s perfor- mance was deficient, that is, that it fell below an objective standard of reasonableness; and (2) that he was prejudiced by the performance, that is, that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Wash- 3842 VALDOVINOS v. MCGRATH ington, 466 U.S. 668, 694 (1984). Trial counsel’s failure to object to evidence inadmissible under state law can constitute deficient performance under Strickland. See Rupe v. Wood, 93 F.3d 1434, 1444-45 (9th Cir. 1996). The state court observed that Valdovinos’s trial counsel highlighted the inconsistencies in Lopez’s statement to police at the preliminary hearing. Lopez testified during the prelimi- nary hearing that he told police he saw Valdovinos with a gun, but that he did not actually know if it was a gun. Ser- geant Ramirez’s testimony at trial about Lopez’s statement revealed the same: While Lopez ultimately stated that Val- dovinos had a gun, Lopez was anything but convincing. Ser- geant Ramirez testified that Lopez told police he had seen Valdovinos with a small pistol. However, Lopez also stated during his police interview that he could not see Valdovinos at the time of the shooting. When Detective Alcantar asked Lopez during the interview to describe the gun, Lopez ini- tially stated he did not know and could not say. [16] While the state court failed to conduct the inquiry under the Strickland framework, the result of the analysis would be the same. The court found trial counsel’s failure to object did not prejudice Valdovinos. The district court agreed: “Lopez’s testimony was internally contradictory and did not strongly incriminate Petitioner.” There did not exist, there- fore, “a reasonable probability that, but for counsel’s unpro- fessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Having found no prej- udice, the state court did not err in declining to investigate the deficient performance prong. Id. at 697 (“[T]here is no reason for a court . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.”). [17] Therefore, we affirm the district court’s finding that VALDOVINOS v. MCGRATH 3843 the state court’s decision was neither contrary to federal law nor an unreasonable application of the law to the facts.4 Conclusion A pattern of non-disclosure permeated the proceedings against Valdovinos. “By suppressing this evidence, the prose- cution arrogated to itself a central function belonging to the criminal jury and pursued its role as adversary to the exclu- sion of its role as architect of a just trial.” Jernigan, 492 F.3d at 1057. In so doing, the government deprived Valdovinos of his due process rights. Because the collective effect of the Brady evidence was material, we remand this case to the dis- trict court with instructions to issue the writ of habeas corpus, unless California elects to retry Valdovinos within a time period the district court specifies. AFFIRMED in part, REVERSED in part, and REMANDED with instructions to issue a writ of habeas cor- pus unless California elects to conduct a new trial within the time period the district court specifies. We note, however, that both the state court and the district court relied on the eyewitness evidence against Valdovinos to support a finding of no prejudice. The Brady violations warranting habeas relief negate the strength of this evidence. Cf. Strickland, 466 U.S. at 696 (“[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.”). However, because we find the Brady violations alone warrant habeas relief, we need not consider the cumulative prejudice of the Brady viola- tions with the ineffective assistance of counsel claim. See Whelchel v. Washington, 232 F.3d 1197, 1212 (9th Cir. 2000).

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued September 22, 2009 Decided March 12, 2010 No. 07-1425 CABLEVISION SYSTEMS CORPORATION, PETITIONER v. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS AT&T INC. AND VERIZON, INTERVENORS Consolidated with 07-1487 On Petitions for Review of an Order of the Federal Communications Commission Henk Brands argued the cause for petitioners. With him on the briefs were David P. Murray and Howard J. Symons. Nandan M. Joshi, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Thomas O. Barnett, Assistant Attorney General, U.S. Department of Justice, Catherine G. O’Sullivan and Nancy C. Garrison, Attorneys, Matthew B. Berry, General Counsel, Federal Communications Commission, Joseph R. Palmore, Deputy General Counsel, and Daniel M. Armstrong, Associate General Counsel. Richard K. Welch, Deputy Associate General Counsel, entered an appearance. Helgi C. Walker argued the cause for intervenors Verizon, et al. With her on the brief were Michael E. Glover, Edward Shakin, William H. Johnson, Eve Klindera Reed, Christopher M. Heimann, Gary L. Phillips, Lynn R. Charytan, Jack N. Goodman, Heather M. Zachary, Dileep S. Srihari, and Pantelis Michalopoulos. Harry F. Cole was on the brief for amicus curiae Broadband Service Providers Association in support of respondents. Before:SENTELLE, Chief Judge, GRIFFITH and KAVANAUGH, Circuit Judges. Opinion for the Court filed by Chief Judge SENTELLE. Dissenting opinion filed by Circuit Judge KAVANAUGH. SENTELLE, Chief Judge: In these consolidated cases, Cablevision Systems Corporation and Comcast Corporation petition for review of the Federal Communications Commission’s decision to extend for five years a statutory prohibition against exclusive contracts between cable operators and cable affiliated programming networks. Petitioners assert that the Commission misinterpreted the plain meaning of the underlying statute. In addition, they argue the Commission’s decision was arbitrary and capricious and therefore violates the Administrative Procedure Act (APA). Lastly, petitioners claim the decision fails under First Amendment intermediate scrutiny. We hold that the Commission’s interpretation of its statutory mandate was reasonable. Because we also hold that the Commission’s decision satisfies arbitrary and capricious review, and that intermediate scrutiny is not applicable, we deny the petitions for review. I. Background Multichannel video programming distributors (MVPDs), such as cable television operators or direct broadcast satellite providers, offer customers multiple channels of video programming, generally by subscription. From the 1940s when the first cable television systems were built until the 1990s, the cable industry dominated this market. In most geographic areas, cable operators were the only MVPDs, often enjoying local cable monopolies because they were permitted to enter into exclusive local franchises when they laid cables using public rights of way and easements. As the market for cable subscriptions grew, so did the market for cable programming to supplement television broadcast programming. Cable programmers began to develop programs for sale or license to cable operators. These two halves of the cable industry often had — and still have — overlapping ownership, with cable operators having ownership interests in cable programmers, and vice versa. Such companies constitute “vertically integrated” entities. In 1990, the Federal Communications Commission reported to Congress that the cable operators’ monopolies in the MVPD market persisted partly because competitors were unable to secure programming owned by vertically integrated cable companies. Competition, Rate Deregulation and the Commission’s Policies Relating to the Provision of Cable Television Service, 5 F.C.C.R. 4962, 5006–08 (1990). In response to the Commission’s report, Congress enacted the Cable Television Consumer Protection and Competition Act of 1992 (Cable Act). Pub. L. No. 102-385, 106 Stat. 1460. Section 628 of the Act, 47 U.S.C. § 548, prohibits various activities that inhibit competition in video programming. One provision, § 628(c)(2)(D), directs the Commission to promulgate regulations prohibiting exclusive contracts for cable and broadcast programming between a cable operator and a cable programming vendor in which a cable operator has an attributable interest, unless the Commission determines that the contract would be in the public interest. This provision (“the exclusivity prohibition”) applies to programming delivered to distributors via satellite, the most common method of delivery, but not to programming delivered by terrestrial lines such as fiber optic cables. The exclusivity prohibition was subject to a sunset provision, which provided that the exclusivity prohibition would lapse ten years after the date of the Cable Act’s enactment, “unless the Commission finds, in a proceeding conducted during the last year of such 10-year period, that such prohibition continues to be necessary to preserve and protect competition and diversity in the distribution of video programming.” 47 U.S.C. § 548(c)(5). At the end of the ten year period, in 2002, the Commission extended the exclusivity prohibition for five years with a commitment to evaluate the market again at the end of the five years. In its analysis, the Commission concluded that the prohibition was “necessary” “if, in the absence of the prohibition, competition and diversity would not be preserved and protected.” Implementation of the Cable Television Consumer Protection and Competition Act of 1992 and Development of Competition and Diversity in Video Programming Distribution: Section 628(c)(5) of the Communications Act – Sunset of Exclusive Contract Prohibition, Report and Order, 17 F.C.C.R. 12,124, 12,128-30 (2002). Though competition in the multichannel video programming market had improved significantly since 1992, the Commission found that conditions had not changed enough to allow the prohibition to sunset. Over the next five years, the markets for both multichannel video programming distribution and programming creation continued to change dramatically. When the Commission compiled its report on the state of the MVPD market in 2007, it recorded many differences between the 2002 and 2007 markets. Implementation of the Cable Television Consumer Protection and Competition Act of 1992 and Development of Competition and Diversity in Video Programming Distribution: Section 628(c)(5) of the Communications Act – Sunset of Exclusive Contract Prohibition, Report and Order and Notice of Proposed Rulemaking, 22 F.C.C.R. 17791 (2007) (“2007 Order”). As of 2007, there were 531 national programming networks, up from 294 in 2002 and just 68 in 1992. The percentage of those networks that were vertically integrated decreased to 22 percent from 35 percent in 2002 and 57 percent in 1992. However, many of the most popular networks were still cable affiliated; seven of the Top 20 satellite-delivered networks as ranked by prime time ratings, and almost half of all regional sports networks, were affiliated with the four largest cable operators, Comcast, Time Warner, Cox, and Cablevision. The cable delivery market also changed significantly. At the time of the Order, cable operators controlled 67 percent of multichannel video programming distribution, down from 78 percent in 2002 and 95 percent in 1992. Direct broadcast satellite operators such as DirecTV and EchoStar served 30 percent of the market, up from 18 percent in 2002. Since 2002, telephone companies have begun offering wireline services based on their telephone infrastructure. While wireline competitors only represent a small share of the MVPD market, they represent a potentially powerful force because they can offer the same bundled voice, broadband data, and video services that cable operators provide but that direct broadcast satellite cannot offer. To monitor the geographic variations in the television market, the Commission designates geographic television markets, called “designated market areas,” based on local viewing patterns. Each county in the United States is allocated to a market based on which stations receive a preponderance of total viewing hours in the county. 2007 Order at 17,828 n.276. Examining these designated market areas individually, the Commission noticed that in many areas consumers continue overwhelmingly to subscribe to cable. Cable operators tend to cluster regionally, and over the years smaller operators have consolidated with large operators. Because of this clustering and consolidation, a single geographic area can be highly susceptible to near-monopoly control by a cable company. The four largest cable operators have in fact increased their share of the national MVPD market from 48 percent in 2002 to between 53 and 60 percent in 2007. In the 2007 Order, the Commission also assessed the incentives of vertically integrated cable companies to withhold programming from competitors. In order to make this evaluation, the Commission extrapolated from exclusive contracts that are allowed to and do exist. See 2007 Order, App’x C, 22 F.C.C.R. at 17,883. Because the exclusivity prohibition only applies to programming delivered to distributors via satellite, vertically integrated cable companies can and do enter into exclusive contracts for programming to be delivered through terrestrial cables. These programming networks tend to be regional, such as Comcast SportsNet Philadelphia or CN8, a Comcast-owned local news and information channel serving 20 television markets. Comcast currently withholds its SportsNet Philadelphia network from competitors, and the FCC used this example as a case study to reverse engineer what market conditions make withholding profitable. The Commission then extrapolated from these data to predict how many satellite-delivered regional and national networks would be withheld by vertically integrated cable companies if the prohibition lapsed. Depending on the values for certain variables – including whether subscribers who switch from a competitor sign up for cable service alone or for bundled services such as phone and internet services – somewhere between 26 and 59 market areas would be susceptible to withholding of a regional network owned by Time Warner or Comcast. For popular national networks, withholding could be profitable for Comcast if as few as 1.9 percent of competitors’ subscribers switched to the affiliated cable operator, assuming ideal conditions for the cable company. However, if the popular national network were owned by Time Warner and new subscribers only bought video services, the required amount of switching might be as high as 63.6 percent of competitors’ customers. Id. at 17,890-91. Given these calculations, the Commission concluded that, at least in some circumstances, vertically integrated cable companies would enter into exclusive contracts for programming if they were allowed to. Though it acknowledged that exclusive contracts sometimes can be beneficial for competition and consumers, the Commission stated that it did not believe “that these purported benefits [would] outweigh the harm to competition and diversity in the video distribution marketplace that would result if we were to lift the exclusive contract prohibition.” Id. at ¶ 63, 22 F.C.C.R. at 17,835. Given its observations of the market and predictions about the effect of lifting the prohibition, the Commission ultimately decided that the prohibition remained necessary under its 2002 Order definition of that term in the sunset provision. The Commission therefore extended the prohibition for another five years with a possibility for an earlier review if the market changed rapidly. Id. at ¶ 1, 22 F.C.C.R. at 17,792. Petitioners Cablevision and Comcast subsequently filed petitions for this Court to review the 2007 Order. II. Analysis A. Standard of Review The Commission’s interpretation of its statutory mandate must satisfy the two step test under Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Under step one, if a statute “has directly spoken to the precise question at issue,” id. at 842, the court and the agency “must give effect to the unabiguously expressed intent of Congress,” id. at 843. Under step two, when the statute is silent or ambiguous, the court asks “whether the agency’s answer is based on a permissible construction of the statute.” Id. We review the Commission’s decisionmaking process under the Administrative Procedure Act. 5 U.S.C. § 706. We will vacate an agency’s decision as arbitrary and capricious “if [its] factual determinations lack substantial evidence,” Pan- Alberta Gas, Ltd. v. F.E.R.C., 251 F.3d 173, 176 (D.C. Cir. 2001), or if the agency “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise,” Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745, 753 (D.C. Cir. 2007) (quoting Motor Vehicle Mfrs Ass’n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43 (1983)). However, we will not substitute our judgment for the agency’s, especially when, as here, the decision under review requires expert policy judgment of a technical, complex, and dynamic subject. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 1002-03 (2005). Petitioners argue that we must also evaluate the 2007 Order under First Amendment intermediate scrutiny because, they contend, forcing a company to share programming it owns or creates discourages and impedes free speech. The First Amendment standard would require the Commission’s decision to draw “reasonable inferences based on substantial evidence,” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 666 (1994) (plurality). Under intermediate scrutiny, the Commission’s findings of fact would not warrant the same degree of deference as under the APA alone. The government would need to show that its restriction of speech is narrowly tailored to an important governmental interest, rather than rely on the deference we generally afford agencies. See United States v. Doe, 968 F.2d 86, 90 (D.C. Cir. 1992) (“Where constitutionally protected activity is implicated, we cannot simply defer to the [agency]. . . .”). This Court analyzed the exclusivity prohibition under First Amendment intermediate scrutiny once before. In Time Warner Entertainment Co., L.P. v. F.C.C., 93 F.3d 957 (D.C. Cir. 1996), we considered a facial challenge to the constitutionality of several parts of the Cable Act, including the exclusivity provision. In deciding what level of scrutiny to apply, we looked to the Supreme Court’s decision in Turner Broadcasting System, which held that rules requiring cable systems to carry certain local commercial television stations and noncommercial education stations were subject to intermediate scrutiny. 512 U.S. at 643. Applying the Turner Court’s logic to the exclusivity provision, we held that the rule is “likewise ‘justified by special characteristics’ of the affected companies: both ‘the bottleneck monopoly power exercised by cable operators,’ and the unique power that vertically integrated companies have in the cable market.” Time Warner, 93 F.3d at 978 (quoting Turner, 512 U.S. at 661) (citations omitted). We therefore held intermediate scrutiny to be the appropriate standard to apply, noting that the provision is content-neutral on its face because it “regulat[es] cable programmers and operators on the basis of the ‘economics of ownership,’ a characteristic unrelated to the content of speech.” Id. at 977 (quoting Daniels Cablevision, Inc. v. United States, 835 F.Supp. 1, 7 (D.D.C. 1993)). Under intermediate scrutiny, a court must uphold a statutory provision if “it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Id. (quoting United States v. O’Brien, 391 U.S. 367, 377 (1968)). Applying that standard, we held the exclusivity prohibition to be facially constitutional. Id. at 979. Because it addressed only a facial challenge to the provision, Time Warner left open the possibility of a future as- applied challenge. However, petitioners here do not actually present that challenge. Instead, they merely invoke the terminology of First Amendment scrutiny in passing, and hope that we find the exclusivity prohibition’s burden on MVPDs so heavy and so unnecessary that an as-applied challenge appears on its own. We refuse to manufacture an as-applied challenge for the petitioners, and therefore are left with only a facial challenge. For that issue, we simply refer to our decision in Time Warner. We therefore find it unnecessary to evaluate the 2007 Order under the intermediate scrutiny standard. Our dissenting colleague is able to tease out references to the First Amendment from petitioners’ arguments. See Dissenting Op. at 4–8. Notwithstanding these mentions of the Amendment, petitioners fail to make a specific, as-applied challenge that distinguishes their current arguments from the ones we already rejected in the facial challenge in Time Warner. In this case, in providing the required Statement of Issues in its brief, petitioners set forth the following: I. Whether the FCC misapprehended the standard governing the circumstances under which it may prevent the exclusivity rule from sunsetting. II. Whether, under the correct standard, the FCC was required to allow the exclusivity rule to sunset. III. Whether the FCC erred in refusing to narrow the exclusivity rule. IV. Whether the order under review should be vacated. Pet. Br. at 3. Conspicuously, petitioners’ recitation of the issues before the court makes no mention of constitutionality. “Federal courts should not decide constitutional questions unless it is necessary to do so,” Kalka v. Hawk, 215 F.3d 90 (D.C. Cir. 2000) (citing Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)), nor should they “decide [a] constitutional question unless it is ‘presented with the clarity needed for effective adjudication,’” U.S. v. Byers, 740 F.2d 1104, 1128 (D.C. Cir. 1984) (quoting Socialist Labor Party v. Gilligan, 406 U.S. 583, 587 n.2 (1972)). It is hardly necessary for us to decide an issue of constitutionality which petitioner does not even set forth as an issue in the case and to which it refers only obliquely. B. Merits Petitioners object to three conclusions made by the Commission in reaching its decision to prolong the exclusivity prohibition. First, the Commission decided to continue to use its 2002 interpretation of the proper standard of review dictated by the statutory sunset clause. Second, the Commission concluded that cable companies would most likely enter into competition- hindering exclusive contracts if allowed to do so. The Commission came to this conclusion using calculations extrapolated from information about existing exclusive contracts for non-satellite delivered programming. Finally, the Commission considered and decided against changing the scope of the prohibition to allow certain types of currently prohibited exclusive contracts. i. Statutory Interpretation As noted above, the sunset provision of the Cable Act dictates that the exclusivity prohibition shall cease “unless the Commission finds . . . that such prohibition continues to be necessary to preserve and protect competition and diversity in the distribution of video programming.” 47 U.S.C. § 548(c)(5). Petitioners first argue that the 2007 Order applied the wrong definition of “necessary.” The term, however, “is not language of plain meaning.” Cellco P’ship v. F.C.C., 357 F.3d 88, 97 (D.C. Cir. 2004). Depending on context, the term can mean anything from “useful” or “convenient” to “indispensable” or “essential.” The statutory language of the sunset provision gives little guidance on which definition is most appropriate. Here, the Commission decided to use the same interpretation it used in 2002: the prohibition continues to be necessary “if, in the absence of the prohibition, competition and diversity in the distribution of video programming would not be preserved and protected.” 2007 Order at ¶ 13, 22 F.C.C.R. at 17,801. This interpretation is well within the Commission’s discretion to interpret statutory language under Chevron. Petitioners also argue that the 2007 Order misinterprets the mandate to preserve and protect competition as a requirement to protect competitors, analogizing the Commission’s current analysis to its faulty analysis vacated in AT&T Corporation v. Iowa Utilities Board, 525 U.S. 366 (1999). In that case, the statutory language at issue required telephone companies to share their networks with competitors whenever failure to do so would “impair” competitors’ ability to provide service. The Commission interpreted the provision to require sharing whenever a failure to share would result in any increase in cost, decrease in quality, or delay to providing services. The Supreme Court held this interpretation invalid because the statute clearly envisioned that some sharing would not be required, but the Commission’s interpretation would result in requiring any and all sharing that would be at all useful to competitors. However, the order before us is easily distinguishable from the one reviewed in Iowa Utilities Board. There, the Commission explicitly stated a standard that equated impairing competitors with any lack of sharing. Here, the Commission’s order discusses harm to consumers and competition that results from harm to competitors, rather than incorrectly believing one harm to be equivalent to the other. See, e.g., 2007 Order ¶ 40, 22 F.C.C.R. at 17,819 (explaining that withholding programming from rivals can significantly impact subscribership, which can “in turn, predictably harm competition and diversity in the distribution of video programming, to the detriment of consumers” (emphasis added)); id. at ¶ 53, 22 F.C.C.R. at 17,829 (“In the long term, a withholding strategy may result in a reduction in competition . . . , thereby allowing the affiliated cable operator to raise rates.”). While the Order does often measure effects on MVPDs rather than directly measuring consumer effects, the Commission sufficiently linked the two to justify its conclusion that market conditions do not yet warrant letting the exclusivity prohibition lapse. We trust that the Commission was sincere when it explicitly anticipated that a market may develop in which exclusive programming could exist but not be harmful to competition, and “caution[ed] competitive MVPDs to take any steps they deem appropriate to prepare for the eventual sunset of the prohibition.” 2007 Order at ¶ 29, 22 F.C.C.R. at 17,810. ii. Decisionmaking Process Petitioners’ second contention is that the Commission did not rely on substantial evidence when it concluded that vertically integrated cable companies would enter into competition-harming exclusive contracts if the exclusivity prohibition were allowed to lapse. Noting that conclusions based on FCC’s predictive judgment and technical analysis are just the type of conclusions that warrant deference from this Court, we disagree with petitioners’ characterization of the 2007 Order. It is true that the MVPD market has transformed substantially since the Cable Act was enacted in 1992. However, as described above, the transformation presents a mixed picture. While cable no longer controls 95 percent of the MVPD market, as it did in 1992, cable still controls two thirds of the market nationally. In designated market areas in which a single cable company controls a clustered region, market penetration of competitive MVPDs is even lower than nationwide rates. 2007 Order at ¶ 55, 22 F.C.C.R. at 17,830. The amount and diversity of programming has expanded rapidly, giving MVPDs more programming options even if one network were unavailable to them because of an exclusive contract. However, the four largest cable operators are still vertically integrated with six of the top 20 national networks, some of the most popular premium networks, and almost half of all regional sports networks. The Commission believes the ability and incentive for vertically integrated cable companies to withhold “must-have” programming remains substantial enough to require the further extension of the exclusivity prohibition. We must defer to the Commission’s analysis. It is also true that the Commission’s calculations on the likelihood of future withholding appear susceptible to questions about their predictive power. What is true about Comcast SportsNet Philadelphia may not be equally true for all regional networks and even less true for national networks, yet the Commission still used that one station as the basis for much of its analysis. But predictive calculations are a murky science in the best of circumstances, and the Commission naturally has no access to infallible data about the nature of contracts that do not exist. “[W]e do not sit as a panel of referees on a professional economic journal, but as a panel of generalist judges obliged to defer to a reasonable judgment by an agency acting pursuant to congressionally delegated authority.” City of Los Angeles v. U.S. Dep’t of Transp., 165 F.3d 972, 977 (D.C. Cir. 1999). The Commission has recognized and analyzed complicated pictures of the MVPD market both current and projected. These data qualify as substantial evidence for arbitrary and capricious review. The Commission’s decision does not run counter to the evidence, nor is it implausible or irrational. See Mount Royal Joint Venture, 477 F.3d at 753; Center for Auto Safety v. Peck, 751 F.2d 1336, 1373 (D.C. Cir. 1985). In short, it is not arbitrary and capricious. We anticipate that cable’s dominance in the MVPD market will have diminished still more by the time the Commission next reviews the prohibition, and expect that at that time the Commission will weigh heavily Congress’s intention that the exclusive contract prohibition will eventually sunset. Petitioners are correct in pointing out that the MVPD market has changed drastically since 1992. We expect that if the market continues to evolve at such a rapid pace, the Commission will soon be able to conclude that the exclusivity prohibition is no longer necessary to preserve and protect competition and diversity in the distribution of video programming. Petitioners’ last criticism of the 2007 Order is that the Order failed to narrow the exclusivity rule to apply only to certain types of cable companies or certain types of programming. While the current rule includes a procedure for obtaining an exemption from the prohibition on a case by case basis, petitioners claim that this procedure is not sufficient to save the rule from being invalid because it still prohibits more exclusive contracts than is absolutely necessary to preserve and protect competition and diversity in the market. During the notice and comment period for the 2007 Order, petitioners offered several suggestions for narrowing the rule, each of which the Commission rejected. It was not arbitrary and capricious for the Commission to reject these suggestions and decide instead to adhere to Congress’s statutory design. Because we hold that the Commission was reasonable in its conclusion that the prohibition – in its original form – continues to be necessary, we also hold that the Commission was reasonable to keep the same prohibition in that same form. For the reasons set forth above, the petitions for review are Denied. KAVANAUGH, Circuit Judge, dissenting: I respectfully dissent. Approved by the required two- thirds of the House and Senate in 1789 and ratified by three- quarters of the state legislatures by 1791, the text of the First Amendment to the Constitution is straightforward and expansive: “Congress shall make no law . . . abridging the freedom of speech, or of the press.” U.S. CONST. amend. I. The First Amendment endures, and it applies to modern means of communication as it did to the publishers, pamphleteers, and newspapers of the founding era. The Supreme Court has repeatedly ruled that video programming distributors (such as Comcast, DIRECTV, DISH, Time Warner, Cablevision, Verizon, and AT&T) and video programming networks (TNT, ESPN, Fox News, MSNBC, and several hundred others) are editors and speakers protected by the First Amendment’s guarantees of freedom of speech and of the press. Under Supreme Court precedent, the Government may adopt a content-neutral regulation interfering with those entities’ First Amendment rights only if the regulation furthers an “important” or “substantial” government interest and the restriction on speech is “no greater than is essential to the furtherance of that interest.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994) (articulating First Amendment intermediate scrutiny standard). Two decades ago, local cable operators maintained bottleneck monopolies over video programming distribution and provided the only way most consumers could access and view video programming networks. To prevent abuses of the cable operators’ monopoly power, Congress enacted the 1992 Cable Act. The statute imposed forced-carriage requirements on cable operators (known as must-carry, leased-access, and channel-occupancy) and placed forced-sharing mandates on cable programming networks (by banning exclusive contracts between cable operators and their affiliated video programming networks). The Supreme Court and this Court upheld various provisions of the Act against First Amendment facial challenges. See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 224 (1997); Turner, 512 U.S. at 666-68; Time Warner Entm’t Co. v. FCC, 93 F.3d 957, 979 (D.C. Cir. 1996). In so doing, the courts were careful to explain, however, that the restrictions on the editorial and speech rights of cable operators and programmers were permissible on their face only because of the “bottleneck monopoly power exercised by cable operators.” Turner, 512 U.S. at 661; Time Warner, 93 F.3d at 978. Since the 1992 Cable Act and those mid-1990s cases, the video programming market has changed dramatically. Cable operators no longer possess bottleneck monopoly power. Today, almost every home consumer has the choice of at least three video programming distributors – DIRECTV, DISH, and the local cable operator (usually Comcast, Time Warner, Cox, Charter, or Cablevision). Many consumers can choose a fourth or sometimes also a fifth video programming distributor, Verizon FiOS or AT&T U-verse. Moreover, all video programming distributors – including individual cable operators – compete against one another in the upstream market in which the distributors contract with national programming networks. At the same time, the number of national video programming networks has also expanded tremendously, growing from about 70 in 1992 to well over 500 today, with only about 22 percent now affiliated with a video programming distributor. On top of all that, many consumers today obtain video programming through a variety of Internet applications, such as YouTube and Hulu. The nearly two-decade-old FCC rule at issue in this case bars exclusive contracts between cable operators and affiliated cable programming networks. The rule is essentially a forced-sharing mandate that compels cable video programming networks to share their content with all video programming distributors. The original purpose was to prevent bottleneck monopoly cable operators from thwarting the development of competing video programming distributors; the fear was that cable operators would deny nascent video programming distributors access to cable- affiliated programming networks. We upheld this requirement on its face in Time Warner in 1996. But in today’s competitive market, the justification we accepted in Time Warner – counteracting the “bottleneck monopoly power” of cable operators – has collapsed. Cable operators no longer possess bottleneck monopoly power in the video distribution market, a point we made rather emphatically just a few months ago. See Comcast Corp. v. FCC, 579 F.3d 1, 8 (D.C. Cir. 2009). The FCC’s exclusivity ban thus is no longer necessary to further competition – and no longer satisfies the intermediate scrutiny standard set forth by the Supreme Court for content-neutral restrictions on editorial and speech rights. I would hold that the FCC’s exclusivity rule violates the First Amendment, and thus also violates the 1992 Cable Act as construed to conform to the First Amendment. I respectfully dissent. I The initial question is whether Cablevision has raised any First Amendment issue in this case. The majority opinion states that Cablevision has not. See Maj. Op. at 10. It proceeds to treat this as a purely statutory/administrative law case, raising only the question whether the FCC’s five-year extension of the exclusivity ban is still “necessary” for purposes of the 1992 Cable Act. I respectfully disagree with the majority opinion’s characterization of Cablevision’s argument. The statutory standard governing the FCC’s decision gives the Commission broad discretion to determine whether the ban is still “necessary.” 47 U.S.C. § 548(c)(5). No doubt recognizing the difficulty in establishing that the FCC’s exclusivity rule violates that rather flexible statutory text, cf. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984), or of showing a violation of the deferential APA arbitrary and capricious standard, Cablevision expressly argued in its briefs and at oral argument that we cannot resolve this case without regard to the relevant First Amendment limits. In its opening brief, for example, Cablevision contended that: • “[T]he exclusivity rule imposes a heavy burden on First Amendment rights – a burden that should be limited to instances where it is essential.” Cablevision Br. at 23-24. • “As the FCC acknowledged, the order under review is also subject to intermediate First Amendment scrutiny. The exclusivity rule imposes an onerous burden on cable-affiliated video-programming services: it requires them to speak when they would prefer to remain silent. It thereby diminishes the incentive to engage in speech in the first place, reducing output in the marketplace of ideas.” Id. at 32 (footnotes omitted). • “Intermediate First Amendment scrutiny poses a standard that is similar to, but more exacting than, that of the APA.” Id. • “In particular, where intermediate scrutiny applies, the agency bears the burden in every respect. It must demonstrate that any predicted harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way. The FCC must build a record that convincingly shows a problem to exist. In doing so, the FCC must draw reasonable inferences based on substantial evidence. The FCC’s findings of fact are not entitled to deference. To the extent predictions are susceptible of empirical proof, they must be so proven. Where there is no evidence of any urgent need for preventive action, the agency is not entitled to the benefit of the doubt.” Id. at 33-34 (internal quotation marks and footnotes omitted). • “The First Amendment also colors the reading of the text of the statute: any statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score. It is further well established that, where an agency’s reading would generate significant constitutional doubt, that reading is not entitled to Chevron deference.” Id. at 34 (internal quotation marks and footnote omitted). In its opposition brief, even the FCC recognized that Cablevision had raised a First Amendment argument: • “To the extent the Commission’s decision to extend the exclusivity prohibition implicates the First Amendment, it is subject to review under the intermediate-scrutiny standard. A regulation will be upheld under intermediate scrutiny if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests. In applying intermediate scrutiny to federal statutes, the courts inquire not whether Congress, as an objective matter, was correct that the regulatory provision is necessary to achieve the government’s objective, but rather whether the legislative conclusion was reasonable and supported by substantial evidence in the record before Congress. As applied to the Commission’s predictive judgment, the intermediate-scrutiny standard considers whether the agency has drawn reasonable inferences based on substantial evidence.” FCC Br. at 23-24 (citations and internal quotation marks omitted). • “Petitioners also briefly invoke the First Amendment. It is true that, under the canon of constitutional avoidance, a statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score. To invoke the canon, however, the petitioner must show one of those constructions creates a serious likelihood that the statute will be held unconstitutional. Petitioners have made no such showing. Their back-door constitutional attack on the exclusivity prohibition thus fares no better than the facial attack on the statute that this Court has already rejected.” Id. at 31-32 (citations and internal quotation marks omitted). Responding to the FCC’s treatment of its First Amendment challenge, Cablevision’s reply brief argued: • “Finally, the FCC disagrees that the First Amendment tugs toward the ‘essential’ side of the spectrum. According to the FCC, constitutional considerations would affect the interpretation of the statute only if a ‘useful’ interpretation would create a serious likelihood that the statute would be unconstitutional. But, under intermediate scrutiny (which the FCC agrees applies), the agency bears the burden of demonstrating that the challenged regulation will in fact alleviate non-conjectural harms in a direct and material way. That formulation points to a ‘necessary’ standard: a ‘useful’ standard would risk perpetuating the exclusivity rule even where it does not alleviate harm to competition in a direct and material way.” Cablevision Reply Br. at 9 (citations, internal quotation marks, and footnote omitted).1 At oral argument, Cablevision further elaborated on its constitutional claim: In its 2007 order extending the ban, the FCC similarly acknowledged the First Amendment issues raised by the exclusivity ban: “We are mindful that our decision to extend the exclusive contract prohibition must withstand an intermediate scrutiny test pursuant to First Amendment jurisprudence.” Implementation of the Cable Television Consumer Protection and Competition Act of 1992, 22 F.C.C.R. 17,791, 17,837 (2007). • “It’s conceded, the FCC agrees that intermediate scrutiny applies.” Oral Arg. Tr. at 18. • “I think all the roads lead to Rome here, so to speak. Arbitrary and capricious in its analysis, the First Amendment intermediate scrutiny analysis, and the statute all require the same thing.” Id. • “Page 32 of our opening brief, the exclusivity rule, the FCC has acknowledged the order under review is also subject to intermediate scrutiny. The exclusivity ruling poses an onerous burden. We go on and on and on talking about the First Amendment there.” Id. at 43. • “The First Amendment challenge is simply this, under intermediate scrutiny the Court cannot affirm unless it finds that the FCC has shown, has borne its burden to show by substantial evidence that there is a non- conjectural problem that requires being solved. This is a standard that is slightly more exacting than the arbitrary and capricious standard, although that standard gets the Court in the same place.” Id. at 44. As these many excerpts demonstrate, Cablevision has emphatically argued that we cannot uphold the FCC’s exclusivity rule if it violates the First Amendment. Cablevision has relatedly contended that the rule violates the statute’s “necessary” standard as construed to conform to the First Amendment. In that regard, Cablevision has invoked the constitutional avoidance canon, which requires courts to refrain from interpreting an ambiguous statute in a way that raises serious constitutional questions. Cf. Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 466 (1989); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring). We therefore cannot reject Cablevision’s challenge to the exclusivity rule without analyzing the contours of the First Amendment. Cf. Anthony Vitarelli, Constitutional Avoidance Step Zero, 119 YALE L.J. 837 (2010). Notwithstanding Cablevision’s arguments, however, the majority opinion proceeds to decide the case in complete isolation from the Constitution’s constraints. The majority opinion’s statement that it can deny Cablevision’s challenge to the exclusivity ban without in any way analyzing the First Amendment’s limits is mistaken, in my respectful judgment. I will turn now to analysis of those First Amendment boundaries. II A The First Amendment inquiry in this case starts with a description of the video programming industry. Although the industry’s structure appears complicated at first glance, it in fact resembles the “three-stage chain of production comprised of manufacturers, wholesalers, and retailers that typifies the distribution of many, if not most, physical goods in the U.S. economy.” Christopher S. Yoo, Vertical Integration and Media Regulation in the New Economy, 19 YALE J. ON REG. 171, 220 (2002). The first stage – manufacturing – consists of entities that create video programming, the program producers. That portion of the market is principally populated by those “who create original television programming, as well as syndicators and others who hold the rights to programming that has already been produced.” Id. at 221. The second stage of the chain – wholesale – is composed of networks like ESPN, TNT, Disney, and USA, “which acquire the right to air programs and aggregate them into program packages.” Id. I will refer to these entities as “the video programming networks.” It is not uncommon for these firms to engage in both the manufacturing and wholesale aspects of video programming, as networks sometimes produce programs in-house. Id. For example, CNN primarily airs news programs of its own making, and ESPN internally produces SportsCenter. The third stage – retail – consists of businesses competing in the multichannel video programming distributor (or MVPD) market to deliver packages of video programming networks to the homes of consumers. These distributors contract with video programming networks and sell the package of networks as a single service to home consumers. This aspect of the industry was once dominated by cable operators, but today there is widespread competition among firms delivering programming via cable (such as Comcast, Time Warner, Cox, Charter, and Cablevision), satellite (such as DIRECTV and DISH), and fiber-optics (such as Verizon FiOS and AT&T U-verse). I will call these entities “the video programming distributors.” B In the 1980s, it was common for one monopoly video programming distributor – the local cable operator – to serve an entire geographic area. A few large cable operators had essentially carved up the country into different parts with one cable operator typically exercising monopoly power in each city or area. Because of the exorbitant costs of building a duplicative cable system (referred to as “overbuilding”), there was little competition among cable operators in the home consumer (i.e. retail) market. And obtaining video from satellite or telephone-line programming distributors was not yet a reality for most consumers. This meant that most home consumers had one and only one choice in a multichannel video programming distributor. The local cable operator ordinarily maintained what was known as a bottleneck monopoly; it possessed not only a huge market share but also the exclusive physical connection for home consumers to obtain multichannel video programming services. Congress eventually grew concerned about the power possessed by Big Cable – the bottleneck, monopolistic cable operators. And Congress ultimately passed (over the veto of President George H.W. Bush) the Cable Television Consumer Protection and Competition Act of 1992. Pub. L. No. 102- 385, 106 Stat. 1460. The new law sought to “ensure that cable television operators” could not exercise “undue market power vis-a-vis video programmers and consumers,” and thereby harm competition in the video programming distribution and video programming markets. Id. § 2(b)(5), 106 Stat. at 1463. The Cable Act, and the FCC regulations adopted pursuant to it, put forth a variety of measures to constrain the market-dominant cable operators. Some provisions, for example, imposed forced-carriage mandates that in effect required cable operators to carry certain kinds of networks or stations; these were known as must-carry, leased- access, and channel-occupancy requirements. As relevant here, the 1992 Cable Act also directed the Federal Communications Commission to promulgate rules prohibiting “exclusive contracts” for programming between a cable operator and an affiliated cable programming network. 47 U.S.C. § 548(c)(2)(D). This provision imposed a forced- sharing requirement (also known as a “program access” requirement). It mandated that cable-affiliated programming networks be made available to competitors of cable operators on the same terms they are made available to the affiliated cable operators.2 As a result, cable programming networks generally cannot refuse to deal with distributors that compete with cable operators in the video programming distribution market. For example, Comcast partially owns several programming networks, including the MLB Network, E!, Versus, and the Golf Channel. Because Comcast is a cable operator and possesses an attributable interest in those programming networks, the networks must be made available to Comcast’s competitors – like DIRECTV, DISH, and Verizon – on the same terms on which they are provided to Comcast. The exclusivity ban arose out of a simple congressional concern. Cable programming networks that were vertically integrated with bottleneck monopoly cable operators might “simply refuse to sell to potential competitors” in the video programming distribution market, such as emerging “cable operators, satellite dish owners, and wireless cable operators.” S. REP. NO. 102-92, at 26 (1991). Instead, cable programming This availability was further ensured by a provision of the 1992 Cable Act that prohibited “discrimination” by a cable- affiliated programming network with respect to “prices, terms, and conditions of sale or delivery” when dealing with unaffiliated programming distributors. 47 U.S.C. § 548(c)(2)(B). When I refer to the operation of the exclusivity ban throughout this opinion, I am referring to it in conjunction with this nondiscrimination requirement. networks might choose to deal only with their affiliated cable operators. By depriving newly developing programming distributors of key cable programming networks, the cable companies could suppress the emergence of new video programming distributors (like satellite) that might threaten the monopoly of the cable operators. See STUART MINOR BENJAMIN ET AL., TELECOMMUNICATIONS LAW AND POLICY 599 application note 1 (2d ed. 2006); Christopher S. Yoo, Vertical Integration, 19 YALE J. ON REG. at 185. The exclusivity ban constituted one part of Congress’s effort to counteract the bottleneck monopoly power of cable operators. At the same time, in passing the 1992 Act Congress recognized that the market was not static and that competitive video programming distributors were sprouting. And it acknowledged the bedrock competition principle that exclusive contracts are ubiquitous and beneficial in a competitive market – for example, a market with legitimate competitors to cable operators. The Senate Report pointed out that “exclusivity can be a legitimate business strategy where there is effective competition.” S. REP. NO. 102-92, at 28. Therefore, the statute required that the exclusivity ban sunset after 10 years unless the FCC found that it “continue[d] to be necessary to preserve and protect competition and diversity in the distribution of video programming.” 47 U.S.C. § 548(c)(5). In 2002, at the end of the sunset period, the FCC found a continued need for the prohibition and extended it for five years. Implementation of the Cable Television Consumer Protection and Competition Act of 1992, 17 F.C.C.R. 12,124, 12,124 (2002) (“2002 Order”). At that time, however, Commissioner Martin termed it a “very close call,” and Commissioner Abernathy dissented, stating that “in light of the significant competitive changes in the marketplace – including the dramatic increase in both competition and availability of programming – and the existence of other provisions that protect competing MVPDs from discriminatory treatment, including [bans on] ‘unreasonable refusals to sell,’ I cannot find that this provision continues to be necessary to preserve and protect competition and diversity in the delivery of video programming.” Id. at 12,181, 12,178. In 2007, the FCC extended the ban for another five years. Implementation of the Cable Television Consumer Protection and Competition Act of 1992, 22 F.C.C.R. 17,791, 17,792 (2007) (“2007 Order”). The 2007 Order prompted this case. III The fundamental question here is whether the FCC’s continued ban on exclusive contracts between one category of video programming distributors – cable operators – and their affiliated video programming networks violates the First Amendment and the 1992 Cable Act, as construed to conform to the First Amendment. A The Supreme Court has stated that video programming distributors and video programming networks “engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 636 (1994); see City of L.A. v. Preferred Communications, Inc., 476 U.S. 488, 494 (1986); FCC v. Midwest Video Corp., 440 U.S. 689, 707 (1979). A video programming distributor (such as Cablevision, DIRECTV, DISH, or Verizon) is constitutionally entitled to exercise “editorial discretion over which stations or programs to include in its repertoire.” Turner, 512 U.S. at 636 (quoting City of L.A., 476 U.S. at 494). As a result, the Government cannot compel video programming distributors to operate like “dumb pipes” or “common carriers” that exercise no editorial control. The video programming distributors are similar to publishing houses, bookstores, playhouses, movie theaters, or newsstands in the sense that they exercise editorial control in picking the content they will provide to consumers. Programming networks, such as ESPN, TNT, and CNN, also have a First Amendment right to speak – that is, to develop or purchase original programming and have it distributed as they see fit. Id. Programming networks resemble magazines and newspapers. They create and aggregate content to entertain and inform a wide audience. And they choose when and where to sell that content. The 1992 Cable Act’s exclusivity ban implicates the First Amendment rights of both cable operators and cable programming networks. As to the cable operators, the exclusivity ban dampens their incentives to invest in new or existing programming networks. They might not take the risk and spend the money if they cannot fully reap the fruits of their investment. Similarly, competitors of cable operators may feel less need to invest in new programming networks because they can piggy- back on the cable-affiliated networks. As a result, there may be fewer new video programming networks than there otherwise would be. As this Court has explained, the resulting reduction in speech (compared to what otherwise would occur) implicates First Amendment interests. See Time Warner Entm’t Co. v. FCC, 93 F.3d 957, 979 (D.C. Cir. 1996) (“To be sure, because the ability to enter into exclusive contracts could create economic incentives to invest in the development of new programming, prohibiting such contracts might result in reduced programming – that is, less speech.”); cf. Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407-08 (2004) (“Compelling . . . firms to share the source of their advantage . . . may lessen the incentive for the monopolist, the rival, or both to invest in those economically beneficial facilities.”); AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 428-29 (1999) (Breyer, J., concurring in part and dissenting in part) (“a sharing requirement may diminish the original owner’s incentive to keep up or to improve the property by depriving the owner of the fruits of value-creating investment, research, or labor”); U.S. Telecom Ass’n v. FCC, 290 F.3d 415, 429 (D.C. Cir. 2002) (“mandatory unbundling comes at a cost, including disincentives to research and development”). As to cable programming networks, the exclusivity prohibition forces them to sell to video programming distributors when they might otherwise choose not to do so. This forced-sharing mandate poses a First Amendment issue because the right of a First Amendment-protected editor or speaker not to speak and associate “serves the same ultimate end as freedom of speech in its affirmative aspect” and is entitled to similar constitutional protection. Pacific Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 11 (1986) (quoting Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 559 (1985)); see also Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 790-91 (1988) (“The First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it.”); Wooley v. Maynard, 430 U.S. 705, 713 (1977). “For corporations as for individuals, the choice to speak includes within it the choice of what not to say.” Pacific Gas, 475 U.S. at 16 (citing Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974)). To be sure, the exclusivity ban’s interference with the First Amendment interests of cable operators and programming networks is considered content-neutral, meaning that it is subject to intermediate rather than strict scrutiny. Turner, 512 U.S. at 662. But intermediate scrutiny is still tough scrutiny, not a judicial rubber stamp. To pass muster, the ban must further “an important or substantial governmental interest” and the restriction must be “no greater than is essential to the furtherance of that interest.” Id. (quoting United States v. O’Brien, 391 U.S. 367, 377 (1968)). The Government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Id. at 664 (plurality opinion). In applying this standard, the usual deference afforded legislative or agency findings “does not foreclose our independent judgment of the facts bearing on an issue of constitutional law.” Id. at 666 (quoting Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 129 (1989)) (internal quotation marks omitted). B After enactment of the 1992 Cable Act, cable companies brought facial First Amendment challenges to many of its provisions, including the exclusivity ban. In 1996, this Court held that the ban on exclusive contracting by vertically integrated cable operators and programmers did not on its face violate the First Amendment. Time Warner, 93 F.3d at 979. Upholding this restriction on speech as necessary to further the Government’s interest in fair competition, we specifically relied on the “special characteristics” of the cable industry at the time, including “the bottleneck monopoly power exercised by cable operators, and the unique power that vertically integrated companies have in the cable market.” Id. at 978 (quoting Turner, 512 U.S. at 661) (internal quotation marks omitted). But as I will explain, the relevant facts that we relied on in Time Warner no longer exist, and Time Warner’s facial ruling therefore does not control this as- applied challenge. See Cutter v. Wilkinson, 544 U.S. 709, 726 (2005). The major change since our 1996 Time Warner decision is that cable operators no longer possess bottleneck monopoly power in the video programming distribution market in any geographic area in the continental United States. As we recently explained in Comcast Corp. v. FCC, 579 F.3d 1, 6 (D.C. Cir. 2009), home consumers can obtain service from the local cable operator, DIRECTV, DISH, and in many places Verizon FiOS and AT&T as well. Providers of programming on the Internet – like Hulu, YouTube, iTunes, and Apple TV – also increase competition in the market. Indeed, it seems plausible that traditional video programming viewed on television and video programming viewed over the Internet will soon merge in many households. Based on a careful assessment of the market in our recent Comcast decision, we definitively concluded that cable operators “no longer have the bottleneck power over programming that concerned the Congress in 1992.” Id. at 8. For that reason, we vacated the FCC’s longstanding 30 percent cap on how many video programming subscribers an individual cable operator could serve nationwide. Given the difficulty in justifying the exclusivity ban in light of the aggressive competition in today’s video programming distribution market, the FCC also points to alleged impediments to competition among video programming networks, claiming that some networks are “must-have.” This is an odd argument because no video programming network comes close to possessing market power. In 1992, there were 68 national programming networks, and 57 percent of them were vertically integrated with cable operators. By 2007, there were well over 500 national programming networks, and only 22 percent of them were vertically integrated with a cable operator. In a market with well over 500 national programming networks, it is nearly impossible (and would make a mockery of textbook antitrust and free speech principles) to say that any one national network is the equivalent of an essential facility – a must-have network that the Government can thereby compel the cable company to share with all other video programming distributors.3 Moreover, the flaw in the theory runs even In this regard, it is also important to appreciate that the market for video programming networks generally “is national in scope” and nationally competitive. Christopher S. Yoo, Vertical Integration and Media Regulation in the New Economy, 19 YALE J. ON REG. 171, 227 (2002). Therefore, even though large cable operators like Time Warner, Comcast, Cox, Charter, and Cablevision often do not compete with each other in the downstream market for in-home consumers, they do compete with each other in the upstream market to purchase rights to carry national video programming networks. And in both the upstream and downstream markets, they compete against other video programming distributors like DIRECTV, DISH, Verizon, and AT&T. So if Comcast wanted to enter into an exclusive contract with ESPN, Comcast presumably would have to compete against deeper because any supposed must-have consumer preferences typically relate to programs not networks. And other than certain live sports events, see infra n.6, the popularity of these programs often shifts rapidly, transforming today’s must-have into tomorrow’s has-been. This radically changed and highly competitive marketplace – where no cable operator exercises market power in the downstream or upstream markets and no national video programming network is so powerful as to dominate the programming market – completely eviscerates the justification we relied on in Time Warner for the ban on exclusive contracts. One of the leading scholars on communications law concluded eight years ago “that the restrictions on vertical integration in the cable industry all the members of the video programming distributor market – all the other cable operators such as Time Warner, Cox, Charter, and Cablevision, as well as DIRECTV, DISH, Verizon, and AT&T. In other words, in the upstream national market for purchase of nationally available video programming networks, it does not make much sense to talk about the power of cable versus satellite; it instead makes more sense to talk about the relative power of individual firms – Comcast, DIRECTV, DISH, Time Warner, Cox, Charter, Cablevision, Verizon, AT&T, and others. The largest of those firms – Comcast – serves only about 25 percent of the consumers who obtain service through a multichannel video programming distributor. In such a market, the video programming networks usually have little incentive to limit their networks to only one distributor. And programming producers in turn often have little incentive to limit their shows to a network that will not sell nationally to a distributor that reaches all home consumers. For that reason, this case may be a tempest in a teapot: It seems unlikely that the market would yield that many high-profile exclusive arrangements because they likely would not be profitable for the relevant parties. enacted by the 1992 Cable Act are not economically justified.” Christopher S. Yoo, Vertical Integration, 19 YALE J. ON REG. at 226; see also Christopher S. Yoo, Network Neutrality, Consumers, and Innovation, 2008 U. CHI. LEGAL F. 179, 183 (“coordination of content and conduit through vertical integration or contractual exclusivity generally benefits consumers”). That conclusion is even more correct in the year 2010. The Government can no longer show that the ban on exclusive contracts furthers the interest in fair competition. C To be sure, some might contend that exclusive vertical contracts are a problem even in a competitive market – that is, even in this market with several vibrant video programming distributors and hundreds of national programming networks. But such an argument flouts well-settled American antitrust principles. See 3B PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW ¶ 755a, at 6 (3d ed. 2008) (“To be sure, even competitively harmless vertical integration can injure rivals or vertically related firms, but such injuries are not the concern of the antitrust laws.”); cf. Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 882 (2007) (recognizing the pro-competitive effects of vertical relationships); Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 54-55 (1977) (identifying the market benefits of vertical combinations such as the promotion of interbrand competition). Exclusivity agreements are ubiquitous in all sectors of the economy. For example, Apple and AT&T maintain an exclusive agreement with respect to service for the iPhone, Walt Disney and Wal-Mart have an exclusive agreement for the sale of Hannah Montana-themed clothing, and DIRECTV and the National Football League have an exclusive agreement for distribution of the full slate of NFL games. See Andria Chang, Retailers Seek More Exclusives, WALL ST. J., July 2, 2008, at B5A. At least unless a company possesses market power in the relevant market, vertical integration and exclusive vertical contracts are not anti-competitive; on the contrary, such arrangements are “presumptively procompetitive.” 11 HERBERT HOVENKAMP, ANTITRUST LAW ¶ 1803, at 100 (2d ed. 2005).4 Exclusive agreements can benefit consumers by strengthening a business’s incentives to innovate and invest, to create new products, and to differentiate its products from its competitor’s products. If parties who have not shared the risks are able to come in as equal partners on a successful investment, and avoid payments for losses, the incentive to invest declines. Indeed, the FCC itself has recognized this fundamental economic principle, as has Congress.5 In See 3B AREEDA & HOVENKAMP, ANTITRUST LAW ¶ 755a, at 9 (“Without substantial market power at any relevant production or distribution stage, vertical integration . . . . is either competitively neutral or affirmatively desirable.”); ROBERT H. BORK, THE ANTITRUST PARADOX 309 (1978) (“The truth appears to be that there has never been a case in which exclusive dealing or requirements contracts were shown to injure competition.”). The Seventh Circuit has recognized the competitive benefits of exclusivity arrangements in the newspaper industry in terms that are instructive: “A market in which every newspaper carried the same stories, columns, and cartoons would be a less vigorous market than the existing one. And a market in which the creators of intellectual property (such as the New York Times) could not decide how best to market it for maximum profit would be a market with less (or less interesting) intellectual property created in the first renewing the exclusivity ban in 2007, the FCC recounted “the benefits of exclusive contracts and vertical integration . . . such as encouraging innovation and investment in programming and allowing for ‘product differentiation’ among distributors.” 2007 Order at 17,835. And when enacting the 1992 Cable Act, the Senate recognized that “exclusivity can be a legitimate business strategy where there is effective competition.” S. REP. NO. 102-92, at 28 (1991). Because both the video programming distributor market and video programming network market are competitive, a ban on exclusive vertical contracts does not serve the Government’s interest in competition; if anything, it thwarts that interest. The FCC’s exclusivity ban therefore fails the intermediate scrutiny test, and its infringement on the editorial and speech rights of cable operators and cable programmers cannot be squared with the First Amendment.6 place. No one can take the supply of well researched and written news as a given; legal rulings that diminish the incentive to find and explicate the news (by reducing the return from that business) have little to commend them.” Paddock Publ’ns, Inc. v. Chicago Tribune Co., 103 F.3d 42, 45 (7th Cir. 1996). The same can be said of the video programming distribution market – forbidding exclusive agreements may result in more homogeneous, less diverse, and less competitive video programming. In so concluding, it bears emphasis that First Amendment editors and speakers remain subject to generally applicable laws, including the antitrust laws that prohibit certain anti-competitive behavior. Moreover, I would leave open the possibility that the Government might still impose a prospective ban on some exclusive agreements between video programming distributors and affiliated regional video programming networks, particularly regional sports networks. That is because the upstream market in which video programming distributors contract with regional networks is less competitive than the national market: There may be IV The FCC’s exclusivity ban fails because it no longer serves an important government interest and it burdens more speech than essential to achieve its aims. But even if the Government were justified in maintaining a ban on exclusive contracts, it would have to do so even-handedly to satisfy the First Amendment. The FCC’s exclusivity rule also fails that bedrock equal-treatment requirement. The exclusivity prohibition, by its text, applies only to cable operators that have an attributable interest in a programming network. 47 U.S.C. § 548(c)(2)(D). Because the ban governs only cable operators and not DIRECTV, DISH, Verizon, or AT&T, the rule discriminates among similarly situated video programming distributors and video programming networks. Programming networks that are affiliated with cable operators must share their content with other operators, whereas those that are affiliated with satellite companies (such as DIRECTV or DISH) or with Verizon or AT&T may refrain from doing so. only a few video programming distributors in the market to purchase regional programming networks, and market share and other relevant factors in certain areas may dictate tolerance of a narrow exclusivity ban. Situations where a highly desirable “must have” regional sports network is controlled by one video programming distributor might justify a targeted restraint on such regional exclusivity arrangements. I need not definitively address such a possibility in this case. In any event, regional concerns of this sort cannot serve as the justification for the FCC’s draconian and vastly overbroad national ban. It is telling, in that regard, that the FCC has pointed to regional sports networks as the primary justification for this national ban. Indeed, DIRECTV and DISH, which are the second- and third-largest video programming distributors nationally and together serve over 30 percent of in-home video programming consumers, are not subject to the FCC’s exclusivity ban. But Cablevision, which now is the seventh-largest national video programming distributor, is subject to the ban. What justification is there for such discrimination against a less powerful entity? None – or at least none that the FCC has provided. It bears mention, moreover, that this discrimination against certain video programming distributors was not a considered legislative decision; it is simply an unintended relic of the far different video programming distributor market that existed in 1992 when Congress passed the Cable Act. This discrimination raises significant First Amendment issues. As the Supreme Court has said, “[r]egulations that discriminate among media, or among different speakers within a single medium, often present serious First Amendment concerns.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 659 (1994); see Leathers v. Medlock, 499 U.S. 439, 448 (1991) (regulations that discriminate among speakers threaten to “distort the market for ideas”); Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 585 (1983) (laws discriminating among speakers must be “justified by some special characteristic” of the speaker). In fact, “restrictions distinguishing among different speakers, allowing speech by some but not others” are frequently found constitutionally invalid. Citizens United v. FEC, No. 08-205, slip op. at 24 (U.S. Jan. 21, 2010). The question, therefore, is whether a substantial government interest supports the discriminatory treatment. See Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1450-51 (D.C. Cir. 1985). In my judgment, the answer is no. The competitive conditions of the market can no longer justify imposing this restriction on the speech of cable operators and cable programmers, but not on video programming distributors and video programming networks that provide the same services through the use of other technologies. “[D]ifferential treatment” of this sort “cannot be squared with the First Amendment.” Citizens United, No. 08-205, slip op. at 37. If the Government is to impose an exclusivity ban, it must apply it in an even-handed manner to similarly situated video programming distributors, or it must articulate a substantial government interest for any discriminatory treatment. The Government has not done so here. For that alternative reason as well, the FCC’s exclusivity ban violates the First Amendment. V In conclusion, I briefly offer a few additional observations. First, the lag time for Congress and a regulatory agency to catch up to the realities of a changing market ordinarily would not be cause for much judicial concern. Congress has the constitutional authority to enact and update competition laws, and executive and independent agencies may adopt and change competition rules as they reasonably see fit within the bounds specified by Congress. Neither Lochner-style substantive due process analysis nor its statutory first cousin – overly aggressive APA arbitrary and capricious review of agency rules – is an appropriate tool for courts to employ in ordinary economic regulation cases. See American Radio Relay League, Inc. v. FCC, 524 F.3d 227, 247-48 (D.C. Cir. 2008) (Kavanaugh, J., concurring in part and dissenting in part). But this is not just another economic regulation dispute; it is a First Amendment case. The First Amendment contemplates a more “laissez-faire regime.” Columbia Broad. Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 161 (Douglas, J., concurring in the judgment). It greatly limits the Government’s ability to interfere with speech in communication markets – as compared to the Government’s power to regulate, for example, energy, labor relations, the environment, or securities transactions. Second, some claim that the exclusivity ban has been effective in achieving competition, so why not continue it? Even accepting arguendo the premise, the argument reflects a misunderstanding of the interaction of competition principles and the First Amendment. When a speech market is not competitive, content-neutral government intervention may sometimes be permissible. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 647 (1994). But when a market is competitive, direct interference with First Amendment free speech rights in the name of competition is typically unnecessary and constitutionally inappropriate. That is particularly true in this case because antitrust law tells us that vertical integration and exclusive vertical contracts may actually further competition and consumer welfare when, as here, the market has become competitive. Third, some contend that the greatest threat to free speech today comes from private entities not from the Government. Whatever the merits of that argument as a philosophical matter, the First Amendment is a restriction on governmental power. Columbia Broad. Sys., Inc., 412 U.S. at 114 (plurality opinion). The First Amendment is not an authorization for the Government to restrict the speech of some so as to enhance or equalize the influence of others. Indeed, the Supreme Court has described such a theory as “wholly foreign to the First Amendment.” Buckley v. Valeo, 424 U.S. 1, 49 (1976). Fourth, it is entirely understandable that the FCC wants to ensure that consumers can view certain programming networks no matter whether they choose cable, DIRECTV, DISH, Verizon, AT&T, or some other distributor. But a governmental desire that every programming distributor carry the same networks can no more justify interference with Cablevision’s First Amendment rights than it could justify the Government telling Barnes & Noble what publisher’s books it had to sell, or telling a bookstore-affiliated publishing company that it had to make certain books available to all bookstores, or telling a movie production company what theaters it had to contract with in selling its movie, or telling the Washington Post that its best political columnist or reporter had to be shared with other competing newspapers. I readily concede that the First Amendment rights of a Cablevision or ESPN do not tug at the free speech heartstrings in the same way as the iconic political protester who lies at the core of the First Amendment. But if video programming distributors are like bookstores and movie theaters and newsstands – and the Supreme Court has repeatedly and emphatically said they are – we cannot brush aside the vital First Amendment interests at stake here. Fifth, I respect the FCC’s well-intentioned efforts to navigate this difficult issue. The FCC is often between a rock and a hard place in deciding the right time to loosen restrictions adopted as a result of the 1992 Cable Act, and in exercising its other critical responsibilities. I have no question about the FCC’s good faith in seeking to discharge its duties and to achieve legitimate policy objectives. That said, courts occupy a different place in the constitutional architecture. If by our best lights we conclude that a law or regulation violates the First Amendment as the Amendment has been interpreted by the Supreme Court, then it is our duty to so rule, notwithstanding the good intentions of the political branches or the legitimacy of the policy goal. See United States v. Eichman, 496 U.S. 310, 316-19 (1990); Texas v. Johnson, 491 U.S. 397, 420-21 (1989) (Kennedy, J., concurring). When asked to uphold First Amendment free speech rights, the courts must exercise their independent constitutional judgment, not abdicate that responsibility to the political branches. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155-62 (1803); THE FEDERALIST NO. 78. *** I would hold that the FCC’s exclusivity rule violates the First Amendment and therefore also violates the 1992 Cable Act as construed to conform to the First Amendment. I respectfully dissent.