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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 08-3630/3752 ___________ Jaymie Quigley, * * Appellant/Cross-Appellee, * * Appeals from the United States v. * District Court for the * Northern District of Iowa. Dale Winter, * * Appellee/Cross-Appellant. * ___________ Submitted: October 20, 2009 Filed: March 16, 2010 ___________ Before RILEY, HANSEN, and GRUENDER, Circuit Judges. ___________ RILEY, Circuit Judge. Jaymie Quigley brought claims against her landlord, Dale Winter, pursuant to the Fair Housing Act (FHA), 42 U.S.C. § 3601 et seq., and the Iowa Civil Rights Act (ICRA), Iowa Code ch. 216, alleging (1) sexual harassment; (2) sex discrimination; and (3) coercion, intimidation, threat, and interference with Quigley’s enjoyment of her housing rights. A jury found in favor of Quigley on all claims and awarded her $13,685.00 in compensatory damages and $250,000.00 in punitive damages.1 Quigley Quigley also asserted a breach of contract claim against Winter, for which she was awarded $400.00 by the jury. sought attorney fees and costs in the amount of $118,654.38. The district court reduced the punitive damages award to $20,527.50 and awarded Quigley $20,000.00 in attorney fees and $1,587.88 in costs. Quigley appeals the district court’s judgment, contending the district court erred in (1) reducing her punitive damages award, and (2) awarding her a reduced amount of attorney fees without conducting the proper analysis. Winter cross-appeals and asserts the district court committed various trial errors and erred in awarding any punitive damages to Quigley. We affirm the district court’s judgment with respect to Winter’s claims on cross-appeal, and we reverse with respect to Quigley’s claims on appeal. I. BACKGROUND A. Factual Background2 Winter owned more than twenty rental homes in Sioux City, Iowa. Many of Winter’s tenants were low-income women who received Section 8 housing vouchers (housing vouchers) from the Sioux City Housing Authority (SCHA) to help pay their rent. In 2000, Quigley, along with her then-husband and her four children, rented a home from Winter. Quigley used a housing voucher to pay her rent. In 2002, Quigley informed Winter she was eligible to move into a larger home. Winter drove Quigley in his car to one of Winter’s other properties. Quigley inspected the property, and when she returned to the car, Winter rubbed his hand down Quigley’s arm and said, “[W]ell, how do you like it?” Quigley recalled this incident made her feel “[s]cared” and “yucky.” Quigley, her boyfriend, and her children moved into a different rental property owned by Winter, using a housing voucher to pay the rent. We recite the relevant facts in the light most favorable to the jury’s verdict. In 2004, Quigley’s boyfriend moved to Louisiana to visit his ill father. After Quigley’s boyfriend moved out of the house, Winter behaved inappropriately toward Quigley on several other occasions. First, Quigley learned from a neighbor that Winter had been inside Quigley’s house without prior notice when Quigley was not at home. When Quigley went to her bedroom, she noticed her housecoat, which had been hanging on the back of the bedroom door when she left, was now lying on her bed. Quigley confronted Winter about entering the home without giving prior notice, and Winter claimed he had to replace the screen on Quigley’s bedroom window. Quigley’s screen was not damaged and had not been replaced. One evening, Winter came to inspect Quigley’s house while she was making dinner for her children. On that occasion, Winter stood very close to Quigley and rubbed his genital area. Another time, Winter came to Quigley’s house for an inspection at 9:30 or 10:00 in the evening without giving Quigley prior notice. Quigley’s fourteen year-old sister was staying the night with her, and they were in their pajamas getting ready for bed. While conducting his inspection, Winter followed Quigley and her sister into a bedroom and then a bathroom, which made them feel uncomfortable. Quigley and her sister were watching television, and Winter lay down on Quigley’s sectional couch after he completed the inspection. Winter stayed on the couch for five or ten minutes until Quigley said, “Hey, Dale, we’re going to bed.” Quigley had to tell Winter to leave “at least three times” before he left. Quigley also reported receiving phone calls from Winter at inappropriate times, sometimes as late as 2:30 or 3:00 in the morning. Winter sounded intoxicated when he called, and the phone calls made Quigley feel scared and worried about protecting her children and younger sister. Quigley wanted to move out of the house because of Winter’s conduct, but she would have lost her housing voucher if she broke the lease. Quigley met with her SCHA worker and reported Winter’s inappropriate actions. Quigley asked if she could change the locks on her rental home, but the housing worker told her she could not change the locks unless she gave Winter a key. The housing worker told Quigley she could get out of the lease without losing her housing voucher if Winter agreed to rescind the lease. When Quigley asked Winter to release her from the lease, Winter refused. Thereafter, Quigley changed the locks on her door without giving Winter a key. About a month and a half before Quigley’s lease ended, Winter showed up at her house while Quigley, her sister, and Quigley’s friend were outside lying in the sun. Quigley approached Winter’s vehicle and inquired whether she would be getting her deposit back. Winter fluttered his hand against Quigley’s stomach and said, “My eagle eyes have not seen everything yet.” Winter followed Quigley to the porch. Quigley observed Winter staring at Quigley’s sister’s chest. Quigley’s sister was wearing shorts and a sport bra, so Quigley told her sister to “go get something on.” Winter said to Quigley’s sister, “You’re really mature. How old are you?” When Quigley said her sister was “only 14,” Winter said, “Well, she looks a lot more mature than you.” Quigley’s friend went to her car to get a cigarette, and Winter noticed the friend had a scar on her back. Winter traced the scar with his finger, without consent, pulling the friend’s pants downward to see where the scar ended. Quigley moved out of the rental home, and Winter did not return her deposit. Quigley filed a complaint with the Sioux City Human Rights Commission (SCHRC). The investigator who handled Quigley’s complaint testified other single, female tenants of Winter’s who were receiving housing assistance, corroborated Quigley’s claims. B. Procedural Background In June 2006, Quigley filed a complaint against Winter in the district court, alleging sexual harassment; sex discrimination; and coercion, intimidation, threats, and interference with Quigley’s rights, in violation of the FHA and the ICRA. Quigley also asserted a breach of contract claim against Winter based upon Winter’s failure to return Quigley’s deposit. Winter brought a breach of contract counterclaim against Quigley, insisting Quigley owed him unpaid rent and failed to leave the rental home “in a clean and satisfactory condition.” A five-day jury trial began in April 2008. At the end of the trial, the district court instructed the jury to consider whether: (1) Winter discriminated against Quigley on the basis of her sex; (2) Winter sexually harassed Quigley; (3) Winter coerced, intimidated, or interfered with Quigley’s exercise or enjoyment of her housing rights; (4) Winter breached his contract with Quigley by failing to return her deposit; and (5) Quigley breached her contract with Winter by failing to leave the rental property in a clean and satisfactory condition. The jury found in favor of Quigley, and against Winter, on Winter’s counterclaim and each of Quigley’s claims, and awarded Quigley $13,685.00 in compensatory damages for the housing claims, $400.00 for Quigley’s breach of contract claim, and $250,000.00 in punitive damages. After the district court entered judgment, Winter filed a renewed motion for judgment as a matter of law, a motion for a new trial, and a motion to alter or amend the judgment, in part objecting to the award of punitive damages. Quigley moved for an award of attorney fees and costs in the amount of $118,654.38. Following a hearing on the motions, the district court entered an order (1) denying Winter’s motions for a new trial and judgment as a matter of law, (2) reducing the award of punitive damages from $250,000.00 to $20,527.50, and (3) awarding Quigley $20,000.00 in attorney fees and $1,587.88 in costs. Quigley appeals the district court’s judgment with respect to the amount of punitive damages and attorney fees. Winter cross-appeals, asserting various errors at trial and objecting to any award of punitive damages. II. DISCUSSION A. Winter’s Claims on Cross-Appeal We first address Winter’s claims on cross-appeal. Winter maintains the district court erred in submitting to the jury, and in denying Winter’s post-trial motions related to, the following claims: (1) hostile housing environment caused by sexual harassment; (2) “quid pro quo” sexual harassment; (3) sex discrimination; and (4) coercion, intimidation, and interference with housing rights. Winter next insists the district court made the following evidentiary errors: (1) admitting “me too” testimony from three of Winter’s former female tenants; (2) admitting the SCHRC’s probable cause determination and testimony from a SCHRC investigator; and (3) excluding medical records and testimony from a physician’s assistant at Siouxland Mental Health related to Quigley’s mental health.3 1. Standards of Review “We review a district court’s denial of a motion for judgment as a matter of law de novo.” Heaton v. The Weitz Co., 534 F.3d 882, 887 (8th Cir. 2008) (citation omitted). “We ‘must affirm the jury’s verdict unless, after viewing the evidence in the light most favorable to [Quigley], we conclude that no reasonable jury could have found in [her] favor.’” Id. (quoting Moysis v. DTG Datanet, 278 F.3d 819, 824 (8th Cir. 2002)). “We ‘will not set aside a jury verdict unless there is a complete absence of probative facts to support the verdict.’” Id. (quoting Wilson v. Brinker Int’l, Inc., 382 F.3d 765, 769 (8th Cir. 2004)). A district court’s decision to admit or exclude testimony is reviewed for an abuse of discretion. See, e.g., US Salt, Inc. v. Broken Arrow, Inc., 563 F.3d 687, 689 (8th Cir. 2009). “A district court enjoys wide discretion in ruling on the admissibility of proffered evidence, and evidentiary rulings should only be overturned if there was We address Winter’s claims concerning punitive damages and attorney fees in conjunction with our discussion of Quigley’s claims on appeal. a clear and prejudicial abuse of discretion.” Id. at 689-90 (internal marks and quotations omitted). 2. Hostile Housing Environment Created by Sexual Harassment As a preliminary matter, Winter questions whether a claim for hostile housing environment created by sexual harassment is actionable under the FHA. We conclude it is. See Neudecker v. Boisclair Corp., 351 F.3d 361, 364 (8th Cir. 2003) (recognizing a cause of action under the FHA for hostile housing environment created by disability harassment and citing, with approval, cases from other jurisdictions recognizing an FHA claim for hostile housing environment created by sexual harassment); see also DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir. 1996) (recognizing an FHA claim for hostile housing environment created by sexual harassment); Honce v. Vigil, 1 F.3d 1085, 1089-90 (10th Cir. 1993) (same).4 Next, Winter insists there was insufficient evidence to support the jury’s verdict in favor of Quigley on her hostile housing environment created by sexual harassment claim. In this case, there was sufficient evidence to support a hostile housing environment claim if a reasonable jury could find Quigley proved by a preponderance of the evidence Winter subjected her to unwelcome sexual harassment, and the harassment was sufficiently severe or pervasive so as to interfere with or deprive Quigley of her right to use or enjoy her home. See DiCenso, 96 F.3d at 1008 (“Applied to the housing context, a claim [of hostile housing environment caused by sexual harassment] is actionable ‘when the offensive behavior unreasonably interferes with use and enjoyment of the premises.’” (quoting Honce, 1 F.3d at 1090) (“The harassment must be sufficiently severe or pervasive to alter the conditions of the housing arrangement.”))). Cf. Neudecker, 351 F.3d at 364-65 (setting forth the elements of a hostile housing environment disability harassment claim). Winter all but conceded this issue at oral argument. Winter denies he subjected Quigley to sexual advances or requests for sexual favors, and, alternatively, any sexual harassment Quigley experienced was not sufficiently severe or pervasive to support the jury’s verdict. Viewing the evidence in the light most favorable to Quigley, we conclude Quigley presented sufficient evidence of numerous unwanted interactions of a sexual nature that interfered with Quigley’s use and enjoyment of her home. Quigley testified Winter subjected her to unwanted touching on two occasions, made sexually suggestive comments, rubbed his genitals in front of her, placed several middle of the night phone calls to her home, made repeated unannounced visits, and, on one occasion, while Winter lay on Quigley’s couch, had to be told to leave her home at least three times before he complied. We emphasize that Winter subjected Quigley to these unwanted interactions in her own home, a place where Quigley was entitled to feel safe and secure and need not flee, which makes Winter’s conduct even more egregious. In order to set aside the jury’s verdict in favor of Quigley, Winter must show “a complete absence of probative facts” support the jury’s verdict and no reasonable jury could have found in Quigley’s favor. Heaton, 534 F.3d at 887. Winter simply cannot meet this high threshold for setting aside the jury’s verdict. 3. “Quid Pro Quo” Sexual Harassment Winter next contends the district court erred in denying his motion for judgment as a matter of law on Quigley’s “quid pro quo” sexual harassment claim. “‘Quid pro quo’ harassment occurs when housing benefits are explicitly or implicitly conditioned on sexual favors.” Honce, 1 F.3d at 1089; cf. Ogden v. Wax Works, Inc., 214 F.3d 999, 1006 n.8 (8th Cir. 2000) (“To prevail on her [employment discrimination] quid pro quo claim, [plaintiff] needed to prove (1) she was a member of a protected class; (2) she was subjected to unwelcome harassment in the form of sexual advances or requests for sexual favors; (3) the harassment was based on sex; and (4) her submission to the unwelcome advances was an express or implied condition for receiving job benefits or her refusal to submit resulted in a tangible job detriment.” (citation omitted)). In reviewing the district court’s denial of Winter’s motion for judgment as a matter of law, we must view all facts in the light most favorable to Quigley and afford her all reasonable inferences . See HOK Sport, Inc. v. FC Des Moines, L.C., 495 F.3d 927, 934 (8th Cir. 2007). “‘[W]here conflicting inferences reasonably can be drawn from evidence, it is the function of the jury to determine what inference shall be drawn.’” Id. (quoting Canny v. Dr Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894, 900 (8th Cir. 2006)). While the evidence of “quid pro quo” harassment was not overwhelming, after viewing the evidence in the light most favorable to Quigley, we conclude there was sufficient evidence to support the jury’s verdict. Specifically, when Quigley inquired about the likelihood of receiving her deposit back from Winter, Winter fluttered his hand against Quigley’s stomach and said, “My eagle eyes have not seen everything yet.” The jury could reasonably infer Winter was telling Quigley the return of her deposit was conditioned upon Winter seeing more of Quigley’s body or even receiving a sexual favor, which would amount to “quid pro quo” sexual harassment. We will not disturb the jury’s verdict. 4. Coercion, Intimidation, or Interference with Housing Rights Winter maintains the district court should not have denied Winter’s post-trial motion on Quigley’s coercion, intimidation, and interference claim under 42 U.S.C. § 3617. Winter contends Quigley’s claim was “essentially a retaliation claim” and Quigley failed to prove retaliation. Section 3617 states: It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title. In addition, 24 C.F.R. § 100.400 gives the following examples of conduct prohibited by 42 U.S.C. § 3617: (1) Coercing a person, either orally, in writing, or by other means, to deny or limit the benefits provided that person in connection with the sale or rental of a dwelling . . . because of . . . sex . . . . (2) Threatening, intimidating or interfering with persons in their enjoyment of a dwelling because of the . . . sex . . . of such persons, or of visitors or associates of such persons. .... (5) Retaliating against any person because that person has made a complaint, testified, assisted, or participated in any manner in a proceeding under the Fair Housing Act. In arguing there was insufficient evidence to support the jury’s verdict, Winter focuses solely on the retaliation aspect of 42 U.S.C. § 3617. As Quigley points out, retaliation is only one form of conduct prohibited under § 3617. Viewing the evidence in the light most favorable to Quigley, we conclude there was more than sufficient evidence of coercion, intimidation, and interference with Quigley’s enjoyment of her housing rights, other than retaliation, to support the jury’s verdict. 5. Discriminatory Housing Practices Winter also takes issue with the district court’s denial of his motion for judgment as a matter of law on Quigley’s discriminatory housing practices claim. Winter complains the district court erred in instructing the jury and the jury’s verdict was not supported by sufficient evidence. With respect to discriminatory housing practices, the district court instructed the jury as follows in Instruction No. 8A: The plaintiff must prove by the preponderance of the evidence that the defendant engaged in a discriminatory housing practice. The following are considered discriminatory housing practices prohibited by the present laws: First, it is unlawful under the Fair Housing Act for a landlord to refuse to rent, or otherwise make unavailable houses or apartments or dwellings because of the tenant or applicant’s sex. Second, it is unlawful under the Fair Housing Act for a landlord to impose different terms, conditions or privileges related to the rental of a house or apartment or dwelling, or to deny or limit the terms, conditions, or privileges of the rental of an apartment or house or dwelling because of sex. Third, it is unlawful under the Fair Housing Act to make statements with respect to the rental of a house, apartment or dwelling that indicate any preference, limitation, or discrimination based on sex, or that indicate any intention to make such a preference, limitation or discrimination. Fourth, it is unlawful under the Fair Housing Act to coerce, intimidate, or interfere with any person in the exercise and enjoyment of rights granted and protected by the Fair Housing Act. If you find that the plaintiff has shown one or more of these acts or practices by the preponderance of the evidence, you must find that the plaintiff has shown that the defendant committed a discriminatory housing practice. If the plaintiff has failed to prove by a preponderance of the evidence that the defendant has committed one of the above listed acts, then your verdict must be for the defendant. The next jury instruction provided, The plaintiff must prove by a preponderance of the evidence that sex was a motivating factor in defendant’s commission of any discriminatory housing practice. The plaintiff is not required to show that her sex was the sole reason for the defendant’s action; the plaintiff is only required to show that sex was one motivating factor behind the challenged conduct. The corresponding question on the verdict form, Question No. 2, asked the jury, “Do you find by a preponderance of the evidence that defendant discriminated against plaintiff on the basis of sex in violation of the present laws?”5 Winter maintains Instruction No. 8A was erroneous because Quigley presented no evidence (1) Winter “refused to rent or otherwise made unavailable dwellings to her because of her sex”; (2) Quigley’s “rental agreement was any different than those of [Winter’s] other tenants, . . . her rent was raised or lowered, [or] any act was taken with respect to the above matters at all, let alone because of [Quigley’s] sex”; or (3) Winter “made a statement with respect to rental of his property that indicated a preference, limitation, or discrimination based on sex.” Winter also protests Instruction No. 8A’s inclusion of the following language: “[I]t is unlawful under the [FHA] to coerce, intimidate, or interfere with any person in the exercise and Quigley suggests Question No. 2 on the verdict form was not directly tied to Instruction No. 8A. We reject Quigley’s position. While Question No. 2 may not have explicitly referenced Instruction No. 8A, there was no other instruction explaining what would constitute discriminatory housing practices or sex discrimination. enjoyment of rights granted and protected by the [FHA],” because another jury instruction and question on the verdict form addressed Quigley’s claim of coercion, intimidation, and interference with housing rights. Because there was only one blank on the verdict form for the jury to fill in the amount of compensatory damages for all three of Quigley’s FHA claims, Winter raises the possibility Quigley recovered damages twice under the same theory of recovery. Winter claims these alleged errors in the jury instructions and verdict form entitle him to a new trial. Before trial, Winter submitted proposed jury instructions and a proposed verdict form to the district court. Winter’s proposed jury instructions included an instruction on unlawful discriminatory practices under the FHA which was similar to Instruction No. 8A. Winter’s proposed instruction stated it was unlawful under the FHA to “[t]hreaten, intimidate or interfere with persons in their enjoyment of a dwelling because of the sex of such persons, or of visitors or associates of such persons.” Winter’s proposed verdict form also included only one blank for the jury to award compensatory damages for Quigley’s FHA and ICRA claims. Later, during the jury instruction conference, Winter made a general objection to the inclusion of Instruction No. 8A, and he made some specific objections to the initial version of Instruction No. 8A. Winter did not dispute the statement of the law, only contesting whether any evidence existed for each violation and preferring a simple instruction on sexual harassment. Winter did not object to the portion of the instruction concerning coercion, intimidation and interference with FHA rights, nor did Winter object to the final form of Instruction No. 8A. Winter likewise did not object to having only one line on the verdict form for compensatory damages. In order to preserve for appeal an objection to a jury instruction or verdict form, “appellants must raise specific objections to the form or content of” the instruction or verdict form before the district court. Horstmyer v. Black & Decker, (U.S.), Inc., 151 F.3d 765, 770 (8th Cir. 1998) (citation omitted); see also Fed. R. Civ. P. 51(c)(1) (“A party who objects to an instruction . . . must do so on the record, stating distinctly the matter objected to and the grounds for the objection.”). Absent a specific objection, we will review only for plain error. See Horstmyer, 151 F.3d at 770. Winter did not properly preserve the objections he now makes to Instruction No. 8A and the verdict form. We thus review his claims for plain error. “‘Plain error is a stringently limited standard of review,’ especially in the civil context, and must result in a miscarriage of justice in order to compel reversal.” Id. at 771 (quoting Rush v. Smith, 56 F.3d 918, 925 (8th Cir. 1995) (en banc)). Jury instructions must fairly and adequately state the law, but “we will not find error in instructions simply because they are technically imperfect or are not a model of clarity.” Hastings v. Boston Mut. Life Ins. Co., 975 F.2d 506, 510 (8th Cir. 1992) (citation omitted). Having reviewed the jury instructions in their entirety, we conclude Winter has not shown there was plain error in either the form or content of the instructions and verdict form. Moreover, viewing the evidence in the light most favorable to Quigley, we conclude there was sufficient evidence to support the jury’s verdict in favor of Quigley on her sex discrimination claim. Winter’s contention that he had a legitimate, non-discriminatory reason for any discriminatory behavior fails because the jury’s verdict demonstrates the jury did not believe Winter. Because we find the district court sufficiently submitted each claim to the jury, we find no error in the district court’s use of only one space for compensatory damages on the verdict form. 6. Evidentiary Issues We now turn to Winter’s claim that the district court made improper evidentiary rulings regarding the admission of testimony at trial. “A district court enjoys wide discretion in ruling on the admissibility of proffered evidence, and evidentiary rulings should only be overturned if there was a clear and prejudicial abuse of discretion.” US Salt, 563 F.3d at 689-90 (internal marks and quotations omitted). “The reason for [our] extremely deferential standard of review is obvious: A Rule 403 ruling—as much as any type of determination made by a district court—depends on factors that are uniquely accessible to the trial judge who is present in the courtroom and uniquely inaccessible to an appellate judge who must take the case on a cold record.” Olson v. Ford Motor Co., 481 F.3d 619, 623 (8th Cir. 2007). Winter first claims the district court erred in admitting the testimony of Winter’s former tenants, Lisa Scofield, Kayla Mobley, and Holly Cook. These three women testified Winter also subjected them to sexual harassment while they were Winter’s tenants. Winter claims the testimony of these three women was irrelevant because there was no evidence Quigley knew the women or observed any of the events to which they testified. In Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379 (2008), the Supreme Court considered the admissibility of so-called “me too” evidence in an employment discrimination case. The Court determined such evidence was neither per se admissible nor per se inadmissible. See id. at 386-88. Rather, “[t]he question whether evidence of discrimination [against other employees] by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.” Id. at 388. The Court also observed, “In deference to a district court’s familiarity with the details of the case and its greater experience in evidentiary matters, courts of appeals afford broad discretion to a district court’s evidentiary rulings.” Id. at 384. Our review of the trial transcript reveals the district court carefully analyzed the admissibility of each witness’s testimony. The district court refused to permit Mary Davis, another former tenant of Winter, to testify after hearing her proposed testimony outside the presence of the jury. The district court excluded this testimony because Davis had last rented from Winter in 1994, and the district court found her testimony was too remote. Affording the district court broad discretion, we hold the district court properly performed its gatekeeping function and did not abuse its discretion in admitting the evidence of Winter’s three former tenants. Winter next takes issue with the district court’s decision to admit the testimony of Patricia Johnson (Johnson), a SCHRC investigator, and the SCHRC’s probable cause determination. Winter suggests “Johnson’s testimony regarding the [SCHRC probable cause] determination and how it was made was . . . prejudicial and usurped the role of the jury.” Winter also maintains “Johnson’s testimony as a whole was littered with hearsay and irrelevant evidence that was unfairly prejudicial to [Winter] and should have been excluded in its entirety.” “In an employment discrimination case, the decision whether to admit or exclude administrative findings, such as EEOC investigation matters, is properly left to the sound discretion of the trial court.” Doss v. Frontenac, 14 F.3d 1313, 1318 (8th Cir. 1994) (citations omitted). In this case, the district court instructed the jury regarding the probable cause determination and the testimony concerning the probable cause determination. The instruction stated: You have heard evidence about an investigation performed by the [SCHRC] and that organization’s finding of “probable cause” regarding the issues in this case. You may consider this finding by the [SCHRC] as evidence as set out in Exhibit 4. The “probable cause” finding by the [SCHRC] is not a finding you are bound by. It is just a step in procedure and is not a finding by a preponderance of the evidence. You, as a jury, not the [SCHRC], are the ones to decide whether or not the issues presented for your consideration have been proved or not. Even if the admission were indeed an error, any possible prejudice was cured by the above instruction. See Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304, 1309 (8th Cir. 1984) (“To admit the report under these circumstances would amount to admitting the opinion of an expert witness as to what conclusions the jury should draw[.]”). With regard to Johnson’s testimony as a whole, Winter makes only general accusations of irrelevancy and prejudice, but he fails to cite any specific examples. Under the circumstances, we find no abuse of discretion in the district court’s admission of Johnson’s testimony. Finally, Winter argues the district court improperly excluded Quigley’s records from Siouxland Mental Health (Siouxland) and the testimony of Siouxland physician’s assistant Dawn Nolan (Nolan). Before trial, Quigley moved in limine to exclude “any evidence, comment or argument” related to Quigley’s Siouxland mental health records and her history of, and treatment for, mental health conditions. The district court granted the motion, excluding admission of Quigley’s records, except for a portion to which the parties stipulated. The parties stipulated to the following jury instruction: “The plaintiff has a history of depression and anxiety prior to January, 2004.” During her trial testimony, Johnson of the SCHRC reported Quigley had received counseling services at Siouxland for depression caused by the sexual harassment. This testimony was elicited by Winter’s attorney during cross- examination. Winter then sought to introduce Nolan’s testimony to prove Quigley did not report sexual harassment to Nolan and lied to Johnson when she said she had. Quigley objected to Nolan testifying, arguing Nolan’s testimony would violate the psychiatrist-patient or physician-client privilege. The district court heard Nolan’s proposed testimony outside the presence of the jury. The district court determined Nolan’s testimony was inadmissible because Winter failed to prove Quigley did not tell anyone at Siouxland about the sexual harassment. We find no abuse of discretion in the district court’s exclusion of Quigley’s medical records and Nolan’s testimony. B. Quigley’s Claims on Appeal Having found no reversible trial error, we turn to Quigley’s claims on appeal. Quigley claims the district court (1) improperly reduced the jury’s punitive damage award from $250,000.00 to $20,527.50, and (2) failed to conduct a proper analysis of Quigley’s entitlement to attorney fees and awarded an insufficient amount of attorney fees to Quigley. Conversely, Winter claims the district court erred in submitting punitive damages to the jury and in awarding any amount of punitive damages or attorney fees to Quigley. 1. Punitive Damages a. Punitive Damages Jury Instruction We first address Winter’s contention that the district court erred in allowing the jury to consider punitive damages. “The [FHA] provides for the recovery of punitive damages by victims of discriminatory housing practices.” Badami v. Flood, 214 F.3d 994, 997 (8th Cir. 2000) (citing 42 U.S.C. § 3613(c)(1) (1994)). We apply the same standard for punitive damages in [FHA] cases as we do in employment discrimination and 42 U.S.C. § 1983 civil rights cases. Id. at 997 (referencing Kolstad v. Am. Dental Ass’n, 527 U.S. 526 (1999)). “Punitive damages are appropriate in a federal civil rights action ‘when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.’” Id. at 997 (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). In Kolstad, a gender discrimination case, the Supreme Court held “[t]he terms ‘malice’ and ‘reckless [indifference]’ ultimately focus on the actor’s state of mind.” Kolstad, 527 U.S. at 535 (citations omitted). They “pertain to the [defendant’s] knowledge that [he] may be acting in violation of federal law, not [his] awareness that [he] is engaging in discrimination.” Badami, 214 F.3d at 997 (quoting Kolstad, 527 U.S. at 535). Thus, “it is sufficient that a defendant ‘discriminate in the face of a perceived risk that [his] actions will violate federal law to be liable in punitive damages.’” Id. (quoting Kolstad, 527 U.S. at 536). The district court determined Quigley had presented sufficient evidence to justify instructing the jury on punitive damages, because Winter admitted at trial he knew sexual harassment was unlawful, he had been a landlord for many years and managed many properties, he had worked with various governmental agencies to provide subsidized housing, and his lease agreement with Quigley stated he, as the landlord, was not to discriminate on the basis of sex. We agree with the district court. The district court did not err in submitting punitive damages for the jury’s consideration. b. Reasonableness of the Punitive Damages Award The jury found Quigley was entitled to punitive damages in the amount of $250,000.00, and the district court entered judgment. Winter then filed a motion to amend the judgment to reduce the punitive damages award. The district court noted the punitive damages award was more than eighteen times the compensatory damages award ($13,685.00) and found the award was excessive and did not comport with due process. The district court reduced the award to $20,527.50, which amounted to one and a half times the compensatory damages award, “for the simple reason that [Winter’s] conduct . . . can be considered only as to what he said and did directly to [Quigley].” Quigley challenges the district court’s analysis, arguing the jury’s punitive damages award complied with due process and the original award should be reinstated. “We review a district court’s legal conclusions regarding punitive damages de novo.” Henderson v. Simmons Foods, Inc., 217 F.3d 612, 618 (8th Cir. 2000) (citation omitted). We also review the proportionality determination de novo. See Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 435 (2001) (citation omitted). The factual findings made by the district courts in conducting the excessiveness inquiry, of course, must be accepted unless clearly erroneous. . . . But the question whether a [punitive damages award] is constitutionally excessive calls for the application of a constitutional standard to the facts of a particular case, and in this context de novo review of that question is appropriate. Id. (internal marks and citation omitted). To assess the reasonableness or excessiveness of a punitive damages award, we consider: (1) “the degree of reprehensibility of the defendant’s conduct,” (2) the ratio between punitive damages and actual harm (compensatory damages), and (3) “the civil or criminal penalties that could be imposed for comparable misconduct.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575, 580-81, 583 (1996). i. Reprehensibility In Gore, the Supreme Court declared the degree of reprehensibility was “[p]erhaps the most important indicium of the reasonableness of a punitive damages award.” Id. at 575. In assessing the degree of reprehensibility, we must consider whether the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003) (citing Gore, 517 U.S. at 576-77). The district court determined Winter’s conduct was not sufficiently reprehensible to justify the jury’s punitive damages award. The district court may have based this finding on an assumption the jury considered Winter’s conduct toward other tenants, and not just the conduct directed toward Quigley, in arriving at the punitive damages amount. However, as Quigley notes, the jury instruction on punitive damages clearly stated the jury was to consider “[Winter]’s conduct only as against [Quigley]” in assessing punitive damages. We have no reason to believe the jury disregarded the district court’s instructions. Winter’s conduct was reprehensible. Quigley lived alone with small children at the time of Winter’s harassment, and she had few, if any, alternative housing options. Quigley’s financial vulnerability was evidenced by her need for Section 8 housing vouchers. Winter held a certain level of power over Quigley and her family. Winter repeatedly subjected Quigley to inappropriate conduct during Quigley’s tenancy, and Winter’s conduct was unquestionably intentional and more than churlish. Most significant, Winter’s conduct intruded upon Quigley’s sense of security in her own home. However, as we explain below, we do not believe the degree of reprehensibility of Winter’s conduct justifies the jury’s large punitive damages award. ii. Ratio Between Punitive Damages and Actual Harm The second Gore factor, the ratio between punitive and compensatory damages, is the “most commonly cited indicium of an unreasonable or excessive punitive damages award.” Gore, 517 U.S. at 580. Punitive “damages must bear a ‘reasonable relationship’ to compensatory damages.” Id. What constitutes a “reasonable relationship” varies from case to case. The Supreme Court “ha[s] consistently rejected the notion that the constitutional line is marked by a simple mathematical formula, even one that compares actual and potential damages to the punitive award.” Id. at 582 (citation omitted). The Court explained, low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages. A higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine. Id. Yet, later, in Campbell, the Court declared, “Our jurisprudence and the principles it has now established demonstrate . . . few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” Campbell, 538 U.S. at 425. The Court continued, “Single-digit multipliers are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution.” Id. The Court reiterated there was “a long legislative history, dating back over 700 years and going forward to today, providing for sanctions of double, treble, or quadruple damages to deter and punish.” Id. (citing Gore, 517 U.S. at 581 n.33). The district court then declared, “While these ratios are not binding, they are instructive.” Id. In Wallace v. DTG Operations, Inc., 563 F.3d 357, 359, 362 (8th Cir. 2009), a retaliation case, our court found a punitive damages award, which was “approximately sixteen times greater than all of the actual damages combined” was excessive. Citing Campbell, we reasoned, because the jury’s award of $30,000 in actual damages was not a nominal amount, “a single-digit multiple should be the outer limit on [the punitive damages] award.” Id. at 362. We observed, the Supreme Court found a punitive damages award “‘more than 4 times the amount of compensatory damages . . . close to the line’” of constitutionality. Id. at 363 (quoting Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-4 (1991)). Based on the Court’s guidance in Campbell and Haslip, we found “a four-to-one ratio” was an appropriate ratio. Id. Recognizing we are not bound by a rigid mathematical formula, we nevertheless, are persuaded a single digit multiplier is appropriate in the present case. We take our guidance from the Supreme Court’s assessment of single-digit multipliers. Quigley was awarded $13,685.00 in compensatory damages, which is not a nominal amount. We find the circumstances of this case and due process do not justify a punitive damages award eighteen times greater than the compensatory damages and, agreeing with the district court, conclude the jury’s punitive damage award was excessive. iii. Sanctions for Comparable Misconduct We turn then to the final Gore factor, a comparison between the punitive damages award and the civil and criminal penalties available for comparable misconduct. “[A] reviewing court engaged in determining whether an award of punitive damages is excessive should ‘accord “substantial deference” to legislative judgments concerning appropriate sanctions for the conduct at issue.’” Gore, 517 U.S. at 583 (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 282, 301(1989) (O’Connor, J., concurring in part and dissenting in part)). Quigley points out 42 U.S.C. § 3614 permits the Attorney General to commence a civil action against “any person . . . engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted by the [FHA].” Section 3614(d)(1)(C), as adjusted by the Inflation Adjustment Act of 1990, Pub. L. No. 101-410, § 5(a)(4), 104 Stat. 891, and 29 C.F.R. § 85.3(b)(3), states a court may grant relief for a first violation in an amount not exceeding $55,000. While we agree with the district court that the jury’s punitive damage award was excessive, we disagree with the district court’s assessment that $20,527.50, which is one and a half times the compensatory award, sufficiently reflects the reprehensibility of Winter’s conduct. We conclude an appropriate punitive damages award in this case is $54,750. This amount is four times greater than Quigley’s compensatory damages ($13,685.00), which we find is an appropriate ratio under the circumstances of this case. This amount comports with due process, while achieving the statutory and regulatory goals of retribution and deterrence. See Campbell, 538 U.S. at 425. 2. Attorney Fees Finally, Quigley contests the district court’s judgment with respect to the attorney fee award. The district court granted Quigley’s motion for attorney fees, but only awarded her $20,000.00 of the $117,066.50 Quigley requested. “‘We review the district court’s award of attorney fees for abuse of discretion.’” Heaton, 534 F.3d at 887 (quoting Ollis v. HearthStone Homes, Inc., 495 F.3d 570, 576 (8th Cir. 2007)). a. Entitlement to Attorney Fees “The prevailing party in FHA litigation may be awarded costs and a reasonable attorney’s fee.” Oxford House-A v. City of Univ. City, 87 F.3d 1022, 1024 (8th Cir. 1996) (citing 42 U.S.C. § 3613(c)(2)). Winter does not contest Quigley was a prevailing party; however, Winter suggests Quigley may not be entitled to attorney fees because she had a contingency fee agreement with her attorneys. Quigley’s attorney stated, “[W]e have agreed with [Quigley] . . . that we would take a contingency fee amount, which is 33 1/3 [%], or what the court would grant us in statutorily granted attorney fees. That’s an either/or. We don’t get both.” Winter cites two 1986 cases from outside our circuit in support of his proposition that the existence of a contingency agreement bars an award of attorney fees. See Tolliver v. Amici, 800 F.2d 149, 152 (7th Cir. 1986); Keith v. Volpe, 644 F. Supp. 1317, 1319 (C.D. Cal. 1986), aff’d, 858 F.2d 467 (9th Cir. 1988). We consider Tolliver and Keith inapplicable and not contrary to our decision. As Quigley notes, these two cases were decided before the 1988 amendments to the FHA. Before the amendments, an award of attorney fees under the FHA was only available to “a prevailing plaintiff [who was] not financially able to assume said attorney fees.” See Tolliver, 800 F.2d at 152 (citing 42 U.S.C. § 3612(c) (1986)). The current version of the FHA does not limit attorney fees to plaintiffs or to those who are not financially able to assume the fees; rather, “the prevailing party, other than the United States, [may recover] a reasonable attorney’s fee.” 42 U.S.C. § 3613(c)(2) (emphasis added). “The attorney’s fees provided for in a contingent-fee agreement is not a ceiling upon the fees recoverable.” Blanchard v. Bergeron, 489 U.S. 87, 96 (1989) (addressing attorney fees under 42 U.S.C. § 1988). The district court did not err in finding Quigley was entitled to attorney fees. b. Amount of Attorney Fees We now consider whether the district court erred in its manner of calculation or in the amount of attorney fees awarded to Quigley. The Supreme Court has stated, The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer’s services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly. The district court also should exclude from this initial fee calculation hours that were not “reasonably expended.” Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983) (internal citations omitted).6 See also Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005) (“The starting point in determining attorney fees is the lodestar, which is calculated by multiplying the number of hours reasonably expended by the reasonable hourly rates.” (quoting Fish v. St. Cloud State Univ., 295 F.3d 849, 851 (8th Cir. 2002)). The district court’s explanation for its award of attorney fees is puzzling. The court stated, “There is no need to discuss the lodestar calculations or the skill and experience of the plaintiff’s lawyers.” Instead, the district court relied upon the “Kloberdanz theory.” This Kloberdanz theory apparently came from an unpublished district court case, United States v. Kloberdanz, No. CR 76-2013 (N.D. Iowa Nov. 30, 1976) (McManus, J.), which did not address the issue of attorney fees. According to the district court, Kloberdanz involved the criminal prosecution of a postal employee for theft, and the Kloberdanz court found there was no need for an excessive fine because, in the district court’s words, “it was a two bit case and he was going to receive a two bit fine.” The district court then noted Quigley’s case “is not a two bit case . . . [but] there is still a matter of justice, there is still a matter of basic fairness, there is still a matter of equity.” The district court declared its belief that it was “appropriate to determine or consider the effect on [Winter], whether he can pay [the attorney fees] or not.” The district court concluded, “[W]hile they certainly are good lawyers and they certainly did a good job, . . . attorney fees in the sum of $20,000.00 are appropriate.” The district court’s failure, under the circumstances here, to analyze Quigley’s entitlement to attorney fees under the lodestar approach was an abuse of discretion. See De Jesús Nazario v. Morris Rodríguez, 554 F.3d 196, 207 (1st Cir. 2009) While Hensley involved an award of attorney fees under 42 U.S.C. § 1988, the Hensley Court made clear “[t]he standards set forth in [the] opinion are generally applicable in all cases in which Congress has authorized an award of fees to a ‘prevailing party.’” Hensley, 461 U.S. at 433 n.7. (“Normally, a district court begins with a lodestar analysis, because failure to conduct such an undertaking ‘creates a substantial burden upon the district court to account for its actions.’” (quoting Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 338 (1st Cir. 1997))); Moton v. Nathan & Nathan, P.C., 297 F. App’x 930, 932 (11th Cir. 2008) (“Although the district court admittedly has wide discretion in this arena, we nonetheless are constrained to hold that the district court abused its discretion by failing to perform any ‘lodestar’ calculation at all.” (citation omitted)); Pa. Envt’l. Defense Found. v. Canon-McMillan Sch. Dist., 152 F.3d 228, 232-33, 235 (3d Cir. 1998) (reversing and remanding based on the district court’s failure to use the lodestar method in awarding attorney fees); Morales v. City of San Rafael, 96 F.3d 359, 363- 64, 365 (9th Cir. 1996) (same). Furthermore, we find the district court erred in its consideration of Winter’s ability to pay. Even if a defendant’s ability to pay could be an appropriate consideration in awarding attorney fees, the record in this case adequately supports Winter is a substantial owner of real estate, and Winter did not submit any evidence of his financial situation or his net worth to address any issue of his inability to pay a substantial fee award. In lieu of remanding the case to the district court, Quigley requests us to conduct a lodestar calculation and award the appropriate amount of attorney fees. Quigley insists a remand to the district court would create a “serious risk of substantial continued litigation,” because, based on the district court’s previous decision, Quigley believes “another appeal to [our court] may be necessary if the issue is remanded.” “A request for attorney’s fees should not result in a second major litigation.” Hensley, 461 U.S. at 437. The Eleventh Circuit has interpreted this command to authorize circuit courts to “determine for ourselves, once we conclude that the district court has abused its discretion, how many hours were reasonably spent in litigation.” Dillard v. City of Greensboro, 213 F.3d 1347, 1355 (11th Cir. 2000) (citation omitted). See also 28 U.S.C. § 2106 (providing circuit courts of appeals the power to “direct the entry of such appropriate judgment . . . as may be just.”); Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 299 (1st Cir. 2001) (foregoing a remand and imposing an award of punitive damages where the district court erred in its attorney fees calculation). We have not located any cases from our circuit where we have foregone a remand under these circumstances. Cf. In re Kujawa, 270 F.3d 578, (8th Cir. 2001); Thomlinson v. City of Omaha, 63 F.3d 786 (8th Cir. 1995); Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995); Allen v. Higgins, 902 F.2d 682 (8th Cir. 1990). However, like the First and Eleventh Circuits, we believe the record before us is clear, remand would be inefficient, and it is necessary for us to determine an appropriate attorney fees award in this case in order to comply with the Supreme Court’s command that “[a] request for attorney’s fees should not result in a second major litigation,” Hensley, 461 U.S. at 437.7 While we agree with Quigley that the district court abused its discretion in significantly reducing Quigley’s requested attorney fees without conducting the proper analysis and in basing its decision on unsupported considerations, we do agree with the district court’s determination that Quigley’s attorney fees request was excessive. We have reviewed in depth Quigley’s supporting documentation. According to one of Quigley’s attorneys, Scott Moore, the preparation of Quigley’s case involved 437.7 hours of work performed by six attorneys and two paralegals from Baird Holm, LLP, an Omaha, Nebraska, law firm. These lawyers and their firm are deservedly highly respected, and their success in this case is commendable. Although we do not question the ethics or abilities of these attorneys, in our view, the We do not argue with the dissent that the usual procedure is to remand any further consideration of an attorney fee award to the district court because the district court typically is “in a better position to perform this time-consuming and fact- intensive task.” However, based on the circumstances and record of this case, we believe it is more efficient and appropriate for our court to decide the attorney fee award now. complexity of the issues in this case simply did not warrant the requested amount of “lawyering.” We also conclude there was a significant amount of duplicative work, in part caused by transitions in the attorneys of record. For those reasons, we determine it is reasonable and appropriate to reduce the hours expended by each of the attorneys and paralegals by one-third, while leaving their hourly rates undisturbed. See Hensley, 461 U.S. at 434 (“Cases may be overstaffed.”). Using the adjusted number of hours, and multiplying by the respective hourly rates, we arrive at the following lodestar calculation. Attorneys Reasonable Fees Scott P. Moore $44,110.00 Kirk S. Blecha $ 189.00 Christopher R. Hedican $21,641.00 Allison D. Balus $ 4,935.00 Alison A. Dempsey $ 3,819.33 Mark P.A. Hudson $ 2,060.00 Paralegals Kris P. Kimball $ 1,045.00 Sharada A. Rajappa $ 245.00 Total: $78,044.33 “The product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the ‘results obtained.’” Hensley, 461 at 434. Quigley obtained excellent results, as the jury found in her favor on all claims. We conclude no other upward or downward adjustments are mandated in this case. We thus conclude a reasonable attorney fee award in this case is $78,044.33. III. CONCLUSION For the reasons stated in this opinion, we affirm the district court’s judgment with respect to Winter’s claims on cross-appeal. With respect to Quigley’s claims on appeal, we reverse and remand the case to the district court with instructions to award Quigley $54,750.00 in punitive damages and $78,044.33 in attorney fees, together with $1,587.88 in non-taxable costs.8 GRUENDER, Circuit Judge, concurring in part and dissenting in part. I join all of the Court’s opinion with the exception of the decision to forego a remand to the district court for a proper calculation of the attorneys’ fee award. I do not interpret the Supreme Court’s statement in Hensley v. Eckerhart, 461 U.S. 424 (1983), about avoiding a “second major litigation” to encourage courts of appeals to usurp the traditional role of district courts in determining the proper fee award. Rather, I read Hensley to suggest that it is the deferential standard of review, not our ability to calculate a fee award de novo, that alleviates the Supreme Court’s efficiency concerns, including “avoiding frequent appellate review of what essentially are factual matters.” See Hensley, 461 U.S. at 437; see also id. at 430 n.3 (listing twelve factors to consider in calculating a fee award). We review the amount of an award using the deferential abuse of discretion standard precisely because “of the district court’s superior understanding of the litigation.” See id. at 437. The Court today declares that because “the record before us is clear” and “remand would be inefficient,” it is “necessary” for us to determine the appropriate attorneys’ fee award. Ante, at 28. Because the same can be said for most, if not all, attorneys’ fee disputes that are appealed, it will henceforth become necessary for us to calculate the proper attorneys’ fee award as a matter of course, whenever we find an abuse of discretion. District courts are in a far better position to perform this time- Winter does not contest Quigley’s costs. consuming and fact-intensive task. As a result, I would adhere to our previous cases in which we have uniformly remanded for the district court to re-calculate the proper attorneys’ fee award. See, e.g., Lash v. Hollis, 525 F.3d 636, 643 (8th Cir. 2008); ante, at 27-28 (collecting cases); see also Gisbrecht v. Barnhart, 535 U.S. 789, 809 (2002) (similarly remanding for a new award calculation); Hensley, 461 U.S. at 440 (same). On this issue alone, I respectfully dissent. ______________________________

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-1190 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Joseph Michael Rector, * * Appellant. * ___________ Submitted: November 16, 2009 Filed: March 16, 2010 ___________ Before MURPHY, SMITH, and BENTON, Circuit Judges. ___________ SMITH, Circuit Judge. Joseph Michael Rector was charged in a six-count indictment with possessing, distributing, and receiving child pornography, in violation of 18 U.S.C. § 2252. Prior to trial, Rector filed a motion to dismiss the indictment, arguing that his right to a speedy trial had been violated. The district court1 denied the motion. Thereafter, Rector submitted a written waiver of his right to a jury trial. Following a bench trial, the district court convicted Rector on all six counts of the indictment. Rector appeals, arguing that the district court violated the Speedy Trial Act, 18 U.S.C. § 3161, by The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas. failing to bring him to trial within 70 days of his arraignment after counting the properly excluded time. We affirm. I. Background On February 8, 2008, Rector was charged by criminal complaint with possessing and distributing child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B). He was arrested on February 9, 2008, and appeared with retained counsel Jeff Watson before the magistrate judge on February 11, 2008. Rector waived a probable cause hearing and requested a detention hearing, which the magistrate judge conducted on February 15, 2008. The magistrate judge issued an order of detention pending trial at the conclusion of the hearing. On March 5, 2008, the grand jury charged Rector in a six-count indictment with (1) one count of possessing an image of child pornography mailed, shipped or transported in interstate and foreign commerce by computer, in violation of 18 U.S.C. §§ 2252(a)(4) and (b)(2); (2) one count of distributing an image of child pornography mailed, shipped, or transported in interstate and foreign commerce by computer, in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1); and (3) four counts of receiving an image of child pornography mailed, shipped, or transported in interstate and foreign commerce by computer, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). Rector appeared with Watson for arraignment on March 14, 2008, and Rector pleaded not guilty. The case was scheduled for jury trial on April 21, 2008. The Speedy Trial Act, 18 U.S.C. § 3161(c)(1), provides that a trial shall "commence within seventy days from the filing date (and making public) of the . . . indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." Rector's arraignment on March 14, 2008, started the 70-day speedy trial clock. On April 10, 2008, Rector filed a motion to continue the jury trial scheduled for April 21, 2008. Rector's motion sought additional time for a forensic expert to examine the computer containing the contraband images charged in the indictment. The government did not oppose the motion. The district court continued the jury trial to May 27, 2008. The court excluded April 21 to May 27, 2008, from the speedy trial calculation after finding that the ends of justice permitted exclusion pursuant to 18 U.S.C. §§ 3161(h)(8)(A) and (B)(iv). Prior to the May 27, 2008 trial date, the government learned and disclosed to Rector's counsel that the government had discovered evidence that Rector had committed criminal conduct in the Western District of Oklahoma. Based on that evidence, Rector potentially faced charges there similar to the ones in Arkansas. In light of the enhanced penalty provision for those previously convicted of violating 18 U.S.C. §§ 2251 and 2252, Rector, through his counsel, informed the government that he wished to resolve all potential criminal charges in one negotiated plea settlement. Rector's counsel made an oral motion to the district court, unopposed by the government, asking the district court to postpone the May 27 trial so that charges in the Western District of Oklahoma could be transferred to the Western District of Arkansas for consolidation in one prosecution, pursuant to Federal Rule of Criminal Procedure 20. The district court granted Rector's motion and rescheduled the trial for June 30, 2008. The district court's order, entered May 22, 2008, stated that the time from May 27 to June 30, 2008, was excluded pursuant to 18 U.S.C. § 3161(h)(1)(G). On May 23, 2008, an information and consent to transfer of case for plea and sentence from the Western District of Oklahoma was entered as case number 5:08-CR-50056 in the Western District of Arkansas. The one-count indictment charged Rector with producing child pornography, in violation of 18 U.S.C. § 2251. On June 26, 2008, the district court was notified that the parties had reached a negotiated plea and that the parties would submit a written plea agreement to the district court. The district court cancelled the jury trial scheduled for June 30, 2008, and set a change-of-plea hearing for July 23, 2008. The district court received the written plea agreement on July 3, 2008. The written plea agreement called for the dismissal of the indictment in the Western District of Arkansas in exchange for Rector pleading guilty to the transferred Western-District-of-Oklahoma information. At the change of plea hearing on July 23, 2008, Rector informed the district court that he wanted to terminate Watson as his counsel and hire Thomas Barton Smith. Rector told the district court that, although he had signed the written plea agreement, "I don't think I should have signed it, Your Honor." Rector did not enter a guilty plea. The district court inquired as to whether Smith, who was present in the courtroom on July 23, was admitted to practice in the Western District of Arkansas. Smith informed the court that he had not yet applied for admission to practice in the district but intended to do so. Smith told the district court that he had not talked to Rector and appeared in court that day only because "I received a phone call last night asking could I be here, and I am." Because Smith was not yet admitted to practice in the Western District of Arkansas, the district court stated that it was "hesitant to show [Smith] as attorney of record until [he] was so qualified, so I'll simply rule from the bench that Mr. Watson may be relieved." The district court directed Smith to gain admission within ten days. The district court asked the parties to be available for a telephone conference "within the next few days so I can see what course this thing is going to take." Additionally, the district court made a finding that the time lost in light of Rector's termination of Watson and replacement with Smith—an attorney not yet admitted to practice in the district—should be excluded for speedy trial purposes. On August 4, 2008, the district court conducted a telephone conference and learned that Smith was still not yet admitted to practice in the district. That same day, the district court entered an order to continue the trial to August 25, 2008, and excluded from speedy trial calculation the time from June 26 to August 25, 2008, pursuant to 18 U.S.C. §§ 3161(h)(8)(A) and (B)(iv). On August 12, 2008, Smith entered his appearance as Rector's attorney of record. Six days later, Rector filed a motion to dismiss the indictment, arguing that his right to a speedy trial had been violated. The government opposed the motion. The district court entered an order denying Rector's motion to dismiss. In the order, the district court set forth the chronology of Rector's case and excludable time attributable to each period of delay. Rector's actions caused delays through his (1) initial request for additional time to prepare for trial; (2) request for delay to permit the transfer of the Western-District-of-Oklahoma charge to the Western District of Arkansas; and (3) termination of Watson as counsel and substitution of Smith as retained counsel. Thereafter, Rector, through Smith, negotiated a written plea agreement. Smith notified the district court that the parties had reached a plea agreement. At the change- of-plea hearing held on August 25, 2008, Rector indicated to the district court that he did not want to go forward with the plea agreement and asked the court's permission to discharge Smith as his counsel. In response to Rector's request, the district court permitted Rector to fire Smith but required Smith to remain as standby counsel. The district court scheduled the jury trial for August 27, 2008. On August 27, 2008—the day that trial was scheduled to commence—Rector submitted a written waiver of his right to a jury trial. The government called seven witnesses and introduced 72 exhibits. Rector offered no evidence. The district court convicted Rector on all six counts of the indictment. On January 9, 2009, a sentencing hearing was held at which the district court, applying the advisory Guidelines, found Rector's total offense level to be 51. Pursuant to the statutorily authorized maximum sentence, the Guidelines range was 1320 months' imprisonment—240 months on each of Counts 2 through 6 and 120 months on Count 1. After considering the factors set forth in 18 U.S.C. § 3553(a), the district court sentenced Rector to 1320 months' imprisonment. II. Discussion On appeal, Rector argues that the district court violated the Speedy Trial Act, 18 U.S.C. § 3161, by failing to bring him to trial within 70 days of his arraignment after counting the properly excluded time. In response, the government argues that the district court properly calculated the days between arraignment on March 14, 2008, and Rector's trial on August 27, 2008, and determined that Rector was tried within 70 days as required by the Speedy Trial Act. The government notes that the district court made specific findings that Rector caused delays occurring between the arraignment and trial. As a result, it maintains that the district court properly excluded all of the delays in its speedy trial calculation. The Speedy Trial Act provides, in relevant part, that [i]n any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. 18 U.S.C. § 3161(c)(1). If a defendant is not brought to trial within this time period, upon the defendant's motion, the district court must dismiss the information or indictment. Id. § 3162(a)(2). But the Speedy Trial Act outlines "periods of delay" that "shall be excluded . . . in computing the time within which the trial of any such offense must commence . . . ." Id. § 3161(h). Thus, we must determine whether the time periods that the district court excluded from Rector's speedy trial calculation qualify as "periods of delay." Rector first contests2 the exclusion of time between July 1 and July 23, 2008. On July 3, 2008, the parties furnished the district court with the written plea agreement, reflecting that Rector had waived the indictment and agreed to plead guilty to the information. A change of plea hearing was scheduled for July 23, 2008. The district court found such time excludable pursuant to § 3161(h)(1)(G). That section provides that for the exclusion of a period of time attributable to "[a]ny period of delay resulting from other proceedings concerning the defendant, including . . . delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defendant and the attorney for the Government . . . ." 18 U.S.C. § 3161(h)(1)(G). Rector does not dispute that from July 3 to July 23, the court was "considering" the proposed plea agreement; instead, he argues that when the court was informed on June 26, 2008, that the parties had reached a negotiated plea and that a written plea agreement would be submitted to the district court, the court should have scheduled the change of plea hearing for June 30, 2008 —the date the trial was scheduled to begin—instead of scheduling it for July 23, 2008. Rector asserts that if the court had set the plea date for the date previously set for the jury trial—June 30—the court would have learned that he wanted to withdraw his consent to the proposed plea As the government notes in its brief, Rector is not contesting the first period of delay excludable for speedy trial purposes pursuant to 18 U.S.C. §§ 3161(h)(7)(A) and (B)(iv)—the trial continuance from April 21, 2008 (the original trial date) to May 27, 2008 (the new trial date) based on Rector's request for additional time to prepare for trial. And, Rector is apparently not contesting the second period of delay for speedy trial purposes pursuant to § 3161(h)(1)(E)—the continuance from May 27, 2008 (the trial date) to June 30, 2008 (the new trial date) based on Rector's request to allow the transfer of the case from the Western District of Oklahoma. agreement. This argument is nonsensical, considering that the district court did not even receive the written plea agreement until July 3, 2008. There is no evidence that the government and Rector had a signed, written plea agreement on June 26, 2008; instead, they merely informed the court that they would be submitting such an agreement in the future. Additionally, even if there had been a written plea agreement on that date, there is no evidence that four days would have been a sufficient amount of time for the court to review it. Therefore, we hold that the district court properly excluded the time between July 1 and July 23, 2008, from the speedy trial calculation pursuant to § 3161(h)(1)(G). Rector also contests the exclusion of time between July 23 and August 25, 2008, because his new counsel—Smith—was present and ready to take over the case and did not request any additional time to prepare. According to Rector, the fact that Smith was not a member of the Western District of Arkansas's bar was an insufficient ground to exclude the time. Rector maintains that the district court should have set a trial date and only have excluded the time later if Smith failed to gain admittance to the Western District of Arkansas by the trial date. On July 23, 2008, Rector appeared before the district court for the change-of- plea hearing, but he advised the court that he wished to terminate his retained attorney—Watson—and retain different counsel—Smith. He also stated that he did not think he should have signed the plea agreement. The district court permitted Watson to withdraw but directed Smith—who was not then admitted to practice in the Western District of Arkansas—to immediately petition for admission. The court noted that the time lapse due to Rector's desire to change attorneys should be excluded under the Speedy Trial Act. The court asked both Watson and Smith if they had any objections. Both agreed that such time was excludable. On August 4, 2008, Smith advised the court that he had received a certificate of good standing from the Arkansas Supreme Court and planned to immediately petition for admission to the Western District of Arkansas. Smith indicated that his client believed that the Speedy Trial Act had been violated, but Smith said that his research did not support his client's position. The court then rescheduled the trial for August 25, 2008, finding that the time between June 26 and August 25, 2008, was excludable under §§ 3161(h)(7)(A) and (B)(iv).3 The court specifically made an ends-of-justice finding, stating: The Court finds that the ends of justice [are] served by rescheduling the trial date due to the defendant's decision not to proceed with the plea agreement, by allowing the defendant to retain new counsel, and by allowing counsel to seek admission to this court and prepare for trial outweigh the best interest of the public and the defendant in a speedy trial. See 18 U.S.C. §§ 3161(h)([7])(A) & (B)(iv). Section 3161(h)(7)(A) permits the district court to properly exclude a period of delay resulting from a continuance granted by the district court on its own motion where the court granted the continuance "on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial" and set forth, orally or in writing, "its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial." In determining whether to grant a continuance under subsection (h)(7)(A), the court must consider [w]hether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex as to fall within clause (ii), would deny the defendant reasonable time to obtain counsel, would unreasonably deny the defendant or the Government continuity of counsel, or would deny counsel for the defendant or the attorney for the Government the reasonable time necessary for effective preparation, taking into account the exercise of due diligence. 18 U.S.C. § 3161(h)(7)(B)(iv). The district court correctly cited the 2008 version of § 3161. Under the 2008 version, § 3161(h)(7)(A) was formerly § 3161(h)(8)(A). Here, the court stated in its order setting the trial date that the continuance would serve the ends of justice by allowing (1) the defendant to retain new counsel and (2) counsel to seek admission to the district and prepare for trial. See id.; United States v. Stackhouse, 183 F.3d 900, 901 (8th Cir. 1999) (stating that district court must set forth in the record its reasons for finding that the ends of justice would be served); United States v. Yerkes, 345 F.3d 558, 562 (8th Cir. 2003) (holding that the time period for the continuance of the trial was required to be excluded from the speedy trial calculation where district court specifically determined that the continuance was based upon the need to replace defense counsel due to a conflict of interest and to allow reasonable time for new counsel to prepare). Thus, we find that the district court properly excluded the time between July 23 and August 25, 2008, from the speedy trial calculation pursuant to §§ 3161(h)(1)(7)(A) and (B)(iv). III. Conclusion Accordingly, we affirm the judgment of the district court. ______________________________

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-1442 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the Northern * District of Iowa. Mishan Bradford, * * [UNPUBLISHED] Appellant. * ___________ Submitted: March 2, 2010 Filed: March 16, 2010 ___________ Before MELLOY, BOWMAN, and SMITH, Circuit Judges. ___________ PER CURIAM. In this direct criminal appeal, Mishan Bradford challenges the 96-month prison term the district court1 imposed after he pleaded guilty to being a felon and unlawful user of controlled substances in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and (3), and 924(a)(2). His counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the court erred in departing upward by one criminal history category under U.S.S.G. § 4A1.3(a) The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa. (understatement of criminal history), and that the sentence is substantively unreasonable. For the following reasons, we affirm. The district court did not abuse its discretion in departing upward. The court adequately explained its decision and considered appropriate factors in concluding that Bradford was a recidivist whose criminal history category did not accurately reflect his recidivism. See United States v. Gonzalez, 573 F.3d 600, 605-07 (8th Cir. 2009) (no abuse of discretion in departing upward under § 4A1.3(a) where court considered appropriate factors and adequately explained decision). We have also reviewed the sentence for substantive reasonableness. Under the highly discretionary standard of Gall v. U.S., 552 U.S. 38, 128 S. Ct. 586 (2007), we have no difficulty finding the sentence to be reasonable. The district court adequately considered and explained the 18 U.S.C. § 3553(a) sentencing factors that guided its determination. Given Bradford's lengthy criminal history, the district court did not abuse its discretion in imposing a 96 month sentence. Finally, having reviewed the record independently under Penson v. Ohio, 488 U.S. 75 (1988), we have found no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw, and we affirm the district court’s judgment. ______________________________

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-1621 ___________ United States of America, * * Plaintiff - Appellee, * * v. * Appeal from the United States * District Court for the Orville Dean Myers, * District of Nebraska. * Defendant - Appellant. * ___________ Submitted: February 12, 2010 Filed: March 16, 2010 ___________ Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges. ___________ BENTON, Circuit Judge. Orville Dean Myers pled guilty to one count of failing to register as a sex offender in violation of 18 U.S.C. § 2250(a). The district court1 sentenced him to 24 months imprisonment. Myers appeals his sentence, arguing that the court engaged in impermissible double-counting by using a prior felony conviction to calculate his base offense level and the criminal history category under the Sentencing Guidelines. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirms. The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska. I. In May 2000, Myers pled guilty to sexually assaulting a nine-year-old girl in Colorado in 1996. In July, he was sentenced to probation, but in December his probation was revoked, and he was sentenced to eight years incarceration. Released in December 2007, he was notified of his duty to register as a sex offender. Myers did not register in Colorado. In January 2008, he moved to Nebraska and also did not register. In December 2008, Myers pled guilty to failing to register as a sex offender under 18 U.S.C. § 2250(a). As for the base offense level under § 2A3.5, the district court calculated it at level 16, because Myers was required to register as a Tier III offender. (Myers does not contest that he is a Tier III offender.) A Tier III offender is one previously convicted of a sex offense punishable by more than a year in prison, and involving a victim under the age of 13. U.S.S.G. § 2A3.5 App. Note 1; 42 U.S.C. § 16911(4). As for the criminal history category under § 4A1.1, three points were assessed for Myers’s conviction for sexually assaulting the nine-year-old in Colorado because it was a “prior sentence of imprisonment exceeding one year and one month.” U.S.S.G. § 4A1.1(a). An additional two points were assessed because his instant offense of failing to register as a sex offender was committed less than two years after release from prison. U.S.S.G. § 4A1.1(e). With an additional two points added for a prior conviction for violation of a restraining order, Myers’s seven criminal history points put him in category IV. His Guideline range was 24 to 30 months, and he was sentenced to 24 months. Myers argues that the district court impermissibly double- counted his conviction for sexually assaulting a nine-year-old by including it in both his base offense level and the criminal history category. II. This court reviews “de novo whether the district court’s application of the sentencing guidelines amounts to impermissible double counting.” United States v. Peck, 496 F.3d 885, 890 (8th Cir. 2007). “Double counting occurs when one part of the Guidelines is applied to increase a defendant’s punishment on account of a kind of harm that has already been fully accounted for by application of another part of the Guidelines.” United States v. Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997) (quotations omitted); United States v. Donelson, 450 F.3d 768, 774 (8th Cir. 2006). Even if the court finds double-counting, it is permissible where “(1) the [Sentencing] Commission intended the result and (2) each statutory section concerns conceptually separate notions related to sentencing.” Hipenbecker, 115 F.3d at 583. A. In determining Myers’s sentence for failing to register as a sex offender, one part of the Guidelines, § 2A3.5(a)(1), was applied to increase his base offense level on account of the nature of the predicate felony of sexually assaulting a nine-year-old. This felony was also accounted for by application of another part of the Guidelines, § 4A1.1, in Myers’s criminal history points. The question is whether the harm of his prior conviction was fully accounted for in one of the two Guidelines. This court concludes it was not, and therefore, no double-counting occurred. The offense level for failing to register as a sex offender is based on the nature of the sexual conduct in the prior conviction. The apparent rationale is that the seriousness of not registering is increased by the severity of the underlying sex offense. Myers’s offense level for failing to register was higher because the victim in his prior conviction was under 13 years old. On the other hand, the criminal history is not based on the nature of the prior conviction (age of the victim), but based solely on the length of incarceration and the conviction’s recency. The harm of his prior conviction was not fully accounted for by either Guideline alone, so no double-counting occurred. See United States v. Phillips, 506 F.3d 685, 688 (8th Cir. 2007) (The “base offense level and criminal history provisions address conceptually separate sentencing notions. One addresses the gravity of the particular offense. The other addresses the need to deter future criminal activity by this defendant.”). B. Even if double-counting occurred in this case, it was permissible because the Commission intended the result, and the offense level and criminal history sections address different concerns. The General Application Principles in the Sentencing Guidelines instruct a sentencing court to determine the base offense level independently of the criminal history category. U.S.S.G. § 1B1.1. The Application Notes further clarify: “Absent an instruction to the contrary,” enhancements to the base offense level and determinations of the criminal history guidelines “are to be applied cumulatively.” U.S.S.G. § 1B1.1 App. Note 4(B). Myers points to application notes in other Guidelines, which specifically say that a predicate conviction can be used to calculate both the base offense level and the criminal history category. See U.S.S.G. § 2A6.2 App. Note 3 (stalking or domestic violence); § 2K1.3 App. Note 9 (receipt, possession, or transportation of explosives); § 2K2.1 App. Note 10 (felon in possession of a firearm); § 2L1.1 App. Note 4 (smuggling, transporting, or harboring unlawful alien); § 2L1.2 App. Note 6 (illegal re-entry following felony conviction); § 2L2.1 App. Note 4 (trafficking in false immigration documents); § 2L2.2 App. Note 2 (fraudulently acquiring or using false immigration documents). Myers argues that because the Application Notes to § 2A3.5 do not also specifically say that his predicate sexual assault can be used in both calculations, the Commission did not intend that result. This interpretation turns the application instructions upside down. The application principles state that “absent an instruction to the contrary,” the sentencing court must calculate the base offense level and criminal history cumulatively. Therefore, because the Commission did not instruct to the contrary in either § 2A3.5 or § 4A1.1, its intent was for the base offense level and criminal history to be applied cumulatively to Myers. The fact that other Guidelines expressly state that a predicate felony can be used for both calculations does not require a different application here. See United States v. Thomas, 930 F.2d 12, 14 (8th Cir. 1991) (stating that where the Guidelines do not contain a specific exception to the application of an enhancement, the Commission intends for that enhancement to apply). See also United States v. Kenney, 283 F.3d 934, 938 (8th Cir. 2002) (“[T]he Commission intended to include enhancements for every applicable aspect of the criminal conduct, to be added together cumulatively, unless the Guidelines themselves direct otherwise.”) (emphasis added); United States v. Wyckoff, 918 F.2d 925, 927 (11th Cir. 1990) (before the application note to § 2K2.1 was amended to specifically permit it, holding no impermissible double-counting by using predicate felony in calculation of base offense level and criminal history); United States v. Hawkins, 69 F.3d 11, 14 (5th Cir. 1995) (“Double counting is prohibited only if the particular guidelines at issue specifically forbid it.”). Therefore, the Commission intended for Myers’s predicate sexual assault to be used to calculate both his base offense level and the criminal history category. Finally, as discussed, the base offense level and criminal history calculations address different sentencing goals. See, e.g., United States v. Saffeels, 39 F.3d 833, 836 (8th Cir. 1994) (“[W]hile the base offense inquiry reflects the seriousness of the offense, the criminal history score assesses the offender and the need to deter him from further criminal activity.”); United States v. Alessandroni, 982 F.2d 419, 423 (10th Cir. 1992); Wyckoff, 918 F.2d at 927. Myers contends that § 4A1.1 excludes his prior sentence from the criminal history calculation because it was for conduct that is part of his offense of failing to register. He cites Application Note 1 to § 4A1.2, which defines a “prior sentence” as “a sentence imposed prior to sentencing on the instant offense, other than a sentence for conduct that is part of the instant offense.” U.S.S.G. § 4A1.2 App. Note 1. “Conduct that is part of the instant offense” means “relevant conduct to the instant offense under the provisions of § 1B1.3 (Relevant Conduct).” Id. U.S.S.G. § 1B1.3(a)(2) defines “relevant conduct” to include acts “that were part of the same course of conduct or common scheme or plan as the offense of conviction.” Relevant conduct also includes “offense conduct associated with a previously imposed sentence [that is] expressly charged in the offense of conviction.” U.S.S.G. § 1B1.3 App. Note 8. Myers’s act of sexually assaulting a child in 1996 in Colorado is not “part of the same course of conduct or common scheme or plan” as his act of failing to register as a sex offender in 2008 in Nebraska. Myers’s indictment charges his status as a person required to register as a sex offender; it does not charge his conduct of sexual assault. Therefore, his prior sexual assault is not relevant conduct to his failure to register, and his prior sentence is not for conduct that is part of the instant offense. See Alessandroni, 982 F.2d at 421 (holding it is not the conduct of committing a prior felony that is an element of being a felon in possession of a firearm, rather it is the status of being a convicted felon). III. The judgment of the district court is affirmed. ______________________________

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-1986 ___________ James F. Newport, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. United States Department of Labor; * Hilda Solis, Secretary of Labor; * [UNPUBLISHED] Paul M. Igasaki, ARB Chair; * Honorable Daniel J. Solomon, * * Appellees. * ___________ Submitted: February 26, 2010 Filed: March 16, 2010 ___________ Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges. ___________ PER CURIAM. Hilda Solis has been appointed to serve as Secretary of Labor and is substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c). Paul M. Igasaki has been appointed to serve as Chair of the Department of Labor Administrative Review Board and is substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c). James Newport previously filed with the Department of Labor (DOL) a 42 U.S.C. § 5851 whistleblower complaint, which—on the recommendation of an Administrative Law Judge (ALJ)—was dismissed by the DOL Administrative Review Board as a sanction for Newport’s improper conduct. Newport then brought this mandamus action in the district court,3 seeking to have the ALJ recused and his administrative action reinstated. The district court dismissed the mandamus action upon concluding it lacked subject matter jurisdiction, and Newport now appeals that dismissal. After careful de novo review, see LeMay v. U.S. Postal Serv., 450 F.3d 797, 799 (8th Cir. 2006), we agree with the district court’s decision, see 42 U.S.C. § 5851(c)(1)-(2) (orders under § 5851(b) may be appealed to United States court of appeals for circuit in which violation allegedly occurred; where such review of order could have been obtained, order “shall not be subject to judicial review in any criminal or other civil proceeding”); cf. Anderson v. Sullivan, 959 F.2d 690, 692 (8th Cir. 1992) (in Medicare context, agreeing with district court that general federal subject matter jurisdiction was precluded where administrative remedies had not been exhausted); Hatcher v. Heckler, 772 F.2d 427, 432 (8th Cir. 1985) (“[T]he writ of mandamus ‘is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.’” (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984))). Accordingly, we affirm. See 8th Cir. R. 47B. ______________________________ The Honorable David Gregory Kays, United States District Judge for the Western District of Missouri.

United States Court of Appeals FOR THE EIGHTH CIRCUIT No. 09-2177 Comcast of Illinois X, An Illinois * Limited Liability Company, * * Plaintiff – Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Multi-Vision Electronics, Inc., * a dissolved Nebraska Corporation, * [UNPUBLISHED] doing business as Cable Network * Company, also known as Cable, * Network, * * Defendant, * * Ronald J. Abboud, Individually, * * Defendant – Appellant. * Submitted: March 8, 2010 Filed: March 16, 2010 Before MURPHY, JOHN R. GIBSON, and RILEY, Circuit Judges. PER CURIAM. Ronald Abboud appeals from the District Court’s 1 April 13, 2009 denial of his Rule 60(b) motion for relief from an October 11, 2006 judgment against Abboud in a suit by Comcast alleging violations of the Cable Communications Policy Act, 47 U.S.C. § 553(a)(1) (1992) (“CCPA”). We affirm. We review a district court’s ruling on a Rule 60(b) motion for abuse of discretion. Jones v. Swanson, 512 F.3d 1045, 1048 (8th Cir. 2008). Rule 60(b) of the Federal Rules of Civil Procedure authorizes the court to “relieve a party . . . of a final judgment” due to “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . . or (6) any other reason that justifies relief.” Fed. R. Civ. P. 60(b) (2009). Relief under Rule 60(b) may be granted only upon an adequate showing of exceptional circumstances. Jones, 512 F.3d at 1048. Appellant claims that the district court erred in concluding that his motion is untimely. The Federal Rules of Civil Procedure require a Rule 60(b) motion to be brought “within a reasonable time, and . . . no more than a year after the entry of the judgment.” Fed. R. Civ. P. 60(c) (2009). Final judgment in this case was entered on October 11, 2006. Appellant filed his Rule 60(b) motion on May 12, 2008, over a year and a half later. Appellant contends that a debtor in bankruptcy proceedings is granted an extension under 11 U.S.C. § 108(a) on the time to file a Rule 60(b) motion. “If applicable nonbankruptcy law . . . fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before . . . two years after the order for relief.” 11 U.S.C. § 108(a)(2) (2005). Appellant argues that since he filed his bankruptcy petition on July 16, 2007, less than a year after the The Honorable Joseph F. Bataillon, Chief Judge, United States District Court for the District of Nebraska. district court’s final judgment, he is entitled to an extra year to file his Rule 60(b) motion. The statute is silent, however, on whether a debtor is entitled to the same time extensions as a trustee under § 108(a). Appellant is the debtor in his bankruptcy action, not the trustee. He fails to cite to any support, in the Eighth Circuit or elsewhere, that treats debtors and trustees synonymously for the purposes of § 108(a). Moreover, appellant ignores the importance of reasonableness in framing time limits on Rule 60(b) motions. This case involved a lengthy litigation in which summary judgment was upheld on appeal, see Comcast of Illinois X v. Multi-Vision Electronics, Inc., 491 F.3d 938 (8th Cir. 2007), and a subsequent stay pending appellant’s bankruptcy proceeding. The district court did not abuse its discretion in concluding that, given the case’s history, appellant’s motion was not filed within a reasonable time. Even if appellant’s motion were timely filed, he did not supply evidence of exceptional circumstances warranting relief from judgment. He failed to demonstrate that Comcast did not exist as a legal entity at the time of his CCPA violations. In any event, the question of Comcast’s legal existence is irrelevant since it was awarded damages as a “private attorney general” on behalf of the entire cable industry, pursuant to 47 U.S.C. § 553(c)(3)(A)(i) (1992). The district court found no mistake, inadvertence, surprise, excusable neglect, or newly discovered evidence. Its denial of appellant’s Rule 60(b) motion was well within its discretion. Accordingly, we affirm the order of the district court. ______________________________

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-2359 ___________ Albert Allen Trammell, Sr., * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. New Prime, Inc.; Robert Lowe; * Lawanda Lowe; Vera Lowe, * [UNPUBLISHED] * Appellees. * ___________ Submitted: March 2, 2010 Filed: March 16, 2010 ___________ Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges. ___________ PER CURIAM. Albert Trammell appeals the district court’s1 dismissal of his complaint, which was liberally construed as asserting fraud and wrongful termination under Missouri law, and wrongful termination under 49 U.S.C. § 31105(a). After careful de novo review, see Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008), we agree with the district court’s dismissal order, see 49 U.S.C. § 31105(b)(1) (“employee alleging discharge . . . in violation of subsection (a) of this section . . . The Honorable Richard E. Dorr, United States District Judge for the Western District of Missouri. may file a complaint with the Secretary of Labor not later than 180 days after alleged violation occurred”), (d) (person adversely affected by order issued after hearing under subsection (b) of this section may file petition for review in court of appeals of United States for circuit in which violation occurred or person resided on date of violation; order of Secretary of Labor subject to review under this subsection is not subject to judicial review in another civil proceeding); Mo. Rev. Stat. § 516.120(4) (five-year statute of limitations for “injury to the person or rights of another, not arising on contract”); Larabee v. Eichler, 271 S.W.3d 542, 546 (Mo. 2008) (elements of a fraud claim). Accordingly, we affirm. See 8th Cir. R. 47B. Appellees’ motion to dismiss the appeal is denied as moot. ______________________________

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-2819 ___________ United States of America, * * Appellee, * Appeal from the United States * District Court for the v. * District of Minnesota. * Marco Patrick Crespo, * [UNPUBLISHED] * Appellant. * ___________ Submitted: March 10, 2010 Filed: March 16, 2010 ___________ Before MELLOY, BOWMAN, and SMITH, Circuit Judges. ___________ PER CURIAM. In this direct criminal appeal, Marco Crespo challenges the 37-month sentence the District Court1 imposed after he pleaded guilty to an immigration offense. Crespo’s counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967), acknowledging the existence of an appeal waiver in Crespo’s written plea agreement, but nevertheless arguing that Crespo’s sentence is substantively unreasonable. The Honorable Ann D. Montgomery, United States District Judge for the District of Minnesota. Upon careful review, we conclude that enforcement of the appeal waiver is warranted because Crespo’s appeal falls within the scope of the waiver, Crespo knowingly and voluntarily entered into both the plea agreement and the appeal waiver, and enforcement of the waiver would not result in a miscarriage of justice given that Crespo received a sentence well below the correctly calculated Guidelines range and his mitigating circumstances are not extraordinary. See United States v. Andis, 333 F.3d 886, 889–92 (8th Cir.) (en banc) (holding that enforcement of an appeal waiver in a plea agreement is appropriate where the appeal falls within the scope of the waiver, defendant knowingly and voluntarily entered into both the plea agreement and the waiver, and enforcement of the waiver would not result in a miscarriage of justice), cert. denied, 540 U.S. 997 (2003); see also United States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam) (dismissing appeal in an Anders case based on an enforceable appeal waiver). Furthermore, we have reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80 (1988), and we have found no non-frivolous issue beyond the scope of the appeal waiver. Accordingly, we grant counsel’s motion to withdraw, and we dismiss the appeal. ______________________________

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA,  No. 07-30098 Plaintiff-Appellee, D.C. No. v. CR-06-02112-EFS RICARDO GONZALEZ,  Eastern District of Defendant-Appellant. Washington, Spokane  ORDER Filed March 16, 2010 Before: Betty B. Fletcher, Richard A. Paez, and N. Randy Smith, Circuit Judges. Order; Concurrence by Judge B. Fletcher; Dissent by Judge Bea ORDER The panel has voted to deny the Petition for Rehearing. Judges Paez and N.R. Smith have voted to deny the Petition for Rehearing En Banc, and Judge B. Fletcher has so recom- mended. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to hear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consider- ation. See Fed. R. App. P. 35. The petition for rehearing and the petition for rehearing en banc are DENIED. 4324 UNITED STATES v. GONZALEZ B. FLETCHER, PAEZ, and N.R. SMITH, Circuit Judges, concurring in the denial of rehearing en banc: Judge Bea’s dissent presents a distorted view of what this case is all about. It requires a response that can be part of the public record. Otherwise our panel’s reasoned response to the en banc call would remain hidden from public view. At the time of our original disposition, the Supreme Court had not decided Arizona v. Gant, 129 S. Ct. 1710 (2009). Our circuit interpreted New York v. Belton, 453 U.S. 454 (1981), to allow law enforcement to search the passenger compart- ment of a vehicle so long as the search was “roughly contem- poraneous with the arrest” of the vehicle’s occupant. United States v. Weaver, 433 F.3d 1104, 1106 (9th Cir. 2006) (cita- tion and quotation marks omitted). Accordingly, our panel in its original disposition concluded that the search of Defendant Gonzalez’s vehicle did not violate the Fourth Amendment. While Gonzalez’s petition for certiorari was pending, the Supreme Court decided Gant, holding that a number of state and federal courts, including ours, had improperly interpreted Belton. Far from announcing a new rule and overruling Bel- ton, the Court explained that our precedent had misinterpreted Belton by ignoring that Belton is the progeny of Chimel v. California, 395 U.S. 752 (1969). We had “untether[ed]” Bel- ton “from the justifications underlying the Chimel exception,” which allows searches incident to lawful arrests, but limits those searches solely to “the arrestee’s person and the area . . . within which he might gain possession of a weapon or destructible evidence” at the time of the search. Gant, 129 S. Ct. at 1716, 1719 (citation and quotation marks omitted). The Supreme Court granted Gonzalez’s certiorari petition, vacated our panel’s decision, and remanded to us “for further consideration in light of Arizona v. Gant.” Quintana v. United States, 129 S. Ct. 2156 (2009) (citation omitted). In our deci- sion on remand, we faithfully followed its instructions. We UNITED STATES v. GONZALEZ 4325 applied Gant consistent with the Supreme Court’s precedents on the application of the exclusionary rule and on retroactiv- ity. See United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009). Judge Bea’s bold pronouncement that we disregarded Her- ring v. United States, 129 S. Ct. 695 (2009), and Illinois v. Krull, 480 U.S. 340 (1987), is wrong. Indeed, we followed the teaching of the Herring Court that “the benefits of deterrence must outweigh the costs.” 129 S. Ct. at 700. In Gant, the Court decided that in cases such as Gonzalez, the benefits of deterrence do outweigh the costs. It held that where, as in Gant, “it is clear that a [law enforce- ment] practice is unlawful, individuals’ interest in its discon- tinuance clearly outweighs any law enforcement ‘entitlement’ to its persistence.” Gant, 129 S. Ct. at 1723. Because the unconstitutionality of the searches in Gant and this case was “clear,” the searches never should have occurred. They were unlawful ab initio. As a consequence, Gant held that deter- rence of such searches trumps the costs of exclusion. Judge Bea’s argument in support of the dissenters in Gant is to no avail. Let him disagree with the Supreme Court, if he must, but not with our adherence to the Court’s dictates. Krull, for its part, is inapposite. It concerns law enforce- ment’s reliance on a statute and not the interpretation of case law. The controlling authority for this case was United States v. Johnson, 457 U.S. 537 (1982), not Krull as advocated by Judge Bea. The panel correctly followed Johnson. Finally, the reader should bear in mind that this case deals with a defendant’s right to suppress evidence obtained by an unconstitutional search. It does not involve whether the offi- cers who conducted the search are entitled to qualified immu- nity. The rights of the defendant, not those of the police, are at issue. The dissent persists in its view that discipline of police is at issue rather than individual rights. See Dissent at 4326 UNITED STATES v. GONZALEZ 4347-48 (“Here, the panel confuses the retroactive application of a Supreme Court decision in the area of individual rights (a jury picked without racial motivation) with what is an area of societal rights (suppression of evidence to discipline police).”). I The precedents that controlled our decision in Gonzalez were those dealing with retroactivity. All agree that when Gant was decided, defendant Gonzalez’s conviction had not yet become final. All agree that under Gant, the search in our case was unconstitutional. Looking to the Supreme Court’s precedents on retroactivity, we applied Gant, holding that the search was unconstitutional and that the evidence seized should be suppressed. When the Supreme Court clarifies the boundaries of a con- stitutional search in one case, in fairness, that clarification must be consistently applied to all cases that are not yet final. That policy was applied in Johnson, 457 U.S. 537, and Grif- fith v. Kentucky, 479 U.S. 314 (1987). The question in Johnson was whether Payton v. New York, 445 U.S. 573 (1980), should be applied retroactively to exclude evidence in cases pending on direct appeal. The gov- ernment argued that the exclusionary rule should not apply to evidence seized in good-faith reliance on pre-Payton law. We quote the Court’s rejection of that argument: The Government [relies] on [United States v.] Pel- tier’s broad language: “If the purpose of the exclu- sionary rule is to deter unlawful police conduct then evidence obtained from a search should be sup- pressed only if it can be said that the law enforce- ment officer had knowledge, or may properly be charged with knowledge, that the search was uncon- stitutional under the Fourth Amendment” (emphasis UNITED STATES v. GONZALEZ 4327 added). The Government reads this language to require that new Fourth Amendment rules must be denied retroactive effect in all cases except those in which law enforcement officers failed to act in good- faith compliance with then-prevailing constitutional norms. . . . Under the Government’s theory, because the state of Fourth Amendment law regarding warrant- less home arrests was “unsettled” before Payton, that ruling should not apply retroactively even to cases pending on direct appeal when Payton was decided. Yet the Government’s reading of Peltier would reduce its own “retroactivity test” to an absurdity. Under this view, the only Fourth Amendment rulings worthy of retroactive application are those in which the arresting officers violated pre-existing guidelines clearly established by prior cases. But as we have seen above, cases involving simple application of clear, pre-existing Fourth Amendment guidelines raise no real questions of retroactivity at all. Literally read, the Government’s theory would automatically eliminate all Fourth Amendment rulings from con- sideration for retroactive application. The Government’s [next] claim is that Peltier’s logic suggests that retroactive application of Fourth Amendment decisions like Payton even to cases pending on direct review—would not serve the poli- cies underlying the exclusionary rule. . . . .... If, as the Government argues, all rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases, law enforcement officials would have little incentive to err on the side 4328 UNITED STATES v. GONZALEZ of constitutional behavior. Official awareness of the dubious constitutionality of a practice would be counterbalanced by official certainty that, so long as the Fourth Amendment law in the area remained unsettled, evidence obtained through the question- able practice would be excluded only in the one case definitively resolving the unsettled question. Failure to accord any retroactive effect to Fourth Amend- ment rulings would “encourage police or other courts to disregard the plain purport of our decisions and to adopt a let’s-wait-until-it’s-decided approach.” 457 U.S. at 559-61 (citations omitted). Like Payton, Gant clarified a point of law that the Court had not yet explicitly addressed: the scope of the Court’s holding in Belton. Com- pare State v. Gant, 162 P.3d 640, 645 (Ariz. 2007) (majority opinion) (“We do not . . . read Belton or Thornton as aban- doning the Chimel justifications for the search incident to arrest exception.”), with id. at 647 (Bales, J., dissenting) (“The validity of a Belton search . . . clearly does not depend on the presence of the Chimel rationales in a particular case.”). As does Judge Bea, the United States in Johnson argued that excluding evidence seized in violation of Payton would not appreciably deter police misconduct. That argu- ment was made, and the Johnson Court firmly rejected it; our panel was compelled to do so also. Griffith—which was decided after the Supreme Court rec- ognized the good-faith exception in United States v. Leon, 468 U.S. 897 (1984)—reaffirmed Johnson’s “holding that ‘subject to [certain exceptions], a decision of this Court con- struing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the deci- sion was rendered.’ ” 479 U.S. at 324 (quoting Johnson, 457 U.S. at 562). Like Johnson, it explicitly considered and rejected “ ‘reliance by law enforcement authorities on the old standards’ ” as a reason not to apply a Fourth Amendment UNITED STATES v. GONZALEZ 4329 decision retroactively. Id. at 324-25 (quoting Johnson, 457 U.S. at 549). Johnson and Griffith compel the result the panel reached. Judge Bea relies on United States v. Peltier, 422 U.S. 531 (1975), which declined to apply Almeida-Sanchez v. United States, 413 U.S. 266 (1973), retrospectively. In light of John- son, we think his reliance misplaced. The Johnson Court made clear that Peltier’s holding applied only to cases that “work[ed] a sharp break in the web of the law.” 457 U.S. at 551 (citation and quotation marks omitted). The Gant major- ity stated that its holding worked no such break. See Gant, 129 S. Ct. at 1719, 1722 & n.9 (reasoning that holding fol- lowed straightforwardly from Chimel and that the facts of Belton and Thornton v. United States, 541 U.S. 615 (2004), were “easily distinguished”). In arguing otherwise, Judge Bea sides with the Gant dissenters. See id. at 1726 (Alito, J., dis- senting) (contending that majority’s holding created a “new rule”). Judge Bea also relies on Krull to argue against the exclu- sion of evidence in this case. Krull dealt with law enforce- ment reliance on a statute, which like most statutes, carries the presumption of constitutionality. 480 U.S. at 342. Here, by contrast, law enforcement relied on a misapplication of Belton that Gant deemed “clear[ly]” unconstitutional; Belton, when properly interpreted, would counsel all along that the searches in Gant and Gonzalez were unconstitutional. Gant, 129 S. Ct. at 1723. More fundamentally, the fact remains that when the Supreme Court in Johnson was faced with precisely the ques- tion that confronted our panel, it held that the exclusionary rule applied to cases pending on direct appeal. Johnson directly controls. Until such time as the Court were to over- rule Johnson, it is Johnson and not Krull that we must follow. 4330 UNITED STATES v. GONZALEZ II The panel’s decision is directly supported by Gant itself. In Gant, the Supreme Court interpreted Belton, 453 U.S. 454, to allow a vehicle search incident to an arrest of the vehicle’s occupant only where 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.” Gant, 129 S. Ct. at 1723. This holding prompted a vigorous dissent: The Belton rule has been taught to police officers for more than a quarter century. Many searches—almost certainly including more than a few that figure in cases now on appeal—were conducted in scrupulous reliance on that precedent. It is likely that, on the very day when this opinion is announced, numerous vehicle searches will be conducted in good faith by police officers who were taught the Belton rule. Id. at 1728 (Alito, J., dissenting). The majority, however, did not agree with the contention in Justice Alito’s dis- sent . . . that consideration of police reliance interests requires a different result. Although it appears that the State’s reading of Belton has been widely taught in police academies and that law enforcement offi- cers have relied on the rule in conducting vehicle searches during the past 28 years, many of these searches were not justified by the reasons underlying the [search-incident-to-arrest] exception. . . . The fact that the law enforcement community may view the State’s version of the Belton rule as an entitle- ment does not establish the sort of reliance interest that could outweigh the countervailing interest that all individuals share in having their constitutional UNITED STATES v. GONZALEZ 4331 rights protected. If it is clear that a practice is unlaw- ful, individuals’ interest in its discontinuance clearly outweighs any law enforcement “entitlement” to its persistence. Id. at 1722-23 (footnote omitted). The Gant majority ruled as it did precisely because the “interest that all individuals share in having their constitutional rights protected” outweighs good-faith “police reliance interests.” In short, the Supreme Court has already decided that in a case such as ours, “the benefits” of the exclusionary rule “outweigh the costs.” Her- ring, 129 S. Ct. at 700. It is no answer to say, as does Judge Bea, that the majority and the dissent were arguing about stare decisis and not deter- rence of “clear[ly] . . . unlawful” searches. Gant, 129 S. Ct. at 1723. The majority expressly stated that it was not overrul- ing Belton, see id. at 1722 n.9, and thus it also implicitly rec- ognized that the doctrine of stare decisis had little, if any, force in Gant. See id. at 1722 (“[W]e would be particularly loath to uphold an unconstitutional result in a case that is so easily distinguished from the decisions that arguably compel it. . . . It is thus unsurprising that Members of this Court who concurred in the judgments in Belton and Thornton also con- cur in the decision in this case.”). The flash point of disagree- ment between the majority and dissent in Gant was not so much stare decisis as “police reliance interests.” See id. at 1722-23. Justice Alito’s concern about “the suppression of evidence gathered in many searches carried out in good-faith reliance on well-settled case law,” id. at 1726 (Alito, J., dis- senting) (emphasis added), demonstrates that Gant was about suppression of evidence and not just the constitutionality of the search. That the majority and dissenting opinions should have clashed over the exclusionary rule is not surprising, for in Gant, the Arizona Supreme Court had not simply declared the search unconstitutional, but had also ordered the exclusion of 4332 UNITED STATES v. GONZALEZ the evidence. State v. Gant, 162 P.3d at 646. By affirming the Arizona Supreme Court, the Court necessarily affirmed the exclusion of the evidence. III The panel’s decision is compelled by the Supreme Court’s retroactivity precedents and dictated by Gant. The court was right to deny en banc rehearing. Judge BEA, with whom O’SCANNLAIN, KLEINFELD, GOULD, TALLMAN, BYBEE, and CALLAHAN, Circuit Judges, join, dissenting from denial of rehearing en banc: I dissent from our denial of the petition for rehearing en banc, first, because the panel’s decision disregards the Supreme Court’s decisions in Herring v. United States, ___ U.S. ___, 129 S. Ct. 695, 700 (2009), and Illinois v. Krull, 480 U.S. 340 (1987), regarding when police misconduct justi- fies suppression of relevant evidence in a criminal trial, and second, because the panel’s decision creates a split among the circuits. See United States v. McCane, 573 F.3d 1037 (10th Cir. 2009), cert. denied, 78 U.S.L.W. 3221 (U.S. Mar. 1, 2010) (No. 09-402); United States v. Jackson, 825 F.2d 853 (5th Cir. 1987) (en banc). I. Introduction The panel has decided that evidence seized by a police offi- cer acting in good faith reliance on the predominant interpre- tation of Supreme Court precedent should be suppressed, despite the fact that suppression in this case cannot conceiv- ably result in appreciable deterrence of future police miscon- duct. How does it deter police misconduct in the future to tell the police: “the evidence you seized legally, under the law, cannot be used because the law has changed, and now, what UNITED STATES v. GONZALEZ 4333 wasn’t misconduct at the time you acted has become miscon- duct”? The attentive policeman hearing this might well look blankly and ask: “Who knew? Am I supposed to guess? What am I supposed to do next time? Not follow the law as written by the Ninth Circuit, but hold back a little? How much?” The panel’s decision is in direct conflict with the Supreme Court’s recent holding in Herring v. United States: “[T]he exclusionary rule is not an individual right and applies only where it results in appreciable deterrence [of police miscon- duct].” 129 S. Ct. at 700 (quotation marks and alterations omitted). Because the sole justification—up until now—for exclusion of relevant evidence improperly seized has been to deter future police misconduct,1 the Supreme Court has held suppression is not an available remedy when police officers conducted a search in good faith reliance on some higher authority, such as a warrant or a statute, even if the warrant or statute were later held invalid or unconstitutional (the “good faith exception”). See Krull, 480 U.S. 340 (statutes), United States v. Leon, 468 U.S. 897 (1984) (warrants). Here, the police officer relied on a different kind of authority, namely the settled case law under New York v. Belton, 453 U.S. 454, 460 (1981); see also United States v. Weaver, 433 F.3d 1104, 1106 (9th Cir. 2006) (our circuit’s adoption of Belton). Officer Garcia lawfully stopped a vehicle with four occu- pants. Defendant Gonzalez was riding as a passenger in the vehicle. After the vehicle was apparently secure against any risk to the officer, and the vehicle’s occupants had moved away from the vehicle, Officer Garcia searched the vehicle and discovered Gonzalez’s 9mm pistol in the glove compart- Justice Ginsburg, in her dissent in Herring, offered alternative justifi- cations for applying the exclusionary rule, but those justifications have not been adopted by the Supreme Court. See 129 S. Ct. at 707-08 (Ginsburg, J., dissenting). Since the panel did not rest its decision on any of Justice Ginsburg’s thoughts, they need not here be discussed. 4334 UNITED STATES v. GONZALEZ ment. It is undisputed that, at the time of the search, Officer Garcia was acting in the good faith belief that the law—the predominant interpretation of Belton—allowed him to make that search. Defendant Gonzalez moved at trial to suppress evidence of the 9mm pistol that Officer Garcia seized during his search of the vehicle. The district court denied the motion to suppress; we affirmed. The Supreme Court then announced its decision in Arizona v. Gant, 129 S. Ct. 1710 (2009), which held such searches unconstitutional. The Court vacated our opinion in the instant case and remanded it back to us with the instruction to con- sider the case in light of its ruling in Gant. Note that the Court did not reach the same result in this case as it had in Gant, where it upheld suppression of the evidence. It vacated and remanded; it did not order the lower courts to suppress the evidence of Gonzalez’s possession of the 9mm pistol. On remand following the Supreme Court’s decision in Gant, the panel correctly held that the search was unconstitu- tional but, I believe, incorrectly held that the good faith exception did not apply, and therefore ordered the evidence suppressed. To reach its result in favor of suppression, the panel holds that a police officer’s reliance on settled case law is somehow different from a police officer’s reliance on a reasonable war- rant (Leon) or statute (Krull). But, the panel does not explain either in its opinion or its concurrence from the order denying rehearing en banc, and I can fathom no possible reason, why it found a difference between a rule applicable to a magis- trate’s warrant, later found inadequate (Leon), or a statute later found to be unconstitutional (Krull), and circuit court case law, later found to no longer allow the search in question (Gant). It is not misconduct for the police to rely on a reason- able warrant even if the warrant was later held invalid. Leon, UNITED STATES v. GONZALEZ 4335 468 U.S. at 922. Nor was it misconduct for the police to rely on a reasonable statute, even if the statute is later held uncon- stitutional. Krull, 480 U.S. at 361. We should encourage our officers to act within the bounds of the law as defined by magistrates and legislatures. United States v. Peltier, 422 U.S. 531, 542 (1975). Why then should we make police actions futile when those actions are fully in accord with the settled decisions of our courts when the actions are taken? I submit we should not. The Supreme Court, moreover, has already said so: “[U]nless we are to hold that parties may not reasonably rely upon any legal pronouncement emanating from sources other than this Court, we cannot regard as blameworthy those par- ties who conform their conduct to the prevailing statutory or constitutional norm.” Peltier, 422 U.S. at 542. There is no dis- pute that, before the Supreme Court decided Gant, the prevailing—even predominant—constitutional norm under Belton—as applied in this Circuit by Weaver—was to permit searches of vehicles, including glove compartments, even if the defendant or suspect was not within arm’s reach of the vehicle and the contents of the vehicle could not reasonably present a risk to the arresting officer. There was nothing blameworthy, and certainly nothing flagrant, about what Offi- cer Garcia did. See Herring, 129 S. Ct. at 702 (holding that the exclusionary rule arose from “flagrant and deliberate” vio- lations of rights). I am at a loss to grasp how suppression of the evidence Officer Garcia discovered while properly doing his job, within the boundaries set by the law as it then existed, will deter other police officers from violating other individu- als’ Fourth Amendment rights. Suppose that at the next opportunity to consider the matter, the Court were to determine that automobile stops on objec- tively reasonable bases—e.g., expired license plate registra- tion tags, burnt out rear lights, etc.—but actually motivated by police officers’ desire to investigate the cars’ occupants and interiors, were no longer constitutionally valid, thereby over- 4336 UNITED STATES v. GONZALEZ ruling Whren v. United States, 517 U.S. 806 (1996). Routine traffic stops and other searches permitted under Whren have become a staple in law enforcement’s arsenal of crime- fighting tools. Would all the many pending cases founded on evidence retrieved in such searches be subject to reversal? That is precisely the principle which is being adopted by the panel’s decision. The predictable effect of the panel’s decision will be to undermine police officers’ ability to catch and prosecute crim- inals. First, the panel’s decision will deprive prosecutors of inculpatory evidence supporting numerous prosecutions and convictions of criminals whose cases were pending at the time Gant was decided. As the Government contended in its peti- tion for rehearing en banc: “[I]t is important to recognize that Belton searches were a fixture in law enforcement prior to Gant. The panel’s decision thus has the potential to disrupt numerous convictions and ongoing prosecutions that rely on evidence obtained in Belton searches conducted consistent with the decisions of this Court.” Second, the panel’s opinion will generate ongoing uncertainty among police officers about their ability to follow the decisions of this court, or even the Supreme Court, without finding that their work has been for nought. This uncertainty will most likely cause police officers to act overly cautious in pursuing criminals, thus endangering public safety. But it may also have the perverse effect of so frustrating police officers that they may simply ignore our case law, in the hope it may have changed by time of trial and appeal. This result would not only endanger public safety by increasing the amount of evidence the courts will suppress, but would also endanger the public’s Fourth Amendment rights. If there is a silver lining to the panel’s decision to flout Supreme Court case law in Herring and Krull, it is that the panel has set the stage for the Supreme Court to review the scope of the exclusionary rule in light of the circuit split we have now created. The panel’s opinion reaches a conclusion UNITED STATES v. GONZALEZ 4337 directly contrary to that of McCane, 573 F.3d 1037, which held the good faith exception applies to searches held uncon- stitutional in Gant. The opinion is also in direct conflict with Jackson, 825 F.2d 853, which held the good faith exception applied to warrantless searches conducted near the border when, at the time the searches took place, they were valid under Fifth Circuit cases that were later overruled by that Cir- cuit. For these reasons, I respectfully dissent from the denial of rehearing en banc. II. Factual and Procedural Background Officer Garcia lawfully stopped a vehicle with four occu- pants. One of the passengers, Silviano Rivera, had several outstanding warrants for his arrest. Garcia placed Rivera in custody and the other passengers exited the vehicle. Officer Garcia searched the vehicle and discovered a loaded 9mm pis- tol in the unlocked glove compartment. The two female occu- pants of the vehicle told Garcia the firearm belonged to the fourth occupant, defendant Ricardo Gonzalez. Gonzalez was arrested and charged with being a felon in possession of a firearm. At trial, Gonzalez moved to suppress the evidence discovered during the officer’s search. The district court denied the motion. A jury found Gonzalez guilty of the fire- arm possession charge, and he was sentenced to 70 months’ imprisonment. Gonzalez appealed his conviction and sentence, contending in part that the district court erred in denying his motion to suppress. The panel affirmed, holding the search was lawful under Belton, 453 U.S. at 460, and Weaver, 433 F.3d at 1106. The Supreme Court then decided Arizona v. Gant, 129 S. Ct. 1710 (2009), which expressly narrowed the predominant interpretation of Belton by circuit courts, holding a search of a vehicle incident to arrest may include the passenger com- 4338 UNITED STATES v. GONZALEZ partment only if the “arrestee is unsecured or within reaching distance of the passenger compartment at the time of the search,” id. at 1719, or “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehi- cle,” id. at 1714. The Supreme Court vacated the panel’s deci- sion in light of Gant. Quintana v. United States, 129 S. Ct. 2156 (2009). The Court did not reverse with instructions to enter a judgment of acquittal for Gonzalez nor did it order the lower courts to effect a suppression of the evidence. On remand, the government conceded the search was unconstitutional under Gant. United States v. Gonzalez, 578 F.3d 1130, 1132 (9th Cir. 2009). The government contended, however, that this Circuit should affirm the district court’s order denying Gonzalez’s motion to suppress because the officer conducting the search did so in good faith reliance on then-prevailing Supreme Court and Ninth Circuit precedent. There is no dispute that the officer was acting in good faith at the time of the search. III. The Fourth Amendment, the Exclusionary Rule, and the Good Faith Exception. Although it is undisputed here that the search turned out to be unconstitutional under Gant, finding the search unconstitu- tional does not automatically invoke the exclusionary rule as to the evidence unearthed by the search. As in Herring, the finding of unconstitutionality is only the first step in a two step analysis. The second step is to decide whether such evidence should be suppressed. Leon, 468 U.S. at 906 (“Whether the exclu- sionary sanction is appropriately imposed in a particular case, our decisions make clear, is an issue separate from the ques- tion whether the Fourth Amendment rights of the party seek- ing to invoke the rule were violated by police conduct.” (quotation marks omitted)); see also Herring, 129 S. Ct. at 700 (“We have repeatedly rejected the argument that exclu- UNITED STATES v. GONZALEZ 4339 sion is a necessary consequence of a Fourth Amendment vio- lation.”). “When evidence is obtained in violation of the Fourth Amendment, the judicially developed exclusionary rule usu- ally precludes its use in a criminal proceeding against the vic- tim of the illegal search and seizure.” Krull, 480 U.S. at 347. But, the remedy of exclusion “has been restricted to those sit- uations in which its remedial purpose is effectively advanced.” Id. In Herring, the Supreme Court made clear that for courts to suppress evidence “the benefits of deterrence must outweigh the costs.” 129 S. Ct. at 700. Suppressing evidence of Gonzalez’s firearm here would not result in any appreciable deterrence of police misconduct. As the Supreme Court explained in Peltier, there is nothing wrong with police officers acting under the authority of set- tled case law, including case law from courts other than the Supreme Court. 422 U.S. at 542. If that law turns out to be wrong, then it was the court that was at fault, not the police officers. See id. Therefore, there is no benefit to suppressing the evidence in this case. The cost of suppression, moreover, is obvious; Gonzalez—a criminal convicted of being a felon in possession of a firearm—goes free. On balance, there is zero benefit and an obvious cost to suppressing the evidence. The evidence should not be suppressed. Although this cost-benefit calculation is an inherent com- ponent of the exclusionary rule, the Supreme Court has explained that when police officers act in good faith when conducting a search, their objectively reasonable belief is suf- ficient to show the balance tilts away from suppression. See Herring, 129 S. Ct. at 701 (“We (perhaps confusingly) called this objectively reasonable reliance ‘good faith.’ ”). Cases articulating this “good faith exception” fall into two catego- ries. The first category includes cases where there was some error in the issuance of a warrant used to execute the search. See Herring, 129 S. Ct. at 695 (holding that evidence should 4340 UNITED STATES v. GONZALEZ not be suppressed where a county warrant clerk mistakenly told officers there was an outstanding warrant on file for defendant, but later discovered her error: the warrant had been recalled before its use by the officers); Arizona v. Evans, 514 U.S. 1, 15 (1995) (holding that evidence should not be sup- pressed where officers relied on a computer database which showed the defendant had an outstanding arrest warrant, but later learned a court clerk failed to update the database to show the defendant’s warrant had been quashed); United States v. Leon, 468 U.S. 897, 919-20 (1984) (holding that evi- dence should not be suppressed where officers arrested and searched defendant pursuant to a facially lawful warrant, but a district judge later held the warrant lacked probable cause). These cases are instructive because the Supreme Court has repeatedly emphasized that the sole purpose of the exclusion- ary rule is to deter future unlawful police searches. It is, however, the second category of cases that is more rel- evant here; this category includes cases where law enforce- ment officers conduct a search under a statute that was later determined unconstitutional. See Krull, 480 U.S. 340; Michi- gan v. DeFillippo, 443 U.S. 31, 38 (1979). In Krull, the State of Illinois appealed the trial court’s order suppressing evidence discovered during an administrative (i.e., warrantless) search pursuant to Illinois’s statutory regime which regulated the sale of automobiles and automo- bile parts. A police officer conducted an administrative search of the records of an automobile wrecking yard and discovered three stolen vehicles on the property. The following day, a federal district court held the Illinois statute authorizing such administrative searches was unconstitutional. The state trial court agreed and ordered the evidence suppressed. The Illi- nois Supreme Court affirmed, and the State appealed to the U.S. Supreme Court. The Supreme Court reversed, holding the good faith excep- tion applied to searches conducted pursuant to a statute that UNITED STATES v. GONZALEZ 4341 was not “obvious[ly]” unconstitutional. 480 U.S. at 359. The Court held: “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.” Id. at 359-60 (quotations omitted). “The application of the exclusionary rule to suppress evidence obtained by an officer acting in objectively reasonable reliance on a statute would have as lit- tle deterrent effect on the officer’s actions as would the exclu- sion of evidence when an officer acts in objectively reasonable reliance on a warrant.” Id. at 349. As the Court could discern no deterrent effect that suppres- sion would have on officers, it turned to the question whether suppression would deter legislators from enacting statutes that ignored or subverted the Fourth Amendment. See id. at 351. The Court held there was no evidence that suppression would “act as a significant, additional deterrent.” Id. at 352. Hence, the “substantial social cost” of excluding inculpatory evidence against defendants—letting the guilty go free—outweighed any incremental deterrent effect, which convinced the Court that applying the exclusionary rule was unjustified. Id. at 352- 53; see also DeFillippo, 443 U.S. at 38 (“Police are charged to enforce laws until and unless they are declared unconstitu- tional . . . . Society would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement.”).2 In McCane, 573 F.3d 1037 (10th Cir. 2009), the Tenth Cir- cuit addressed the precise situation presented in Gonzalez; and it held the good faith exception did apply. 573 F.3d at 1045. A police officer stopped McCane on suspicion of driving on a suspended license. The officer arrested McCane, handcuffed Although decided before Leon and not using the good faith exception language, DeFillippo denied suppression of evidence where the search was executed under a local ordinance that was later found to be unconsti- tutional. 443 U.S. at 40. 4342 UNITED STATES v. GONZALEZ him, and placed him in the back of the patrol car. The officer then searched McCane’s vehicle and discovered a firearm in the pocket of the driver’s side door. McCane moved to sup- press the evidence of the firearm. The district court held the search was valid. While McCane’s appeal was pending, the Supreme Court decided Gant. The Tenth Circuit held the search was unconstitutional, but affirmed based on the good faith exception to the exclusionary rule. First, the Tenth Circuit held that its precedent was well- settled that vehicle searches incident to arrest were lawful under Belton, even if the arrestee was secured and offered no danger to the arresting officer at the time of the search. The court then held the good faith exception applied because sup- pressing evidence discovered during a search that was consti- tutional under settled law, as it existed at the time of the search, would not deter law enforcement officers from con- ducting unconstitutional searches. The exclusionary rule is meant to “deter objectively unreasonable police conduct” and “to deter misconduct by law enforcement officers, not other entities.” McCane, 573 F.3d at 1044. Because “no deterrent effect would result from suppressing the evidence seized from McCane’s vehicle, the Tenth Circuit declined “to apply the exclusionary rule when law enforcement officers act in objec- tively reasonable reliance upon the settled case law of a United States Court of Appeals.” Id. at 1045. In Jackson, the defendants were all searched at a highway checkpoint that prior Fifth Circuit cases had deemed a func- tional equivalent of the border, thus excepting police searches from the warrant requirement. Id. at 854-55. In an en banc decision, the Fifth Circuit disapproved its earlier cases and held the checkpoint was, indeed, not a border equivalent. Warrantless and no-probable-cause searches could not there be performed. Id. at 854. Nevertheless, the court affirmed the defendants’ convictions, based on the evidence seized during warrantless searches, because the “searches were conducted in good faith reliance upon [the Fifth Circuit’s] earlier deci- UNITED STATES v. GONZALEZ 4343 sions.” Id. The court held “[t]he reasoning of Leon fully applies to the case at hand.” Id. at 866. The court noted that it had upheld searches at the checkpoint numerous times— i.e., the law was well-settled—and that there was no sugges- tion the Fifth Circuit was “inclined to ignore or subvert the Fourth Amendment.” Id. (quoting Leon, 468 U.S. at 916).3 Despite these cases, the panel held the good faith exception did not apply because Krull was limited to searches conducted under statutory authority and did not extend to searches con- ducted under well-settled case law precedent. Of course, Krull dealt only with a statute-based search. The Court said nothing about a search based on settled case law, nor that its holding could not be extended to the latter. The panel provides a curi- ous reason for its disregard of Krull; it chooses to follow a pre-Leon case before the “good faith exception” was devel- oped, Johnson, rather than a post-Leon “good faith exception” case. But the panel gives no reason why we should treat our decisions as lesser law under the good faith exception than statutes or administrative regulations. To clear away any confusion, the existence of a relevant court case supporting an officer’s search does not automati- cally prove he was acting in good faith where that case is later overruled. A police officer must still prove that his reliance was objectively reasonable. That problem, however, is no dif- ferent from the problem law enforcement officers face when deciding if a statute is obviously unconstitutional. See Krull, 480 U.S. at 355 (“Nor can a law enforcement officer be said to have acted in good-faith reliance upon a statute if its provi- sions are such that a reasonable officer should have known that the statute was unconstitutional.”). And the same problem recurs when law enforcement officers decide whether a “war- rant was so facially deficient that the executing officers can- not reasonably presume it to be valid.” Id. (quotation marks I do not think this circuit is any more inclined to subvert the Fourth Amendment than is the Fifth Circuit. 4344 UNITED STATES v. GONZALEZ omitted). In this case, an objectively reasonable officer would have no basis for suspecting the Ninth Circuit’s well-settled interpretation of Belton was obviously unconstitutional. See Weaver, 433 F.3d at 1106. IV. Retroactivity Cases Do Not Apply Because Here the Rule to Be Applied Retroactively (Gant) Does Not Eliminate the Good Faith Exception (Leon, Krull) Because the panel held that Krull, and the other cases applying the good faith exception, did not control, the panel instead relied on United States v. Johnson, 457 U.S. 537, 562 (1982), which held that “a decision of the 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.” See also Griffith v. Kentucky, 479 U.S. 314 (1987).4 To do otherwise would “violate the principle of treating simi- larly situated defendants the same.” Gonzalez, 578 F.3d at 1132 (quoting Johnson, 457 U.S. at 555). Guided by that prin- ciple, the panel held the firearm must be suppressed in Gonza- lez because the cocaine was suppressed in Gant. In reaching this conclusion, however, the panel ignores that Gant and Gonzalez were not similarly situated in a crucial determinant: The government did not raise the good faith exception in Gant’s case, but it did in this case. Therefore, it is simple to reconcile Johnson with Krull. Johnson holds that defendants, whose cases are pending at the time of a law-changing decision, should be entitled to invoke In Griffith, the Court held that Batson v. Kentucky, 476 U.S. 79 (1986) (holding a criminal defendant could establish a prima facie case of racial discrimination based on the prosecution’s use of peremptory challenges to strike members of the defendant’s race), applied retroactively to cases pending when Batson was decided. The Court reemphasized that “selec- tive application of new rules violates the principle of treating similarly sit- uated defendants the same.” Id. at 323. Griffith held that even cases that were a “clear break” from prior law were retroactive to pending cases. Id. at 326-27. UNITED STATES v. GONZALEZ 4345 the new rule. Id. at 545. Gonzalez has invoked the new rule announced in Gant and that rule does apply to his case; the search of Gonzalez’s car, like the search of Gant’s car, was unconstitutional. But, once Gonzalez has invoked the rule in Gant, the Government is still entitled to invoke the good faith exception, and it has done so here. Nothing in Gant eliminates or narrows the good faith exception to the exclusionary rule for the simple reason that the issue whether the good faith exception applied was not raised nor reached in Gant. Nothing in Gant suggests suppression is the necessary result of invoking the new rule. There is no suggestion the Arizona state prosecutors ever raised the good faith exception before the U.S. or the Arizona Supreme Court. See Gant, 129 S. Ct. at 1723-24. The Arizona Supreme Court held: “The State has advanced no alternative theories justifying the war- rantless search of Gant’s car, and we note that no other excep- tion to the warrant requirement appears to apply.” State v. Gant, 162 P.3d 640, 646 (Ariz. 2007). The Arizona Supreme Court then discussed the automobile exception, the plain view exception, and the inventory search exception. Id. There is no mention of the good faith exception in the Arizona Supreme Court opinion. Nor is there any mention of the good faith exception in the majority opinion in Gant.5 Unfortunately, the panel’s concurrence to the order denying rehearing en banc takes the Supreme Court’s analysis of “po- lice reliance interests” in Gant completely out of context. First, reading Gant, it is not obvious that “police reliance interests” have anything to do with police officers’ good faith reliance on settled law. The Supreme Court did not define “police reliance interests,” but, in context, those interests Justice Alito, in his dissent, makes a passing reference to evidence seized in good faith reliance on well-settled case law; he cautions Gant will result in the suppression of such evidence, 129 S. Ct. at 1726, but he does not explain why. Nor did the majority in Gant acknowledge that argument. 4346 UNITED STATES v. GONZALEZ appear to have more to do with the cost of retraining officers than anything related to the good faith exception. See Gant, 129 S. Ct. at 1722-23. Second, Gant decided only that such interests were insufficient to justify perpetuating the rule that permitted unconstitutional searches in the future. Gant did not balance the deterrent effect against the potential for over- turned criminal convictions if evidence from prior searches is suppressed. Id. Moreover, Johnson is consistent with applying the good faith exception in this case. The Court in Johnson argued that suppressing evidence seized in a search conducted under “un- settled” law might have a deterrent effect on police, even though suppressing evidence seized in a search conducted under “settled” law would not. 457 U.S. at 560-61. Johnson, far from supporting the panel’s opinion, actually provides an example where the Supreme Court held that the police offi- cer’s reliance on case law was not objectively reasonable. Johnson is consistent with the application of the good faith exception announced two years later in Leon. In Johnson, the issue was searches incident to warrantless home arrests. The Court held that area of law was “unsettled” and that “[l]ong before Payton [v. New York, 445 U.S. 573 (1980)], for exam- ple, this Court had questioned the constitutionality of warrant- less home arrests. Furthermore, the Court’s opinions consistently had emphasized that, in light of the constitutional protection traditionally accorded to the privacy of the home, police officers should resolve any doubts regarding the valid- ity of a home arrest in favor of obtaining a warrant.” Id. at 560-61. Therefore, the panel’s concurrence to the order denying rehearing en banc errs in likening Gant to Payton; the panel’s concurrence overlooks that law may be settled by courts other than the Supreme Court. Peltier, 422 U.S. at 542. Here, there is no question that the law governing the constitutionality of Belton searches was settled, at the very least within our cir- cuit. See Weaver, 433 F.3d at 1106. As the panel’s own opin- UNITED STATES v. GONZALEZ 4347 ion states, the scenario in this case is “a search conducted under a then-prevailing interpretation of a Supreme Court rul- ing.” Gonzalez, 578 F.3d at 1132 (emphasis added); see also Gant, 129 S. Ct. at 1718 (finding the broad interpretation of Belton “has predominated”). It is clear the Johnson Court adopted the reasoning of Pel- tier, approving of the underlying rationale behind the good faith exception, when it held: “Peltier suggested only that retroactive application of a Fourth Amendment ruling that worked a ‘sharp break’ in the law, like Almeida-Sanchez, would have little deterrent effect, because law enforcement officers would rarely be deterred from engaging in a practice they never expected to be invalidated.” Id. at 560. It is in the retroactivity context that Griffith has apparently confused the panel. Griffith held that the Supreme Court’s decisions were retroactive as to pending appeals regardless whether the decision worked a “sharp break” in the law. 479 U.S. at 327. But Griffith was about Batson challenges and therefore about defendants’ Fourteenth Amendment rights—a right held by the individual defendant. Id. at 316. A prosecu- tor’s violation of a defendant’s Fourteenth Amendment rights does not raise the issue of deterrence that is inherent to the judicially created exclusionary rule. Nor does it raise the bal- ancing test issues central to the Court’s decision in Herring, 129 S. Ct. at 700. A defendant has a right to a jury chosen without racial motivation regardless whether a reversal of a conviction will teach prosecutors a lesson and deter similar racially motivated conduct in the future. Here, the panel con- fuses the retroactive application of a Supreme Court decision in the area of individual rights (a jury picked without racial motivation) with what is an area of societal rights (suppres- sion of evidence to discipline police). Gant should have been retroactively applied to Gonzalez’s case. And it was. Officer Garcia’s search was held unconstitutional. But the remedy of suppression of the evidence so seized is not compelled by 4348 UNITED STATES v. GONZALEZ Gant. That remedy is governed by Leon, Krull, and Herring. Those cases point firmly toward denying suppression. If there is any support for the panel’s opinion it can be found only in Justice O’Connor’s dissent in Krull. She wrote: “I find the Court’s ruling in this case at right angles, if not directly at odds, with the Court’s recent decision in Griffith.” 480 U.S. at 368. With all respect to Justice O’Connor, her position did not carry the majority vote. Her dissent does, however, cleanly frame the issue the panel decides today: Does the good faith exception to the exclusionary rule apply despite the Supreme Court’s retroactivity precedents? The majority of the Supreme Court held that it does in Leon, Krull, and Herring. The panel attempts to elide the issue by asserting case law and statutes are distinct, but that is not only a distinction without a difference in our system of branches of government with equal rank between the legislatures and judi- ciary, but is an assertion rejected in Peltier, a case by which we are bound. What the panel actually does is follow Justice O’Connor’s dissent rather than following Supreme Court law. V. Conclusion Under our Fourth Amendment jurisprudence, courts keep vigil over police officers’ power to search and seize. The panel treads over the line between vigilance and punishment. Not only does the panel negate the dutiful—at the time done —investigatory work of Officer Garcia and all similarly situ- ated officers, but it hamstrings all police officers, who must now worry that every search they conduct under permissible circumstances—remember Whren—may later be rendered worthless by a change in the law as found by a later court, no matter how foreseeable or not. We should not put the police in the business of foreseeing how courts will change their views of the Fourth Amendment. We should expect them to follow the law, and when doing so, to be able to use the evi- dence so procured.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v. Nos. 08-30223 SHANE MEDORE MAGGI, AKA 09-30052 Shane Maggi, Defendant-Appellant;  D.C. Nos. 4:07-cr-00125-SEH; UNITED STATES OF AMERICA, 4:08-CR-00068-SEH Plaintiff-Appellee, OPINION v. GORDON RAY MANN, Jr., Defendant-Appellant.  Appeals from the United States District Court for the District of Montana Sam E. Haddon, District Judge, Presiding Argued and Submitted September 1, 2009—Seattle, Washington Filed March 16, 2010 Before: Michael Daly Hawkins, M. Margaret McKeown and Jay S. Bybee, Circuit Judges. Opinion by Judge McKeown UNITED STATES v. MAGGI 4305 COUNSEL Palmer A. Hoovestal (argued), Hoovestal Law Firm, PLLC, Helena, Montana, for defendant-appellant Gordon Mann. 4306 UNITED STATES v. MAGGI James B. Obie, Obie Law, P.C., Helena, Montana; Daniel Donovan (argued), Great Falls, Montana, for defendant- appellant Shane Maggi. William W. Mercer, United States Attorney, E. Vincent Car- roll (argued), Assistant U.S. Attorney, U.S. Attorney’s Office, Great Falls, Montana, for government-appellees United States of America. OPINION McKEOWN, Circuit Judge: The Major Crimes Act, 18 U.S.C. § 1153, provides federal criminal jurisdiction for certain crimes committed by Indians in Indian country. As the Supreme Court explained in United States v. Antelope, “we are dealing [ ] not with matters of tribal self-regulation, but with federal regulation of criminal conduct within Indian country implicating Indian interests.” 430 U.S. 641, 646 (1977). Determination of who is an Indian under the statute is not as easy as it might seem. Indeed, the statute contains no definition, leaving to the courts the task of defining “Indian.” See FELIX COHEN, HANDBOOK OF FEDERAL INDIAN LAW § 3.03[4] (LexisNexis 2005) (“COHEN“). We have developed a framework for evaluating Indian status under § 1153: 1) the presence of some Indian blood indicating tribal ancestry; and 2) tribal or government recognition as an Indian. United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir. 2005). Both prongs must be satisfied to establish Indian status. Gordon Mann and Shane Maggi appeal from unrelated con- victions on the same basis, namely that they are not “Indians” for purposes of prosecution under the Major Crimes Act. Because there is no evidence that Mann has any blood from a federally recognized Indian tribe, his conviction must be vacated. Maggi’s documented blood from a federally recog- UNITED STATES v. MAGGI 4307 nized tribe is scant—1/64. However, we do not decide the novel question whether Maggi’s Indian blood degree is ade- quate; rather, because Maggi lacks sufficient government or tribal recognition as an Indian, his conviction must also be vacated. In light of this disposition, we need not consider Maggi’s additional challenges to the sufficiency of the indict- ment and the reasonableness of the sentence. BACKGROUND I. GORDON MANN Gordon Mann was convicted in district court in Montana for one count of aggravated sexual abuse of a minor. Mann confessed to the criminal conduct, which occurred at his house, located within the boundaries of the Blackfeet reserva- tion. Since 1987, Mann has been an enrolled member of the Lit- tle Shell Tribe of the Chippewa Cree. This Indian tribe is not recognized by the federal government, although there is a longstanding petition for recognition pending. The tribe does not receive land, medical care, education, housing, federal grants or other benefits from the federal government that fed- erally recognized tribes typically receive. The Little Shell Tribe is, however, recognized as an Indian tribe by the State of Montana, and has close to 5000 enrolled members who receive some limited benefits, including access to a medical clinic and an economic development program. Tribal enrollment records often include identification of an individual’s percentage of Indian blood, calculated according to ancestral connections to a tribe or tribes. This information is used to establish eligibility for enrollment. Mann’s enroll- ment record notes that his degree of Indian blood is 10/64 Chippewa and 11/64 “other Indian blood.” Mann was charged in October 2008 with two counts of aggravated sexual abuse. Count I was charged under 18 4308 UNITED STATES v. MAGGI U.S.C. §§ 1153(a), the Major Crimes Act, and 2241(c), sexual offense in a federal enclave. Count II was charged under 18 U.S.C. §§ 1152, the General Crimes Act, and 2241(c). An ele- ment of the charge under § 1153(a) was that Mann is an Indian; an element of the charge under § 1152 was that Mann is not an Indian. At trial, Mann maintained that he is not an Indian for pur- poses of § 1153(a). At the close of the prosecution’s case, Mann moved for a judgment of acquittal on the ground that the government had not established his Indian status. The court denied the motion on the basis that Indian status is a jury determination. Mann renewed the motion following the close of evidence, and it was again denied. Using a bifurcated verdict form, the jury concluded Mann was an Indian, and found him guilty on Count I, under § 1153. The jury did not reach Count II, under § 1152. II. SHANE MAGGI Shane Maggi was convicted in district court in Montana on four counts relating to assault with a dangerous weapon and related firearms charges. Maggi attacked Kelly Hoyt and his wife, Kimberly Hoyt, in their home, which is within the boundaries of the Blackfeet Indian reservation. Maggi’s degree of Indian blood is 1/64 from the Blackfeet tribe and 1/32 from the Cree tribe, although the record does not show whether he is descended from a federally recognized tribe (e.g., Rocky Boy Reservation Chippewa Cree) or a non- recognized tribe (e.g., Little Shell Tribe Chippewa Cree). Maggi is not an enrolled member of any Indian tribe. His mother is an enrolled member of the Blackfeet tribe, which qualifies Maggi as a “descendant member” of the Blackfeet tribe and eligible for certain benefits, such as limited treat- ment from Indian Health Services (IHS), hunting and fishing rights on the reservation, and access to certain college grants. Maggi has received treatment at an IHS hospital facility in UNITED STATES v. MAGGI 4309 Montana. Maggi has also been prosecuted in several unrelated prior actions in the Blackfeet tribal court, which has jurisdic- tion to prosecute enrolled and descendant members of the Blackfeet tribe. According to testimony by the Hoyts, Maggi held himself out as an Indian and discussed attending pow- wows and participating in sweats and smudging, which are tribal religious practices. Maggi was charged with four counts: (I) under 18 U.S.C. §§ 113(a)(3) and 1153, assault with a dangerous weapon of Kelly Hoyt; (II) the same, as to Kimberly Hoyt; (III) under 18 U.S.C. § 924(c)(1)(A)(iii), discharging a firearm during a crime of violence, as alleged in Count I; and (IV) under 18 U.S.C. § 924(c)(1)(A)(ii), brandishing a firearm during a crime of violence, as alleged in Count II. Maggi entered a plea of not guilty and proceeded to trial. At the close of the prosecution’s case, Maggi moved for a judgment of acquittal on the basis that he is not an Indian, as required under § 1153. As in Mann’s case, the court denied the motion on the basis that Indian status must be determined by the jury. Maggi did not present a case, and so the record was closed following the decision on the motion to acquit. The jury convicted Maggi on all four counts. On appeal, Maggi does not challenge that he perpetrated the underlying criminal conduct. Maggi instead contends that he is not an Indian for purposes of prosecution under § 1153. ANALYSIS I. INDIAN STATUS UNDER § 1153 [1] The Major Crimes Act, 18 U.S.C. § 1153, establishes federal criminal jurisdiction over certain serious crimes com- mitted in Indian country by Indian defendants. The General Crimes Act, 18 U.S.C. § 1152, provides federal criminal juris- diction over certain crimes committed in Indian country when either the defendant or the victim, but not both, are Indian. 4310 UNITED STATES v. MAGGI Section 1152 is not directly at issue in these appeals, but is referenced because of the interrelationship between the stat- utes and the fact that the definition of Indian status is relevant to both provisions. The Bruce case provides a thoughtful dis- cussion of federal jurisdiction in Indian country, with a focus on Indian status under these two statutes. 394 F.3d at 1218- 22. [2] Section 1153(a) reads: Any Indian who commits against the person or prop- erty of another Indian or other person any of the fol- lowing offenses, namely, murder, manslaughter, kidnaping, maiming, a felony under chapter 109A, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury (as defined in section 1365 of this title), an assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States. Under § 1153(a), the defendant’s status as an Indian is an ele- ment of the offense that must be alleged in the indictment and proved beyond a reasonable doubt. United States v. Cruz, 554 F.3d 840, 845 (9th Cir. 2009) (quoting Bruce, 394 F.3d at 1229). [3] Because there is no statutory definition of who is an Indian, courts have stepped in to spell out the meaning of “In- dian” for purposes of criminal jurisdiction. Reaching back to the mid-nineteenth century, in United States v. Rogers, the Supreme Court announced that to be considered an Indian for purposes of criminal jurisdiction, an individual must have an ancestral connection to an Indian tribe in addition to a current UNITED STATES v. MAGGI 4311 social affiliation with the tribe. 45 U.S. (4 How.) 567, 573 (1846). Based on Rogers, the two-part test developed and took root. See COHEN, supra, § 3.03[4] (“The common test that has evolved after United States v. Rogers, for use with both of the federal Indian country criminal statutes, considers Indian descent, as well as recognition as an Indian by a feder- ally recognized tribe.”). Bruce articulates this test as follows: The term “Indian” is not statutorily defined, but courts have “judicially explicated” its meaning. [United States v.] Broncheau [597 F.2d 1260, 1263 (9th Cir. 1979), cert. denied, 444 U.S. 859 (1979)]. The generally accepted test for Indian status consid- ers “ ‘(1) the degree of Indian blood; and (2) tribal or government recognition as an Indian.’ ” United States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996) (quoting Broncheau, 597 F.2d at 1263); see also United States v. Rogers, 45 U.S. (4 How.) 567, 573 (1846) (interpreting the meaning of “Indian” under the Trade and Intercourse Act of 1834, the precursor of the Major Crimes Act, not to apply to a white man who had been adopted into the Cherokee tribe). A person claiming Indian status must satisfy both prongs. 394 F.3d at 1223. Although Bruce arose in the context of § 1152, four years later we confirmed that the same test applies under § 1153. Cruz, 554 F.3d at 845. [4] There is an important overlay to the Bruce test: To be considered an Indian under §§ 1152 or 1153, the individual must have a sufficient connection to an Indian tribe that is recognized by the federal government. Affiliation with a tribe that does not have federal recognition does not suffice. We directly addressed this issue in LaPier v. McCormick, 986 F.2d 303 (9th Cir. 1993). LaPier challenged his Montana state court conviction, maintaining that he should have been tried in federal court under § 1153 because he was an Indian. Id. 4312 UNITED STATES v. MAGGI LaPier was an enrolled member of the Little Shell Tribe of Chippewa, the same tribe in which Mann is enrolled. Id. at 306. We concluded that our analysis of LaPier’s Indian status could be appropriately truncated because he was not affiliated with a federally recognized tribe: We need not address, however, the question whether LaPier has shown a significant degree of blood and sufficient connection to his tribe to be regarded as one of its members for criminal jurisdiction pur- poses. See, e.g., United States v. Rogers, 45 U.S. (4 How.) 567, 573 (1846); United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979), cert. denied, 444 U.S. 859 (1979). There is a simpler threshold question that must be answered first, and in this case it is dispositive: Is the Indian group with which LaPier claims affiliation a federally acknowledged Indian tribe? If the answer is no, the inquiry ends. A defendant whose only claim of membership or affiliation is with an Indian group that is not a federally acknowl- edged Indian tribe cannot be an Indian for criminal jurisdiction purposes. Cf. United States v. Heath, 509 F.2d 16, 19 (9th Cir. 1974) (member of “terminated” Indian tribe no longer an Indian for criminal jurisdic- tion purposes). Id. at 304-05. LaPier’s requirement reflects the purpose of requiring proof of Indian status under § 1153, namely not to identify individuals as Indian solely in a racial or anthropological sense, but to identify individuals who share a special relation- ship with the federal government. See LaPier, 986 F.2d at 305 (“Federal legislation treating Indians distinctively is rooted in ‘the unique legal status of Indian tribes under federal law and upon the plenary power of Congress, based on a history of UNITED STATES v. MAGGI 4313 treaties and the assumption of a “guardian-ward” status, to legislate on behalf of federally recognized Indian tribes.’ ” (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974))). The Supreme Court explained the connection between this special federal relationship and the exercise of federal crimi- nal jurisdiction in United States v. Antelope. The Court dis- pelled the notion that racial classification drives the Indian status identification under § 1153: [I]n the present case we are dealing, not with matters of tribal self-regulation, but with federal regulation of criminal conduct within Indian country implicat- ing Indian interests. But the principles reaffirmed in [Morton v.] Mancari and Fisher [v. District Court] point more broadly to the conclusion that federal regulation of Indian affairs is not based upon imper- missible classifications. Rather, such regulation is rooted in the unique status of Indians as “a separate people” with their own political institutions. Federal regulation of Indian tribes, therefore, is governance of once-sovereign political communities; it is not to be viewed as legislation of a “ ‘racial’ group consist- ing of ‘Indians’ . . . .” Morton v. Mancari, supra, at 553 n. 24. 430 U.S. at 646. We recently echoed the sentiments in Ante- lope to spell out how criminal jurisdiction over Indians does not cover all Indians in an ethnic sense. In interpreting the 1990 Amendments to the Indian Civil Rights Act, which clari- fied that Indian tribes have the inherent power to exercise jurisdiction over all Indians, we explained: “Taken together, the 1990 Amendments, the Major Crimes Act, and Antelope mean that the criminal jurisdiction of tribes over ‘all Indians’ recognized by the 1990 Amendments means all of Indian ancestry who are also Indian by political affiliation, not all who are racially Indians.” Means v. Navajo Nation, 432 F.3d 924, 930 (9th Cir. 2005). 4314 UNITED STATES v. MAGGI At Mann’s trial, the government argued that LaPier has been superseded by the test for Indian status captured in Bruce. The district court in turn questioned the “continuing vitality of the LaPier case,” and noted that “the Bruce case, while not directly overruling LaPier, eviscerates any declara- tions that appear in the LaPier decision that are contrary to the detailed analysis of the entire issue by the court in the Bruce opinion.” Although we do not view the cases as being in conflict, we want to put to rest any potential confusion or any suggestion that LaPier has passed out of the equation for Indian status. LaPier’s holding that Indian status requires affiliation with a federally recognized tribe remains good law and is comple- mented by the Bruce test, which presupposes that “tribal or government recognition as an Indian” means as an Indian from a federally recognized tribe1. II. APPLICATION OF THE UNITED STATES V. BRUCE Test Mann and Maggi both contend that the district court erred by denying their motions to acquit because the element of Indian status was not established. “Where a defendant moves for acquittal at the close of the government’s evidence, we review de novo whether sufficient evidence exists to support a guilty verdict.” United States v. Stewart, 420 F.3d 1007, 1014 (9th Cir. 2005). In applying the deferential sufficiency of the evidence standard, we determine “whether, after view- ing the evidence in the light most favorable to the prosecu- tion, any rational trier of fact could have found the essential LaPier’s requirement of affiliation with a recognized tribe is consid- ered hornbook law: “For many federal jurisdictional and statutory pur- poses it is not enough that the individual be regarded as an Indian by his or her community; the person must be considered a member of a federally recognized tribe. LaPier, 986 F.2d at 305; State v. Sebastian, 243 Conn. 115 (1997); United States v. Antoine, 318 F.3d 919 (9th Cir. 2003).” WILLIAM C. CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL 10 (5th ed. 2009) (“CANBY 5th Ed.”) (emphasis in original). UNITED STATES v. MAGGI 4315 elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Cruz, 554 F.3d at 843-44 (holding that sufficiency of evidence standard applies when reviewing the denial of a motion for acquittal challenging jurisdictional element of Indian status, as “we owe deference to the jury’s ultimate factual finding”).2 A. DEGREE OF INDIAN BLOOD The first prong of the Bruce test considers “the degree of Indian blood.” 394 F.3d at 1223. Although the “blood” termi- nology may sound anachronistic, this long-standing require- ment retains a current purpose. The blood element excludes individuals, like the defendant in Rogers, who may have developed social and practical connections to an Indian tribe, but cannot claim any ancestral connection to a formerly- sovereign community. Bruce explains that the blood degree prong requires ancestry living in America before the arrival of the Europeans, and notes that the fact “is obviously rarely provable as such . . . . [Therefore] [b]ecause the general requirement is only of ‘some blood,’ evidence of a parent, grandparent, or great-grandparent who is clearly identified as an Indian is generally sufficient to satisfy this prong.” 394 F.3d at 1222 (citing WILLIAM C. CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL 9 (4th ed. 2004)). As discussed earlier, implicit in this discussion of Indian blood is that the bloodline be derived from a federally recog- nized tribe. See Antelope, 430 U.S. at 646; LaPier, 986 F.2d at 305. Although commentators have suggested that a low quantum of Indian blood may be sufficient under the statute, The government argues that plain error review should apply to Maggi’s motion for judgment of acquittal because, although Maggi moved for judgment of acquittal at the close of the government’s case, he did not renew the motion after it was denied. Because Maggi did not put on a case at trial, and thus all the evidence was entered when Maggi submitted his motion to acquit, it was unnecessary to renew the motion to preserve de novo review. See Stewart, 420 F.3d at 1014. 4316 UNITED STATES v. MAGGI we have not had occasion to test just how “low” is too low. See COHEN, supra, § 3.03[4] (“There is no specific percentage of Indian ancestry required to satisfy the descent prong of this test.”); CANBY 5TH ED., supra, at 9 (“Because the general requirement is only of ‘some blood,’ a person may be clas- sifed as an Indian despite a very low quantum of Indian blood, such as one-sixteenth.”). The lowest quantum we have coun- tenanced is 1/8 Indian blood. See Bruce, 394 F.3d at 1223 (citing with approval Sully v. United States, 195 F. 113 (D.S.D. 1912)). [5] Mann has no blood from a federally recognized tribe. He has a blood degree of 10/64 Chippewa, which represents the blood related to his membership in the Little Shell Tribe of the Chippewa Cree, a non-recognized tribe. He also has 11/64 “other” Indian blood; no tribe is identified for that blood. Given the absence of evidence of any blood from a federally recognized tribe, Mann cannot meet the first prong of Bruce, and his conviction must be vacated. [6] Maggi has a very small percentage of Indian blood from a federally recognized tribe—1/64 Blackfeet blood. In other words, Maggi has just one full-blooded Blackfeet ances- tor in seven generations or, put another way, 1/64 Blackfeet blood corresponds to one great-great-great-great-great grand- parent who was full-blooded Blackfeet, and sixty three great- great-great-great-great grandparents who had no Blackfeet blood. Maggi argues that this amount is so small as to render him not an Indian under the statute. We need not resolve, however, the question whether there is a baseline quantum of Indian blood required because Maggi does not meet Bruce’s second prong of tribal or government recognition. B. TRIBAL OR GOVERNMENT RECOGNITION AS AN INDIAN [7] The second prong of the Indian status test requires “tribal or government recognition as an Indian.” Bruce, 394 F.3d at 1223. This prong “require[s] membership or affiliation UNITED STATES v. MAGGI 4317 with a federally recognized tribe.” See COHEN, supra, § 9.02[1][d] (citing LaPier, among other cases). Converse to the blood degree prong, this requirement filters out individu- als who may have an Indian ancestral connection, but do not possess sufficient current social and practical connections to a federally recognized tribe. Bruce, 394 F.3d at 1224 (noting the “tribal or government recognition” prong of the status test is designed to “ ‘probe[ ] whether the Native American has a sufficient non-racial link to a formerly sovereign people.’ ” (quoting St. Cloud v. United States, 702 F.Supp. 1456, 1461 (D.S.D. 1988))). Bruce enumerates factors courts have frequently employed to assess tribal or federal government recognition as an Indian: When analyzing this prong, courts have considered, in declining order of importance, evidence of the fol- lowing: “1) tribal enrollment; 2) government recog- nition formally and informally through receipt of assistance reserved only to Indians; 3) enjoyment of the benefits of tribal affiliation; and 4) social recog- nition as an Indian through residence on a reserva- tion and participation in Indian social life.” United States v. Lawrence, 51 F.3d 150, 152 (8th Cir. 1995) (citing St. Cloud, 702 F. Supp. at 1461). 394 F.3d at 1224; see also Cruz, 554 F.3d at 846, 849 n.13 (affirming that declining factor analysis described in Bruce is the correct approach for assessing tribal or government recog- nition). We note that these four factors, while broad, should not be deemed exclusive. Bruce and Cruz provide helpful benchmarks in our assess- ment of Indian status. Violet Bruce was charged under § 1152 with simple assault on an Indian child. She presented the affirmative defense that she was an Indian, and therefore could not be prosecuted under § 1152, because the victim was 4318 UNITED STATES v. MAGGI also an Indian. Bruce, 394 F.3d at 1226.3 Bruce had 1/8 Chip- pewa blood, but was not enrolled in a tribe. We concluded it was error for the district court to rest its Indian status determi- nation on lack of enrollment in a tribe. Id. at 1224-25. Instead, coupled with the blood degree evidence, the following facts regarding recognition were sufficient to meet Bruce’s burden of production for the affirmative defense: Bruce produced evidence that she had participated in sacred tribal rituals, including at least one sweat lodge ritual; that she was born on an Indian Reserva- tion and continues to reside on one; that two of her children are enrolled members of an Indian tribe; and that she has been treated by Poplar Indian Health Services and the Spotted Bull Treatment Center. More significantly, her mother testified that when- ever she was arrested it “had to have been [by] a tribal person” and that she has been arrested by tribal authorities “all her life.” Id. at 1226. We held the Indian status question should have gone to the jury. Bruce supplies the relevant framework for determining whether a defendant is an Indian under §§ 1152 and 1153. However, as far as the quantum of evidence required, Bruce is distinguishable here. In Bruce, we determined that the defendant had met her burden of production under § 1153. Here, however, the question is whether the government has met its burden of persuasion under § 1152—the same ques- tion we confronted in Cruz. In contrast to § 1153(a), for prosecution under § 1152, the General Crimes Act, a defendant must not be an Indian if the victim is an Indian. While under § 1153(a) Indian status is an element of the crime that must be proved beyond a reasonable doubt, under § 1152 Indian status is treated as an affirmative defense for which the defendant has the burden of pro- duction. UNITED STATES v. MAGGI 4319 In Cruz, we concluded that the defendant did not meet the tribal or government recognition requirement for Indian status under § 1153. Christopher Cruz was a descendant member of the Blackfeet tribe, but not an enrolled member. Cruz, 554 F.3d at 846. Although eligible for certain limited benefits due to his status as a descendant member, there was no evidence Cruz received any services reserved only for Indians or took advantage of any benefits associated with tribal affiliation Id. at 847-48. Nothing suggested that Cruz participated in any way in tribal cultural life. Id. at 848. The only evidence in favor of recognition was, under the final Bruce factor, that Cruz lived on the Blackfeet reservation for a few years as a child. Id. We concluded that “Cruz satisfies at best only a small part of the least important factor of the four Bruce fac- tors,” and that the district court’s failure to grant his motion to acquit was error. Id. at 848, 851. The government claims Maggi has tribal or government recognition as an Indian as a result of his affiliation with the Blackfeet tribe. Maggi is not an enrolled member of the Blackfeet tribe and is ineligible to be a member. He is a descendant member of the tribe through his mother, though even she (with 1/32 Blackfeet blood) would not qualify for membership under the tribe’s present requirement. While descendant status does not carry similar weight to enrollment, and should not be considered determinative, Cruz, 554 F.3d at 847, it reflects some degree of recognition. The posture of Cruz was analogous to this case. Taking the evidence in the light most favorable to the government, we concluded that Cruz did not satisfy any of the Bruce factors. Cruz cataloged seven points relating to Indian status, which we repeat here in detail for purposes of comparison: 1. Cruz, like Maggi, “is not an enrolled member of the blackfeet Tribe of Indians or any other tribe.” Cruz, 554 F.3d at 846. 4320 UNITED STATES v. MAGGI 2. Cruz, like Maggi, has “ ‘descendant’ status in the Blackfeet Tribe as the son of an enrolled member (his mother), which entitles him to use IHS, to receive some edu- cational grants, and to fish and hunt on the reservation.” Id. 3. Cruz never took advantage of any of the descendant benefits. Id. There is only one documented instance of Maggi using IHS services. There is no evidence of Maggi taking advantage of any other benefits. 4. Cruz lived on the Blackfeet Reservation as a child and rented a room on the reservation shortly before the offense. Id. No evidence was produced that Maggi ever resided on the Blackfeet Reservation. 5. Cruz “was subject to the criminal jurisdiction of the tribal court and was at one time prosecuted in tribal court.” Id. Maggi was prosecuted in tribal court several times. 6. Cruz attended public school on the reservation and worked for the Bureau of Indian Affairs. Id. No such evidence was produced as to Maggi. 7. Cruz never participated in Indian ceremonies or dance festivals, never voted in a tribal election, and did not have a tribal identification card. Id. According to one witness, Maggi talked about going to sweats. Another witness stated Maggi mentioned going to other tribal ceremonies, but admitted that she had no personal knowledge of his attendance. Those wit- nesses also testified that Maggi held himself out as an Indian. Like Cruz, there was no evidence that Maggi voted in a tribal election or had a tribal identification card. We have little guidance as to the quantum of evidence nec- essary to sustain Indian status jurisdiction. Sorting through the handful of circuit cases addressing the issue simply under- scores the need for case-by-case analysis and the necessity of invoking the Jackson v. Virginia standard, as we do in other UNITED STATES v. MAGGI 4321 criminal cases. 443 U.S. at 319. The facts here are remarkably close to Cruz, in which we held that the government did not sustain its burden at trial. We reach the same conclusion here. [8] When the record is boiled down, the evidence produced by the government to show tribal or government recognition of Maggi as an Indian consists of (a) status as a descendant member of the Blackfeet Tribe; (b) one instance of accessing Indian Health Services; (c) prosecutions in tribal court, with- out evidence regarding the result of those prosecutions or whether jurisdiction based on Indian status was determined by the court; and (d) testimony based on second-hand knowledge that Maggi participated in some tribal ceremonies. This sparse collection does not provide sufficient evidence of any of the factors set out in Bruce. In sum, the government did not estab- lish facts sufficient to demonstrate tribal or government rec- ognition of Maggi as an Indian. The district court erred in denying Maggi’s motion to acquit. CONCLUSION The denial of Mann’s motion for acquittal is REVERSED, and his conviction under 18 U.S.C. § 1153 should be vacated. The denial of Maggi’s motion for acquittal is REVERSED, and his conviction under 18 U.S.C. § 1153 should be vacated.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PAN BAHADUR TAMANG,  Petitioner, No. 08-73550 v.  Agency No. A098-840-654 ERIC H. HOLDER JR., Attorney General, OPINION Respondent.  On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 10, 2009* Seattle, Washington Filed March 16, 2010 Before: Ronald M. Gould and Richard C. Tallman, Circuit Judges, and Roger T. Benitez,** District Judge. Opinion by Judge Benitez *The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). **The Honorable Roger T. Benitez, United States District Judge for the Southern District of California, sitting by designation. TAMANG v. HOLDER 4285 COUNSEL Patrick Cantor, Buttar & Cantor LLP, Tukwila, Washington, for petitioner Pan Bahadur Tamang. Tony West, Acting Assistant Attorney General, Civil Divi- sion, Terri J. Scadron, Assistant Director, and Kathryn Dean- gelis, Trial Attorney, Office of Immigration Litigation, for respondent Eric H. Holder Jr. OPINION BENITEZ, District Judge: Petitioner Pan Bahadur Tamang petitions for review of the Board of Immigration Appeals’ (“BIA’s”) order dismissing his appeal of an immigration judge’s (“IJ’s”) denial of his application for asylum, withholding of removal, and protec- tion under the United Nations Convention Against Torture (“CAT”). We dismiss the petition for review as to Tamang’s asylum claim on the grounds that the claim was untimely. As to Tamang’s remaining claims, we have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review. 4286 TAMANG v. HOLDER BACKGROUND Tamang is a native and citizen of Nepal. On July 18, 1999, Tamang entered the United States on a visitor visa. When Tamang’s visa expired on January 17, 2000, Tamang remained in, and at all relevant times has remained in, the United States. More than five years later, on August 12, 2005, Tamang filed an application (“Application”) for asylum, with- holding of removal, and protection under CAT. Tamang’s Application includes a declaration stating, among other things, that Tamang’s family was threatened by Maoists and Maoists broke Tamang’s brother’s leg during an altercation. This altercation apparently took place in 2002, i.e., three years after Tamang arrived in the United States. The record shows Tamang’s brother entered the United States on June 18, 2002 and was later granted asylum in December 2005. On January 23, 2007, a hearing was held on Tamang’s Application. At the hearing, Tamang conceded he failed to file a timely petition for asylum. Tamang testified he did not file an earlier application because an attorney told him it was not necessary since Tamang was not personally attacked. On cross-examination, Tamang testified that he got this advice from a “friend,” whose name he did not know, and that he recently decided to file the Application because his brother obtained asylum in an earlier proceeding. Tamang also testified that his family had been active in Nepalese politics: Tamang, his brother, and his father were members of the Nepali Congress Party, and Tamang’s father was the president of the Village Development Committee. Tamang testified that, after the altercation with Maoists in 2002, his parents moved to India. However, in September 2006, Tamang’s parents returned to Nepal and have not had problems with Maoists since their return. Tamang also testi- fied that he has not been personally harmed by Maoists and, TAMANG v. HOLDER 4287 in fact, he has had no contact with Maoists at all. Tamang also conceded that the Nepali Congress Party became the head of government in 2006 and a ceasefire was declared with the Maoists. Nevertheless, Tamang testified he cannot safely return to Nepal because he believes Maoists are looking for him. At the conclusion of the hearing, the IJ issued an order denying all relief sought by Tamang. Specifically, the IJ found that Tamang’s asylum application was untimely and failed to demonstrate changed or extraordinary circumstances excepting the application from the one year statute of limita- tion. The IJ found incredible Tamang’s belief that he did not have to file his application within the one-year period and that he had been advised against filing by an attorney. According to the IJ, Tamang is a relatively well-educated individual who could be expected to seek out further advice, especially given his fear of persecution and the knowledge of his family’s suf- fering as early as 2002, i.e., three years before Tamang filed his asylum application. The IJ further determined that Tamang had not established past persecution in Nepal, noting that Tamang’s brother had “suffered significant physical violence,” but that Tamang was in the United States at that time and had not made “any claim that he himself had any interaction with them.” The IJ further noted that even Tamang’s family had returned to Nepal and have not had any interaction with Maoists since 2002. The IJ also found that there had been a change in country conditions that mitigated against any fear of future persecu- tion, especially in light of Tamang’s political party being the new majority party in the Nepalese government. The IJ fur- ther noted that asylum seekers such as Tamang “can be expected to relocate to a community elsewhere in their coun- try,” just as his family had done. 4288 TAMANG v. HOLDER The IJ also denied Tamang’s application for CAT protec- tion, finding Tamang had not demonstrated a risk of torture by the government if he were to return to Nepal and noting that Tamang’s own political party now forms the government in Nepal. On July 31, 2008, the BIA affirmed the IJ’s decision and dismissed Tamang’s appeal. The BIA adopted the IJ’s deci- sion in its entirety. This timely appeal ensued. DISCUSSION In upholding the IJ’s denial of Tamang’s Application, the BIA “adopt[ed] and affirm[ed] the Immigration Judge’s deci- sion,” citing Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). We, therefore, look through the BIA’s decision and treat the IJ’s decision as the final agency decision for pur- poses of this appeal. Gonzalez v. INS, 82 F.3d 903, 907 (9th Cir. 1996). We review the IJ’s factual findings for substantial evi- dence. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under the substantial evidence test, we must uphold the IJ’s findings, “if supported by reasonable, substantial and proba- tive evidence on the record considered as a whole.” Id. (inter- nal quotation marks omitted). We review de novo questions of law and legal conclusions. Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir. 2003). We review separately the requests by Tamang for asylum, withholding of removal and CAT protection. I. ASYLUM [1] An asylum application must be filed within one year of the petitioner’s arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). One exception, however, is where the peti- TAMANG v. HOLDER 4289 tioner demonstrates “extraordinary circumstances relating to the delay.” Id. § 1158(a)(2)(D). The Code of Federal Regula- tions sets forth several categories of “extraordinary circum- stances” for purposes of asylum relief. 8 C.F.R. § 1208.4(a)(5)(i)-(vi). The category relevant here is “ineffec- tive assistance of counsel.” Id. § 1208.4(a)(5)(iii). Tamang appeals the IJ’s finding that he failed to demonstrate ineffec- tive assistance of counsel. A. JURISDICTION As a threshold matter, we must consider whether we have jurisdiction to review the IJ’s finding. The short answer is yes. [2] We address this issue because two statutory provisions provide that no court has jurisdiction to review a determina- tion of the IJ or BIA relating to the one-year bar or the excep- tions for changed or extraordinary circumstances thereunder. See 8 U.S.C. §§ 1158(a)(3) and 1252(a)(2)(B). In 2005, how- ever, Congress passed the REAL ID Act which restored our jurisdiction, but only for those decisions invoking constitu- tional claims or questions of law. Id. § 1252(a)(2)(D); see also Husyev v. Mukasey, 528 F.3d 1172, 1178-79 (9th Cir. 2008). We must, therefore, determine whether Tamang’s ineffective assistance claim involves a question of law. [3] “Questions of law,” as that phrase is used under the REAL ID Act, extends to questions involving the application of statutes or regulations to undisputed facts, also known as mixed questions of fact and law. Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007); see also Pullman-Standard v. Swint, 456 U.S. 273, 289-90 & n.19 (1982) (mixed questions of law and fact are those “in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated”). 4290 TAMANG v. HOLDER [4] Ninth Circuit authority also provides that the “ineffec- tive assistance” prong of the extraordinary circumstances exception is treated as a mixed question of law and fact, as long as the relevant underlying facts are not disputed. See, e.g., Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir. 2007) (noting same in the context of an appeal of the BIA’s denial of a motion to reopen deportation proceedings). How- ever, until now, there have been no published decisions speci- fying which underlying facts cannot be disputed for purposes of this determination. [5] At least one Ninth Circuit case has held, albeit under a different category of extraordinary circumstances, that juris- diction existed where the following facts were not disputed: the date of petitioner’s arrival; the expiration of a petitioner’s legal status; and the petitioner’s application for asylum. Husyev, 528 F.3d at 1179 (finding that petitioner’s extraordi- nary circumstances exception based on the “reasonable peri- od” prong was a mixed question of law and fact because these same facts were not disputed). Although not specifically stated, those facts pertain to the elements necessary to prove the extraordinary circumstances category at issue in that case, i.e., that the petitioner had maintained lawful immigration sta- tus until a reasonable time before filing his or her asylum application per 8 C.F.R. § 1208.4(a)(5)(iv). Although the rea- sonable period category is not at issue in this case, applying the Husyev concept here, it is clear Tamang’s ineffective assistance of counsel claim is a mixed question of law and fact. To satisfy an ineffective assistance of counsel claim, a peti- tioner must: (1) provide an affidavit detailing the agreement with counsel and any representations counsel did or did not make regarding the agreement; (2) inform counsel of the alleged ineffectiveness and provide an opportunity to respond; and (3) file a complaint with the appropriate disciplinary authorities, or if no such complaint was filed, explain why. Id. § 1208.4(a)(5)(iii)(A)-(C). TAMANG v. HOLDER 4291 [6] Tamang does not dispute that he failed to satisfy these factual elements; rather, as more fully discussed below, Tamang argues he should not be required to satisfy these ele- ments. As such, the relevant facts are undisputed and, pursu- ant to Ninth Circuit authority, Tamang’s claim is a mixed question of law and fact. Accordingly, we find we have juris- diction to review the IJ’s finding that Tamang’s asylum appli- cation was time-barred. B. INEFFECTIVE ASSISTANCE OF COUNSEL [7] As noted, Tamang argues he is excepted from the one- year limitation period based on alleged “ineffective assistance of counsel.” To qualify for this exception, a petitioner must (1) provide an affidavit detailing the agreement with counsel and any representations counsel did or did not make regarding the agreement; (2) inform counsel of the allegation of ineffec- tiveness and provide an opportunity to respond; and (3) file a complaint with the appropriate disciplinary authorities, or if no such complaint was filed, explain why. 8 C.F.R. § 1208.4(a)(5)(iii)(A)-(C). Additionally, a petitioner must file his or her untimely application within a reasonable period given the circumstances. Id. §§ 208.4(a)(5) and 1208.4(a)(5). These elements are a codification of earlier common law based on Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) and followed by this Circuit, as well as several sister circuits. See, e.g., Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2nd Cir. 2005); Hamid v. Ashcroft, 336 F.3d 465, 469 (6th Cir. 2003); Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir. 1999). [8] Here, it is undisputed Tamang failed to satisfy these conditions. Rather, Tamang argues strict compliance with these conditions is not necessary. Tamang cites the following cases to support his argument: Castillo-Perez v. INS, 212 F.3d 518 (9th Cir. 2000); Lo v. Ashcroft, 341 F.3d 934 (9th Cir. 2003); and Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir. 2003). 4292 TAMANG v. HOLDER [9] As noted by Tamang, these cases held that strict com- pliance with Lozada was not required because, under the cir- cumstances of those cases, the ineffectiveness of counsel was plain on its face. Castillo-Perez, 212 F.3d at 526 (ineffective- ness was plain on its face where petitioner’s former counsel misrepresented to petitioner that his application had been filed and petitioner later filed a declaration complying with Lozada); Lo, 341 F.3d at 938 (ineffectiveness was plain on its face where former counsel mis-calendared the removal hear- ing, petitioner failed to appear at the hearing, and declarations were filed that complied with the first two prongs of Lozada); Rojas-Garcia, 339 F.3d at 824-25 (ineffectiveness was plain on its face where former counsel forgot to file the brief because he was transitioning to a new job and taking over a former colleague’s caseload, and declarations were filed satis- fying the first prong of Lozada). [10] Here, however, the ineffectiveness of Tamang’s for- mer counsel’s assistance is not plain on its face. First, Tamang could not remember the name of his former counsel or the dates or circumstances of any purported contact with his for- mer counsel. Indeed, it is not even clear Tamang spoke with an attorney, as opposed to a mere consultant or friend whose opinion Tamang cannot rely upon for purposes of the ineffec- tive assistance exception. See generally Albillo-DeLeon v. Gonzales, 410 F.3d 1090, 1099 (9th Cir. 2005). Additionally, unlike the cases upon which Tamang relies, Tamang has not complied, either timely or untimely, with any of the Lozada requirements. Rather, it appears Tamang’s Application presents the very circumstances for which the Lozada requirements, and now 8 C.F.R. § 1208.4(a)(5)(iii)(A)-(C), were intended. The goal of Lozada was to provide a more objective basis from which to assess the veracity of the substantial number of ineffective assistance claims asserted by asylum applicants and to hold attorneys to appropriate standards of performance. See Lozada, 19 I. & N. Dec. at 639-40. Where these goals are fur- TAMANG v. HOLDER 4293 thered, courts have unanimously upheld the requirements set forth in Lozada. See, e.g., Rojas-Garcia, 339 F.3d at 824-25; Lo, 341 F.3d at 937-38. As we have stated, “Lozada is intended to ensure both that an adequate factual basis exists in the record for an ineffectiveness complaint and that the complaint is a legitimate and substantial one.” Castillo-Perez, 212 F.3d at 526. [11] Here, without Tamang’s compliance with the Lozada elements, as codified in 8 C.F.R. § 1208.4(a)(5)(iii)(A)-(C), it is impossible to determine whether Tamang’s ineffective assistance of counsel claim has merit. By failing to provide any information regarding his purported former counsel, Tamang has also failed to provide any other independent basis from which to analyze his claim. Therefore, as recognized by the IJ, Tamang’s failure to satisfy the Lozada requirements was fatal to Tamang’s claim for ineffective assistance of counsel. Even if “extraordinary circumstances” were found, Tamang failed to file his Application within a reasonable period after being on notice of his purported former counsel’s error. Sub- stantial evidence on the record supports the IJ’s finding that Tamang was on notice of the need to file his Application in at least 2000 or 2001 and was a relatively well-educated indi- vidual such that one could expect Tamang to seek other advice. This is especially true if, as Tamang claims, he had a great fear of returning to his home country. Nonetheless, Tamang did not file his Application until 2005, at least four years later. As such, the requirements of 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(5) for exception to the one-year statute of limitation are not met. [12] In light of these circumstances, we hold that substan- tial evidence supports the IJ’s dismissal of the asylum claim. II. WITHHOLDING OF REMOVAL Withholding of removal requires the petitioner to demon- strate his or her “life or freedom would be threatened in that 4294 TAMANG v. HOLDER country because of the [petitioner’s] race, religion, national- ity, membership in a particular social group, or political opin- ion.” 8 U.S.C. § 1231(b)(3). Similar to asylum, a petitioner may establish eligibility for withholding of removal (A) by establishing a presumption of fear of future persecution based on past persecution, or (B) through an independent showing of clear probability of future persecution. 8 C.F.R. § 1208.16(b)(1) and (2). [13] Unlike asylum, however, the petitioner must show a “clear probability” of the threat to life or freedom if deported to his or her country of nationality. INS v. Stevic, 467 U.S. 407, 429-30 (1984). The Supreme Court has defined “clear probability” to mean it is “more likely than not” that the peti- tioner would be subject to persecution on account of one of the protected grounds. INS v. Cardoza-Fonseca, 480 U.S. 421, 429 (1987). The clear probability standard is more strin- gent than the well-founded fear standard for asylum. Khunaverdiants v. Mukasey, 548 F.3d 760, 767 (9th Cir. 2008). A. PAST PERSECUTION Establishing a presumption of fear of future persecution arising from past persecution is one way to obtain withhold- ing of removal. This presumption may be rebutted where the IJ finds changed country conditions mitigate against the threat of persecution or the petitioner could reasonably be expected to relocate to a different part of his or her country. 8 C.F.R. §§ 208.16(b)(1)(i) and 1208.16(b)(1)(i). Tamang argues the IJ erred in failing to deem threats and violence against his family as past persecution of Tamang himself; finding changed conditions in Nepal mitigate against any fear of persecution if Tamang returned to Nepal; and find- ing Tamang could reasonably be expected to relocate else- where in Nepal. TAMANG v. HOLDER 4295 1. Threats Against Family [14] Under Ninth Circuit law, a petitioner claiming past persecution must demonstrate “[p]articularized individual per- secution, not merely conditions of discrimination,” in order to qualify for withholding of removal. Prasad v. INS, 47 F.3d 336, 340 (9th Cir. 1995); see also Sanchez-Trujillo v. INS, 801 F.2d 1571, 1574 (9th Cir. 1986). While we have recog- nized that harm to a petitioner’s close family members or associates may be relevant to assessing whether the petitioner suffered past persecution, we have not found that harm to oth- ers may substitute for harm to an applicant, such as Tamang in this case, who was not in the country at the time he claims to have suffered past persecution there. See, e.g., Mashiri v. Ashcroft, 383 F.3d 1112, 1121 (9th Cir. 2004) (finding that petitioner satisfied her showing of particularized persecution based on several acts of violence and discrimination against her family members, which petitioner personally dealt with on a day-to-day basis.); Rodriguez-Rivera v. INS, 848 F.2d 998, 1005-06 (9th Cir. 1998) (petitioner’s allegation that he faced persecution based on his refusal to join the army and subse- quent flight to avoid joining the army was not sufficient to establish persecution for purposes of withholding of removal). The cases cited by Tamang are factually inapposite. In Kai- ser v. Ashcroft, 390 F.3d 653, 656 (9th Cir. 2004), the peti- tioner was an officer in the Pakistani army and had been placed on a hit list by a violent political party based on peti- tioner’s role in apprehending and convicting several of the party’s leaders. The petitioner personally suffered two attempts on his life but then moved elsewhere in Pakistan and lived there without any further trouble. When the petitioner tried to return to his prior hometown, threats of future harm to him and his family resumed, at which point petitioner and his family moved to the United States. Id. at 656-67. The BIA denied petitioner’s request for withholding of removal because the threats to the petitioner had not been car- 4296 TAMANG v. HOLDER ried out and the petitioner could safely relocate elsewhere in Pakistan; therefore, the higher standard applicable to with- holding of removal had not been satisfied. Id. at 657. The Ninth Circuit upheld this determination, but remanded the case to the BIA for further determination on the less stringent standard applicable to asylum because, among other things, the petitioner had suffered personal injury before the threats and, therefore, the threats could establish a “well-founded fear” of persecution for asylum purposes. Id. at 658-59. Here, unlike in Kaiser, Tamang did not suffer any personal persecution. Additionally, as noted, Tamang’s claim for asy- lum is time-barred. Therefore, unlike in Kaiser, there is no question of whether Tamang could have satisfied the less stringent standard of “well-founded” fear of persecution for asylum purposes. If anything, because the court in Kaiser found withholding of removal was not warranted, Kaiser sup- ports the conclusion that the IJ did not err in denying Tamang’s withholding of removal in this case. The other cases cited by Tamang are likewise unavailing. In Bolanos-Hernandez v. INS, 767 F.2d 1277 (9th Cir. 1984), the petitioner had suffered threats of violence against him per- sonally, while he was residing in his native country. Id. at 1280. Those circumstances are not present here, as Tamang testified he did not suffer any personal persecution. In Rodriguez-Rivera, 848 F.2d at 1005-06, similar to this case, the petitioner asserted a general fear of persecution based on petitioner’s refusal to join the army in his native country and subsequent flight to avoid joining the army. The petitioner also alleged threats of violence by guerrillas against him per- sonally. We held that such evidence does not establish past persecution for purposes of withholding of removal. Id. at 1005-06. Tamang emphasizes that his brother was granted asylum and argues that, absent similar relief for Tamang, the possibil- ity of inconsistent asylum treatment exists. We first note that, TAMANG v. HOLDER 4297 unlike Tamang, Tamang’s brother filed a timely asylum appli- cation and, therefore the less stringent standard of “well- founded fear” applied. Second, we note that Tamang’s brother, unlike Tamang, suffered direct persecution by Mao- ists: Tamang’s brother was at the family’s home in Nepal when Maoists visited the family in 2002, and Tamang’s broth- er’s leg was broken by Maoists in the ensuing altercation. These circumstances are distinct from the circumstances presented in Njuguna v. Ashcroft, 374 F.3d 765 (9th Cir. 2004) and Wang v. Ashcroft, 341 F.3d 1015 (9th Cir. 2003). Unlike in Njunga and Wang, having already moved to the United States at the time of the alleged persecution, Tamang was far removed from the persecution that his brother suf- fered and was not directly impacted in any way. Additionally, this is not a situation where two different IJs could reasonably differ; rather, the IJ in this case is the same IJ who granted asylum to Tamang’s brother. Therefore, the IJ had personal knowledge of his brother’s application and, in fact, took extra time to note on the record the many differences between Tamang’s and his brother’s applications and the bases for awarding different treatment. [15] In light of the above, we find substantial evidence supports the IJ’s finding that Tamang did not suffer past per- secution. 2. Changed Country Conditions [16] The IJ is permitted to consider changed country con- ditions pursuant to 8 C.F.R. § 1208.16(b)(1)(A) (stating that a presumption of threat to life or freedom can be rebutted if the IJ finds, upon a preponderance of evidence, that “[t]here has been a fundamental change in circumstances . . .”). Even if Tamang had suffered past persecution, we find substantial evidence supports the IJ’s finding that changed conditions in Nepal mitigate against any fear of persecution if Tamang returned to Nepal. 4298 TAMANG v. HOLDER The IJ’s decision on changed country conditions was based, in large part, on Tamang’s testimony that no member of his family has had any contact with Maoists since the altercation in 2002; Tamang’s family returned to Nepal in 2006 and con- tinues to live there without incident; and the political party with which Tamang and his family were associated now forms the government of Nepal. These facts came from Tamang’s own testimony and were not disputed. Respondent also produced newspaper articles showing the general change in political conditions in Nepal. The IJ listed the reasons for his finding and explained how these reasons related directly to Tamang’s ability to return to Nepal without fear. As such, we find substantial evidence supports the IJ’s decision. Tamang also contests the IJ’s adverse credibility finding. With respect to changed country conditions, the only adverse credibility finding made by the IJ was the IJ’s statement, “I do not find credible the respondent’s repeated statement ‘nothing has changed.’ ” Even if this finding formed a basis of the IJ’s decision, substantial evidence supports the IJ’s adverse credibility finding. [17] We recently had the opportunity to apply the REAL ID Act’s new standard for adverse credibility findings in Shrestha v. Holder, 590 F.3d 1034, 1039-48 (9th Cir. 2010). There, we noted the new standard enacted by Congress pro- vides that any inaccuracies, omissions of detail, or inconsis- tencies found by the IJ, regardless of whether they go to the “heart” of a petitioner’s claim, may support an adverse credi- bility finding. See id. at 1040-43 (citing 8 U.S.C. § 1158(b)(1)(B)(iii)). However, we followed several other cir- cuits in cautioning that an IJ cannot selectively examine evi- dence in determining credibility, but rather must present a reasoned analysis of the evidence as a whole and cite specific instances in the record that form the basis of the adverse cred- ibility finding. Id. at 1041-42. [18] Applied here, we find the IJ’s adverse credibility find- ing is supported by the record. The IJ cited the discrepancy TAMANG v. HOLDER 4299 between Tamang’s testimony that nothing had changed and the evidence produced by Respondent and supplied by Tamang’s own testimony showing that political conditions had changed and Tamang’s political party is currently the head of the government. The IJ stated specific and cogent rea- sons why Tamang’s statement “nothing has changed” was unavailing. As such, we find substantial evidence supports the IJ’s adverse credibility ruling. In light of the foregoing, we need not address the IJ’s deter- mination that Tamang could reasonably be expected to relo- cate elsewhere, as that issue has been rendered moot. B. CLEAR PROBABILITY OF FUTURE PERSECUTION [19] A petitioner may also qualify for withholding of removal based on a clear probability of future persecution. To satisfy this standard, a petitioner must demonstrate that his or her fear is “both subjectively genuine and objectively reason- able.” Similar to the above, a perceived fear of future persecu- tion may be rebutted if the petitioner could relocate elsewhere in his or her native country, and it would be reasonable to expect the petitioner to do so. 8 C.F.R. § 1208.16(b)(2). “An immigrant may demonstrate that her fear is subjec- tively genuine merely by credibly testifying that [s]he genu- inely fears persecution.” Rodas-Mendoza v. INS, 246 F.3d 1237, 1239 (9th Cir. 2001) (internal quotation marks omitted). Here, Tamang testified that based on the persecution suffered by his family, Tamang has a fear of future persecution if returned to Nepal. Tamang has, thus, satisfied the subjective prong of this analysis. However, the IJ found Tamang’s fear of future persecution was not objectively reasonable. Tamang testified his parents returned to Nepal in 2006 and his family has had no problems with Maoists since their return. “It is well established in this 4300 TAMANG v. HOLDER court that an alien’s history of willingly returning to his or her home country militates against a finding of past persecution or a well-founded fear of future persecution.” Loho v. Mukasey, 531 F.3d 1016, 1017-18 (9th Cir. 2008) (quoting Kumar v. Gonzales, 439 F.3d 520, 524 (9th Cir. 2006) and Boer-Sedano v. Gonzales, 418 F.3d 1082, 1091 (9th Cir. 2005)). “We have also held that a petitioner’s fear of future persecution ‘is weakened, even undercut, when similarly- situated family members’ living in the petitioner’s home country are not harmed.” Sinha v. Holder, 564 F.3d 1015, 1022 (9th Cir. 2009) (citing Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001)). Here, because Tamang’s fear of future persecution rests solely upon threats received by his family, it is especially significant that his family voluntarily returned to Nepal and continues to live there unharmed, after being threatened by Maoists in 2002. Tamang’s fear of future persecution is further tempered by evidence showing changed country conditions in Nepal, as noted above. Specifically, the IJ noted that the Nepalese king reinstated the 1999 parliament which was democratically elected and led by Tamang’s political party. The IJ further noted that the Maoists declared a ceasefire in April 2006 and had joined other parties in parliament. Tamang, notably, con- ceded these facts. [20] To rebut the evidence, Tamang cited to vague threats made against his family. Although a reasonable factfinder may find these threats relevant, the threats do not compel a finding of clear probability of future persecution. Therefore, we find that, when viewing the record as a whole, substantial evidence exists to support the IJ’s finding that Tamang’s per- ceived fear of future persecution is not objectively reasonable. III. CAT PROTECTION We finally turn to the IJ’s denial of CAT protection. To support his request for CAT protection, Tamang relies on the TAMANG v. HOLDER 4301 same evidence and arguments submitted in support of asylum and withholding of removal. [21] To qualify for CAT protection, a petitioner must show it is more likely than not he or she would be tortured if removed to the country of origin. 8 C.F.R. § 208.16(c)(2); Morales v. Gonzales, 478 F.3d 972, 983 (9th Cir. 2007). The same “more likely than not” standard applies to CAT protec- tion as it does to withholding of removal; however, for CAT protection, the harm feared must meet the definition of tor- ture. Additionally, unlike withholding of removal under the Immigration and Nationality Act, withholding of removal under CAT is based entirely on an objective basis of fear; there is no subjective component to a petitioner’s fear of tor- ture. Therefore, evidence of relevant country conditions is extremely important, as is the ability of Tamang to safely relocate to another part of his country of origin. 8 C.F.R. § 208.16(c)(3). [22] For the same reasons stated above under withholding of removal, the record does not compel the conclusion that Tamang merits CAT protection. Tamang fails to present evi- dence or even allege that he would most likely be tortured by or with the acquiescence of a government official or other person acting in an official capacity. 8 C.F.R. § 1208.18(a)(1). As such, we hold a reasonable factfinder would not be com- pelled to find Tamang eligible for CAT protection. We con- clude that substantial evidence supports the IJ’s finding that Tamang does not merit CAT protection. CONCLUSION We DISMISS IN PART, DENY IN PART Tamang’s petition for review of the IJ’s denial of asylum, withholding of removal, and CAT protection.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JESUS ALCAZAR,  Plaintiff, and CESAR ROSAS, No. 09-35003 Plaintiff-Appellant,  D.C. No. 2:06-cv-00281-RSM v. THE CORPORATION OF THE CATHOLIC OPINION ARCHBISHOP OF SEATTLE; HORATIO YANEZ, Defendants-Appellees.  Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding Argued and Submitted December 9, 2009—Seattle, Washington Filed March 16, 2010 Before: Robert R. Beezer, Ronald M. Gould, and Richard C. Tallman, Circuit Judges. Opinion by Judge Beezer 4268 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP COUNSEL Lindsay Halm, Schroeter, Goldmark & Bender, Seattle, Washington, for the plaintiff-appellant. Karen A. Kalzer, Patterson Buchanan Fobes Leitch & Kalzer, Inc., Seattle, Washington; M. Colleen Kinerk, Cable Langen- bach Kinerk & Bauer, LLP, Seattle, Washington, for the defendants-appellees. OPINION BEEZER, Circuit Judge: “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947). The interplay between the First Amendment’s Free Exercise and Establishment Clauses creates an exception to an otherwise fully applicable statute if ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP 4269 the statute would interfere with a religious organization’s employment decisions regarding its ministers. Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d 940, 944, 946-47 (9th Cir. 1999). This “ministerial exception” helps to preserve the wall between church and state from even the mundane government intrusion presented here. In this case, plaintiff Cesar Rosas seeks pay for the overtime hours he worked as a seminarian in a Catholic church in Washington. The district court correctly determined that the ministerial exception bars Rosas’s claim and dismissed the case on the pleadings. We have jurisdiction under 28 U.S.C. § 1291,1 and we affirm. I Cesar Rosas and Jesus Alcazar were Catholic seminarians in Mexico. The Catholic Church required them to participate in a ministry training program at St. Mary Catholic Church in Marysville, Washington as their next step in becoming ordained priests. At St. Mary, Rosas and Alcazar allegedly suffered retaliation for claiming that Father Yanez sexually harassed Alcazar, and they eventually sued Father Yanez and the Corporation of the Catholic Archbishop of Seattle (“defendants”) under Title VII.2 In addition, Rosas and Alca- Although this appeal involves only the Washington Minimum Wage Act, we have jurisdiction and properly decide this case. The district court acted within its discretion to dismiss the Washington Minimum Wage Act claim on the merits rather than dismissing the claim under 28 U.S.C. § 1367(c). See Tritchler v. County of Lake, 358 F.3d 1150, 1153 (9th Cir. 2004) (noting after Title VII claims were dismissed, the Ninth Circuit still had jurisdiction under 28 U.S.C. § 1291 because the “district court’s deci- sion whether to retain jurisdiction over supplemental claims once the orig- inal federal claims have been dismissed is reviewed for abuse of discretion”). As the district court dismissed Rosas’s Title VII claim under the ministerial exception, it acted within its discretion to dismiss the Minimum-Wage-Act claim under the ministerial exception as well. After receiving right-to-sue letters from the Equal Employment Oppor- tunity Commission, Rosas and Alcazar sued the defendants under Title VII of the Civil Rights Act, claiming disparate treatment based on gender 4270 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP zar sued under supplemental jurisdiction for violations of Washington’s Minimum Wage Act for failure to pay overtime wages. See Wash. Rev. Code § 49.46.130. The district court dismissed the overtime wage claims on the pleadings, see Fed. R. Civ. P. 12(c), and Rosas’s overtime wage claim is the only issue on appeal.3 Because the judgment was on the pleadings, the pleadings alone must be sufficient to support the district court’s judg- ment. We thus base our decision on the very few allegations in Rosas’s complaint. Rosas alleges as follows: 1.3 . . . The Corporation of the Catholic Archbishop of Seattle hosted [Rosas] as [a] participant[ ] in a training/pastoral ministry program for the priest- hood. .... or sexual harassment, and retaliation for complaints about such treatment. The defendants moved to dismiss the Title VII claims and several com- mon law claims. The district court concluded that Alcazar’s sexual- harassment claim could proceed but dismissed Rosas’s sexual-harassment claim because there was “not a single fact to suggest that Rosas himself was sexually harassed.” The district court dismissed all other claims under the First Amendment’s ministerial exception. Alcazar’s sexual-harassment claim was later dismissed pursuant to a stipulation. Rosas also argues that the district court erred in denying his motion to amend the complaint. We review a district court’s denial of a motion to amend a complaint for an abuse of discretion. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). Because the same First Amend- ment issues arise with respect to a claim under Washington’s Minimum Wage Act for failure to pay minimum wage as the failure to pay overtime wages, the district court correctly determined that an amendment to the complaint would be futile. Denial of a motion to amend a complaint after dismissing for failure to state a claim as a matter of law is appropriate where “allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir. 1988). ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP 4271 2.2 Cesar Rosas entered the seminary to become a Catholic priest in 1995 in Mexico. 2.3 As part of [his] preparation for ordination into the priesthood, the Catholic Church required [Rosas] to engage in a ministerial placement outside [his] diocese, under the supervision of a pastor of the par- ish into which [he was] placed. The Archdiocese of Seattle sends seminarians to Mexico and has Mexi- can seminarians come to its parishes. [Rosas was] placed in St. Mary Parish in Marysville, Washington under the supervision of defendant Fr. Horatio Yanez. .... 2.10 . . . [Rosas] was hired to do maintenance of the church and also assisted with Mass. He . . . worked many overtime hours he was not compensated for. II We review de novo a district court’s order granting judg- ment on the pleadings. Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 955 (9th Cir. 2004). We must accept as true the allegations in Rosas’s complaint and treat as false the allega- tions in the answer that contradict the complaint. Id. III [1] The Religion Clauses of the First Amendment provide that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. These clauses require a “ministerial excep- tion” to employment statutes if the statute’s application would interfere with a religious institution’s employment decisions concerning its ministers. Bollard, 196 F.3d at 944, 946-47. Our previous cases focus on Title VII, but our analysis in 4272 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP those cases compels the conclusion that the ministerial excep- tion analysis applies to Washington’s Minimum Wage Act as well.4 Here, as in the Title VII context, we first examine whether the Minimum Wage Act implicates the Free Exercise Clause. We must balance: (1) the magnitude of the statute’s impact upon the exercise of the religious belief, (2) the existence of a compelling state interest justifying the burden imposed upon the exercise of the religious belief, and (3) the extent to which recognition of an exemp- tion from the statute would impede the objectives sought to be advanced by the state. Werft v. Desert Sw. Annual Conference of the United Method- ist Church, 377 F.3d 1099, 1102 (9th Cir. 2004) (per curiam) (quoting Bollard, 196 F.3d at 946). The goals of Washing- ton’s Minimum Wage Act represent a compelling state inter- est. Wash. Rev. Code § 49.46.005 (noting that minimum wage is a “subject of vital and imminent concern to the people of [Washington]”); Drinkwitz v. Alliant Techsystems, Inc., 996 P.2d 582, 586-87 (Wash. 2000). Likewise, it would impede Washington’s goal of ensuring “minimum standards of employment within the state of Washington” to exempt minis- ters from Washington’s Minimum Wage Act. Wash. Rev. Code § 49.46.005. Rosas argues that the district court erred by applying the ministerial exception, which we have recognized in the Title VII context, to this state statutory regime without specifically balancing the Free Exercise Clause and Establishment Clause factors. Such a balancing was unnecessary, however, as our precedent holds that the ministerial exception applies to state statutes that interfere with the church-minister relationship. See Werft, 377 F.3d at 1100 n.1; Bollard, 196 F.3d at 950. We discuss the First Amendment basis for the ministerial exception here only as an explanatory introduction to our ministerial exception analysis. ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP 4273 [2] Yet “even in pursuit of a compelling state interest, the balancing test contemplates that some statutes may still have such an adverse impact on religious liberty as to render judi- cial review of a Church’s compliance with the statute a viola- tion of the Free Exercise Clause.” Werft, 377 F.3d at 1102. The Free Exercise Clause mandates a ministerial exception for religious organizations in such circumstances. See id. [3] As in the Title VII context, we next examine whether the Washington Minimum Wage Act implicates the Establish- ment Clause. We must determine: (1) whether the statute has a secular legislative purpose, (2) whether “its principal or pri- mary effect advances . . . [ ]or inhibits religion,” and (3) whether it “foster[s] an excessive government entanglement with religion.” Bollard, 196 F.3d at 948 (quoting Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)). The Minimum Wage Act has a secular purpose—to ensure minimum pay for all Washington workers—and it neither advances nor inhibits religion. It is the third factor, entanglement, that is at issue here. Cf., e.g., Elvig, 375 F.3d at 956 (noting this in the Title VII context). [4] Entanglement has substantive and procedural compo- nents. Bollard, 196 F.3d at 948. “On a substantive level, applying [a] statute to the clergy-church employment relation- ship creates a constitutionally impermissible entanglement with religion if the church’s freedom to choose its ministers is at stake.” Id. at 948-49. As for the procedural dimension, the very process of civil court inquiry into the clergy-church relationship can be sufficient entanglement. Id. at 949. “It is not only the conclusions that may be reached by [the court] which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to find- ings and conclusions.” NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 502 (1979). [5] The Religion Clauses thus compel a ministerial excep- tion from neutral statutory regimes that interfere with the 4274 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP church-clergy employment relationship. Because the ministe- rial exception is constitutionally compelled, it applies as a matter of law across statutes, both state and federal, that would interfere with the church-minister relationship. See Werft, 377 F.3d at 1100 n.1 (“Because the ministerial excep- tion is based in the First Amendment, we make no distinction between the various federal and state law claims.”); Bollard, 196 F.3d at 950. Therefore, we must analyze Rosas’s claim to overtime wages under the ministerial-exception rubric. IV [6] Because the ministerial exception analysis applies to the Washington Minimum Wage Act, Rosas’s claim is barred if he is a “minister” and application of the statute would inter- fere with a protected employment decision.5 Rosas argues that the district court erred in dismissing his claim for three rea- sons. First, he argues the ministerial exception has an addi- tional “actual burden” requirement. Second, he contends that requiring the Catholic Church to pay overtime wages does not implicate a protected employment decision. And third, he maintains that the district court could not have determined that he was a “minister” on the pleadings. We address and reject each of these arguments in turn. A [7] Rosas first argues that the district court should not have dismissed the case absent a determination that requiring the We examine here the constitutionality of Washington’s Minimum Wage Act as applied to Rosas’s overtime claims. Federal Rule of Appel- late Procedure 44 requires a party challenging the constitutionality of a state statute to notify the state where the state is not a party to the proceed- ing. Rule 44 was satisfied here when we, sua sponte, provided notice of the constitutional question to the state and at oral argument, defendants’ counsel represented that defendants had contacted Washington’s Attorney General and that the state had indicated that it did not intend to intervene. See Zehner v. Trigg, 133 F.3d 459, 461 (7th Cir. 1997). ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP 4275 Catholic Church to pay Rosas overtime wages would actually burden the Church’s beliefs. Rosas cites Tony & Susan Alamo Foundation v. Secretary of Labor to argue that “the First Amendment does not shield religious organizations from [employment laws] unless, at a minimum, compliance actu- ally burdens the free exercise of religion, or results in exces- sive government entanglement with religion.” 471 U.S. 290, 303 (1985). We have never held—nor has any other circuit— that Alamo adds an actual burden element to the ministerial exception. The exception was created because government interference with the church-minister relationship inherently burdens religion. The Supreme Court has not explicitly addressed the minis- terial exception, but the Court’s pre-Alamo decisions recog- nize that the First Amendment strongly circumscribes legislative and judicial intrusion into the internal affairs of a religious organization. See, e.g., Serbian E. Orthodox Diocese for the U.S. & Can. v. Milivojevich, 426 U.S. 696, 721-23 (1976). The Court holds the church-minister relationship especially inviolate. Specifically, Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America holds that a religious organization’s freedom to select its clergy is protected under the Free Exercise Clause. 344 U.S. 94, 116 (1952). “Because the appointment [of clergy] is a canonical act, it is the function of the church authorities to determine what the essential qualifications of a chaplain are and whether the candidate possesses them.” Id. at 116 n.23 (citation omitted). Alamo deals only with lay employees, and its holding is specifically premised on the fact that the chal- lenged statute applied only to “commercial activities undertaken with a ‘business purpose.’ ” Alamo, 471 U.S. at 305. The opinion therefore does not cast doubt on the Supreme Court’s earlier decisions. Rosas’s argument under Alamo is a lost battle.6 Rosas also cites several cases for the proposition that various circuit courts have applied the labor laws to religious organizations. These cases are irrelevant because they applied the labor laws only to lay employees in religious institutions. 4276 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP B Rosas’s second argument is no more availing than the first. He argues that the decision whether to pay him overtime wages “is not the sort of religious practice the First Amend- ment shields from secular examination.” He reads Werft and Bollard to apply the ministerial exception only when a statute “would interfere with a church’s freedom to either (a) ‘choose its ministers,’ or (b) ‘practice its beliefs.’ ” See Appellant’s Br. at 15 (citing Bollard, 196 F.3d at 944). We reject this argument for two separate reasons. [8] First, this case does involve the Catholic Church’s selection of its ministers. Rosas admits that “[a]s part of [his] preparation for ordination into the priesthood, the Catholic Church required [him] to engage in a ministerial placement.” (emphasis added). This case thus quintessentially follows Bol- lard’s explanation that the “Free Exercise Clause rationale for protecting a church’s personnel decisions concerning its min- isters is the necessity of allowing the church to choose its rep- resentatives using whatever criteria it deems relevant.” 196 F.3d at 947. [9] Second, Rosas interprets our case law too narrowly. Bollard refers not only to the selection of ministers but more broadly to “employment decisions regarding . . . ministers.” Id. Bollard acknowledges: Just as the initial function of selecting a minister is a matter of church administration and government, so are the functions which accompany such a selec- tion[, including] the determination of a minister’s salary, his place of assignment, and the duty he is to perform in the furtherance of the religious mission of the church. Id. (emphases added) (quoting McClure v. Salvation Army, 460 F.2d 553, 559 (5th Cir. 1972)). The ministerial exception ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP 4277 encompasses all “tangible employment actions” and disallows lawsuits for damages based on “lost or reduced pay.” Elvig, 375 F.3d at 964, 966. Such damages would “necessarily trench on the Church’s protected ministerial decisions.” Id. at 966. C [10] Finally, Rosas argues that even if a minister’s salary is insulated from judicial scrutiny, the district court could not have determined on the pleadings that Rosas was a minister. He urges us to adopt a test set forth by the Fourth and D.C. Circuits that looks at the “primary duties” of employees to determine whether they are “ministers.” See EEOC v. Catho- lic Univ. of Am., 83 F.3d 455, 463 (D.C. Cir. 1996); Rayburn v. Gen. Conference of Seveth-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985). He argues that under that test, because his complaint states that he “was hired to do maintenance of the church and also assisted with Mass,” the district court could not have found on the pleadings that Rosas’s primary functions at St. Mary were religious. Rosas more simply states: “On appeal, this Court need only consider whether, on the basis of the allegation above, Mr. Rosas mostly cleaned sinks or mostly counseled parishioners.” We have never clearly announced a test to determine whether an employee is a “minister” under the ministerial exception. In Bollard, Elvig, and Werft, we assumed the plain- tiffs were ministers. In EEOC v. Pacific Press Publishing Ass’n, 676 F.2d 1272, 1278 (9th Cir. 1982), abrogated on other grounds as recognized by American Friends Service Committee Corp. v. Thornburgh, 951 F.2d 957, 960 (9th Cir. 1991), and EEOC v. Fremont Christian School, 781 F.2d 1362, 1369-70 (9th Cir. 1986), we looked at the functions of the employees to determine that they were not ministers. But in Pacific Press, we noted that “[t]he facts of the present case do not require this court to examine in depth the scope of the [ministerial] exemption,” 676 F.2d at 1278, and in Fremont, 4278 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP we similarly were not presented with an opportunity to con- sider the ministerial exception’s scope, 781 F.2d at 1369-70. It is true that we use a functional approach to the ministe- rial exception, which examines the “function of the position” rather than relying solely on ordination or “categorical notions of who is or is not a ‘minister.’ ” Elvig, 375 F.3d at 958 n.3 (quoting EEOC v. Roman Catholic Diocese of Raleigh, 213 F.3d 795, 801 (4th Cir. 2000)). Under the functional approach, a lay employee can act as the functional equivalent of a minister. See, e.g., Roman Catholic Diocese of Raleigh, 213 F.3d at 805 (concluding church’s director of music minis- try and part-time teacher at church’s school fell under minis- terial exception). And alternatively, “[w]hile religious organizations may designate persons as ministers for their religious purposes free from any governmental interference, bestowal of such a designation does not control their extra- religious legal status.” EEOC v. Sw. Baptist Theological Sem- inary, 651 F.2d 277, 283 (5th Cir. 1981); see Fremont, 781 F.2d at 1369-70 (determining that teachers at a parochial school were not functionally ministers despite the defendant’s contentions). Although we reaffirm the importance of the functional approach, we find the “primary duties” test problematic. If taken literally, the primary duties test would require the dis- trict court to examine the number of hours Rosas spent on maintenance and the number of hours he performed religious duties. This could create the very government entanglement into the church-minister relationship that the ministerial exception seeks to prevent. See Bollard, 196 F.3d at 949; see also Catholic Bishop of Chi., 440 U.S. at 502. [11] Moreover, the underlying premise of the primary duties test—that a minister must “primarily” perform reli- gious duties—is suspect. A religious organization can consti- tutionally require its ministers or ministers-in-training to spend a year volunteering in urban areas in the United States. ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP 4279 Similarly, a religious organization can constitutionally require its ministers to take a vow of poverty. So too, here, could the Catholic Church require its candidate for the priesthood to spend a year “mostly clean[ing] sinks” without overtime pay. We decline Rosas’s invitation to adopt the Fourth and D.C. Circuits “primary functions” test. [12] Instead, we adopt a test similar to the Fifth Circuit’s and hold that if a person (1) is employed by a religious institu- tion, (2) was chosen for the position based “largely on reli- gious criteria,” and (3) performs some religious duties and responsibilities, that person is a “minister” for purposes of the ministerial exception. See Starkman v. Evans, 198 F.3d 173, 176 (5th Cir. 1999).7 This test preserves the functional approach and recognizes that “ministers” generally perform religious ceremonies and duties. But it rejects the arbitrary 51% requirement implicit in the “primary duties” test, acknowledging that secular duties are often important to a ministry. Additionally, avoiding the “primary” requirement enables a district court to determine who is a “minister” earlier in the proceedings and minimizes The Fifth Circuit in Starkman provided a slightly different test. Under Starkman, to determine whether a person is a minister under the ministe- rial exception, the Fifth Circuit considers: (1) “whether employment deci- sions regarding the position at issue are made ‘largely on religious criteria’ ”; (2) “whether the plaintiff was qualified and authorized to per- form the ceremonies of the Church”; and (3) whether the plaintiff “en- gaged in activities traditionally considered ecclesiastical or religious.” 198 F.3d at 176. Our first factor—requiring employment by a religious institution—is implied in the Fifth Circuit’s opinion, and here we make this factor explicit. Also, the Fifth Circuit’s second and third factors blend together. In holding that the plaintiff in Starkman was “qualified and authorized to perform the ceremonies of the Church” under the second factor, the court relied on the fact that she “had several religious duties and responsibilities,” see id., which is the Fifth Circuit’s third factor. Because these factors merge under the Fifth Circuit’s test, we combined them in our third factor. Thus, although we have formulated our test slightly dif- ferently, our analysis is in line with that of the Fifth Circuit. 4280 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP the procedural entanglement of a detailed factual determina- tion about “primary duties.” See Catholic Bishop of Chi., 440 U.S. at 502. And, of course, the district court retains the flexi- bility to determine whether a religious institution’s designa- tion of a person as a “minister” is mere subterfuge. See Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1039 (7th Cir. 2006). [13] The district court correctly dismissed this case on the pleadings under this test. Federal Rule of Civil Procedure 12(c) requires the district court to accept the factual allega- tions in the complaint as true. Rosas’s complaint demonstrates that Rosas was a minister for purposes of the ministerial exception. First, Rosas was participating in a “train- ing/pastoral ministry program” at a religious institution—St. Mary Catholic Church. Second, Rosas’s position was largely based on religious criteria—it was a ministerial placement open only to seminarians. Third, he performed some religious duties by assisting in Mass. “It is without consequence that [Rosas] also may have performed many secular duties. [He] was not a secular employee who happened to perform some religious duties; [he] was a spiritual employee who also per- formed some secular duties.” Scharon v. St. Luke’s Episcopal Presbyterian Hosps., 929 F.2d 360, 362 (8th Cir. 1991). The district court correctly dismissed the case on the pleadings because requiring the Catholic Church to pay overtime wages to Rosas would interfere with the Church’s employment deci- sions regarding its minister. Rosas’s claim is thus barred by the Free Exercise Clause and the Establishment Clause of the First Amendment. AFFIRMED.

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS March 15, 2010 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court THIEN H. NGUYEN, Petitioner-Appellant, v. No. 08-1337 (D.C. No. 1:07-cv-00702-WYD) LOU ARCHULETA, Warden; JOHN (D. Colo.) W. SUTHERS, Attorney General of the State of Colorado, Respondents-Appellees. ORDER AND JUDGMENT * Before GORSUCH and ANDERSON, Circuit Judges, and BRORBY, Senior Circuit Judge. Thien N. Nguyen, proceeding pro se, appeals from the district court’s denial of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. In our order of August 19, 2009, we granted a certificate of appealability (COA) on * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. five claims the district court found to be procedurally barred: (1) whether Mr. Nguyen’s decision to waive his Fifth Amendment right not to be a witness against himself was voluntary, knowing, and intelligent; (2) whether the trial court’s admission of his incriminating statements and confession, without ruling on whether they were voluntary, violated due process; (3) whether he was denied due process because the interpreter allegedly failed to provide an exact translation of witness testimony; (4) whether he was denied effective and meaningful appellate review because portions of his trial proceedings were not recorded; and (5) whether he was denied effective assistance of counsel by counsel’s failure to obtain transcripts from a prior trial of a co-defendant. The grant of a COA was limited to (1) whether these five claims were procedurally barred for failure to present them in state court during post-conviction proceedings under Colo. R. Crim. P. 35(c)(2)(I); and (2) whether the claims are procedurally barred for failure to present them in state court on direct criminal appeal. BACKGROUND Mr. Nguyen was convicted in Colorado state court in 1992 of first-degree assault, menacing, reckless endangerment, and twenty-seven counts of aggravated robbery. He was sentenced to 270 years in prison, consisting of ten-year consecutive terms of imprisonment for each aggravated robbery count and concurrent terms of imprisonment for the other offenses. The Colorado Court of Appeals affirmed his conviction on direct appeal, and the Colorado Supreme Court denied certiorari. In December 1997, Mr. Nguyen filed, through counsel, in the state trial court a motion for post-conviction relief under Colo. R. Crim. P. 35(c)(2)(I), asserting ineffective assistance of trial counsel and denial of due process due to Mr. Nguyen’s absence during voir dire of two prospective jurors. During a hearing, post-conviction counsel presented Mr. Nguyen’s pro se “Addendum to Rule 35(c)(2)(I) Motion to Vacate Conviction and Sentence,” which asserted the five constitutional claims before us. MR. JEFFERS: Mr. Nguyen had the assistance of another prisoner at the Limon facility and drafted an addendum that Mr. Nguyen wanted me to add to my brief and I exercised what I believe is both my discretion and obligation to filter out what I thought was a benefit and frankly most of it was not material that I felt could be incorporated. However, he really does feel important that this become part of the record and I think that the only way that it could be evaluated at a later time whether I did properly exercise my discretion not to include this in my legal pleadings is to have it become a part of the record on that basis. THE COURT: I believe that is appropriate if he wishes it to be part of the record. (Exhibit No. 2 was marked). Tr. of Aug. 6, 1999 at 47. After questioning Mr. Nguyen, counsel offered Exhibit 2 into the record for the purpose that “the judge read [it] and consider it.” Id. at 49. The court admitted Exhibit 2. Id. The court did review the pro se filing. THE COURT: The record should reflect that during the noon recess the Court reviewed the addendum to Rule 35-C, (2)(1), a motion to vacate conviction of the sentence, which was a document prepared by the defendant without the aid of counsel. The Court finds that the document primarily deals with issues that were raised on appeal or should have been raised on appeal and not issues that affect the purpose of the hearing today except for some of the allegations made concerning ineffective assistance of counsel. It’s been incorporated in the motion filed by Mr. Jeffers. Id. at 104. At the end of the proceedings, when orally ruling, the trial court judge stated that he had considered, among many other things, the pro se addendum. Id. at 262. The court denied Rule 35(c) relief. On appeal, Mr. Nguyen proceeded pro se, raising the claims asserted in his pro se addendum, among others. The Colorado Court of Appeals affirmed the denial of Rule 35(c) relief, holding that the claims in the addendum were not properly before the court because they had not been presented in the trial court during the post-conviction proceedings. The Colorado Supreme Court denied certiorari. In a second Rule 35(c) motion filed in the trial court in 2003, Mr. Nguyen alleged, among other things, that his post-conviction counsel was ineffective for failing to adequately present his claims in his first Rule 35(c) motion. Also, he reasserted some of the claims he had asserted in the pro se addendum. On appeal, the Colorado Court of Appeals affirmed the trial court’s denial of relief, concluding that these claims were time-barred and successive. Thereafter, Mr. Nguyen filed his § 2254 habeas petition in federal district court. The court decided that the five claims for which we granted a COA were unexhausted because they were raised for the first time in the Colorado Court of Appeals. The federal district court also decided that although the claims were unexhausted, they were procedurally barred because Mr. Nguyen no longer had an adequate and effective state remedy available to him. The court found that Colo. R. Crim. P. 35(c)(3)(VII) precluded him from bringing a successive state post-conviction motion and that any further Rule 35(c) motions would be time-barred. Finally, the court decided that the unexhausted claims had to be dismissed as procedurally barred because Mr. Nguyen failed to make any effort to show cause and prejudice or a fundamental miscarriage of justice. ANALYSIS As indicated by our order granting COA, this case presents complicated procedural issues. We decline to address them, however, because we can decide this case more easily and succinctly on its merits. 1 See Romero v. Furlong, We may consider alternate grounds for affirming that are not encompassed by our grant of a COA. Cf. Woodward v. Williams, 263 F.3d 1135, 1139 n.2 (10th Cir. 2001) (considering State’s alternative ground for affirming that was not part of grant of COA because State may defend on any ground supported by record without appealing and State did not need COA to appeal from district court’s decision). 215 F.3d 1107, 1111 (10th Cir. 2000) (declining to decide procedural-bar issue where it was easier to decide issue on merits). We conclude, as a matter of law, that all of Mr. Nguyen’s claims lack merit. I. Mr. Nguyen argues that he did not voluntarily, knowingly, and intelligently waive his Fifth Amendment right to silence when he testified at trial, because the trial court failed to inform him that if he chose to remain silent the jury would be instructed not to use his silence against him. Had he known this, he maintains he would not have testified. We disagree that the trial court had an obligation to advise Mr. Nguyen of his right to maintain silence. “[D]efense counsel, not the court, has the primary responsibility for advising the defendant of his right to testify and for explaining the tactical implications of doing so or not.” United States v. Ortiz, 82 F.3d 1066, 1070 (D.C. Cir. 1996); accord Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997); United States v. Pennycooke, 65 F.3d 9, 11 (3d Cir. 1995). Mr. Nguyen does not assert that his counsel failed to fully advised him of his right to remain silent, and we will not presume that counsel failed to do so. Cf. Pennycooke, 65 F.3d at 12-13 (deciding trial court should presume defendant and attorney discussed right to testify). Mr. Nguyen therefore has failed to show that his decision to testify was not made knowingly, voluntarily, and intelligently. II. Mr. Nguyen argues that his constitutional right to due process was violated when the trial court allowed his incriminating statements to be admitted without determining whether they were voluntary. The record, however, shows that the trial court did rule on the voluntariness of his statements, finding them to be voluntary and therefore admissible at trial. State Ct. R., Vol. 2 at 143, 151-52; Trial Tr., Vol. IV at 126-29. Upon our review of the state court record, we agree that the statements were voluntary. 2 III. Mr. Nguyen argues that the interpreter’s translations were inaccurate, thereby denying him due process and a fair trial. Specifically, he faults her for failing to give a word-for-word translation of testimony and notes that his trial counsel made several objections to the interpretations and that the trial court admonished the interpreter several times. We conclude that Mr. Nguyen has failed to show that his due process rights were violated. See Lucero v. Kerby, 133 F.3d 1299, 1314 (10th Cir. 1998) (“[H]abeas petitioners challenging their In denying his first Rule 35(c) motion, the Colorado Court of Appeals addressed Mr. Nguyen’s argument that his trial counsel was ineffective for failing to present evidence that his statements were involuntary and coerced. The court rejected the argument, deciding that regardless of the alleged attorney shortcoming, Mr. Nguyen did not suffer any prejudice because the evidence against him was overwhelming and he failed to show that the result of the proceedings would have been different. state convictions under this general ‘fairness’ mandate of the due process clause bear an onerous burden.” (quotation omitted)). It is true that counsel did object to the interpretations several times and that the trial court admonished the interpreter to provide only a word-for-word translation. But these objections and admonishments occurred only at the beginning of the trial. As the trial progressed, the objections and admonishing ceased. Furthermore, early in the trial, when counsel complained about the interpreter at a conference held outside the presence of the jury, the trial judge stated that he had heard the testimony of the witnesses as interpreted by the interpreter in the trials of Mr. Nguyen’s co-defendants, and the testimony given in Mr. Nguyen’s trial was consistent with the testimony given in the previous trials. Mr. Nguyen does not dispute this. Additionally, the evidence against him was substantial, and he has failed to describe any prejudice that occurred to him. 3 IV. Mr. Nguyen argues that the lack of a record and the failure to record all of his trial proceedings deprived him of due process and meaningful review of the trial proceedings. All of his assertions concern jury selection. Mr. Nguyen also asserts that the interpreter was unqualified. His assertion is conclusory. Upon review of the trial transcript, we conclude the trial court appropriately decided the interpreter, who had served as a courtroom interpreter twenty times, was qualified. He first contends that the trial court had contact with prospective jurors before voir dire that was not recorded. The record reflects that the judge stated at the beginning of voir dire that he had told the prospective jurors previously that the trial could last for two to three weeks. Nothing suggests that the judge had further contact. with these prospective jurors. Mr. Nguyen’s allegation of contact without further specificity is insufficient to meet his onerous burden of showing that he was denied due process. See id. Mr. Nguyen also contends that the trial court excused prospective jurors without informing his counsel, without allowing objection prior to excusing the jurors, and without providing reasons on the record for excusing them. The record page Mr. Nguyen cites for support for his argument indicates that the court, on the record, noted that it had excused one prospective juror with non-refundable airline tickets and another prospective juror who was unable to arrange for a babysitter for her children who were out of school due to a snow storm. Mr. Nguyen cites no authority, and we have found none, indicating that it was a violation of due process for the court to excuse these jurors without first informing counsel or allowing counsel to object to their exclusion. Mr. Nguyen therefore fails to meet his onerous burden. See id. Next, Mr. Nguyen faults the trial court for failing to grant his counsel’s challenges for cause to two jurors thereby requiring him to use peremptory challenges to excuse them, and for failing to record sidebar conferences during which his counsel objected to the two jurors. Regardless of whether the trial court should have excused the jurors for cause, Mr. Nguyen has not shown that he was deprived of a fair trial because he does not argue that he exhausted all of his peremptory challenges and was forced to accept a biased jury. See Ross v. Oklahoma, 487 U.S. 81, 83, 85-86, 88 (1988). In other words, he does not assert that his jury was not fair and impartial. See United States v. Chanthadara, 230 F.3d 1237, 1265 (10th Cir. 2000) (“An impartial jury is central to the right to a fair trial[.]”). Nor does he assert any prejudice that he suffered as a result of the failure to record the sidebar conferences. Thus, he fails to show a due process violation. V. Mr. Nguyen argues that he was denied effective assistance of counsel because trial counsel failed to obtain transcripts of the testimony from a co-defendant’s trial in order to impeach inconsistent statements and testimony at his trial. This argument is conclusory. Mr. Nguyen does not indicate that there actually were inconsistent statements given or that his counsel could have impeached the witnesses who testified at his trial. Thus, he fails to show that his counsel provided constitutionally ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (requiring convicted defendant who asserts ineffective assistance of counsel to show deficient performance and prejudice). CONCLUSION The judgment of the district court is AFFIRMED. Mr. Nguyen’s motion for leave to appeal in forma pauperis is DENIED as moot as he has paid his filing fee in full. Also, his motion for a copy of the transcript of his August 6, 1999, post-conviction hearing is DENIED. His motion to file his reply brief out of time is GRANTED. Entered for the Court Wade Brorby Senior Circuit Judge

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS March 15, 2010 FOR THE TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court DARRELL ELLIS; LARRY CHANEY; ROY GENE EASTERWOOD; ARLEY LEE DUNCAN, Plaintiffs-Appellants, v. No. 09-6115 (D.C. No. 5:09-CV-00379-R) JAMES M. BROWN, SR., Oklahoma (W.D. Okla.) Pardon and Parole Board; CLINTON JOHNSON, Oklahoma Pardon and Parole Board; RICHARD DUGGER, Oklahoma Pardon and Parole Board; SUSAN B. LOVING, Oklahoma Pardon and Parole Board; LYNNELL HARKINS, Oklahoma Pardon and Parole Board; TERRY JENKS, Director, Oklahoma Pardon and Parole Board; BRET T. BURNS, District Attorney; DAVID W. PRATER, District Attorney; BRAD HENRY, Governor of Oklahoma, Defendants-Appellees. ORDER AND JUDGMENT * * After examining appellants’ brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive (continued...) Before GORSUCH, Circuit Judge, and ANDERSON and BRORBY, Senior Circuit Judges. Darrell Ellis, Larry Chaney, Roy Gene Easterwood, and Arley Lee Duncan were convicted of murder in Oklahoma state court and sentenced to life imprisonment. After they sought and were denied parole, they brought this suit pro se, under 42 U.S.C. § 1983, alleging essentially two things: (1) the defendants conspired to deprive them of their constitutional rights in the parole process, and (2) Oklahoma’s parole procedures violate the federal Due Process and Ex Post Facto Clauses. 1 The district court dismissed the suit and the plaintiffs, now proceeding through counsel, brought this appeal. Reviewing the dismissal of the conspiracy claims de novo, we affirm for substantially the reasons given by the magistrate judge and district court. Even affording the complaint as liberal a reading as possible, we discern no reversible error in the district court’s disposition and see nothing we might usefully add to what that court and the magistrate have already said. * (...continued) value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Mr. Easterwood also alleged that the Governor of Oklahoma violated mandatory parole procedures in denying him parole after the Parole Board recommended his release. This claim, however, “is not cognizable under § 1983.” Reed v. McKune, 298 F.3d 946, 953 (10th Cir. 2002). As to the plaintiffs’ challenge to Oklahoma’s parole procedures, the magistrate judge recommended dismissal on the basis of issue preclusion. We review de novo the district court’s legal conclusions on the applicability of the preclusion doctrine. Valley View Angus Ranch, Inc. v. Duke Energy Field Servs., Inc., 497 F.3d 1096, 1100 (10th Cir. 2007). In doing so, we discern no error with respect to Mr. Ellis, Mr. Chaney, and Mr. Duncan. All three of these plaintiffs brought and lost identical challenges in prior suits. See Ellis v. Brown, No. 103,217 (Okla. Crim. App. July 5, 2006) (unpublished); Ellis v. Brown, No. CIV-06-1156-R, 2007 WL 28273 (W.D. Okla. Jan. 3, 2007) (unpublished), aff’d, 237 F. App’x 327 (10th Cir. 2007). Issue preclusion thus prevents them from trying their hand again in a new suit. At least as far as we can tell, however, it does not appear that Mr. Easterwood was a party to the prior proceedings, and so he may not be subject to issue preclusion. This is not to say that his claims are meritorious. But it is to say that, from the record before us at this time, we cannot discern a basis for holding his challenges to Oklahoma’s parole procedures barred by the doctrine of issue preclusion. In light of this, then, we affirm all of the district court’s disposition with one minor exception, vacating its holding that Mr. Easterwood’s challenges to Oklahoma’s parole procedures are barred by the doctrine of issue preclusion and remanding this case for further proceedings consistent with this order and judgment. Entered for the Court Neil M. Gorsuch Circuit Judge

[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 07-13685 MARCH 15, 2010 ________________________ JOHN LEY CLERK D. C. Docket No. 04-20778-CR-AJ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KENT FRANK, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (March 15, 2010) Before MARCUS and WILSON, Circuit Judges, and RESTANI,* Judge: WILSON, Circuit Judge: * Honorable Jane A. Restani, Chief Judge of the United States Court of International Trade, sitting by designation. Kent Frank was convicted of traveling and engaging in illicit sexual conduct with three minor girls in Cambodia, of traveling with the intent to engage in illicit sexual conduct, and of purchasing the girls in order to produce sexually explicit visual depictions of them, in violation of 18 U.S.C. §§ 2423(b),(c) and 2251A(b)(2)(A). On appeal, Frank raises the following issues: (1) whether the district court correctly denied his motion to suppress un-Mirandized statements obtained by foreign officials in Cambodia; (2) whether 18 U.S.C. § 2251A applies extraterritorially; (3) whether the district court correctly denied his motion for judgment of acquittal as to the sufficiency of evidence for “purchase” under 18 U.S.C. § 2251A(b) and “illicit sexual conduct” under 18 U.S.C. § 2423(c); (4) whether the district court erred in instructing the jury as to the definition of “purchase” under 18 U.S.C. § 2251A(b) and “sexual act” under 18 U.S.C. § 2423(b); (5) whether there was reversible error in the prosecutor’s opening and closing statements; (6) whether the district court plainly erred in imposing concurrent 360-month sentences for Counts 2, 4, and 5; (7) whether the district court violated Federal Rule of Criminal Procedure 30 in giving supplemental jury instructions at the defense’s request; and (8) whether Frank’s confession was properly admitted. After thorough review of the briefs and the record, and with the benefit of oral argument, we affirm Frank’s convictions. I. BACKGROUND In January 2004, Frank, a United States citizen and resident, was detained in Cambodia by the Cambodian National Police (“CNP”) based on a tip that Deputy Chief Keo Thea1 of the CNP Anti-Human Trafficking and Juvenile Protection Office received concerning unusual activities in Frank’s room at the Golden Bridge Hotel. Four girls exited the hotel, and Keo detained them for questioning.2 Keo suspected that the girls were between fourteen to seventeen years old from their appearance and stated astrological signs. Based upon the information he learned from the girls, Keo went to Frank’s hotel room, searched it, and seized various items.3 Keo then took Frank to the Cambodian police station, suspecting him of violating Cambodian laws. That night, Frank was not placed in a jail cell but was permitted to sleep on a cot in Keo’s office. The next morning, Seng Leena, an interpreter, was brought in, and Frank was interviewed. Frank admitted that he had Cambodian names in this opinion are given in the following order: the first name is the surname, and the second is the individual’s given name. Therefore, we will refer to Keo Thea as Keo, his surname. Although the names of the girls were used during the trial, we will refer to them individually as Minors A, B, C, and D, as seen in the indictment. Items that were found include a digital camera, a laptop, microdrives, pornographic DVDs, HIV/AIDS test kits, various lubricants, condoms, Viagra medication, an address book containing a listing for a mamasan (prostitute broker), an address of a brothel, children’s video games (including one entitled “Little Mermaid II: Pinball”), Miracle Bubbles, and female children’s clothing including “Looney Tunes” and “Powerpuff Girls” tops, underwear, and stockings. engaged in sexual conduct with and had taken sexually explicit photographs of Minors A, B, C, and D on multiple occasions. He confessed to paying the girls $15 or $25 to either photograph them or have sex with them. At some point during the interview, Gary Phillips, the Assistant United States Immigration and Customs Enforcement Attaché in Bangkok, Thailand, arrived to meet with Chief Meng Say of the CNP, but did not participate in Frank’s interview. In a separate room, Agent Phillips reviewed the evidence Cambodian officials had seized from Frank’s hotel room. The day after Frank’s interrogation by Cambodian officials, Agent Phillips attempted to interrogate Frank after providing him Miranda warnings, but was interrupted when Cambodian officials arrived to bring Frank before a Cambodian judge to face charges against him. Without notifying Agent Phillips, Cambodian officials released Frank after resolution of these charges. Frank then traveled to Vietnam, where he was arrested by United States officials. In 2005, Frank was charged with traveling in foreign commerce and engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(c) (Counts 1–5); purchasing or otherwise obtaining custody or control of a minor with the intent to promote the engaging in of sexually explicit conduct by the minor for the purpose of producing any visual depiction of such conduct, in violation of 18 U.S.C. § 2251A(b)(2)(A) (Counts 6–9); and traveling in interstate and foreign commerce for the purpose of engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b) (Count 10).4 At trial, the government introduced evidence that during two trips in late 2003, Frank paid the minor girls listed in the indictment to engage in sexual acts with Frank and to take sexually explicit pictures of him. From the first trip, 506 photographs were retrieved, of which 322 were not deleted. From the second trip, which culminated in Frank’s arrest by Cambodian officials, law enforcement found 1,134 pictures, of which 96 were not deleted. Among other things, the pictures depicted Frank engaging in sexual conduct with Minor A, Minor B holding an OraQuick HIV test and posing in a sexually explicit manner on Christmas Day, and Minors C and D dressed in various outfits on New Year’s Eve. On New Year’s day, Frank took the four girls to a swimming pool and then back to his hotel to have sex with them or to take sexually explicit pictures of them. The government also presented expert witnesses to testify as to the age of the girls. One expert witness testified that Minor B was fifteen to seventeen years old, that Minors A and C were fourteen or fifteen years old, and that Minor D was eleven or twelve years old. Another expert witness testified that the girls were Counts 1, 2, and 6 related to Minor A; Counts 3 and 7 with Minor B; Counts 4 and 8 with Minor C; and Counts 5 and 9 with Minor D. under sixteen years of age. Frank’s defense at trial was that he reasonably believed the girls to be eighteen years or older at the time of the offense, that he did not purchase the girls, and that he traveled to Cambodia for business and not to engage in illicit sexual conduct. The jury found Frank guilty of Counts 1, 2, 4–6, and 8–10. A mistrial was declared as to Counts 3 and 7, which concerned Minor B. Frank was sentenced to concurrent terms of 360 months’ imprisonment on Counts 1, 2, 4, 5, and 10, with 15 years’ supervised release. He was sentenced to 480 months’ imprisonment on Counts 6, 8, and 9, running concurrently, and 15 years’ supervised release. II. DISCUSSION A. The District Court Properly Denied Frank’s Motion to Suppress A district court’s denial of a motion to suppress is a mixed question of law and fact. United States v. Ramos, 933 F.2d 968, 972 (11th Cir. 1991) (per curiam) (citing United States v. Nixon, 918 F.2d 895, 902 (11th Cir. 1990)). We review factual findings for clear error, but we review the district court’s application of the law to those facts de novo. Id. Cambodian law enforcement officers detained and interrogated Frank without reading him Miranda warnings. The district court denied Frank’s motion to suppress his statements obtained from the interrogation because it found that Miranda warnings were not needed and that Frank’s confession was voluntary. Generally, “statements obtained by foreign officers conducting interrogations in their own nations have been held admissible despite a failure to give Miranda warnings to the accused.” United States v. Heller, 625 F.2d 594, 599 (5th Cir. 1980) (citing Kilday v. United States, 481 F.2d 655, 656 (5th Cir. 1973)).5 The reasoning behind this rule is that the exclusion of evidence by an American court has little to no deterrent effect on foreign police practices. United States v. Morrow, 537 F.2d 120, 139 (5th Cir. 1976). That is, our “Constitution cannot compel such specific, affirmative action by foreign sovereigns.” Kilday, 481 F.2d at 656. Two exceptions to this general rule are: (1) if the foreign officers’ conduct “shocks the conscience of the American court” and (2) if “American officials participated in the foreign . . . interrogation, or if the foreign authorities were acting as agents for their American counterparts,” also known as the joint venture doctrine. Heller, 625 F.2d at 599 (citing Morrow, 537 F.2d at 139); United States v. Behety, 32 F.3d 503, 511 (11th Cir. 1994). Frank concedes that his arguments are foreclosed by our precedent.6 First, In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. Instead, Frank advocates a change in the current law in this area. He argues that our precedent is dated because, in light of our globalized approach to law enforcement, Miranda warnings would have a deterrent effect on foreign officials. Because financial assistance to Cambodia is conditioned upon Cambodia’s efforts to combat human trafficking, Frank contends that we Frank’s statements do not fall under the joint venture doctrine. American officials did not know of Frank’s presence in Cambodia until after he was arrested and did not participate in Frank’s detention or interrogation. When Agent Phillips attempted to interrogate Frank, after giving him Miranda warnings, he was cut short when Cambodian officers came in to bring Frank before a judge. At all times, the Cambodian officers acted out of their own interest in determining whether Frank violated Cambodian laws. The officers then released Frank and allowed him to travel to Vietnam without notifying the United States. Consequently, there is no evidence that the Cambodian officers acted as agents of the United States.7 Second, Frank’s interrogation does not shock the judicial conscience. Frank was not held in a jail but allowed to sleep overnight in Keo’s office. The interview lasted less than two hours. Frank was treated with respect, offered food and water, should require Cambodian officials to give a version of the Miranda warnings to United States citizens suspected of child trafficking crimes. See U.S. Dep’t of State, Trafficking in Persons Report, at 15–16 (2003), available at http://www.state.gov/g/tip/rls/tiprpt/2003 (noting that countries that do not make significant efforts to comply with certain minimum standards laid out by the U.S. State Department could lose U.S. financial assistance). See, e.g., Kilday, 481, F.2d at 655–56 (Miranda warnings unnecessary even though defendant was arrested in connection with a bank robbery that occurred in the United States, was questioned by an Interpol agent, and an American consular official was present as an interpreter during the interrogation); Heller, 625 F.2d at 599–600 (holding exclusionary rule did not apply when defendant was apprehended by British officials based on tip by American agent, defendant and evidence were seized before American agents arrived, defendant was charged initially with violating British law, and American agent only interviewed defendant after obtaining permission from British authorities). and was not beaten or threatened in any way. Based on these facts, we also find that Frank’s confession was voluntary. See Martin v. Wainwright, 770 F.2d 918, 924–25 (11th Cir. 1985), modified on other grounds, 781 F.2d 185 (11th Cir. 1986) (finding that defendant’s confession was voluntary when officers interrogated him for five hours, cursed him, discussed the death penalty, and provided him with false information). As such, the district court did not err in denying Frank’s motion to suppress his statements resulting from interrogation by Cambodian officials. B. 18 U.S.C. § 2251A Applies Extraterritorially to Reach Frank’s Conduct Frank argues that 18 U.S.C. § 2251A does not apply extraterritorially, meaning that it does not reach conduct that occurs wholly outside the United States. Pursuant to 18 U.S.C. § 2251A(b)(2)(A) and (c)(1), “[w]hoever purchases . . . a minor . . . with intent to promote . . . the engaging in of sexually explicit conduct by such minor for the purpose of producing any visual depiction of such conduct,” and “in the course of the conduct described . . . the minor or the actor traveled in or was transported in or affecting interstate or foreign commerce” is guilty of an offense punishable by fine and not less than 30 years’ imprisonment or for life. Congress has the power to apply its laws extraterritorially, but whether it has done so is a matter of statutory construction that is subject to plenary review.8 Foley Bros. v. Filardo, 336 U.S. 281, 284–85, 69 S. Ct. 575, 577 (1949); United States v. MacAllister, 160 F.3d 1304, 1306 (11th Cir. 1998) (per curiam); United States v. Baker, 609 F.2d 134, 136 (5th Cir. 1980). We presume that statutes only apply domestically, and give extraterritorial effect “where congressional intent is clear.” MacAllister, 160 F.3d at 1307. However, in United States v. Bowman, 260 U.S. 94, 97–98, 43 S. Ct. 39, 41 (1922), the Supreme Court held that extraterritorial application can be inferred in certain cases even absent an express intention on the face of the statute. We have interpreted Bowman to hold that extraterritorial application “may be inferred from the nature of the offense[] and Congress’ other legislative efforts to eliminate the type of crime involved.” Baker, 609 F.2d at 136; see also MacAllister, 160 F.3d at 1307–08. Crimes fall under the Bowman exception when limiting “their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens . . . in foreign countries as at home.” United States v. Plummer, 221 F.3d 1298, 1304 (11th Cir. 2000) (quoting Bowman, 260 U.S. at 98, 43 S. Ct. at 41). Thus, we have upheld extraterritorial application of statutes Frank does not challenge Congress’s authority to pass 18 U.S.C. § 2251A, nor does he argue that Congress was without power to apply it extraterritorially. “where the nature of the activities warranted a broad sweep of power.” Baker, 609 F.2d at 137.9 We must determine whether Congress intended § 2251A to apply to United States citizens engaged in conduct wholly outside of the United States. To date, no circuit court has decided this issue.10 After considering the language of the statute, the nature of the offense covered by 18 U.S.C. § 2251A, and Congress’s other efforts to combat child pornography, we find that 18 U.S.C. § 2251A applies extraterritorially to reach Frank’s conduct. 1. Congress intended 18 U.S.C. § 2251A to apply extraterritorially Section 2251A requires that in the course of the prohibited conduct, the defendant or minor “travel[] in . . . interstate or foreign commerce,” making plain Congress’s intent that the statute sweep broadly and apply extraterritorially. 18 U.S.C. § 2251A(c)(1) (emphasis added); see, e.g., United States v. Hill, 279 F.3d It is under the Bowman exception that several drug trafficking or smuggling statutes have been applied extraterritorially. See Plummer, 221 F.3d at 1305 (statute prohibiting attempts to smuggle goods into the United States); MacAllister, 160 F.3d at 1307 (statute punishing conspiracy to export cocaine from United States); Baker, 609 F.2d at 137–38 (statutes punishing possession with intent to distribute and conspiracy to do the same); United States v. Perez-Herrera, 610 F.2d 289, 290 (5th Cir. 1980) (statute punishing attempts to import controlled substances into the United States). In Baker, the Fifth Circuit held that a law prohibiting possession with intent to distribute was part of a “comprehensive legislative scheme designed to halt drug abuse in the United States by exercising effective control over the various domestic and foreign sources of illegal drugs.” 609 F.2d at 137. However, the Northern District of Texas has applied 18 U.S.C. § 2251A extraterritorially in response to a motion to dismiss the defendant’s indictment. See United States v. Bredimus, 234 F. Supp. 2d 639, 650 (N.D. Tex. 2002). 731, 739 (9th Cir. 2002) (inclusion of a “travel in interstate or foreign commerce” provision “makes plain the intent of Congress to apply the law internationally” and “strongly suggests that Congress intended to cast a broad net and apply the statute to all offenders, whether or not they are found in the United States”); United States v. Noriega, 746 F. Supp. 1506, 1518–19 (S.D. Fla. 1990) (upholding extraterritorial application due to the broad purpose and language of the Travel Act, 18 U.S.C. § 1952, which punishes “travel in interstate or foreign commerce” with intent to promote unlawful activity). “Travel[] . . . in foreign commerce” should logically be read to include traveling from the United States to a foreign country, and then purchasing a minor in that country for use in child pornography.11 18 U.S.C. § 2251A(c)(1). For example, 18 U.S.C. § 2423(c), which punishes anyone “who travels in foreign commerce, and engages in any illicit sexual conduct,” has been applied extraterritorially. United States v. Clark, 435 F.3d 1100, 1106 (9th Cir. 2006) (holding that the title of the statute, “Engaging in illicit sexual conduct in foreign places,” and the requirement that the defendant “travel[] in foreign commerce,” evinced Congressional intent to apply the statute Arguably, one could interpret the “foreign commerce” provision to punish an actor only if he or she travels from a foreign country into the United States, and then purchases a minor for use in child pornography. However, “nothing in [§ 2251A] indicates it was designed to punish behavior going only one direction,” and such a narrow construction would greatly curtail the scope and effectiveness of the statute. United States v. Martinez, 599 F. Supp. 2d 784, 798 (W.D. Tex. 2009) (applying 18 U.S.C. § 2423 extraterritorially). extraterritorially); Martinez, 599 F. Supp. 2d at 797–98 (same); United States v. Strevell, 11th Cir. 2006, __ F.3d __, at *3 (No. 05-10873, June 20, 2006) (holding that the language and history of § 2423(c) undercuts any argument that the statute does not apply extraterritorially). Furthermore, extraterritorial application is supported by the nature of § 2251A and Congress’s other efforts to combat child pornography. Section 2251A is part of a comprehensive scheme created by Congress to eradicate the sexual exploitation of children and eliminate child pornography, and therefore warrants a broad sweep. See United States v. Thomas, 893 F.2d 1066, 1068–69 (9th Cir. 1990) (citing 18 U.S.C. §§ 2241–2257). Since 1977, Congress has passed numerous statutes to combat child pornography and the sexual exploitation of children.12 As part of this effort, § 2251A was included in the Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No. 100-690, Title VII, Subtitle N, § 7512, 102 Stat. 4181 (1988) (“1988 Act”).13 The statute falls under Chapter 110 of See, e.g., Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95-225, 92 Stat. 7 (1978); Child Protection Act of 1984, Pub. L. No. 98-292, 98 Stat. 204 (1984); Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No. 100-690, Title VII, Subtitle N, 102 Stat. 4181 (1988); Sex Crimes Against Children Prevention Act of 1995, Pub. L. No. 104- 71, 109 Stat. 774 (1995); Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, Div. A, Title I, § 121, 110 Stat. 3009-26 (1996); Protection of Children from Sexual Predators Act of 1998, Pub. L. No. 105-314, 112 Stat. 2974 (1998); Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (“PROTECT Act”), Pub. L. No. 108-21, 117 Stat. 650 (2003). The 1988 Act provided federal prosecutors with a number of tools to better combat child pornography, including provisions that criminalized “computer porn,” made child pornography Title 18 of the United States Code, which punishes offenses dealing with the sexual exploitation and other abuse of children. Courts have applied other child pornography statutes found in this chapter extraterritorially on the authority of Bowman, further evincing the broad sweep of these statutes. See, e.g., United States v. Harvey, 2 F.3d 1318, 1320, 1327–28 (3d Cir. 1993) (applying 18 U.S.C. § 2252(a)(4)(B) extraterritorially);14 Thomas, 893 F.2d at 1068–69 (applying 18 U.S.C. § 2251(a) extraterritorially). In United States v. Kapordelis, 569 F.3d 1291, 1307 (11th Cir. 2009), we adopted the reasoning of Thomas to apply 18 U.S.C. § 2251(a), which punishes similar conduct as § 2251A, extraterritorially.15 Id. (citing Thomas, 893 F.2d at 1069). These courts examined the legislative history and purposes behind the child pornography statutes in question to determine that the nature of the activities covered by these statutes warrants a broad sweep of power.16 Moreover, as the court in Harvey found, “[a] violations predicate acts under the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, criminalized possession with intent to distribute obscenity that has crossed state lines, restricted “dial-a-porn” businesses, and made possession of child pornography with intent to distribute on federal property a criminal offense. See 1988 Act §§ 7511, 7514, 7521, 7524, 7526. Section 2252(a)(4)(B) prohibits the knowing possession of child pornography that has been mailed or transported in interstate or foreign commerce. Section 2251(a) punishes anyone who “employs, uses, persuades, induces, entices, or coerces any minor” for the purpose of producing child pornography. When Congress passed the 1988 Act, it did so to enact § 2251A, but also to amend § 2251. See 1988 Act § 7511. For instance, the Protection of Children Against Sexual Exploitation Act of 1977 was passed to “greatly enhance” the “weapons to combat child pornography and child prostitution.” Harvey, primary motivation for expanding the anti-child pornography laws was that ‘many of the sources of child pornography never came within the purview of federal investigators.’” 2 F.3d at 1327 (quoting S. Rep. No. 95-438, at 10 (1977)); see also Statement of Sen. Joseph R. Biden, Hearing on Child Pornography Protection Act of 1996, available at 1996 WL 292976 (F.D.C.H.) (June 4, 1996) (stating that Congress has “kept a sharp eye on the problem of child pornography, and where [it] ha[s] found gaps in the coverage of the criminal law, [it] ha[s] moved quickly to fill them”). Congress has also amended its laws to allow for extraterritorial application when it has discovered loopholes in its statutory scheme. See, e.g., Baker, 609 F.2d at 137–38 (finding support in the fact that the Comprehensive Drug Abuse Prevention and Control Act of 1970 contained a variety of provisions explicitly covering extraterritorial acts). For instance, Congress amended 18 U.S.C. § 2423 in 2003 to eliminate the requirement that the government had to prove the intent to engage in sexual activity, and instead allowed prosecution where the defendant traveled in foreign commerce and actually engaged in illicit sexual activity with a minor. See PROTECT Act, § 105, 117 Stat. at 654, codified as amended at 18 2 F.3d at 1327 (quoting S. Rep. No. 95-438, at 9). Congress passed the Act “as part of its continuing effort to contain the evils caused on American soil by foreign as well as domestic suppliers of [child pornography].” Id. (alteration in original) (quoting United States v. Wright-Barker, 784 F.2d 161, 167 (3d Cir. 1986)). U.S.C. § 2423(c); H.R. Rep. No. 107-525 (2003) (Congress noted that this “legislation [would] close significant loopholes in the law that persons who travel to foreign countries seeking sex with children are currently using to their advantage in order to avoid prosecution”). Additionally, Congress enacted 18 U.S.C. § 2251(c) to clarify that acts covered under 18 U.S.C. § 2251(a) applied extraterritorially. See H.R. Rep. No. 108-66, at 62–63 (2003) (Conf. Rep.) (implying that the enactment of § 2251(c) was partly in response to Thomas). The language of § 2251A requiring travel in foreign commerce, the broad sweep warranted by child pornography offenses, and Congress’s repeated efforts to prevent exploiters of children from evading criminal punishment demonstrate that Congress intended § 2251A to apply extraterritorially. 2. Exercise of jurisdiction over Frank comports with international law Before we can give § 2251A extraterritorial effect as Congress intended, we must determine whether doing so would violate international law. MacAllister, 160 F.3d at 1308 & 1308 n.9 (citation omitted) (describing five general principles that permit the exercise of criminal jurisdiction). Jurisdiction exists under the “nationality” principle, which allows a country “to exercise criminal jurisdiction over one of its nationals.” Plummer, 221 F.3d at 1307 (citing Rivard v. United States, 375 F.2d 882, 885–86 (5th Cir. 1967)). Because Frank is a United States citizen, the United States properly exercised jurisdiction over him. See id.; United States v. Reeh, 780 F.2d 1541, 1543 n.2 (11th Cir. 1986) (citing United States v. Mitchell, 553 F.2d 996, 1001 (5th Cir. 1977) (“[A] state may punish the wrongful conduct of its citizens no matter where it takes place.”). Therefore, we find that 18 U.S.C. § 2251A applies extraterritorially to reach Frank’s conduct outside of the United States. C. There was Sufficient Evidence that Frank Engaged in “Illicit Sexual Conduct” and “Purchased” Minors Frank appeals the district court’s denial of his Rule 29 motion for judgment of acquittal, arguing that there was insufficient evidence that he (1) engaged in “illicit sexual conduct” with the minor girls, in violation of 18 U.S.C. § 2423(c), and (2) “purchased” the minor girls, in violation of 18 U.S.C. § 2251A(b). We review the sufficiency of evidence supporting a criminal conviction de novo, with the evidence “viewed in the light most favorable to the government” and “all reasonable inferences and credibility choices made in the government’s favor.” United States v. Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997) (citing United States v. Harris, 20 F.3d 445, 452 (11th Cir. 1994)). “A conviction must be upheld unless the jury could not have found the defendant guilty under any reasonable construction of the evidence.” United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999). 1. Illicit sexual conduct under 18 U.S.C. § 2423(c) Frank challenges the sufficiency of the evidence convicting him of three counts of engaging in “illicit sexual conduct” in violation of 18 U.S.C. § 2423(c), which punishes one who “travels in foreign commerce, and engages in any illicit sexual conduct with another person.” In Frank’s case, the illicit sexual conduct was a “commercial sex act . . . with a person under 18 years of age.” 18 U.S.C. § 2423(f).17 Frank contends that there was insufficient evidence that he engaged in a sex act with Minors A, C, and D because his confession does not state which girl or girls had sex with him, rather than only posing for nude pictures. Frank confessed that he took “these young girls” to his hotel room “to have sex with them, or to take nude pictures (pornographic) of them.” D.E. 313 at 2654. Frank’s confession goes on to state, “[a]s for the four young girls police brought here with me, I have taken them to the hotel many times, and among the four, I know the girl named Dieu. The other three I know their faces because these four girls came for the pictures and to have sex together.” D.E. 313 at 2655. The other three girls were Minors A, C, and D. The government also presented photographs that Frank took of the minor girls in sexually explicit poses on the bed and, in some photographs, holding HIV testing kits. Furthermore, Viagra medication, condoms, A “commercial sex act” is “any sex act, on account of which anything of value is given to or received by any person.” 18 U.S.C. § 1591(e)(3). lubricant, and sexually explicit images of other minors were found in Frank’s hotel room at the time of his arrest. Frank’s statement that the minor girls came to his hotel “for the pictures and to have sex together,” taken into account with the other evidence presented, allowed the jury to conclude beyond a reasonable doubt that Frank engaged in illicit sexual conduct with Minors A, C, and D. 2. Purchase of minors under 18 U.S.C. § 2251A As a matter of first impression, we must determine whether paying a minor directly for sex constitutes a “purchase[] . . . of a minor,” as that term is used in 18 U.S.C. § 2251A(b)(2). The jury was instructed that to “purchase” is “to buy or to obtain or acquire in exchange for money or its equivalent, or by paying a price.” D.E. 328 at 4458. Frank argues that there was insufficient evidence that he “purchas[ed] . . . a minor,” as required by 18 U.S.C. § 2251A(b), because (1) the term “purchase” requires that a defendant purchase a minor from a third party, rather than from the minor herself; and (2) the phrase “purchase[] or otherwise obtain[] custody or control” requires that purchase must be a form of control, which Frank argues is only achieved through “sexual slavery,” such as forced prostitution or captivity for the purpose of producing child pornography. We disagree. We interpret words that are not defined in a statute “with their ordinary and plain meaning because we assume that Congress uses words in a statute as they are commonly understood; we give each provision full effect.” United States v. Veal, 153 F.3d 1233, 1245 (11th Cir. 1998); see also Smith v. United States, 508 U.S. 223, 228, 113 S. Ct. 2050, 2054 (1993). “Review of legislative history is unnecessary ‘unless a statute is inescapably ambiguous.’” Veal, 153 F.3d at 1245 (quoting Solis-Ramirez v. U.S. Dep’t of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985) (per curiam)). Section 2251A(b)(2)(A) punishes “[w]hoever purchases or otherwise obtains custody or control of a minor . . . with intent to promote . . . the engaging in of sexually explicit conduct by such minor for the purpose of producing any visual depiction of such conduct.” “Purchase,” as used in 18 U.S.C. § 2251A(b), is not defined. Therefore, we must construe the term in accordance with its ordinary meaning. The dictionary defines “purchase” as “to get into one’s possession” or “to obtain (something desired) by an outlay.” Webster’s Third New International Dictionary 1844 (Philip Babcock Gove et. al. eds., 1981). “Obtain” is defined as “to gain or attain possession or disposal” or “hold, keep, possess, occupy.” Id. at 1559. “Possession” is defined as “the act or condition of having in or taking into one’s control or holding at one’s disposal.” Id. at 1770. By contrast, the word “hire” is defined as “to engage the personal services of for a fixed sum.” Id. at 1072. A fashion designer, therefore, would not say that she “purchased” a clothing model for a photo shoot because that relationship lacks the requisite element of “taking into one’s control.” Rather, the designer would say that she “hired” a clothing model because the relationship is contractual, not possessive. The phrase “purchase a woman,” however, can be used synonymously with prostitution. See, e.g., Teela Sanders, Maggie O’Neill, Jane Pitcher, Prostitution: Sex Work, Policy & Politics 85 (Sage Publications Ltd. 2009); Janice G. Raymond, Legitimating Prostitution as Sex Work: UN Labour Organization (ILO) Calls for Recognition of the Sex Industry (Part One) 2003, available at http://sisyphe.org/spip.php?article689 (last visited Mar. 11, 2010); Stefan Zweig, The World of Yesterday 83 (University of Nebraska Press 1964) (1943). This use of the word “purchase” is indicative of the complicated nature of prostitution, an act that some argue blurs the very line between possession and free will. See Dorchen A. Leidholt, Co-Executive Dir., Coal. Against Trafficking in Women, Sex Trafficking is Contemporary Slavery: Statement Presented to the United Nations General Assembly (Dec. 6, 1996), available at http://cpcabrisbane.org/Kasama/1997/V11n2/SexTrafficking.htm (last viewed Mar. 11, 2010). For this reason, it has been suggested that selling onself for money is a form of temporary enslavement. See id. An understanding of the phrase “purchases . . . a minor” to include paying a minor for sex, therefore, is acceptable under 18 U.S.C. § 2251A(b), despite the word “purchase” not generally being associated with payment for services in other contexts. See Smith, 508 U.S. at 230, 113 S. Ct. at 2055 (holding that the most common definition of a word does not preclude other accepted alternatives). For this reason, we find Frank’s narrow interpretation of “purchase,” which would only apply to situations where a third party sells a minor against her will to the defendant, to be at odds with its plain meaning and the context of 18 U.S.C. § 2251A. “Purchase” does not require the sale of a minor from a third party to the defendant. In the context of child prostitution, the minor herself is turned into an object or commodity, by selling her body to be used by the defendant for a certain purpose. A minor cannot separate her services from herself because she lacks the capacity to do so. Congress used the term “purchase” alone, rather than “purchase from the minor herself,” “purchase a minor’s services,” or “purchase from another,” to encompass situations where money is paid to a third party and where money is paid directly to the minor. See, e.g., Smith, 508 U.S. at 228–30, 113 S. Ct. at 2054–55 (holding that “use” of a firearm included the exchange of a gun for drugs and noting that simply because “use as a weapon” is the first example “to come to mind when the phrase ‘uses . . . a firearm’ is uttered does not preclude us from recognizing that there are other ‘uses’ that qualify as well”); United States v. Murrell, 368 F.3d 1283, 1286–87 (11th Cir. 2004) (“inducing” a person to engage in prostitution encompassed situations where a person communicated with a third party). If Congress intended to use a narrower construction, it could have expressed that intent in the language. Smith, 508 U.S. at 229, 113 S. Ct. at 2054. However, it did not, and we will not impose an additional requirement that a middleman be involved. See id. Furthermore, the context of “purchase” in § 2251A mandates a broad interpretation. Viewed in isolation, “purchase” may seem to imply ownership obtained from a third party, but the context of “purchase” in § 2251A does not allow such a restrictive construction. See id. at 229 (“Language, of course, cannot be interpreted apart from context. The meaning of a word that appears ambiguous if viewed in isolation may become clear when the word is analyzed in light of the terms that surround it.”). Section 2251A(b)(2) punishes a person who “purchases or otherwise obtains custody or control of a minor.” “Custody or control,” in turn, is defined broadly as “includ[ing] temporary supervision over or responsibility for a minor whether legally or illegally obtained.” 18 U.S.C. § 2256(7) (emphasis added). “Control” does not require the exchange of a minor from a third party to the defendant. For example, one can obtain control over a minor by kidnaping him or her. See, e.g., United States v. Buculei, 262 F.3d 322, 331–33 (4th Cir. 2001) (finding that defendant exercised control over a minor when he drugged her, and declining to require that control be obtained from the minor’s parents). Moreover, neither custody nor control require ownership of the minor or any other permanent relationship; rather, the “custody or control” can be “temporary.” 18 U.S.C. § 2256(7). Because “custody or control” is given an expansive definition, it would be inconsistent to narrow the meaning of “purchase” to imply ownership or sale by a third party. Additionally, Frank argues that the use of “otherwise” in § 2251A demonstrates that “purchase” must be a form of control, and that such control was not found by the jury. In a special verdict form offered by the defense, the jury was asked to determine whether Frank committed the following act or acts: “Purchase only,” “Control only,” or “Both purchase and control.” D.E. 244 at 1–2. The jury selected “Purchase only.” Id. Frank argues that because the jury did not select “Both purchase and control,” there was insufficient evidence of “control,” which he argues is required for “purchase” under § 2251A. Frank is incorrect, however, because as previously discussed, control is inextricably intertwined within the meaning of purchase. For this reason, paying a minor money in exchange for sex constitutes the “purchase[] . . . of a minor.” It is the purchase itself, the paying of money to obtain or acquire the minor’s body, that is the means of control. Frank’s narrow construction of “purchase” would undercut Congress’s intent to cast a wide net in preventing the sexual exploitation of children. See supra, Section B, Part 1. The efficacy of § 2251A “would be eviscerated if a defendant could circumvent the statute simply by” targeting a minor directly, rather than a parent or other third party. Murrell, 368 F.3d at 1287. We find that the term “purchase,” as used in § 2251A(b), covers situations where a defendant pays a minor directly for sex. Frank’s confession states that he paid young girls to have sex or take nude pictures and that he knew Minors A, C, and D because they had gone to his hotel room “for the pictures and to have sex together.” D.E. 313 at 2655 (emphasis added). Thus, a jury could have rationally found that Frank paid the minors to engage in sex and to take sexually explicit pictures. As such, the jury reasonably found that Frank “purchased” the minor girls when he paid them money to return to his hotel in order to engage in sexual relations. D. The District Court Properly Instructed the Jury as to “Purchase” and “Sexual Act” We review the legal correctness of jury instructions de novo, but defer to the district court on questions of phrasing absent an abuse of discretion. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). 1. Jury instruction on “purchase” in 18 U.S.C. § 2251A(b) Frank’s arguments regarding the district court’s jury instruction on “purchase” are based on his assertion that “purchase” requires a third party. He argues that the jury instruction allowed the government to argue to the jury that purchasing a minor from herself was sufficient under 18 U.S.C. § 2251A. For the reasons previously given, we find his argument to be unavailing. See supra, Section C, Part 2. 2. Jury instruction on “sexual act” in 18 U.S.C. § 2423(b) Frank argues that the district court erred in its jury instruction defining “sexual act.” The instruction was given for Count 10, charging a violation of 18 U.S.C. § 2423(b), which punishes a person who travels with the intent to engage in illicit sexual conduct.18 Frank challenges the following instruction defining “sexual act:”19 “Illicit sexual conduct” is defined as “(1) a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States; or (2) any commercial sex act (as defined in section 1591) with a person under 18 years of age.” 18 U.S.C. § 2423(f). Frank asserts that this instruction was given for Counts 1–5, which deal with 18 U.S.C. § 2423(c), a statute that punishes the engaging in of illicit sexual conduct. However, the above instruction was actually given for Count 10, charging a violation of 18 U.S.C. § 2423(b), and Frank’s arguments relate to the element of intent in § 2423(b). A, contact between the penis and the vulva or the penis and the anus involving penetration, however slight; B, the penetration, however slight, of the anal or genital opening by a hand or finger with an intent to arouse or gratify the sexual desire of any person; or, C, the intentional touching, not through the clothing, of the genitalia with an intent to arouse or gratify the sexual desire of any person. D.E. 328 at 4460. The instruction tracks the language of 18 U.S.C. § 2246, which defines “sexual act.” Frank argues that the instruction is inappropriate because there was no evidence in the photographs of penetration with a hand or finger or intentional touching with the intent to arouse or gratify sexual desire, which he contends are more specific types of touching. However, there did not have to be evidence that such conduct occurred, since the jury could have inferred from the photographs that Frank intended to engage in such conduct, in violation of 18 U.S.C. § 2423(b).20 As a result, the district court did not err in its jury instruction on “sexual act” under 18 U.S.C. § 2423(b). E. Comments Made During the Opening and Closing Statements Do Not Warrant Reversal Frank argues that improper arguments made in the government’s opening and closing statements unfairly prejudiced him. “Prosecutorial misconduct Even if the evidence is insufficient to support alternative legal theories of liability (in this case Sections B and C of the jury instructions), a jury instruction on that theory “does not provide an independent basis for reversing an otherwise valid conviction.” Griffin v. United States, 502 U.S. 46, 59–60, 112 S. Ct. 466, 474 (1991) (jurors presumed capable of convicting on factually supported grounds and rejecting unproven alternative grounds); see also United States v. Stone, 9 F.3d 934, 939 (11th Cir. 1993) (quoting Griffin, 502 U.S. at 60, 112 S. Ct. at 474). requires a new trial only if we find the remarks (1) were improper and (2) prejudiced the defendant[’s] substantive rights.” United States v. Delgado, 56 F.3d 1357, 1368 (11th Cir. 1995) (citing United States v. Cole, 755 F.2d 748, 767 (11th Cir. 1985)). We must examine the statements “in the context of the trial as a whole and assess their probable impact on the jury.” United States v. Hernandez, 145 F.3d 1433, 1438 (11th Cir. 1998). “A defendant’s substantial rights are prejudicially affected when a reasonable probability arises that, but for the remarks, the outcome [of the trial] would be different.” United States v. Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998) (alteration in original) (quoting United States v. Hall, 47 F.3d 1091, 1098 (11th Cir. 1995)). Thus, even when error occurs, the defendant’s substantial rights are not affected if the evidence sufficiently established his guilt. United States v. Adams, 74 F.3d 1093, 1100 (11th Cir. 1996). Nevertheless, the “cumulative effect of several errors that are harmless by themselves could so prejudice the defendant’s right to a fair trial that a new trial might be necessary.” United States v. Preciado-Cordobas, 981 F.2d 1206, 1215 n.8 (11th Cir. 1993). If the defendant fails to object to the alleged misconduct below, this Court reviews for plain error. United States v. Abraham, 386 F.3d 1033, 1036 (11th Cir. 2004) (per curiam) (citation omitted). Plain error requires (1) an error, (2) the error is plain or obvious, and (3) the error affects the defendant’s substantial rights. United States v. Olano, 507 U.S. 725, 732–34, 113 S. Ct. 1770, 1777–78 (1993). “The plain error rule should be used sparingly, and a conviction should be reversed only if ‘a miscarriage of justice would otherwise result.’” United States v. Elkins, 885 F.2d 775, 787 (11th Cir. 1989) (quoting United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046 (1985)). Frank claims that the government committed reversible error in referring to admissible 404(b) evidence in its opening argument when that evidence was not ultimately introduced. Because Frank did not object below to the statement, we review for plain error. The prosecutor informed the jury that it would hear from Sovanny Ly, an underage Cambodian prostitute whom Frank allegedly paid for sex. Her testimony would have helped establish Frank’s intent to engage in illicit sexual conduct in Cambodia, as required by 18 U.S.C. § 2423(b). However, the prosecution never called Ly as a witness. We have refused to find plain error in a prosecutor’s reference in opening statements to evidence that was never introduced at trial, particularly absent a showing of bad faith. Id. at 787; United States v. Gray, 730 F.2d 733, 735 (11th Cir. 1984) (per curiam). Frank concedes that the government did not make the misstatement in bad faith. As such, we find no plain error in the prosecutor’s comment. Frank also claims that the prosecutor committed reversible error when he made the following remarks in closing argument: (1) that the prosecution did not have to prove that Frank was a “shark,” “predator,” “child molester,” or “pederast,” but that the jury would conclude that Frank had an unnatural sexual interest in underage girls; (2) that the prosecutor did not doubt that Frank wished to move to Cambodia and buy a house to fill with kids; and (3) that Frank produced child pornography. We review the first two statements for plain error because the defense did not object to them below. The defense objected to the last statement, and the district court issued a curative instruction that this was not a child pornography case. The comments about “sharks” and “predators” were made in response to the defense’s closing statement, which described Frank as a “dolphin,” instead of a predatory “shark” that exploits young foreign girls. The defense concluded that if Frank was “not the predator, then [the jury] must set him free.” A prosecutor is entitled to make a fair response to defense counsel’s arguments, and when the defense elicits otherwise inadmissible statements, any error is invited. United States v. Ard, 731 F.2d 718, 728 (11th Cir. 1984) (citing United States v. Russell, 703 F.2d 1243, 1248 (11th Cir. 1983); United States v. Males, 715 F.2d 568, 571 (11th Cir. 1983)). While the statement about filling a house with children may have been improper, we find no plain error in the statement. The statement that Frank made his own child pornography was a reference to the numerous sexually explicit photographs that had been admitted into evidence. Further, any error was cured when the district court instructed the jury to disregard the reference. See United States v. Gonzalez, 122 F.3d 1383, 1389 (11th Cir. 1997). Even assuming the remarks made during opening and closing statements were errors, they did not affect Frank’s substantial rights. In light of the several-week trial, the evidence of Frank’s guilt (including his own statements), the court’s curative instruction as to one statement, and its general instructions that comments of counsel were not evidence, the errors did not prejudice Frank, even considered cumulatively. As a result, the prosecutor’s statements do not warrant reversal. F. The District Court Properly Imposed Multiple Sentences for Counts 2, 4, and 5 (Violations of 18 U.S.C. § 2423(c)) Frank argues that the district court erred when it imposed multiple counts and sentences for Counts 2, 4, and 5, which convicted Frank of traveling in foreign commerce and engaging in illicit sexual conduct with Minors A, C, and D, in violation of 18 U.S.C. § 2423(c). For each of Counts 2, 4, and 5, Frank was sentenced to concurrent terms of 360 months’ imprisonment. “Multiplicity is the charging of a single offense in more than one count,” which could result in multiple sentences for the same offense or could prejudice the jury by suggesting the defendant committed several crimes instead of one. United States v. Langford, 946 F.2d 798, 802 (11th Cir. 1991) (citing United States v. Anderson, 872 F.2d 1508, 1520 (11th Cir. 1989)). Frank argues that the district court should not have imposed multiple sentences because he engaged in sexual conduct with the minors in one trip to Cambodia. We review for plain error because Frank did not object to his multiple sentences below. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). This Court has held that “an error cannot meet the ‘plain’ requirement of the plain error rule if it is not clear under current law.” United States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) (per curiam) (alteration in original) (quoting United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) (per curiam)). Therefore, if the explicit language of the statute or rule does not specifically resolve the issue, and there is no precedent from this Court or the Supreme Court directly resolving it, there is no plain error. Id. (citing Chau, 426 F.3d at 1322). To determine whether an indictment is multiplicitous, courts must determine the allowable unit of prosecution. Langford, 946 F.2d at 802. In Bell v. United States, 349 U.S. 81, 81–84, 75 S. Ct. 620, 621–22 (1955), the Supreme Court addressed the issue of multiplicity in relation to a statute criminalizing the transportation of women for purposes of prostitution. The Court applied the rule of lenity to construe the allowable unit of prosecution as the “transportation,” and therefore held that there was only one offense when the defendant transported two women in one vehicle in one trip. Id. However, because 18 U.S.C. § 2423(c) punishes both traveling and engaging in illicit sexual conduct, Bell does not directly resolve the question of whether 18 U.S.C. § 2423(c) allows multiple sentences for making a single trip during which the defendant engaged in illicit sexual conduct with multiple minors. Frank’s crime concerned travel to Cambodia and the sexual exploitation of three separate minors. Accordingly, we find no plain error in the court’s imposition of multiple sentences because any error is not clear under existing law. G. The District Court Did Not Violate Federal Rule of Criminal Procedure 30 Frank argues that the district court violated Federal Rule of Criminal Procedure 30 when it provided the jury with supplemental instructions and a special verdict form during deliberations, which stated that jurors only had to find either purchase or control for Counts 6–9. Rule 30(b) requires the district court to inform the parties before closing arguments as to how it will rule on requested instructions, so that counsel is able to argue intelligently to the jury. United States v. Pena, 897 F.2d 1075, 1084 (11th Cir. 1990). However, when a party agrees with a court’s proposed instructions, the doctrine of invited error applies, meaning that review is waived even if plain error would result. United States v. Fulford, 267 F.3d 1241, 1247 (11th Cir. 2001); United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998) (per curiam). Frank invited error when he not only agreed with the supplemental instructions and special verdict form, but requested them. Therefore, he has waived his right to challenge the district court’s admission of these instructions. H. The District Court Properly Admitted Frank’s Confession We review evidentiary rulings for abuse of discretion. United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir. 1990) (citing United States v. Kelly, 888 F.2d 732, 743 (11th Cir. 1989)). Further, we will not reverse an evidentiary error unless “there is a reasonable likelihood that they affected the defendant’s substantial rights.” Id. Frank argues that the district court abused its discretion when it introduced the statements that he made during his interrogation by Cambodian officials. Frank’s confession was written in the Cambodian language of Khmer by a Cambodian police officer. According to the testimony of the Cambodian interpreter who translated Frank’s statements from English to Khmer, Seng Leena, Frank signed the Khmer confession after Seng translated it to Frank and asked him if it fairly represented Frank’s statements. Thus, the district court admitted the Khmer statement as either an admission by a party-opponent or a statement against interest. See Fed. R. Evid. 801(d)(2); 804(b)(3). An English translation of the Khmer statement was provided to the jury, and neither party objected to the accuracy of this translation. Therefore, the district court did not abuse its discretion in admitting Frank’s confession.21 III. CONCLUSION We find that the district court did not err when it denied Frank’s motion to suppress his statements, admitted those statements at trial, denied Frank’s motion for judgment of acquittal, instructed the jury, and provided the jury with supplemental jury instructions and a special verdict form at defense counsel’s request. We find that 18 U.S.C. § 2251A applies extraterritorially to reach Frank’s conduct. We also find no reversible error in the statements of the prosecutor or the court’s imposition of concurrent 360-month sentences for Counts 2, 4, and 5. Accordingly, we affirm Frank’s convictions and sentences. AFFIRMED Furthermore, Frank’s contention that the admission of his confession violated the Sixth Amendment Confrontation Clause is without merit, as we have held that a party’s own admission offered against him is admissible under the Sixth Amendment. United States v. Brown, 441 F.3d 1330, 1358–59 (11th Cir. 2006).

[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 15, 2010 No. 08-15061 JOHN LEY CLERK D.C. Docket No. 07-21308-CV-ASG DAVID DERMER, Plaintiff–Appellee, versus MIAMI-DADE COUNTY, a political Subdivision of the State of Florida, MIAMI-DADE COUNTY BOARD OF COMMISSIONERS, Defendants–Appellants, BILL MCCOLLUM, Defendant. Appeal from the United States District Court for the Southern District of Florida (March 15, 2010) Before WILSON and ANDERSON, Circuit Judges, and RESTANI,* Judge. RESTANI, Judge: In May 2007, Plaintiff-Appellee David Dermer sued Defendant-Appellant Miami-Dade County, inter alia, for declaratory and injunctive relief against Ordinance 06-167 (“the Ordinance”) on the ground that it violated his right to free speech under the First Amendment. Miami-Dade now appeals from an order of the United States District Court for the Southern District of Florida that partially granted Dermer’s cross-motion for summary judgment and permanently enjoined enforcement of the Ordinance on the ground that it is unconstitutional.1 We reverse and hold that the first and second causes of action of Dermer’s complaint, to the extent they pertain to the Ordinance, are not justiciable because Dermer lacks standing, and his claims are not ripe. BACKGROUND In November 2006, the Miami-Dade County Board of County Commissioners enacted the Ordinance, which amended section 12-23 of the Code * Honorable Jane A. Restani, Chief Judge of the United States Court of International Trade, sitting by designation. Dermer also challenges the constitutionality of Ordinance 06-168. Although Dermer’s cross-motion sought summary judgment on both Ordinance 06-167 and Ordinance 06-168, the district court reserved ruling on Ordinance 06-168 pending the Florida Supreme Court’s decision in another case. Dermer v. Miami-Dade County, *43 (No. 07-21308, Aug. 1, 2008) (unpublished opinion). of Miami-Dade County. See Miami-Dade County, Fl., Ordinance 06-167 (Nov. 28, 2006) (“Ordinance 06-167”). The Ordinance provides: It shall be unlawful for any person, entity, or elector intentionally to make or cause to be made any false statement concerning the contents or effect of any petition for initiative, referendum, or recall submitted pursuant to Article 7 of the Miami-Dade County Home Rule Charter to any person who is requested to sign any such petition or who makes an inquiry with reference to any such petition and who relies on such statement. Ordinance 06-167. The Ordinance also provides that “[a]ny person, entity, or elector convicted of a violation of . . . this Code shall be punished by a fine not to exceed five hundred dollars ($500.00) or by imprisonment . . . [of] not more than sixty (60) days, or by both such fine and imprisonment.” Ordinance 06-167. Dermer, a former mayor of Miami Beach, is a resident and registered voter of Miami-Dade County. Dermer claims that he was actively engaged in local politics, specifically past referendums and initiatives, but is now fearful to participate because of the Ordinance. Dermer sued Miami-Dade County seeking declaratory and injunctive relief on the ground that the Ordinance violates his rights under the First Amendment. In Dermer v. Miami-Dade County (No. 07-21308, Aug. 1, 2008) (unpublished opinion), the district court denied Miami-Dade’s motion for summary judgment and granted Dermer’s cross-motion for summary judgment, finding that Dermer had standing because he “read [the Ordinance] and believes that it has a chilling effect on his willingness to participate in any current referendums or to become involved in any initiating of a referendum on any of the important matters of public interest about which he cares deeply.” Id. at *5. The district court held that the Ordinance was unconstitutional because it was overbroad on its face, vague, and failed a strict scrutiny analysis. Id. at *29, *33, *36. The court then struck down the Ordinance in its entirety because the court concluded that it could not sever “the unconstitutional provisions and leave in place an ordinance that is complete.” Id. at *38. JURISDICTION AND STANDARD OF REVIEW “This Court has jurisdiction to entertain appeals of [i]nterlocutory orders of the district courts . . . granting, continuing, modifying, refusing, or dissolving injunctions” under 28 U.S.C. § 1292(a)(1). United States v. Kaley, 579 F.3d 1246, 1252 (11th Cir. 2009) (internal quotation marks and citation omitted). A court, however, lacks subject matter jurisdiction to hear a case if the requirements of Article III of the Constitution are not satisfied. Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005). Thus, a court must first address “the threshold question whether appellees have alleged a case or controversy within the meaning of Art. III of the Constitution or only abstract questions not currently justiciable by a federal court.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 297 (1979); see Bowen v. First Family Fin. Servs., Inc., 233 F.3d 1331, 1339–40 (11th Cir. 2000). To allege a justiciable cause of action, a plaintiff must plead facts that are sufficient to confer standing and demonstrate that the claim is ripe for determination. See Ass’n for Children for Enforcement of Support, Inc. v. Conger, 899 F.2d 1164, 1165 (11th Cir. 1990). We review “questions concerning our subject matter jurisdiction, including standing and ripeness” de novo. Elend v. Basham, 471 F.3d 1199, 1204 (11th Cir. 2006). DISCUSSION In a case involving pre-enforcement review, there is often “doctrinal overlap between standing and ripeness analysis” because these claims “involve the possibility of wholly prospective future injury.” Elend, 471 F.3d at 1205. We will, however, to the extent possible address these issues separately. I. Standing Standing for Article III purposes requires a plaintiff to provide evidence of an injury in fact, causation and redressibility. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). Although the “injury requirement is most loosely applied” when an ordinance is challenged as unconstitutional on its face under the First Amendment, we have repeatedly stressed that when seeking prospective relief, an injury must be imminent. Hallandale Prof’l Fire Fighters Local 2238 v. City of Hallandale, 922 F.2d 756, 760 (11th Cir. 1991); Elend, 471 F.3d at 1210; 31 Foster Children v. Bush, 329 F.3d 1255, 1266–67(11th Cir. 2003). The sole injury that Dermer alleges is “a chilling effect on [his] willingness to participate in any current referendum or to become involved in any initiating of a referendum on any of the important matters of public interest about which [he] care[s] deeply.” (R.E. Tab 50-2 at 2.) While true that “it is not necessary that [a plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights,” Steffel v. Thompson, 415 U.S. 452, 459 (1974), a plaintiff still must demonstrate “an actual and well-founded fear that the law will be enforced against [him],” Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988). Dermer, however, failed to provide the court with anything more than generalizations. He refrained from submitting any detail, such as when, where, or how he intends to exercise his right to free speech in the future, that illuminates the specifics of his claimed injury. Without such elaboration, his mere assertion of a chill is insufficient to demonstrate an injury in fact. See Laird v. Tatum, 408 U.S. 1, 13–14 (1972) (holding that “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm” (emphasis added)); Elend, 471 F.3d at 1209 (holding that even when core political speech is implicated, a plaintiff must provide some “limitation on the universe of possibilities of when or where or how such a [future injury] might occur”). Accordingly, Dermer lacks standing to bring forth this action. II. Ripeness A “[r]ipeness analysis involves the evaluation of two factors: the hardship that a plaintiff might suffer without court redress and the fitness of the case for judicial decision.” Elend, 471 F.3d at 1211. While “[h]ardship can sometimes be established if a plaintiff demonstrates that he would have to choose between violating an allegedly unconstitutional statute or regulation and risking criminal or severe civil sanctions . . . plaintiffs must still demonstrate a credible threat of prosecution.” Id. (internal quotation marks and citations omitted). This requirement is not satisfied if “it would strain credulity to say that there is a credible threat that [a plaintiff’s] First Amendment rights will be violated in the future.” Id. For the reasons discussed in the previous section, Dermer’s allegations contain no factual specificity and, therefore, do not demonstrate a credible threat of prosecution. Id.; see Hallandale, 922 F.2d at 761, 764 (holding that a bald assertion of a chilling effect is not enough to render a case ripe). When a plaintiff lacks standing for prospective relief because the injury in fact requirement is not satisfied, the claim is usually “not ripe because the factual predicate for the injury has not fully materialized.” Elend, 471 F.3d at 1205. Accordingly, Dermer’s cause of action is not ripe for adjudication. CONCLUSION For the foregoing reasons, we REVERSE and VACATE the judgment of the district court and REMAND this case with instructions to DISMISS Dermer’s complaint as to the Ordinance under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.

08-3240-cr USA v. Davis 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2008 4 (Submitted: March 10, 2009 Decided: March 10, 2009 5 Opinion filed: March 15, 2010) 6 Docket No. 08-3240-cr 7 ------------------------------------- 8 UNITED STATES OF AMERICA, 9 Appellee, 10 - v. - 11 CHARLES A. DAVIS, 12 Defendant-Appellant. 13 ------------------------------------- 14 Before: WINTER and SACK, Circuit Judges, and COGAN, District 15 Judge.* 16 Motion for summary affirmance of a sentence imposed on 17 defendant Charles Davis by the United States District Court for 18 the Northern District of New York (Norman A. Mordue, Chief 19 Judge). We have concluded that Davis's appeal of his sentence is 20 not frivolous and therefore denied the motion. We now explain 21 the reasons for our conclusion. 23 PAUL D. SILVER, Assistant United States 24 Attorney, for Andrew T. Baxter, Acting 25 United States Attorney, Albany, NY, for 26 Appellee. * The Honorable Brian M. Cogan, of the United States District Court for the Eastern District of New York, sitting by designation. 1 JAMES F. GREENWALD, Assistant Federal 2 Public Defender, for Alexander Bunin, 3 Federal Public Defender, (James P. Egan, 4 Research & Writing Attorney, of 5 counsel), Syracuse, NY, for Defendant- 6 Appellant. 7 SACK, Circuit Judge: 8 This is a motion for summary affirmance of a sentence 9 before the appeal of the sentence has been fully briefed. After 10 pleading guilty to the receipt and possession of child 11 pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) & 12 (a)(5)(B), respectively, the defendant, Charles A. Davis, was 13 sentenced by the United States District Court for the Northern 14 District of New York (Norman A. Mordue, Chief Judge) to 97 15 months' imprisonment, followed by a 12-year term of supervised 16 release. Davis appealed the sentence on the grounds that it was 17 procedurally and substantively unreasonable. Instead of filing 18 an opposition brief, the government moved for summary affirmance, 19 arguing that Davis failed to raise any non-frivolous issues on 20 appeal. 21 The government's motion was briefed and submitted to 22 the Court without argument on March 10, 2009. On that date, we 23 denied the motion with opinion to follow. This is that opinion. 24 BACKGROUND 25 On February 8, 2008, Davis pleaded guilty to both 26 counts of a two-count indictment charging him with receipt and 27 possession of child pornography, in violation of 18 U.S.C. 28 §§ 2252A(a)(2)(A) & (a)(5)(B). The mandatory minimum sentence 1 for these offenses was 60 months' imprisonment. See id. 2 § 2252A(b)(1)-(2). The Probation Department calculated the 3 Sentencing Guidelines range to be 97 to 121 months' imprisonment, 4 and neither party disputes that calculation. See Def.'s 5 Sentencing Mem. at 2. 6 In his sentencing memorandum to the district court, 7 Davis argued that he should be sentenced to the mandatory minimum 8 of 60 months. He emphasized that he had never acted 9 inappropriately with any child, or traded or distributed 10 pornographic materials. He also pointed out that he was 57 years 11 old and suffered from multiple severe medical problems, including 12 mental health issues. The government requested a sentence within 13 the Guidelines range of 97 to 121 months. 14 At sentencing on June 20, 2008, defense counsel again 15 urged the district court to sentence Davis to the mandatory 16 minimum. Counsel stressed Davis's age and poor health. The 17 government countered that a sentence within the Guidelines range 18 would be reasonable and that "to deviate to the mandatory minimum 19 would be a large deviation and there's no reason in this case for 20 such a deviation." Tr. 4.1 21 The district court agreed with the government. The 22 court explained: "Having reviewed the case, I see no reason to 23 deviate from the ranges that are set forth in the Sentencing All citations to "Tr." refer to the transcript of Davis's June 20, 2008 sentencing proceedings. 1 Guidelines." Tr. 4. The court indicated that it would impose a 2 sentence at the bottom of the Guidelines range. 3 Davis was then given the opportunity to address the 4 court. Davis said that there were "mitigating circumstances" 5 that he had not had the opportunity to present to the probation 6 officer, Tr. 6, although some of those circumstances appear to 7 have been reflected in psychiatric records that were summarized 8 to the district court in an addendum to the Pre-Sentence Report 9 prepared by the Probation Office, see Tr. 8-9; Addendum to Pre- 10 Sentence Report. Davis told the court that he felt "like [he 11 was] being shoved through the system." Tr. 7. The court asked 12 Davis if he wanted an adjournment. Davis declined to make that 13 decision, asking the court to make the decision for him. The 14 court decided to proceed with the sentencing. 15 The court sentenced Davis to 97 months' imprisonment, 16 at the bottom of the Guidelines range, to be followed by a term 17 of 12 years' supervised release. Davis immediately indicated 18 that he wished to appeal his sentence, which the court assured 19 him he would have the opportunity to do. Davis said that he had 20 not hurt anybody and once again mentioned his health problems. 21 The judgment against Davis was entered on June 26, 22 2008. Davis filed a notice of appeal the same day. Through 23 counsel, he makes two arguments on appeal. 24 First, he contends that his sentence is procedurally 25 unreasonable because the district court wrongly treated the 26 Sentencing Guidelines as presumptively reasonable. See Nelson v. 1 United States, 129 S. Ct. 890, 892 (2009) (per curiam) ("The 2 Guidelines are not only not mandatory on sentencing courts; they 3 are also not to be presumed reasonable.") (emphasis in original). 4 Davis finds factual support for this argument in the district 5 court's statement that it would impose a Guidelines sentence 6 because it saw "no reason" to depart from the Guidelines range. 7 Second, Davis asserts that his sentence is 8 substantively unreasonable. He argues that in light of his age 9 and poor health, a sentence of 97 months' imprisonment is 10 effectively a life sentence, which is greater than necessary to 11 satisfy the goals of just punishment. Cf. United States v. 12 Johnson, 567 F.3d 40, 51 (2d Cir. 2009) (review of sentence for 13 substantive reasonableness "requires an examination of the length 14 of the sentence"); 18 U.S.C. § 3553(a) ("The court shall impose a 15 sentence sufficient, but not greater than necessary, to comply 16 with the purposes set forth in paragraph (2) of this 17 subsection."); id. § 3553(a)(2)(A) (listing purposes of sentence, 18 including "to provide just punishment for the offense"). Davis 19 also argues that the district court failed to consider "the 20 nature and circumstances of the offense and the history and 21 characteristics of the defendant," as it was required to do. Id. 22 § 3553(a)(1). In arguing that his sentence is substantively 23 unreasonable, Davis stresses, as he did before the district 24 court, that he neither distributed nor traded child pornography. 1 The government moves for summary affirmance of the 2 district court's sentence. The motion was filed in lieu of an 3 opposition brief in the underlying appeal.2 4 The government argues that summary affirmance is 5 warranted because Davis has failed to raise any non-frivolous 6 issues on appeal. It contends that nothing in the record 7 supports Davis's assertion that the district court presumed that 8 the Sentencing Guidelines were reasonable, and that the argument 9 of procedural unreasonableness is therefore frivolous. The 10 government further argues that nothing in the record supports 11 Davis's assertion that his sentence is substantively unreasonable 12 because the district court indicated that it had considered all 13 of the factors outlined in 18 U.S.C. § 3553(a) and all of the 14 parties' arguments. The government also relies on the fact that 15 the Sentencing Guidelines generally do not call for a downward 16 departure because of age and medical conditions, and that the 17 calculation of the Guidelines range by the Probation Department 18 did take into account the fact that Davis did not traffic in or 19 distribute child pornography. 20 DISCUSSION 21 I. Motions for Summary Affirmance In its motion, the government requested the opportunity to submit an opposition brief in the underlying appeal should the motion be denied. Because the motion was denied on March 10, 2009, and the underlying appeal remains pending, the government will be given the opportunity to submit an opposition brief. 1 Summary affirmance of a district court's decision in 2 place of full merits briefing and, at the discretion of the 3 court, argument is, and should be treated as, a rare exception to 4 the completion of the appeal process. It is a short-cut and, in 5 light of the liberty and property rights involved, one that is 6 available only if an appeal is truly "frivolous." United States 7 v. James, 280 F.3d 206, 209 (2d Cir. 2002); see also United 8 States v. Torres, 129 F.3d 710, 717 (2d Cir. 1997) (summary 9 affirmance warranted where defendant "presents no non-frivolous 10 issues for appeal"). The unique importance of criminal appeals 11 makes the decision to characterize one as frivolous particularly 12 perilous. Cf. United States v. Rosa, 123 F.3d 94, 98 (2d Cir. 13 1997) ("[W]e have held that the right to appeal serves important 14 interests of both the criminal defendant and of the public at 15 large, so that waivers of that right must be closely scrutinized 16 and applied narrowly."). 17 "An appeal is frivolous when it 'lacks an arguable 18 basis either in law or in fact.' A frivolous action advances 19 'inarguable legal conclusions' or 'fanciful factual 20 allegations.'" Tafari v. Hues, 473 F.3d 440, 442 (2d Cir. 2007) 21 (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)) (internal 22 citations and alterations omitted).3 More than a finding that We have suggested, at least implicitly, that the term "frivolous" has the same meaning whether it arises in the context of a motion to dismiss an appeal (or summarily affirm a district court's judgment), or in another context, such as a request for appellate sanctions. See Formica v. Malone & Assocs., Inc., 907 F.2d 397, 400 (2d Cir. 1990) ("Since we . . . do not find [the] appeal to be frivolous, we deny [the] motion to dismiss the 1 the correct resolution of an appeal seems obvious is required. 2 See Utica Mut. Ins. Co. v. Fireman's Fund Ins. Cos., 748 F.2d 3 118, 119-20 (2d Cir. 1984) (concluding that "the district court 4 was clearly correct," but refusing to award costs and fees for 5 defending the appeal because "the appeal is not frivolous"); 6 United States v. Gironda, 283 F.2d 911, 912 (2d Cir. 1960) (per 7 curiam) (denying government's motion to dismiss appeal as 8 frivolous even though claim on appeal was for deprivation of 9 right to choice of counsel and it was "clear" that defendant was 10 "thoroughly and effectively represented" such that "he was not 11 deprived of counsel"); see also Bobula v. United States Dep't of 12 Justice, 970 F.2d 854, 862 (Fed. Cir. 1992) (appeal not frivolous 13 despite "clear deficiencies"); United States v. Hodges, 190 F. 14 App'x 221, 222 (4th Cir.) (per curiam) (summary affirmance only 15 appropriate in "extraordinary cases") (internal quotation marks 16 omitted), cert. denied, 549 U.S. 1014 (2006); Legal Servs. of N. 17 Cal., Inc. v. Arnett, 114 F.3d 135, 141 (9th Cir. 1997) (appeal 18 not frivolous despite plaintiffs' knowledge "that their position 19 was unsupported by existing precedent"). Easy cases are to be 20 distinguished from inarguable or fanciful ones. Cf. United 21 States v. Potamkin Cadillac Corp., 689 F.2d 379, 381 (2d Cir. 22 1982) (per curiam) (concluding that appeal was "frivolous" where appeal and to impose appellate sanctions." (internal citation omitted)). We see no reason to give any indication to the contrary here, but as we note in the text below, the importance of a criminal defendant's right to appeal does require extreme care in deciding that an appeal is "frivolous" where such a decision would short-circuit a criminal appeal. 1 it "amount[ed] to little more than a continued abuse of process" 2 and "[was] totally lacking in merit, framed with no relevant 3 supporting law, conclusory in nature, and utterly unsupported by 4 the evidence" (internal quotation marks and citation omitted)); 5 Der-Rong Chour v. I.N.S., 578 F.2d 464, 467 (2d Cir. 1978) 6 (granting government's motion for summary affirmance where appeal 7 "appears to represent one more step in an outrageous abuse of 8 civil process through persistent pursuit of frivolous and 9 completely meritless claims"), cert. denied, 440 U.S. 980 (1979). 10 When granting summary affirmance on grounds that a 11 criminal appeal is frivolous, we have emphasized "the need to 12 exercise this authority with care and discrimination to ensure 13 that nonfrivolous claims are fully considered and fairly 14 decided." Pillay v. I.N.S., 45 F.3d 14, 17 (2d Cir. 1995) (per 15 curiam). We have "caution[ed] the bar that overreaching attempts 16 to dismiss appeals as frivolous, like excessively zealous claims 17 that adversary counsel should be sanctioned, will not be accorded 18 a friendly reception by this court." Id. "[W]e must exercise 19 great care in labeling a certain action or argument as frivolous, 20 for doing so often carries grave consequences." Tafari, 473 F.3d 21 at 441. 22 II. Procedural Reasonableness 23 We are not persuaded that Davis's appeal is frivolous. 24 It rests on neither fanciful allegations of fact nor inarguable 25 assertions of law. In asserting that his sentence is 26 procedurally unreasonable, Davis essentially proffers a close 1 reading of the language used by the district court in explaining 2 its decision not to impose a sentence below the Guidelines range. 3 The district court said that it found "no reason" to give a 4 below-Guidelines sentence; Davis infers from the district court's 5 language that it was operating from the presumption that a 6 Guidelines sentence would be reasonable. According to Davis, the 7 district court's choice of words implied that it thought it 8 needed an affirmative reason to stray from the Guidelines, 9 whereas it needed no reason to impose a Guidelines sentence 10 because a Guidelines sentence is presumed to be reasonable.4 11 We of course express no view at this time as to whether 12 this interpretation is correct -- the central point we are 13 making, after all, is that we will reach no such view without 14 completion of the appeal process. We conclude only that Davis's 15 position is not inarguable nor totally devoid of support. 16 Arguments to the effect that the position advanced by Davis is The government distinguishes this case from United States v. Valdez, 277 F. App'x 106 (2d Cir. 2008), a non-precedential decision in which we inferred from the district court's observation that "unless I find something in [18 U.S.C. §] 3553 which justifies me not accepting what Congress has deemed to be an appropriate punishment for this offense, I really don't have any discretion," id. at 107, that the court mistakenly presumed the Sentencing Guidelines to be reasonable and thereby committed procedural error. Accepting for purposes of this motion the government's argument that the inference of procedural error was easier to draw from the district court's language in Valdez than it is from the district court's language in this case, that hardly establishes this appeal as frivolous. Davis's argument is not that Valdez controls this case, but that Valdez provides an example of the same kind of procedural error that Davis attributes to the district court here. 1 clearly wrong belong in an opposition brief.5 We therefore deny 2 the motion for summary affirmance. 3 III. Substantive Unreasonableness 4 Our conclusion on the procedural unreasonableness claim 5 alone requires us to deny the government's motion to dismiss 6 Davis's appeal. We observe nonetheless that his argument that 7 his sentence is substantively unreasonable is also not frivolous. 8 Davis correctly identifies the district court's obligation to 9 consider the history and characteristics of the defendant under 10 18 U.S.C. § 3553(a), and points to specific aspects of his 11 history and character and specific circumstances of his 12 conviction that he believes make a sentence of 97 months' 13 imprisonment substantively unreasonable. His argument that the 14 sentence imposed by the district court reflects an insufficient 15 consideration of these factors, whatever its ultimate merit, is 16 not so completely baseless as to be frivolous. Cf., e.g., United 17 States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009) 18 (finding Guidelines sentence to be substantively unreasonable 19 because it "fails properly to reflect § 3553(a) considerations") 20 (quoting Rita v. United States, 551 U.S. 338, 351 (2007)). 21 In arguing for dismissal of the appeal, the government 22 stresses the deference we employ in reviewing a district court's The government argues that because Davis did not raise the procedural error argument before the district court, that argument should be analyzed under the "plain error" standard of review. See, e.g., United States v. Savarese, 404 F.3d 651, 656 (2d Cir. 2005). But if the district court did presume the reasonableness of a Guidelines sentence, it would not be frivolous to argue that such an error constituted plain error. 1 determination of an appropriate sentence. We review sentences 2 for reasonableness, and in evaluating the reasonableness of a 3 sentence we do indeed apply a deferential abuse-of-discretion 4 standard. See Johnson, 567 F.3d at 51 ("'[W]e will not 5 substitute our own judgment for the district court's on the 6 question of what is sufficient to meet the § 3553(a) 7 considerations in any particular case' and [ ] the substantive 8 determination of a District Court will be set aside only in those 9 special cases where the range of permissible decisions does not 10 encompass the District Court's determination." (quoting United 11 States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc))). 12 And "[w]here an appeal challenges actions or findings of the 13 district court to which an appellate court gives deference by 14 judging under an abuse of discretion or clearly erroneous 15 standard, the court is more likely to find that the appellant's 16 arguments are frivolous." Cooter & Gell v. Hartmarx Corp., 496 17 U.S. 384, 407 (1990) (internal quotation marks and citation 18 omitted);6 see also id. ("[B]ecause the district court has broad 19 discretion to impose Rule 11 sanctions, appeals of such sanctions 20 may frequently be frivolous."). 21 But we do have the duty to examine the substance of the 22 sentence and to "patrol the boundaries of [the] reasonableness," 23 Cavera, 550 F.3d at 191, of the district court's exercise of It bears noting that in Cooter the Supreme Court was discussing what standard of review should be applied to an appeal of Rule 11 sanctions; it was not discussing appeals from sentences or criminal appeals of any kind. Indeed, Cooter did not concern the question of whether an appeal was frivolous. 1 discretion in this regard. Strong deference to a district 2 court's decision is not an invitation to rush to characterize an 3 appeal from it as frivolous. See, e.g., Argo Marine Sys., Inc. 4 v. Camar Corp., 755 F.2d 1006, 1015 (2d Cir. 1985) (declining to 5 find appeal of sanctions frivolous, even though decision to award 6 sanctions had been "subject to the sound discretion of the 7 district court"). 8 True, as the government argues, Davis has already 9 raised before the district court the same factors he now asserts 10 dictated a lower sentence -- his age, his poor health, and the 11 fact that he never distributed or traded in child pornography. 12 But that they were raised and considered obviously does not make 13 them frivolous. That is what we ordinarily do: review matters 14 that were raised before the district court but decided in a way 15 that the appellant urges us was wrong. 16 The government also argues that under the Sentencing 17 Guidelines, age and health concerns ordinarily do not mandate a 18 downward departure, and the circumstances of the offense have 19 already been adequately accounted for in the calculation of 20 Davis's Guidelines offense level. That misses the point. 21 Davis's contention is not that the district court or the 22 Probation Department miscalculated the Guidelines range, but that 23 a Guidelines sentence was unreasonable in this case because of 24 certain factors that were appropriate to consider under section 25 3553(a). 1 The government points out that we have "recognize[d] 2 that in the overwhelming majority of cases, a Guidelines sentence 3 will fall comfortably within the broad range of sentences that 4 would be reasonable in the particular circumstances." United 5 States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). But even as 6 we recognized that, we "expressed a commitment to avoid the 7 formulation of per se rules to govern our review of sentences for 8 reasonableness." Id. The government has not shown that it is 9 frivolous to argue that this case is an exception to the 10 "overwhelming majority of cases." It will have the opportunity 11 to show that such an argument lacks merit in the ordinary course 12 of this appeal. 13 CONCLUSION 14 For the foregoing reasons, we denied the government's 15 motion for summary affirmance. The Clerk is directed to set a 16 briefing schedule for the government to file an opposition brief 17 and for Davis to file a reply if he so chooses.

08-5504-cv In re: Lafarge N. Am ., Inc. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term 2009 4 Docket Nos. 08-5504-cv (L); 09-1104-cv (CON); 09-1139-cv (CON); 5 09-1149-cv (CON); 09-1153-cv (CON) 6 Argued: November 16, 2009 Decided: March 15, 2010 7 _____________________________________________________________________________ 8 NEW YORK MARINE AND GENERAL INSURANCE COMPANY, 9 Plaintiff-Counter-Defendant-Appellee-Cross-Appellant, 10 - v.- 11 LAFARGE NORTH AMERICA, INC., 12 Defendant-Counter-Plaintiff-Appellant-Cross-Appellee. 13 _____________________________________________________________________________ 14 AMERICAN STEAMSHIP OWNERS MUTUAL PROTECTION AND INDEMNITY 15 ASSOCIATION, INC., 16 Plaintiff-Counter-Defendant-Appellee, 17 - v.- 18 LAFARGE NORTH AMERICA, INC., 19 Defendant-Counter-Plaintiff-Appellant. 20 _____________________________________________________________________________ 21 THE NORTHERN ASSURANCE COMPANY OF AMERICA and AMERICAN HOME 22 ASSURANCE COMPANY, 23 Plaintiffs-Counter-Defendants-Appellants-Cross-Appellees, 24 NEW YORK MARINE AND GENERAL INSURANCE COMPANY, 25 Intervenor Plaintiff-Counter-Defendant-Appellee-Cross-Appellant, 26 - v.- 27 LAFARGE NORTH AMERICA, INC., 28 Defendant-Counter-Plaintiff-Appellant-Cross-Appellee — 1 Appellee-Cross-Appellant, 2 AMERICAN STEAMSHIP OWNERS MUTUAL PROTECTION AND INDEMNITY 3 ASSOCIATION, INC., 4 Defendant-Appellee.* 5 _____________________________________________________________________________ 6 Before: MINER and STRAUB, Circuit Judges.** 7 Insured- and insurers-appellants appeal from an order entered on January 29, 2007, and 8 summary judgments entered on October 27, 2008, and February 19, 2009, in the United States 9 District Court for the Southern District of New York (Haight, J.), the court having, inter alia, (1) 10 dismissed all causes of action brought against insurer-appellee, after concluding that the insurer- 11 appellee was not responsible under a liability policy for damages allegedly caused by a breakaway 12 barge that was moored to the insured’s facility during Hurricane Katrina; (2) granted the insured 13 the fees and expenses of two of the three law firms it retained, based on a finding that the insurer- 14 appellant’s policy permitted insured to take reasonable protective measures to minimize exposure 15 to liability arising from the breakaway barge; and (3) denied insured’s motion to transfer and its 16 application for attorneys’ fees incurred in connection with motions before the district court. 17 Affirmed in part, vacated in part, and remanded. 18 ANTHONY J. PRUZINSKY , John J. Sullivan, Robert G. 19 Clyne, Hill Rivkins & Hayden LLP, New York, New 20 York, for Lafarge North America, Incorporated. 22 JOHN A.V. NICOLETTI, Nooshin Namazi, Kevin J.B. 23 O’Malley, Nicoletti Hornig & Sweeney, New York, 24 New York, for The Northern Assurance Company 25 of America and American Home Assurance 26 Company. 27 DAVID H. FROMM and Michael P. Naughton, Brown 28 Gavalas & Fromm LLP, New York, New York, for 29 New York Marine and General Insurance Company. 30 JOHN M. WOODS and John R. Stevenson, Clyde & 31 Co. US LLP, New York, New York, for American 32 Steamship Owners Mutual Protection and Indemnity 33 Association, Incorporated. 35 MINER, Circuit Judge: * The Clerk of the Court is directed to amend the official caption in this case to conform to the listing of the parties above. ** Because the Honorable José A. Cabranes recused himself prior to oral argument, this appeal is being decided by the remaining two members of the panel pursuant to Second Circuit Internal Operating Procedure E(b). 1 Insured defendant-counter-plaintiff-appellant-cross-appellee Lafarge North America, Inc. 2 (“Lafarge”), intervenor and primary-insurer plaintiff-counter-defendant-appellee-cross-appellant 3 New York Marine and General Insurance Company (“NYMAGIC” or the “primary insurer”), and 4 excess-insurers plaintiffs-counter-defendants-appellants-cross-appellees Northern Assurance 5 Company of America (“NACA”) and American Home Assurance Company (“AHAC” or, 6 collectively with NYMAGIC, in its additional capacity as excess insurer, and NACA, the “excess 7 insurers”), appeal from an order entered on January 29, 2007, and summary judgments entered on 8 October 27, 2008, and February 19, 2009, in the United States District Court for the Southern 9 District of New York (Haight, J.). The District Court, inter alia, (1) dismissed all causes of action 10 brought against insurer plaintiff-counter-defendant-appellee American Steamship Owners Mutual 11 Protection and Indemnity Association, Inc. (the “American Club” or the “Club”); (2) granted 12 Lafarge the fees and expenses of two of the three law firms it retained without the knowledge or 13 consent of the primary insurer; (3) denied Lafarge’s motion for attorneys’ fees incurred in 14 defending against the insurers’ motions for summary judgment; and (4) denied Lafarge’s motion 15 to transfer the American Club action to the United States District Court for the Eastern District of 16 Louisiana. For the reasons that follow, we affirm in part and vacate in part the District Court’s 17 judgments. 18 I. BACKGROUND 19 A. Barge ING 4727 20 On August 29, 2005, Hurricane Katrina made landfall in New Orleans, Louisiana. The 21 levee protecting the Lower Ninth Ward of New Orleans failed during the hurricane, causing the 22 Mississippi River to flood the area. Widespread devastation and death ensued. In the course of 23 the disaster, Barge ING 4727, which was one of hundreds of barges and vessels to break away 24 from their moorings during the storm, came to rest against a house on the land side of the levee. 25 On September 9, 2005, the Wall Street Journal published an article entitled “Still 26 Unknown: Did a Barge Breach the Levee?” In that article, the Army Corps of Engineers was 1 quoted as stating “that one possible cause of this breach is that [Barge ING 4727] smashed 2 through [the levee].” The article identified Ingram Barge Company (“Ingram”) as Barge ING 3 4727’s owner, and Lafarge as the operator responsible for the terminal to which Barge ING 4727 4 was moored when the hurricane struck. Ingram was quoted as stating that “it would have been 5 the terminal’s responsibility to secure [Barge ING 4727] in advance of the storm.” Lafarge, 6 which was contacted the day before by the reporter preparing the article, stated only that it was 7 “not yet able to provide additional information regarding the terminal or its related transportation 8 operations.” It thus was brought to public attention that Barge ING 4727 may not have been 9 merely a casualty of Hurricane Katrina but in fact may have caused the flooding of the Lower 10 Ninth Ward. Further, the article implied that Lafarge may have failed to properly moor Barge 11 ING 4727 during the storm and that Lafarge was therefore responsible for the devastation to the 12 Lower Ninth Ward. 13 Lafarge, one of the largest suppliers of construction materials in the United States and 14 Canada, was well aware that the exposure to potential liability created by Barge ING 4727 15 threatened the existence of the company. Thus, upon receiving the initial inquiry from the Wall 16 Street Journal reporter on September 8, 2005, and thereby first becoming aware of a potential 17 causal connection between Barge ING 4727 and the breached levee, Lafarge retained Goodwin 18 Procter LLP (“Goodwin Procter”), which Lafarge described as “a top law firm with a national 19 reputation [that] had represented [Lafarge] in class action/mass tort and other complex litigation 20 [in the past].” Lafarge also retained Holland & Knight LLP (“H&K”), which, according to 21 Lafarge, had a “prominent maritime investigation and litigation practice.” The next day, on 22 September 9, 2005, after being advised by Goodwin Procter about the need for local counsel, 23 Lafarge retained the New Orleans law firm Chaffe McCall LLP (“Chaffe”), which also had a 24 sizable maritime practice. The law firms immediately began their work: “Goodwin [Procter] had 25 primary responsibility for oversight, communication, and all legal issues dealing with potential 26 mass tort liability; H&K had the lead on maritime issues and investigation[;] and Chaffe provided 1 necessary local support.” Although Goodwin Procter and Chaffe would continue to remain on 2 the case, H&K was discharged in early 2006 after the firm completed its reports on the initial 3 investigation “into the circumstances of the breakaway [B]arge ING 4727 and the failure of the 4 . . . levee structures.” 5 Meanwhile, on September 9, 2005, Lafarge had notified its primary insurer, NYMAGIC, 6 about Barge ING 4727 and the possibility of claims against Lafarge.1 At that time, Lafarge 7 advised NYMAGIC only that it had retained H&K. In a facsimile transmission dated September 8 13, 2005, NYMAGIC responded that it had “set up a file and [would] await further details or 9 other developments.” NYMAGIC also noted in the transmission that “we have good counsel in 10 New Orleans, Messrs. Sutterfield and Webb [(“Sutterfield”)], who we would like to involve 11 should there be any significant claim against [Lafarge] in this matter.” It was not until September 12 20, 2005, that Lafarge notified NYMAGIC that it had retained Goodwin Procter and Chaffe, in 13 addition to H&K. Lafarge never obtained NYMAGIC’s prior consent to the appointment of any 14 of these law firms. In a response dated September 22, 2005, NYMAGIC advised Lafarge that 15 “we cannot commit to paying for public relations or lobbying efforts” and that “[f]or defense, we 16 wish to assign one of the Louisiana firms on our ‘Panel Counsel’ list.” The response included the 17 names of six New Orleans law firms, including Sutterfield, specializing in maritime litigation. 18 Lafarge, however, did not respond to NYMAGIC’s offered list of counsel, and it became 19 clear that Lafarge “would not consent to any of the six law firms proposed by NYMAGIC and . . . 20 that they intended to continue to employ Goodwin Proct[e]r, Chaffe . . . and [H&K].” In an e- 21 mail dated September 28, 2005, NYMAGIC advised Lafarge that “[we] can agree to the costs of 22 the experts and surveyors but [we] cannot agree to pay for the three sets of attorneys on the case, 23 none approved by us.” In a separate e-mail dated the same day, NYMAGIC also informed 24 Lafarge that “[w]e have decided to appoint Sutterfield & Webb as defense counsel in Louisiana.” The communication was made between Lafarge’s insurance broker, Willis of New York, Inc., and NYMAGIC’s managers in the Mutual Marine Office, Inc. For ease of reference, this opinion will refer to these and similar communications as between Lafarge and NYMAGIC. 1 Lafarge then instructed Goodwin Procter to “cooperate with Sutterfield and to bring Dan Webb, 2 of that firm, up to speed.” 3 On November 3, 2005, the first action against Lafarge was filed in the United States 4 District Court for the Eastern District of Louisiana. See In re Katrina Canal Breaches Consol. 5 Litig., No. 05-4182, 2008 WL 4401970, at *8 (E.D. La. 2008). The action then was predictably 6 enlarged and rapidly mutated into litigation of substantial magnitude and complexity: 7 No fewer than four separate class action complaints have been filed against 8 Lafarge, some with putative classes as large as 40,000 members, seeking damages 9 as high as $100 billion. No fewer than 900 docket entries were made in the 10 Katrina Barge Litigation when it was pending before Chief Judge Berrigan, and no 11 fewer than 16,000 docket entries have been made in the consolidated Katrina 12 Litigation pending before Judge Duval. At least 28 other parties, including 13 insurers as direct action defendants, are or have been co-defendants of Lafarge in 14 the Katrina Barge Litigation. 16 N.Y. Marine and Gen. Ins. Co. v. Lafarge N. Am., Inc., 598 F. Supp. 2d 473, 495 (S.D.N.Y. 17 2009) (internal quotation marks and alteration omitted). Although the merits of Lafarge’s liability 18 (the “barge litigation”) will be adjudicated in the Louisiana District Court, Lafarge’s insurers 19 commenced three separate actions giving rise to this appeal in the United States District Court for 20 the Southern District of New York. Id. at 476–78. In those actions, the insurers sought 21 declaratory judgments with respect to issues of coverage under the primary and excess policies. 22 Id. 23 B. Lafarge’s Insurers 24 Pursuant to NYMAGIC’s primary policy, NYMAGIC paid “the approved legal fees and 25 expenses of Sutterfield & Webb and Lafarge’s expert fees and costs.” These expenses exhausted 26 the primary policy’s limit of $5 million. Under the excess policy issued by the three excess 27 insurers — NYMAGIC, AHAC, and NACA — NYMAGIC paid and continues to pay 40% of the 28 legal fees and expenses billed by Sutterfield and the expenses billed by Lafarge’s experts in 29 connection with the barge litigation. The remaining 60% of the fees and expenses are said to be 30 covered under the excess policy by AHAC and NACA, but these two insurers have refused to pay 31 so far. Id. at 490 & n.12. The excess policy issued jointly by the three excess insurers covers 1 Lafarge for liability and expenses up to $45 million and under certain circumstances, $50 million. 2 Neither NYMAGIC, AHAC, nor NACA has approved or paid any of the legal fees and expenses 3 of Goodwin Procter, H&K, and Chaffe. The total legal fees and expenses of these three firms 4 amount to over $10 million as of November 11, 2008. Id. at 490. 5 In addition to being insured under NYMAGIC’s primary policy and the excess policy 6 issued by the three excess insurers, Lafarge also is a member of the American Club, a non-profit 7 mutual insurance association, which provides a “protection and indemnity” policy (the “American 8 Club Policy”) for its members. The American Club Policy “cover[s] shipowners and charterers 9 against third-party liabilities arising from the ownership or operation of insured vessels.” Thus, in 10 accordance with this general purpose, a list of specific vessels to be insured is identified by 11 Lafarge and incorporated into its Certificate of Entry, a document proving Lafarge’s membership 12 with the American Club. 13 Although Ingram owned Barge ING 4727 — and therefore the barge was not listed as an 14 insured vessel under Lafarge’s Certificate of Entry — Lafarge’s membership in the American Club 15 included the following special term and condition: “If Lafarge . . . acquires an insurable interest in 16 any vessel . . . through purchase, charter, lease or otherwise, [the American Club Policy will] 17 automatically cover such . . . vessel effective from the date and time [Lafarge] acquires an 18 insurable interest in such . . . vessel.” (emphasis added). As explained in more detail below, one 19 of the principal issues at contention in this appeal is whether the term “otherwise” in the American 20 Club Policy includes Barge ING 4727, which Lafarge acquired some interest in pursuant to a 21 Transportation Agreement between Lafarge and the barge’s owner, Ingram. 22 The three separate actions filed in the United States District Court for the Southern 23 District of New York were as follows: First, NYMAGIC sought judgments against Lafarge 24 declaring that (1) NYMAGIC’s primary policy did not cover the legal fees earned by Lafarge’s 25 counsel, i.e., Goodwin Procter, H&K, and Chaffe, which firms were retained without 26 NYMAGIC’s knowledge and consent; (2) NYMAGIC — which asserts that it retained the right 1 under its primary policy to direct the defense of any action against Lafarge — had fulfilled its 2 obligations under the policy; and (3) NYMAGIC is obligated to pay only reasonable fees and 3 expenses relating directly to the defense of the claims against Lafarge. Second, the American 4 Club sought a judgment against Lafarge declaring that the American Club Policy did not cover 5 Barge ING 4727 and that, therefore, the American Club was not obligated to cover any of 6 Lafarge’s expenses or liabilities arising from the barge litigation. And third, AHAC and NACA 7 sought judgments against Lafarge and the American Club declaring that (1) the American Club 8 Policy covered Barge ING 4727; (2) AHAC and NACA, as excess insurers, were not obligated to 9 pay until NYMAGIC’s primary policy and the American Club Policy were first exhausted;2 and 10 (3) because NYMAGIC’s primary policy did not cover Lafarge’s legal fees earned by Goodwin 11 Procter, H&K, and Chaffe, AHAC and NACA also were not liable to reimburse Lafarge for 12 payments to those law firms. Id. at 476–77. 13 Lafarge moved to transfer the American Club action to the Louisiana District Court; 14 however, that motion was denied on January 29, 2007. See Am. Steamship Owners Mut. Prot. 15 and Indem. Ass’n, Inc. v. Lafarge N. Am., Inc., 474 F. Supp. 2d 474, 482–91 (S.D.N.Y. 2007). 16 Subsequently, NYMAGIC, in its capacity as an excess insurer, was granted leave to intervene as a 17 party plaintiff so that it could assert claims mirroring those in AHAC and NACA’s action for 18 declaratory judgment against the American Club and Lafarge. As the District Court observed, 19 “[this] is not surprising, since all three insurers, having subscribed to the Excess Policy, are in the 20 same boat and intent upon bailing it out.” Lafarge N. Am., Inc., 598 F. Supp. 2d at 478. Each 21 party then filed motions and cross-motions for summary judgment and, alternatively, in the case of 22 the American Club, a motion to dismiss all claims asserted against it. 23 C. The District Court’s Decisions on Summary Judgment 24 On October 27, 2008, the District Court granted the American Club’s motion for In the alternative, AHAC and NACA sought a declaration that they were not obligated to pay until NYMAGIC’s primary policy was exhausted and Lafarge, as a self-insurer, paid the full amount of what should have been paid under the American Club Policy. 1 summary judgment against Lafarge, declaring that the American Club has no obligation to provide 2 coverage for the claims asserted against Lafarge in connection with the barge litigation. 3 Reviewing the terms of the Transportation Agreement, which established the conditions of 4 Lafarge’s use of Ingram’s barges, the District Court concluded that the American Club Policy’s 5 provision providing for automatic coverage of insurable interests in any vessel acquired by 6 Lafarge “through purchase, charter, lease or otherwise” did not apply to Ingram’s Barge ING 7 4727. See Am. Steamship Owners Mut. Prot. and Indem. Ass’n, Inc. v. Lafarge N. Am., Inc., 8 No. 06 Civ. 3123, 2008 WL 4449353, at *8–*9 (S.D.N.Y. Sept. 29, 2008). According to the 9 District Court: 10 Lafarge tells Ingram it needs a cement cargo to be transported from Joppa to New 11 Orleans on a particular date. Ingram selects from its fleet of barges one to perform 12 the work: it could be the ING4727, or 4726, or 4728, or any other Ingram barge. 13 Lafarge neither knows [n]or cares. All it knows is that if all goes well, an Ingram 14 barge will arrive at Lafarge’s New Orleans facility to discharge a cement cargo. 15 Id. at *9. The court concluded that this arrangement between Lafarge and Ingram did not 16 constitute an acquisition by Lafarge — “through purchase, charter, lease or otherwise” — of an 17 insurable interest in Barge ING 4727. 18 On February 19, 2009, the District Court (1) granted the American Club’s motion for 19 summary judgment and dismissed AHAC, NACA, and NYMAGIC’s claims against the American 20 Club, the court having concluded that the American Club Policy, as explained in its October 27, 21 2008 summary judgment, did not cover Barge ING 4727; (2) granted Lafarge’s motion for 22 summary judgment against the excess insurers and declared that they were obligated to cover 23 Lafarge, the court having concluded that the excess insurance policy was triggered because 24 Lafarge properly maintained the American Club Policy and because Lafarge was not a self- 25 insurer; and (3) granted, in part, Lafarge’s motion for summary judgment against both the primary 26 and excess insurers and declared that they were obligated to cover the legal fees earned by 27 Goodwin Procter and H&K but not Chaffe. See generally Lafarge N. Am., Inc., 598 F. Supp. 2d 28 at 481–97. The court also denied all claims for attorneys’ fees in connection with the motions and 1 cross-motions for summary judgment. Id. at 497. The court directed entry of final judgment 2 pursuant to Federal Rule of Civil Procedure 54(b), see id. at 497–98, and this timely appeal 3 followed. 4 D. Arguments on Appeal 5 On appeal, Lafarge, NYMAGIC, AHAC, and NACA argue that the American Club Policy 6 covers Barge ING 4727. Lafarge also challenges the District Court’s denial of its motion to 7 transfer venue; the court’s determination that the primary and excess policies did not cover the 8 legal fees earned by Chaffe; and the court’s refusal to award attorneys’ fees in connection with the 9 motions and cross-motions for summary judgment.3 NYMAGIC, AHAC, and NACA further 10 challenge the District Court’s decisions on summary judgment, contending that the court erred in 11 concluding that the excess policy was triggered and that both the primary and excess policies 12 covered the legal fees earned by Goodwin Procter and H&K. 13 II. DISCUSSION 14 A. Motion to Transfer to Louisiana District Court 15 We review a district court’s denial of a motion to transfer venue for abuse of discretion. 16 D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 105 (2d Cir. 2006). A district court may 17 exercise its discretion to transfer venue “for the convenience of parties and witnesses, in the 18 interest of justice.” 28 U.S.C. § 1404(a). Among the factors to be considered in determining 19 whether to grant a motion to transfer venue “are, inter alia: (1) the plaintiff’s choice of forum, (2) 20 the convenience of witnesses, (3) the location of relevant documents and relative ease of access to 21 sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the 22 availability of process to compel the attendance of unwilling witnesses, and (7) the relative means Lafarge also demanded a jury trial in the action brought by the American Club, but that demand was stricken by the court in a decision dated August 1, 2008. See Am. Steamship Owners Mut. Prot. and Indem. Ass’n, Inc. v. Lafarge N. Am., Inc., No. 06 Civ. 3123, 2008 WL 2980919, at *1–*2 (S.D.N.Y. Aug. 1, 2008) (concluding that Lafarge did not have a right to a jury in a case brought pursuant to the court’s admiralty jurisdiction). Because we affirm the District Court’s determination that the American Club Policy does not cover Barge ING 4727, we need not decide whether the District Court erred in striking Lafarge’s jury demand. 1 of the parties.” Gottdiener, 462 F.3d at 106–07 (internal quotation marks and alteration omitted). 2 Here, Lafarge does not contest that the above factors either are neutral or favor the 3 American Club against transferring the case to the Louisiana District Court. Instead, Lafarge 4 argues that the so-called first-filed rule “overshadows all other considerations.” Lafarge Reply 5 Br. at 24. Relying much on the rationale of avoiding duplicative litigation that underlies the first- 6 filed rule, Lafarge argues that the District Court abused its discretion because the issue of 7 coverage will not be binding on the Louisiana District Court and will need to be re-litigated in the 8 Louisiana District Court, where the barge litigation is currently underway. 9 The first-filed rule states that, in determining the proper venue, “[w]here there are two 10 competing lawsuits, the first suit should have priority.” Gottdiener, 462 F.3d at 106. The rule is 11 inapplicable when there are “special circumstances.” Employers Ins. of Wausau v. Fox Entm’t 12 Group, Inc., 522 F.3d 271, 276 (2d Cir. 2008). Special circumstances include manipulative or 13 deceptive behavior on the part of the first-filing plaintiff. Id. In addition to “special 14 circumstances,” transfer to the first-filed jurisdiction is also inappropriate when “the balance of 15 convenience favors the second-filed action.” Id. at 275 (internal quotation marks omitted). The 16 “balance of convenience” is determined by considering the same factors “considered in connection 17 with motions to transfer venue.” Id. 18 Here, the “special circumstances” exception to the first-filed rule is inapplicable. There is 19 no allegation of deceptive or manipulative behavior by the first-filed plaintiffs in Louisiana. Thus, 20 because “[w]here special circumstances are not present, a balancing of the conveniences is 21 necessary,” id. at 276, Lafarge’s claim that the first-filed rule “overshadows all other 22 considerations” in this case is incorrect, see id. at 275 (“[T]he first-filed rule is only a presumption 23 that may be rebutted by proof of the desirability of proceeding in the forum of the second-filed 24 action.” (internal quotation marks omitted)); see also id. (stating that the convenience factors 25 compose the “centrality” of adjudicating transfer motions). Further, so far as the District Court 1 considered the first-filed rule and balanced the convenience factors, we see no abuse of discretion 2 in the District Court’s analysis. 3 As the District Court noted, among its other observations, the American Club Policy was 4 negotiated and executed in New York, issued by a New York insurer, stipulated to apply New 5 York law, and agreed upon to be litigated in the United States District Court for the Southern 6 District of New York in the event Lafarge brought a claim against the American Club. See Am. 7 S.S. Owners Mut. Prot. & Indem. Ass’n, Inc. v. Lafarge N. Am., Inc., 474 F. Supp. 2d 474, 8 482–90 (S.D.N.Y. 2007). Thus, the locus of operative facts as well as the interests of efficiency 9 and fairness favor a New York forum. With respect to Lafarge’s claim of duplicative litigation, 10 the District Court reasonably determined that the liability and coverage issues in the Louisiana and 11 New York actions, respectively, are not coextensive because resolution as to the liability issues 12 would not necessarily resolve Lafarge’s claims against the American Club for defense costs. Id. at 13 476–77, 486. Moreover, the District Court reasonably relied on Fifth Circuit precedent to 14 conclude that it was unlikely that two inconsistent judgments on the merits would result from the 15 court’s denial of Lafarge’s transfer motion.4 See Acosta v. Master Maint. & Constr. Inc., 452 16 F.3d 373, 377 n.7 (5th Cir. 2006) (stating that an arbitration award may be “persuasive, if not We add that the Louisiana District Court has subsequently stated that it intends to follow the rulings of this Circuit with respect to issues involving coverage: [I]t is clear that this entire coverage matter has been and will be adjudicated in New York and in the Second Circuit Court of Appeals in a timely fashion. For reasons of comity and judicial economy, this Court will not undertake a second look at the precise same issues. Such a course of action could potentially wreak havoc and create unnecessary conflicts. [The New York District Court] determined that the first to file rule was not applicable to these disputes and as such, the Court will not take any action to create any potential conflict. Simply put, two federal courts should not be adjudicating the same issues. In re Katrina Canal Breaches Consol. Litig., No. 05-4182, Section K(2), Order and Reasons (E.D. La. Oct. 9, 2008) (reprinted in the Appendix to the American Club Answering Br.). Lafarge’s fear of duplicative litigation, therefore, has less force now as a practical matter. 1 binding,” on direct-action plaintiffs who are not parties to the arbitration between defendant- 2 insured and defendant-insurer (emphasis added)). Weighing Lafarge’s asserted claims of 3 duplicative litigation, the unlikely event of inconsistent judgments, the various convenience 4 factors, and the interests of justice, the District Court reasonably concluded that transfer was not 5 warranted in light of the totality of the circumstances. Id. at 490. 6 Lafarge also argues that the District Court applied the wrong standard in evaluating the 7 motion to transfer, namely, that the court erroneously applied the “clear and convincing evidence” 8 standard. Although we have never explicitly approved a district court’s use of the “clear and 9 convincing evidence” standard in ruling on a motion to transfer venue, the propriety of that 10 standard to transfer-motions is evident. We have stated that the party requesting transfer carries 11 the “burden of making out a strong case for transfer.” Filmline (Cross-Country) Prods., Inc. v. 12 United Artists Corp., 865 F.2d 513, 521 (2d Cir. 1989) (internal quotation marks omitted). It is 13 therefore appropriate that the district courts in our Circuit have consistently applied the clear and 14 convincing evidence standard in determining whether to exercise discretion to grant a transfer 15 motion. See, e.g., Hershman v. UnumProvident Corp., 658 F. Supp. 2d 598, 600 (S.D.N.Y. 16 2009); MAK Mktg. Inc. v. Kalapos, 620 F. Supp. 2d 295, 298 (D. Conn. 2009); Wagner v. N.Y. 17 Marriott Marquis, 502 F. Supp. 2d 312, 315 (N.D.N.Y. 2007); Neil Bros. Ltd. v. World Wide 18 Lines, Inc., 425 F. Supp. 2d 325, 327 (E.D.N.Y. 2006); Tom & Sally’s Handmade Chocolates, 19 Inc. v. Gasworks, Inc., 977 F. Supp. 297, 302 (D. Vt. 1997); United States v. Gen. Motors 20 Corp., 183 F. Supp. 858, 861 (S.D.N.Y. 1960); see also Christina Canada, Inc. v. Wior Corp., 21 702 F. Supp. 461, 463 (S.D.N.Y. 1988) (“[A]bsent a clear and convincing showing that the 22 balance of convenience favors the ultimate forum, discretionary transfers are not favored.” 23 (internal quotation marks omitted)); accord Headrick v. Atchison, T. & S.F. Ry. Co., 182 F.2d 24 305, 310 (10th Cir. 1950) (holding that under 28 U.S.C. § 1404(a), “the plaintiff’s choice of 25 forum [should not be] disturbed[] unless the balance in the defendant’s favor is shown by clear 26 and convincing evidence”); cf. In re Horseshoe Entm’t, 337 F.3d 429, 434 (5th Cir. 2003). 1 Accordingly, we see no error from which to conclude that the District Court abused its 2 discretion in denying Lafarge’s motion to transfer to the Louisiana District Court. 3 B. Standard of Review 4 “We review a grant of summary judgment de novo, construing the evidence in the light 5 most favorable to the non-moving party and drawing all reasonable inferences in its favor.” 6 Palmieri v. Allstate Ins. Co., 445 F.3d 179, 187 (2d Cir. 2006). Summary judgment is appropriate 7 “when no genuine issue of material fact exists and the moving party is entitled to judgment as a 8 matter of law.” Id.; see also Fed. R. Civ. P. 56(c). In the context of an action predicated on a 9 contract dispute, summary judgment is generally inappropriate where the contested contractual 10 language is ambiguous. Palmieri, 445 F.3d at 187. The district court’s determination of whether 11 a contractual provision is ambiguous is a question of law that we review de novo. Id.; see also 12 ReliaStar Life Ins. Co. of N.Y. v. Home Depot U.S.A., Inc., 570 F.3d 513, 517 (2d Cir. 2009) 13 (per curiam). See generally Palmieri, 445 F.3d at 187 (“Ambiguity resides in a writing when — 14 after it is viewed objectively — more than one meaning may reasonably be ascribed to the 15 language used.” (quoting Thompson v. Gjivoje, 896 F.2d 716, 721 (2d Cir. 1990))). 16 It is undisputed that New York law applies in our examination of the various insurance 17 policies at issue in this case. And “[u]nder New York law, the question of ambiguity . . . must be 18 determined from the face of the agreement, without reference to extrinsic evidence.” Collins v. 19 Harrison-Bode, 303 F.3d 429, 433 (2d Cir. 2002) (footnote omitted). “Once a court concludes 20 that an insurance provision is ambiguous, the court may accept any available extrinsic evidence to 21 ascertain the meaning intended by the parties during the formation of the contract.” Parks Real 22 Estate Purchasing Group v. St. Paul Fire & Marine Ins. Co., 472 F.3d 33, 43 (2d Cir. 2006) 23 (internal quotation marks omitted). 24 Although a determination that a contract is ambiguous ordinarily requires denial of 25 summary judgment, the court may nonetheless grant summary judgment where the extrinsic 26 evidence illuminating the parties’ intended meaning of the contract is “so one-sided that no 1 reasonable person could decide to the contrary.” Compagnie Financiere De Cic Et De L’Union 2 Europeenne v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 232 F.3d 153, 158 (2d Cir. 2000) 3 (Sotomayor, J.) (internal quotation marks omitted). Similarly, summary judgment may be granted 4 despite any ambiguities in the contract “where there is no extrinsic evidence that would support a 5 resolution of [the] ambiguities in favor of the nonmoving party’s case.” Topps Co. v. Cadbury 6 Stani S.A.I.C., 526 F.3d 63, 68 (2d Cir. 2008). These apparent exceptions merely reinforce the 7 principle that the lynchpin of a summary judgment determination is, in most cases, the existence 8 vel non of genuine issues of material facts. See, e.g., AD/SAT, Div. of Skylight, Inc. v. 9 Associated Press, 181 F.3d 216, 226 (2d Cir. 1999). 10 C. The American Club Policy 11 Barge ING 4727 appears nowhere on Lafarge’s list setting forth the vessels to be covered 12 by the American Club Policy. Nonetheless, it is argued that Barge ING 4727 is automatically 13 covered pursuant to the following provision of the American Club Policy (the “Chartered Barges 14 Clause”): 15 If Lafarge . . . acquires an insurable interest in any vessel in addition to or in 16 substitution for those set forth herein, through purchase, charter, lease or 17 otherwise, such insurance as is afforded hereunder to any similar vessel shall 18 automatically cover such additional vessel effective from the date and time 19 [Lafarge] acquires an insurable interest in such additional vessel. With respect to a 20 chartered, leased or similarly acquired vessel, the insurance hereunder 21 automatically includes the owner as an additional Assured with waiver of 22 subrogation against the owner, if required, effective from the date and time such 23 vessel is insured hereunder. (emphasis added). 24 Lafarge argues that it acquired an insurable interest in Barge ING 4727 “through 25 purchase, charter, lease or otherwise” and, therefore, that Barge ING 4727 is covered under the 26 American Club Policy.5 Specifically, Lafarge argues that it acquired an insurable interest in Barge 27 ING 4727 by means “otherwise” via the Transportation Agreement with Ingram, which NYMAGIC, AHAC, and NACA also take the position that the American Club Policy covers Barge ING 4727. Although we refer only to Lafarge in the text of the opinion for ease of reference, in doing so we address all arguments for coverage made by Lafarge, NYMAGIC, AHAC, and NACA. 1 purportedly conferred upon Lafarge the status of bailee of Ingram’s Barge ING 4727. Lafarge 2 insists that the term “otherwise” must be given its dictionary meaning, i.e., “in any other manner.” 3 According to Lafarge, any insurable interest in a vessel — be it acquired by Lafarge through 4 purchase, charter, lease, or, in the alternative, “regardless of how acquired,” Lafarge Reply Br. at 5 4 (emphasis added) — is automatically covered under the plain terms of the Chartered Barges 6 Clause. 7 As Lafarge notes, we have in other contexts read “otherwise” literally and construed 8 provisions containing that term to mean an assurance of comprehensiveness. See, e.g., Greene v. 9 United States, 79 F.3d 1348, 1355 (2d Cir. 1996) (“When § 1256 lists several types of 10 terminations and follows those with the words ‘or otherwise,’ the statute necessarily brings 11 transfers of all kinds within its compass. The statute does not say ‘or other similar terminations,’ 12 nor does it limit in any way the words ‘or otherwise.’”); Dunham v. Omaha & Council Bluffs St. 13 Ry. Co., 106 F.2d 1, 3 (2d Cir. 1939) (“The words ‘or otherwise’ following ‘any suit or 14 proceedings in equity’ can only enlarge the reference to the form of action to include any other 15 suit or proceedings . . . . ‘Otherwise’ means, ‘In a different manner; in another way, or in other 16 ways.’”). In contrast to Green and Dunham, however, here, the structure of the Chartered Barges 17 Clause and the provisions of the American Club Policy counsel against applying a literal 18 interpretation of the term “otherwise.” See JA Apparel Corp. v. Abboud, 568 F.3d 390, 405 (2d 19 Cir. 2009) (stating that in examining a contract, the court considers “the context of the entire 20 integrated agreement,” as well as “the customs, practices, usages and terminology as generally 21 understood in the particular trade or business” (internal quotation marks omitted)). 22 The American Club is a “Steamship Owners Mutual Protection and Indemnity 23 Association,” and in accordance with that general purpose, the American Club Policy requires 24 members to provide a list of their vessels to be entered with the Club. As a special condition, the 25 Chartered Barges Clause permits automatic coverage under the American Club Policy to Lafarge 26 in the event it “acquires an insurable interest in any vessel in addition to or in substitution for 1 those set forth herein, through purchase, charter, lease or otherwise.” In considering the 2 Chartered Barges Clause, we find it significant that it automatically covers vessels that are “in 3 addition to or in substitution for those set forth herein,” i.e., vessels owned by Lafarge and that 4 are part of the “Lafarge fleet.” See Lafarge N. Am., Inc., 2008 WL 4449353, at *2. This 5 provides the appropriate context for interpreting the phrase that immediately follows, “through 6 purchase, charter, lease or otherwise,” which essentially describes the way in which a substantial 7 interest akin to the interest in the vessels “set forth herein” may be acquired. The phrase “through 8 purchase, charter, lease or otherwise,” therefore, reasonably signifies a limiting precept rather than 9 an assurance of comprehensiveness. 10 Indeed, interpreting “otherwise” literally would result in a substantial modification of the 11 Chartered Barges Clause. If “otherwise” were to be interpreted as literally as Lafarge contends, 12 then the Chartered Barges Clause need not have required that an insurable interest in a vessel be 13 acquired “through” any particular type of transaction in the first place. In fact, the Chartered 14 Barges Clause need not even have referred to the acquisition being “in addition to or in 15 substitution for” the vessels that make up the Lafarge fleet. Rather, the Chartered Barges Clause 16 need only have stated that coverage is warranted for any vessel in which Lafarge has an insurable 17 interest. Thus, by literally construing the term “otherwise,” Lafarge effectively guts two entire 18 phrases from the Chartered Barges Clause. Lafarge’s approach to interpreting the term 19 “otherwise” therefore violates the fundamental rule of contract interpretation that “a court must 20 strive to give meaning to every sentence, clause, and word.” See Zurich Am. Ins. Co. v. ABM 21 Indus., Inc., 397 F.3d 158, 165 (2d Cir. 2005) (internal quotation marks omitted) (quoting 22 Travelers Cas. & Sur. Co. v. Certain Underwriters at Lloyd’s of London, 96 N.Y.2d 583, 594 23 (2001)). 24 Lafarge refers to a different sentence in the Chartered Barges Clause providing for 25 coverage of third-party owners “[w]ith respect to a chartered, leased or similarly acquired vessel.” 26 Lafarge contends that the Chartered Barges Clause would have used the same language, i.e., “or 1 similarly acquired vessel,” had the parties intended “otherwise” to be limited to transactions akin 2 to charters, leases, or purchases. Lafarge asserts that “otherwise” therefore “should be 3 interpreted here to broaden the scope of coverage available under the Chartered Barges [C]lause 4 to the same extent as though all possible methods of acquiring an insurable interest in a vessel had 5 been included by name.” AHAC & NACA Opening Br. at 31. This logic, however, does not 6 explain or address the modification of the Chartered Barges Clause that would result from the 7 elimination of the limiting phrase altogether, were we to adopt Lafarge’s literal definition of 8 “otherwise.” See Cent. Hanover Bank & Trust Co. v. Comm’r of Internal Revenue, 159 F.2d 9 167, 169 (2d Cir. 1947) (Learned Hand, J.) (“There is no more likely way to misapprehend the 10 meaning of language — be it in a constitution, a statute, a will or a contract — than to read the 11 words literally, forgetting the object which the document as a whole is meant to secure.”). See 12 generally Robert T. Lemon II, Allocation of Marine Risks: An Overview of the Marine Insurance 13 Package, 81 Tul. L. Rev. 1467, 1480–81 (2007) (“The P&I [Protection and Indemnity] policy is 14 not a comprehensive general liability policy, for it does not purport to cover all types of an 15 insured’s liability . . . .”). 16 Lafarge also refers to Rule 2 of the American Club Policy, which provides that a member 17 of the American Club “shall be indemnified in connection with each vessel . . . against any loss, 18 damage or expense which the Member shall become liable to pay and shall pay by reason of the 19 fact that the Member is the owner (or operator, manager, charterer, mortgagee, trustee, receiver 20 or agent, as the case may be) of the insured vessel.” (emphasis added). Lafarge contends that 21 “because the Club’s Rules included all sorts of methods for acquiring an insurable interest other 22 than — and different from — a purchase, charter, or lease, the phrase ‘or otherwise’ in the 23 Certificate of Entry must likewise be construed in that broad manner.” Lafarge Opening Br. at 24 42. But Rule 2 is a finite list of relationships and does not support Lafarge’s claim that, under the 25 Chartered Barges Clause, an insurable interest in a vessel can be acquired by any means. 26 Furthermore, Lafarge argues that the term “otherwise” must be read literally to encompass 1 any and all transactions because there are “no means of acquiring an interest in a vessel that are 2 similar to a purchase, charter, or lease but not already encompassed within the words ‘purchase,’ 3 ‘charter,’ or ‘lease.’” Lafarge Opening Br. at 45. To the extent a vessel may be “hired” or 4 “rented,” Lafarge argues that those terms are synonyms of “charter” and “lease” and that 5 interpreting “otherwise” to mean all synonyms for “purchase, charter, [or] lease” would render 6 “otherwise” superfluous. According to Lafarge, therefore, reading “otherwise” as akin to 7 purchase, charter, or lease would read out “otherwise” entirely. While Lafarge does make a 8 reasonable argument in this regard, we note that the authorities cited by Lafarge to support the 9 proposition that “arguably . . . synonymous . . . terms should be treated as mutually exclusive, 10 rather than as synonyms,” see, e.g., S. Axelrod Co. v. Mel Dixon Studio, Inc., 471 N.Y.S.2d 945, 11 951 (Civ. Ct. 1983), do not involve situations where a reasonably discernable intent of the 12 contract would be rendered a nullity if we were to follow the rule to the letter.6 13 We are therefore unpersuaded that “otherwise” cannot reasonably be construed to mean a 14 narrow category of commercial conducts akin to a purchase, charter, or lease. Nonetheless, be 15 that as it may, we are unable to conclusively determine from the face of the American Club Policy 16 a single plain meaning of the Chartered Barges Clause. And in this regard, we find error in the 17 District Court’s determination to the contrary. This error was inconsequential, however, because 18 there are no genuine issues of material facts in this case that would support the application of a 19 literal reading of the term “otherwise” in the Chartered Barges Clause.7 See generally In re Moreover, while not advanced by the American Club, we note the possibility that a vessel may be bequeathed to Lafarge pursuant to a will, donated to Lafarge pursuant to a trust, or adopted by Lafarge pursuant to an equal merger with another company. None of these circumstances appear to constitute a “purchase, charter, [or] lease,” but these examples provide meaning to “otherwise” that survive Lafarge’s test of synonyms. Because we affirm the District Court’s decision on other grounds, we need not address the propriety of its use of ejusdem generis to make a plain meaning determination of the Chartered Barges Clause. But cf. United States v. Turkette, 452 U.S. 576, 581 (1981) (“The rule of ejusdem generis is no more than an aid to construction and comes into play only when there is some uncertainty as to the meaning of a particular clause in a statute.”). Moreover, rules of contract interpretation need not be applied unless “the extrinsic evidence does not yield a conclusive answer as to the parties’ intent.” Parks Real Estate Purchasing Group v. St. Paul Fire 1 Methyl Tertiary Butyl Ether Prods. Liab. Litig., 488 F.3d 112, 134 (2d Cir. 2007) (“[A]n 2 appellate court is free to affirm a district court decision on any grounds for which there is a record 3 sufficient to permit conclusions of law, even grounds not relied upon by the district court.” 4 (internal quotation marks omitted)). 5 Although the record does not clearly inform us of the precise limits of the term 6 “otherwise,” it is absolutely clear what “otherwise” is not: “otherwise” does not include the kind 7 of relationship associated with a shipowner’s bailment to a terminal operator — the relationship 8 Ingram had with Lafarge for Barge ING 4727. See generally Dow Chem. Co. v. Barge UM-23B, 9 424 F.2d 307, 311 (5th Cir. 1970) (A terminal operator, or “wharfinger,” is a “bailee for hire [that 10 is] required to see to it that the barges were adequately moored at all times.”); Am. River Transp. 11 Co. v. Paragon Marine Servs., Inc., 213 F. Supp. 2d 1035, 1059 (E.D. Mo 2002) (“The operator 12 of a fleeting facility as bailee has the responsibility of caring for a barge after it is committed to its 13 custody.”); accord Burns Bros v. Long Island R.R. Co., 176 F.2d 406, 409 (2d Cir. 1949). 14 Lafarge’s insurance broker, Joanne Fedchin, stated at her deposition that the Chartered 15 Barges Clause was not intended “to insure a third-party’s barge that was simply delivering cargo 16 to a [Lafarge] facility.” Rather, the Chartered Barges Clause was added at the insistence of 17 Lafarge “for ease of business” by permitting automatic coverage of barges that Lafarge was 18 chartering “for very short periods of time and . . . on a fairly regular basis.” Indeed, in a facsimile 19 transmission dated April 14, 1999, Ms. Fedchin wrote to the American Club that Lafarge 20 “charters barges in from time to time — sometimes for a 2 week period, sometimes for a few 21 days”; confirmed that these charters were automatically covered under the American Club Policy; 22 and enclosed a proposed clause, which would ultimately be incorporated into the American Club 23 Policy as the Chartered Barges Clause, consistent with Lafarge’s aims. Ms. Fedchin further 24 testified as to the logic behind her understanding of the Chartered Barges Clause as not covering 25 liabilities incurred by Lafarge as a terminal operator: “There is a separate policy that was placed & Marine Ins. Co., 472 F.3d 33, 43 (2d Cir. 2006) (internal quotation marks omitted). 1 for La[f]arge to cover their miscellaneous marine liabilities, including this exposure which goes by 2 a variety of names for the purposes here. I’ll just use one. Wharfingers liability.” 3 In accord with Ms. Fedchin’s testimony is Lafarge’s conduct, which evinces an 4 understanding that third-party barges such as Barge ING 4727 are not covered under the 5 Chartered Barges Clause. “Conduct of the parties provides another important source for deriving 6 their intent as to the meaning of the insurance contracts at issue. . . . ‘[T]here is no surer way to 7 find out [the intent of the parties to a contract] . . . than to see what they have done.’” Am. Home 8 Prods. Corp. v. Liberty Mut. Ins. Co., 565 F. Supp. 1485, 1503 (S.D.N.Y. 1983) (quoting 9 Brooklyn Life Ins. Co. v. Dutcher, 95 U.S. 269, 273 (1877)); see also City of N.Y. v. N.Y. City 10 Ry. Co., 193 N.Y. 543, 548 (1908) (“When the parties to a contract of doubtful meaning, guided 11 by self-interest, enforce it for a long time by a consistent and uniform course of conduct, so as to 12 give it a practical meaning, the courts will treat it as having that meaning . . . .”). 13 Here, pursuant to the Chartered Barges Clause, any declarations and premiums for 14 unlisted vessels would have been due annually. Lafarge never declared or tendered any premiums 15 for the over 3,000 third-party owned barges that had passed through its terminals for nearly seven 16 years since Lafarge had become a member of the American Club. Nor is there evidence that the 17 American Club ever demanded premiums for these third-party barges. It was only after the 18 commencement of the barge litigation that Lafarge attempted to satisfy at once its declarations 19 and premiums for the thousands of third-party barges that passed through its terminals for the past 20 seven years. Lafarge’s inaction is strong evidence that third-party barges were never intended to 21 be covered by the Chartered Barges Clause, and that inaction is not ameliorated by Lafarge’s 22 subsequent assertion of coverage that was, as the District Court aptly observed, “transparently 23 tactical.”8 Lafarge N. Am., Inc., 2008 WL 4449353, at *10. Indeed, in an assertion by the American Club that is not refuted by Lafarge, Lafarge initially attempted to tender the premium for only Barge ING 4727 in the amount of $852 after the commencement of the barge litigation. It was not until two years later that Lafarge attempted to tender the premiums for the over 3,000 other similar barges to bring its conduct in line with its legal claims. American Club Answering Br. at 52–53. 1 Lafarge only challenges the credibility of Ms. Fedchin’s testimony and does not bring forth 2 other evidence that would genuinely place into question her understanding of the intent of the 3 Chartered Barges Clause.9 Nor does Lafarge offer an explanation, other than that it was an 4 “oversight,” for its decision not to declare or pay any premiums for third-party vessels until it 5 became tactically desirable to do so after Hurricane Katrina.10 Cf. Topps Co., 526 F.3d at 68 6 (Summary judgment is appropriate “where there is no extrinsic evidence that would support a 7 resolution of [the] ambiguities in favor of the nonmoving party’s case.”). Instead, Lafarge argues 8 that it was the “operator” of Barge ING 4727 and not simply a wharfinger acting as the bailee of 9 the barge. Lafarge contends that the strength of the evidence showing that it had operational 10 control over Barge ING 4727 warrants summary judgment in Lafarge’s favor or, at a minimum, 11 raises sufficient issues of fact such that summary judgment is inappropriate. 12 Although the Transportation Agreement between Lafarge and Ingram contemplates some 13 control by Lafarge over Ingram’s barges for purposes of unloading cargo or shifting barges within 14 its terminal, the agreement states that “[n]othing contained in this Contract shall be construed as a 15 contract by [Lafarge] for the chartering, hiring or leasing of any barge[, and] . . . [Lafarge] shall 16 exercise no control over the operation of any barge.” (emphases added). This language Although one of Lafarge’s risk managers testified at his deposition that the Chartered Barges Clause is read broadly to cover Lafarge’s acquisition of any insurable interest in a vessel, the manager testified as to his understanding of the text of the Chartered Barges Clause and not the intent of the Chartered Barges Clause. Indeed, it appears from the record that the manager did not recall the Chartered Barges Clause at all; rather, at his deposition, he interpreted the text of the clause de novo. Similarly, according to the citation provided by Lafarge, Lafarge’s other risk manager merely testified that he had directed his brokers to “always obtain the broadest coverage possible” and did not state that the intent of the Chartered Barges Clause was to cover any and all insurable interests acquired by Lafarge. These testimonies are insufficient to raise genuine issues of material fact. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 269 F.3d 114, 124 (2d Cir. 2001) (noting, in the context of an infringement action, that summary judgment was appropriate because “de minimis evidence [is] insufficient to raise triable issues”). Lafarge argues that its oversight is “not at all uncommon” because insureds ordinarily forget to pay premiums until losses are incurred and because insurers should “be happy to have the premium.” Even if that were true, Lafarge’s failure to pay premiums for the thousands of third-party barges, which had passed through its terminals for seven years, demonstrates that Lafarge’s failure to pay was not a simple oversight but, rather, strong evidence that Lafarge never expected third-party barges to be covered under the Chartered Barges Clause. See supra note 8. 1 articulates the opposite condition of the Chartered Barges Clause, which requires that a qualifying 2 vessel be acquired “through purchase, charter, lease or otherwise” to establish automatic 3 coverage. Lafarge’s “acquisition” of Barge ING 4727, therefore, falls outside the provisions of 4 the Chartered Barges Clause. 5 Moreover, it is undisputed that Lafarge first contacted Ingram’s subcontractor to move 6 Barge ING 4727; having received no reply, Lafarge called a towing company to move Barge ING 7 4727 in preparation for the landing of Hurricane Katrina. See In re Ingram Barge Co., No. 05- 8 4419, 2008 WL 906303, at *1–*2 (E.D. La. Mar. 31, 2008). Whatever insurable interest Lafarge 9 acquired in Barge ING 4727 through its control of the vessel under these extenuating 10 circumstances, it was not — nor was it akin to — an acquisition of the vessel through purchase, 11 charter, or lease. It also cannot be broadly said that Barge ING 4727 was acquired “in addition to 12 or in substitution for” a vessel in Lafarge’s fleet. As the District Court summarized the 13 relationship between Lafarge and Ingram: “Lafarge tells Ingram it needs a cement cargo to be 14 transported[,] . . . . Ingram selects from its fleet of barges one to perform the work[, and] . . . . 15 Lafarge neither knows [n]or cares [which one of Ingram’s barges] . . . arrive at Lafarge’s New 16 Orleans facility to discharge [the] cement cargo.” Lafarge N. Am., Inc., 2008 WL 4449353, at 17 *9. The District Court’s observation confirms the relationship between Lafarge and Ingram that, 18 in practice as well as in agreement, Barge ING 4727 was never imagined to be “in addition to or 19 in substitution for” a vessel in Lafarge’s fleet or otherwise contemplated by the Chartered Barges 20 Clause as a covered vessel. 21 In view of the foregoing, although the Chartered Barges Clause is ambiguous, we hold 22 that summary judgment in favor of the American Club is warranted given (1) the strength of the 23 extrinsic evidence that the Chartered Barges Clause was never intended to cover third-party 24 barges such as Barge ING 4727; (2) the lack of any evidence as to a contrary intent that raises 25 genuine issues of material fact; and (3) the Transportation Agreement’s express articulation of the 26 relationship between Ingram’s barges and Lafarge as outside the conditions of the Chartered 1 Barges Clause. See Merrill Lynch, Pierce, Fenner & Smith, Inc., 232 F.3d at 158; Topps Co., 2 526 F.3d at 68. 3 D. Legal Fees Covered by the Primary Policy 4 The resolution of whether NYMAGIC’s primary policy covers the legal expenses earned 5 by Goodwin Procter, H&K, and Chaffe — the three firms retained by Lafarge without notice to, 6 or consent from, NYMAGIC — lies in applying two provisions of the primary policy. The first 7 provision states that NYMAGIC has the option to name mutually acceptable attorneys who will 8 represent Lafarge in any policy-related litigation between Lafarge and third parties (the “Naming 9 Clause”): 10 [NYMAGIC], in consideration, in consultation with [Lafarge], shall have the 11 option of naming any mutually acceptable attorneys who shall represent [Lafarge] 12 in the prosecution or defense of any litigation or negotiations between [Lafarge] 13 and third parties concerning any claim based on a liability or an alleged liability 14 covered by [the primary] policy, and shall have the direction of such litigation’s 15 [sic] or negotiations. 16 The second provision states that Lafarge is obligated to take steps to protect its own and 17 NYMAGIC’s interests in respect to any occurrence that is likely to give rise to a claim under the 18 primary policy (the “Protection Clause”): 19 [I]n respect of any occurrence likely to give rise to a claim under this policy, 20 [Lafarge] is obligated to and shall take such steps to protect [its] and/or 21 [NYMAGIC’s] interests as would reasonably be taken in the absence of this or 22 similar insurance. 23 On the one hand, NYMAGIC contends that, pursuant to the Naming Clause, it has the 24 right to name mutually acceptable attorneys for Lafarge’s defense in the barge litigation; that in 25 exercising its right to specify counsel, NYMAGIC reasonably offered Lafarge to choose from a 26 panel of six qualified law firms; that Lafarge breached its duty of good faith by ignoring 27 NYMAGIC’s offered list of counsel; that Goodwin Procter, H&K, and Chaffe were retained by 28 Lafarge without NYMAGIC’s knowledge or consent; and that NYMAGIC, which has fulfilled its 29 obligation under the Naming Clause by appointing Sutterfield for Lafarge’s defense, is not 30 obligated to pay for the legal fees earned by the three unauthorized law firms. 1 Lafarge, on the other hand, contends that it took reasonable steps pursuant to its 2 obligations under the Protection Clause. Lafarge asserts that it immediately retained qualified 3 counsel to preserve evidence, investigate the cause of the breached levee, and minimize exposure 4 to liability; that the three firms worked in different capacities and did not duplicate each others’ 5 work; and that the Protection Clause, in light of the exceptional circumstances of Hurricane 6 Katrina, trumped the provisions of the Naming Clause. Furthermore, Lafarge asserts that even if 7 the Naming Clause applied, NYMAGIC acted in bad faith by failing to investigate the case, 8 refusing to explain its rejection of Lafarge’s choice of counsel, and offering an inadequate list of 9 firms to represent Lafarge in the barge litigation. Lafarge also asserts that NYMAGIC is 10 precluded from exercising its rights under the Naming Clause because the interests in the litigation 11 between Lafarge and NYMAGIC are in conflict. 12 Thus, according to Lafarge, the District Court erred because the primary policy covered 13 not only Goodwin Procter and H&K, but also Chaffe, as the retainer of all three law firms was 14 reasonable and required under the Protection Clause. According to NYMAGIC, the District 15 Court erred because the primary policy covers neither Goodwin Procter, H&K, nor Chaffe, as all 16 three firms were retained without NYMAGIC’s knowledge or consent and in violation of the 17 Naming Clause. Each party emphasizes one clause and minimizes the importance of the other. 18 We think it plain that both provisions must be given full effect. See Chapman v. N.Y. State Div. 19 for Youth, 546 F.3d 230, 236 (2d Cir. 2008) (“A contract should be construed so as to give full 20 meaning and effect to all of its provisions.” (internal quotation marks omitted) (quoting Am. 21 Express Bank Ltd. v. Uniroyal, Inc., 562 N.Y.S.2d 613, 614 (App. Div. 1990))). 22 Lafarge is correct that in light of the exceptional circumstances of Hurricane Katrina, it 23 was reasonable to act quickly to retain Goodwin Procter, H&K, and Chaffe to preserve evidence, 24 investigate the cause of the breached levee, and minimize exposure to the damages that would be 25 at stake in the foreseeable and inevitable lawsuits. Considering the level of complexity of the case 26 in both procedural and substantive respects, as well as the possibility of being cast in damages that 1 could exceed the value of Lafarge several times over, we agree with the District Court that “it 2 was reasonable for Lafarge to retain at once a large firm such as Goodwin, with complex case and 3 mass tort experience, to take immediate control of Lafarge’s defense against the anticipated 4 litigation flood (which in fact materialized). It was also reasonable for Lafarge to retain an 5 admiralty firm such as H&K, with experience in the ‘rapid response’ investigation and evaluation 6 of major marine casualties.” Lafarge N. Am., Inc., 598 F. Supp. 2d at 493. 7 In particular, with respect to H&K and Goodwin Procter’s early engagement of a 8 recognized maritime expert to “quickly assemble[] a team of experts in disciplines such as 9 hydrology and soil science, and travel . . . with his team to New Orleans” in order to “investigate 10 the barge breakaway and the allegations that the barge had caused the failure of the . . . levee,” 11 id., the selection and engagement of the expert was also reasonable. “[T]rial lawyers and claims 12 adjusters know that the prompt identification and preservation of evidence — physical, 13 documentary, and testamentary — after a major casualty is vital. . . . [E]vidence . . . could be lost 14 or compromised if not garnered quickly and preserved carefully.” Id. at 494. With respect to 15 Chaffe, “[t]here is no dispute that Lafarge requires local representation by a Louisiana firm well 16 versed in admiralty law,” and thus, it was reasonable to retain local counsel, Chaffe, in addition to 17 Goodwin Procter and H&K. Id. at 495. 18 The primary policy’s provision requiring NYMAGIC to pay expenses related to 19 “defending and/or investigating” in connection with claims arising under the primary policy (the 20 “Expense Clause”) also informs the policy’s coverage of Goodwin Procter, Chaffe, and, in 21 particular, H&K’s investigative services. The Expense Clause requires 22 [NYMAGIC] to pay survey and related expenses reasonably incurred by [Lafarge] 23 and the legal cost and expense of defending and/or investigating and/or conducting 24 proceedings to limit liability on any suit or claim against [Lafarge] based on a 25 liability or an alleged liability coming within the scope of [the primary policy] . . . 26 but [NYMAGIC] shall not be liable for the cost or expense of defending any suit 27 or claim unless said cost or expense shall have been incurred with the written 28 consent of [NYMAGIC]. [NYMAGIC], however, reserves the right to conduct 29 the defense of any actions or suits at its own expense. 30 (emphasis added). Here, H&K was retained for investigative purposes — and not as defense 1 counsel — and was discharged following the conclusion of its investigation on the cause of the 2 breached levee. And although the Expense Clause conditions payment on NYMAGIC’s written 3 consent, Lafarge had apprised NYMAGIC of its retention of H&K in Lafarge’s first notification 4 to NYMAGIC about the possibility of claims arising from Barge ING 4727, and NYMAGIC did 5 not object to H&K’s retention. Moreover, NYMAGIC never initiated its own investigation of 6 Barge ING 4727, yet clearly draws much benefit from H&K’s earlier investigations. Cf. 7 Transcare N.Y., Inc. v. Finkelstein, Levine & Gittlesohn & Partners, 804 N.Y.S.2d 63, 64 (App. 8 Div. 2005) (noting the failure of the insurer to “investigate the merits of the underlying claim” and 9 stating that “the insurer does not satisfy its duty to defend merely by designating independent 10 counsel to defend the litigation” (internal quotation marks omitted)). In fact, the remaining excess 11 insurers implicitly acknowledge that H&K’s investigative services were covered by the primary 12 policy. See AHAC & NACA Reply Br. at 16 (stating that “[Lafarge] violated [the Naming 13 Clause] by unilaterally retaining Goodwin,” without mentioning H&K, which they described as 14 “investigative counsel”). We therefore conclude that the fees earned by Goodwin Procter, H&K, 15 and Chaffe, which fees were of the type specifically contemplated under the Expense Clause, are 16 covered under the Protection Clause in light of the circumstances in this case. 17 That said, the Naming Clause would be rendered a nullity by the Protection Clause if 18 Lafarge’s duty to minimize liability permitted it to hire expensive attorneys and establish 19 NYMAGIC’s obligation to pay for those attorneys until the end of litigation. While Goodwin 20 Procter, H&K, and Chaffe were reasonably retained to minimize potential liability arising from the 21 extraordinary circumstances here, the Protection Clause does not qualify NYMAGIC’s option to 22 name mutually acceptable counsel pursuant to the Naming Clause. The primary policy does not 23 hint of any circumstances where the Protection Clause would trump the Naming Clause, and 24 Lafarge does not point to any language to bring the two provisions into doubt as to their plain 25 meaning in this regard. Thus, once NYMAGIC clearly expressed its intention to fulfill its 26 obligations and offered Lafarge a choice of six qualified law firms, it was incumbent upon Lafarge 1 to act in good faith to consider agreeing to retain a firm from NYMAGIC’s list. 2 Lafarge now asserts various reasons for rejecting NYMAGIC’s offered list of firms; 3 however, none of these arguments has merit. Lafarge claims that the firms offered by NYMAGIC 4 were unqualified to defend its interests in the barge litigation because Sutterfield is “only a five- 5 person firm.” But NYMAGIC not only offered Sutterfield, but also a list of several law firms 6 composed of between 40 and 160 attorneys specializing in maritime law and experienced in class 7 actions. It was only after Lafarge refused to consider any of these larger firms that NYMAGIC 8 retained Sutterfield to defend Lafarge, which was then already being represented by three large 9 law firms. Moreover, Lafarge’s argument is predicated on the unwarranted assumption that a 10 “five-person firm” is less competent than a larger firm or that the “five-person firm” would 11 knowingly fail in its duties to adequately prepare for Lafarge’s defense. See La. Rules of 12 Professional Conduct R. 1.1(a) (“A lawyer shall provide competent representation to a client.”). 13 There is nothing to suggest that Sutterfield lacks expertise in complex maritime defense or that it 14 would not associate itself with another firm in the absence of Goodwin Procter and Chaffe. Cf. 15 N.Y. Rules of Professional Conduct R. 1.1(b) (“A lawyer shall not handle a legal matter that the 16 lawyer knows or should know that the lawyer is not competent to handle, without associating 17 with a lawyer who is competent to handle it.”). 18 Lafarge also argues that NYMAGIC failed to provide an explanation for rejecting 19 Lafarge’s three unauthorized law firms, whose replacement several weeks after their retention 20 would be “nonsensical” and “unreasonable.” But this argument is backwards. After being 21 informed of Lafarge’s unauthorized retention of three law firms, NYMAGIC offered its own list 22 of firms. Lafarge made no response to the offer and submitted no reasons for rejecting it. 23 NYMAGIC acted consistently with the Naming Clause, while Lafarge breached its duty to 24 consider NYMAGIC’s offered list of law firms in good faith. See Nuvest, S.A. v. Gulf & W. 25 Indus., Inc., 649 F.2d 943, 947 (2d Cir. 1981) (“Under both contract law and agency principles, 26 the parties owe each other a duty of good faith.”). Indeed, because Lafarge lodged no response 1 to NYMAGIC’s offered list of law firms, it seems inappropriate for Lafarge to now complain that 2 NYMAGIC failed to consider the high cost of replacing law firms that had already begun working 3 on Lafarge’s defense — an argument that could have been made had Lafarge “consult[ed]” with 4 NYMAGIC regarding “mutually acceptable attorneys” pursuant to the Naming Clause. 5 Moreover, Goodwin Procter and Chaffe would not have been as entrenched and costly to replace 6 had Lafarge informed NYMAGIC of their retention at an earlier time. 7 Finally, Lafarge argues that NYMAGIC is precluded from exercising its rights under the 8 Naming Clause because a conflict of interest is inherent in Lafarge’s relationship with 9 NYMAGIC. Lafarge asserts that because the potential liability at stake in the barge litigation 10 (billions of dollars) is substantially greater than the amount covered by NYMAGIC 11 (approximately $30 million, which includes obligations under both the primary and excess 12 policies), Lafarge was permitted under New York law to retain its own counsel and bill 13 NYMAGIC for that expense under the primary policy. This argument, however, must be 14 rejected, as Lafarge’s alleged “conflict” with NYMAGIC is not of the type recognized to confer 15 an independent right on the insured to retain counsel at the insurer’s expense. 16 The New York Court of Appeals has held that “[i]ndependent counsel is only necessary in 17 cases where the defense attorney’s duty to the insured would require that he defeat liability on any 18 ground and his duty to the insurer would require that he defeat liability only upon grounds which 19 would render the insurer liable.” Pub. Serv. Mut. Ins. Co. v. Goldfarb, 53 N.Y.2d 392, 401 n.* 20 (1981); see also Cunniff v. Westfield, Inc., 829 F. Supp. 55, 57 (E.D.N.Y. 1993); Emons Indus., 21 Inc. v. Liberty Mut. Ins. Co., 749 F. Supp. 1289, 1297 (S.D.N.Y. 1990). Here, both NYMAGIC 22 and Lafarge share a common interest in defeating Lafarge’s liability in the barge litigation. Rather 23 than allege a conflict of interest based on different theories of defense affecting the distribution of 24 liability between Lafarge and NYMAGIC, Lafarge asserts its purported conflict on the substantial 25 difference in the amounts at stake in the barge litigation and the amounts that are covered under 26 the primary policy. Lafarge’s purported conflict is not a recognized basis for permitting Lafarge 1 to retain independent counsel at the expense of NYMAGIC’s primary policy. As the New York 2 Court of Appeals observed: 3 [W]here multiple claims present no conflict — for example, where the insurance 4 contract provides liability coverage only for personal injuries and the claim against 5 the insured seeks recovery for property damage as well as for personal injuries — 6 no threat of divided loyalty is present and there is no need for the retention of 7 separate counsel. This is so because in such a situation the question of insurance 8 coverage is not intertwined with the question of the insured’s liability. 9 Goldfarb, 53 N.Y.2d at 401 n.* (emphasis added). Of course, we observe that settlement 10 negotiations may raise a conflict of interest even between an insured and an insurer sharing a 11 common goal of defending against liability, but such a potential or actual conflict is not apparent 12 in this case.11 Lafarge therefore did not have a right to pursue independent counsel whose legal 13 fees would be covered by the primary policy. 14 Accordingly, to give full effect to the provisions in the primary policy, we hold that 15 Goodwin Procter’s and Chaffe’s legal fees are covered under the Protection Clause for amounts 16 incurred by Lafarge prior to, but not including, September 28, 2005, when it became clear that 17 Lafarge was not acting in good faith in considering the list of six qualifying law firms proposed on 18 September 22 by NYMAGIC, and when NYMAGIC advised Lafarge by e-mail that it would not 19 “agree to pay for the three sets of attorneys on the case, none approved by [NYMAGIC].” With 20 respect to H&K, because it was retained on a temporary basis for an investigative mission rather 21 than as defense counsel, and because NYMAGIC “did not commission any investigation of its 22 own into the incident and received full disclosure of the fruits of Lafarge’s,” Lafarge N. Am., Inc., 23 598 F. Supp. 2d at 494, the fees earned by H&K are covered in toto under the Protection Clause. To the extent NYMAGIC suggested that Lafarge retain additional attorneys (at Lafarge’s own expense) in light of the potential for exposure above the limits of the relevant policies, such a suggestion does not necessarily mean NYMAGIC has a conflict of interest with Lafarge. Indeed, it is encouraged in situations where the potential claims exceed the policy limits to advise the insured of retaining separate counsel. See Nat’l Conference of Lawyers and Liab. Insurers, Am. Bar Ass’n, Guiding Principles II (reprinted in Douglas R. Richmond, Walking a Tightrope: The Tripartite Relationship Between Insurer, Insured, and Insurance Defense Counsel, 73 Neb. L. Rev. 265, 286–91 (1994)); id. at 287 (“[T]he [insurer] retains the exclusive right to control and conduct the defense of the case, in good faith, subject to the right of the insured or such additional attorney to participate.”). 1 E. Coverage Under the Excess Policy 2 1. Coverage Generally 3 The excess insurers concede that a finding of “simple non-coverage” of Barge ING 4727 4 under the American Club Policy negates any argument they may have that Lafarge breached its 5 obligation under the excess policy to maintain and keep in full effect the American Club Policy. 6 Because we hold today that summary judgment in favor of the American Club is warranted based 7 on the simple non-coverage of Barge ING 4727 under the American Club Policy, and because 8 there is no dispute that NYMAGIC’s primary policy has been exhausted, the excess policy now 9 applies to cover expenses in excess of the primary policy’s limits. 10 2. Coverage of Lafarge’s Unauthorized Legal Expenses 11 The District Court determined that the excess policy here is a “bumbershoot” policy, 12 which is a type of insurance “intended to fill any coverage gap which might occur when an 13 assured’s underlying or primary insurance limits are exceeded, or when underlying insurance 14 covering the risk involved does not exist.” Lafarge N. Am., Inc., 598 F. Supp. 2d at 486 (internal 15 quotation marks omitted; emphases added). This determination is supported by the excess policy, 16 which states that it covers “[a]ll Protection and Indemnity risks of whatsoever nature including, 17 but not limited to, those covered by the Underlying Protection and Indemnity insurances”; 18 “General Average, Collision Liabilities, Tower’s Liabilities, Salvage, Salvage Charges, and Sue 19 and Labor arising from any cause whatsoever”; and “[a]ll other sums which [Lafarge] shall 20 become legally liable to pay . . . for damages of whatsoever nature” for “[p]ersonal injuries” and 21 “[p]roperty [d]amage.” See St. Paul Fire & Marine Ins. Co. v. Bd. of Comm’rs of Port of New 22 Orleans, 646 F. Supp. 2d 813, 818–19 (E.D. La. 2009) (describing the foregoing coverage, in the 23 exact terms, as “considered standard in marine bumbershoot policies”). The excess policy also 24 broadly covers “such expenses as are set out in the definition of ‘ULTIMATE NET LOSS’” (the 25 “Loss Clause”), which, in turn, includes “expenses for doctors, lawyers, nurses and investigators 26 and other persons, and for litigation, settlement, adjustment and investigation of claims and suits 1 which are paid as a consequence of any occurrence covered hereunder.” And although there is a 2 clause that conditions the excess policy on the proper maintenance of specified primary insurance 3 policies, that clause does not speak to the circumstance where the underlying primary policies are 4 properly maintained but nonetheless do not cover an expense that is otherwise covered by, for 5 example, the Loss Clause. The excess policy is, therefore, a “bumbershoot.” 6 Because the primary policy covers a portion of the legal fees earned by Lafarge’s 7 unauthorized law firms, any amount exceeding the primary policy’s limit with respect to those 8 expenses is covered by the excess policy.12 But because the excess policy is also a 9 “bumbershoot,” coverage of the portions of the legal expenses not covered under the primary 10 policy is still possible. 11 Although the excess policy does not include a provision similar to that in the primary 12 policy reserving the insurers the right to name Lafarge’s defense counsel, the excess policy does 13 grant the insurers the right to associate with NYMAGIC to defend Lafarge in the barge litigation. 14 Specifically, the provision (the “Assistance Clause”) allowing for association provides: 15 [The excess insurers] shall have the right and shall be given the opportunity to 16 associate with [Lafarge] or [Lafarge’s] Underlying Insurers, or both, in the defense 17 and control of any claim, suit or proceeding relative to an occurrence where the 18 claim or suit involves or appears reasonably likely to involve [the excess insurers] 19 in which event [Lafarge], the Underlying Insurers and [the excess insurers] shall 20 cooperate in all things in the defense of such claim, suit or proceeding. 21 Relying upon this provision, the excess insurers argue that the excess policy’s coverage of 22 legal fees is limited to those covered by the primary policy. But we do not see what the excess 23 insurers imagine is contained in the Assistance Clause that plainly supports their argument. The 24 Assistance Clause does not incorporate the primary policy’s Naming Clause. Nor does it adopt 25 the Naming Clause as a limitation on the excess insurers’ obligation to pay legal fees. The 26 Assistance Clause simply allows for the excess insurers to associate with either NYMAGIC or The excess policy provides, in part, that “[i]f other valid and collectible insurance with any other Insurer is available to [Lafarge] covering a loss also covered by this Policy, . . . the insurance afforded by this Policy shall be in excess of and shall not contribute with such other insurance.” 1 Lafarge, or both, in the defense of qualifying claims, and otherwise requires cooperation among 2 all parties in the common goal of defense. Indeed, this reservation of rights is strong evidence 3 that coverage for fees earned by both counsel, either as excess to NYMAGIC’s primary policy or 4 as initial coverage for Lafarge’s independent counsel, was intended pursuant to the umbrella 5 coverage provided by the excess policy. That the excess insurers may associate with one counsel 6 does not end their broad obligation to indemnify expenses for other counsel who, at the option of 7 the excess insurers, would have also been associated with the excess insurers’ counsel. 8 Because we conclude that the excess policy is a “bumbershoot” and may cover legal 9 expenses that are not covered by the primary policy, the only limitation to the excess policy’s 10 coverage of legal expenses is the general rule that coverage be for reasonable legal expenses — a 11 point of law not in dispute by the parties. See Lafarge N. Am., Inc., 598 F. Supp. 2d at 497 (“All 12 parties agree that the Insurers are responsible to pay only the ‘reasonable’ fees and costs of 13 attorneys.”). In this regard, although we reject the excess insurer’s construction of the Assistance 14 Clause, we agree that Lafarge’s retention of Goodwin Procter and Chaffe in open defiance of the 15 plain terms of the Naming Clause of the primary policy was unreasonable. The excess policy 16 specifically requires the primary policy to be maintained in full effect; the excess insurers therefore 17 reasonably expected Lafarge’s defense counsel to be selected pursuant to the plain terms of the 18 primary policy. Moreover, while it may have been reasonable for Lafarge to retain its own 19 attorneys to protect against any remote potential conflicts of interest between the insurers and 20 Lafarge, the continued retention of Goodwin Procter and Chaffe goes well beyond the necessity 21 of filling that modest role. Accordingly, we conclude that the excess policy does not cover the 22 fees and expenses claimed by Goodwin Procter and Chaffe on or after September 28, 2005. 23 F. Legal Fees in Connection with Motions Before the District Court 24 Attorneys’ fees awards in admiralty suits are discretionary and ordinarily require a finding 25 of bad faith. See Ingersoll Milling Mach. Co. v. M/V Bodena, 829 F.2d 293, 309 (2d Cir. 1987). 26 In denying a motion for attorneys’ fees, the District Court may also consider, inter alia, the 1 relevant state rule, here, New York, and, as well, the status of the party moving for fees, i.e., 2 whether the movant is a prevailing party. See N.Y. Marine & Gen. Ins. Co. v. Tradeline (LLC), 3 266 F.3d 112, 130 (2d Cir. 2001). The District Court in this case denied Lafarge’s motion for 4 attorneys’ fees because: (1) under New York law, Lafarge would not be entitled to attorneys’ 5 fees, and (2) Lafarge only partially prevailed in defending against the insurers’ summary judgment 6 motions. In light of our holdings today, Lafarge cannot claim error with respect to the District 7 Court’s latter conclusion. 8 “Under New York law, it is well settled that an insured cannot recover his legal expenses 9 in a controversy with a carrier over coverage, even though the carrier loses the controversy and is 10 held responsible for the risk.” Employers Mut. Cas. Co. v. Key Pharms., 75 F.3d 815, 824 (2d 11 Cir. 1996) (internal quotation marks omitted). A “narrow exception” to this rule applies, Liberty 12 Surplus Ins. Corp. v. Segal Co., 420 F.3d 65, 67 (2d Cir. 2005) (per curiam) (internal quotation 13 marks omitted), when an insured is “cast in a defensive posture by the legal steps an insurer takes 14 in an effort to free itself from its policy obligations, and who prevails on the merits,” U.S. 15 Underwriters Ins. Co. v. City Club Hotel, LLC, 3 N.Y.3d 592, 597 (2004) (internal quotation 16 marks omitted). Although the exception appears broadly applicable to insurers attempting to 17 escape any policy obligation, we have held that the insured is entitled to attorneys’ fees only if the 18 insured prevails in a dispute over the insurer’s attempt “to free itself” from its “duty to defend.” 19 Liberty Surplus Ins. Corp., 420 F.3d at 67–68. 20 Here, NYMAGIC does not contest its duty to defend Lafarge in the barge litigation. 21 Indeed, NYMAGIC concedes that it has such a duty, and has accordingly offered a list of 22 attorneys for Lafarge’s defense, assigned Sutterfield to Lafarge’s defense after Lafarge 23 unreasonably rejected NYMAGIC’s offered list of attorneys, and continues to pay for Sutterfield 24 and other related expenses. Similarly, although AHAC and NACA quibble with the order in 25 which they should pay for Lafarge’s defense, neither insurer denies that it has a duty to pay for 26 Lafarge’s legal expenses insofar as those expenses exceed the primary policy. More importantly, 1 AHAC and NACA adopt NYMAGIC’s position with respect to coverage under the primary 2 policy and do not contest NYMAGIC’s duty to defend Lafarge in the barge litigation. In essence, 3 the insurers here only challenge their obligation to pay for Lafarge’s firms, which were retained 4 without NYMAGIC’s knowledge or consent and in contravention to the Naming Clause of the 5 primary policy. NYMAGIC is asserting its right under the Naming Clause to defend Lafarge. 6 Accordingly, because the insurers do not attempt to avoid their duty to defend Lafarge, the 7 District Court’s conclusions regarding New York law were not in error. 8 We therefore conclude that the District Court did not abuse its discretion. The District 9 Court’s underlying reasons for denying Lafarge’s motion for attorneys’ fees were sufficient and 10 without error. 11 III. CONCLUSION 12 We have considered the remaining arguments made by the parties and find them to be 13 either without merit or unnecessary to address in light of our holdings in this opinion. For the 14 foregoing reasons, the judgment of the District Court is AFFIRMED in part, VACATED in part, 15 and REMANDED for further proceedings not inconsistent with this opinion.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4775 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WALTER BABB, a/k/a B, a/k/a Brian, a/k/a WB, Defendant - Appellant. No. 07-4776 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES MOORE, a/k/a Duffy, a/k/a Fat James, Defendant - Appellant. Appeals from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (1:04-cr-00190-AMD) Argued: January 28, 2010 Decided: March 15, 2010 Before TRAXLER, Chief Judge, and KING and GREGORY, Circuit Judges. Affirmed by unpublished opinion. Judge Gregory wrote the opinion, in which Chief Judge Traxler and Judge King joined. ARGUED: Joseph Murtha, MILLER, MURTHA & PSORAS, LLC, Lutherville, Maryland; William Collins Brennan, Jr., BRENNAN, SULLIVAN & MCKENNA, LLP, Greenbelt, Maryland, for Appellants. John Francis Purcell, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: William A. Mitchell, Jr., BRENNAN, SULLIVAN & MCKENNA, LLP, Greenbelt, Maryland, for Appellant Walter Babb. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. GREGORY, Circuit Judge: James Moore and Walter Babb were convicted in the United States District Court for the District of Maryland for their participation in a large drug conspiracy which involved the use of firearms. On appeal, they jointly argue that the district court erred in refusing to give multiple conspiracies and reasonable doubt instructions, the District of Maryland was not the proper venue for the prosecution of one of the firearms offenses, and the district court should have conducted voir dire to determine whether jurors had been intimidated by spectator conduct. 1 Because we find none of petitioners’ arguments persuasive, we affirm both Babb and Moore’s convictions in their entirety. James Moore sought, and we granted, permission to file a pro se supplemental brief after this case was calendared for oral argument. In it he raises arguments concerning speedy trial, double jeopardy, and failure to indict on conduct used as other acts evidence at sentencing. Because settled circuit precedent controls on these issues, see United States v. Keith, 42 F.3d 234, 238-39 (4th Cir. 1994) (holding that where a defendant acquiesces in a continuance, that time is excluded from the speedy trial calculation), United States v. Camps, 32 F.3d 102, 106 (4th Cir. 1994) (holding that multiple sentences for offenses under 18 U.S.C. § 924(c) are appropriate when multiple, separate acts of firearm use have occurred even if they are related to the same underlying offense), and United States v. Grubbs, 585 F.3d 793, 798-99 (4th Cir. 2009) (citing United States v. Watts, 519 U.S. 148, 157 (1997)) (holding that uncharged conduct may be considered at sentencing when that conduct is proven by a preponderance of the evidence) respectively, we decline to address these issues further and find the district court did not err on those grounds. I. During the mid-1990s, Richard Jackson (“Jackson”) began selling cocaine in the Danville, Virginia area. Beginning in 1999 or 2000, Willie Robinson (“Robinson”), a friend of Jackson’s from when they both lived in New Rochelle, New York but who now resided in Danville, began buying cocaine from Robinson. Jackson sold the cocaine to Robinson in powder form and then taught Robinson how to “cook” it into crack for sale. By January 2003, Robinson was buying approximately one kilogram of cocaine per week from Jackson. Jackson met Walter Babb (“Babb”) in 1996 or 1997 in North Carolina. Babb purchased cocaine from Jackson from 1996 until Babb was incarcerated. When he was released in 2000, Jackson again became his supplier. In the spring of 2002, Babb regularly bought several ounces of crack from Jackson a couple times a week for his own distribution. Adrian Williamson (“Williamson”) then sold the crack for Babb. Babb continued to buy from Jackson until Jackson was arrested for drug trafficking offenses in January 2003. At that time, Babb owed Jackson about $12,000 for crack sold on consignment, and Jackson, from jail, arranged for Robinson to collect payment from Babb. Even though Jackson had been a source of their cocaine, Babb and Williamson continued to distribute crack in the Greensboro area after Jackson’s arrest. Walter Moore (“Moore”) was also from New Rochelle and was involved in drug trafficking with Robinson before Robinson moved to North Carolina. When Moore subsequently moved to Andrews, South Carolina, he contacted Robinson again, offering to connect him with a source for cheaper cocaine so that Robinson could continue his drug trafficking operations after Jackson’s arrest. To this end, Moore traveled to El Paso, Texas in August of 2003. While there, he attempted to get a friend he met in jail, Rey Sanchez (“Sanchez”), to give him several kilograms of cocaine on consignment. However, Sanchez refused to front any drugs, and Moore returned home after a week. During this time, Moore made several telephone calls from Sanchez’s body shop in El Paso to his longtime girlfriend, Davita Bush (“Bush”), the records of which were admitted at trial. In October 2003, Moore again attempted to secure cocaine from Mexico and traveled to El Paso for three weeks. This time he went with Robinson to broker a deal between Robinson and Sanchez, though Moore complained to Bush during a phone call that Robinson was being greedy. Babb also accompanied them, and sent money via Western Union to Bush, the record of which was admitted at trial. While Babb was in Mexico, Porsha Harper (“Harper”), one of his girlfriends, looked after his apartment. Harper met Babb in 2001 in Greensboro, and they had an on-again- off-again relationship. In October 2003, Babb called her and asked her to check on his house and do his laundry while he was away, which she did. In late October when Moore, Babb and Robinson returned to Greensboro, Moore stayed with Babb in his apartment. That was the first time Harper met Moore, and they became friends. On November 5, 2003, Moore asked Harper if she would drive him to New York, and she agreed. Very early the next morning, Moore and Babb arrived at Harper’s house driving a Dodge Intrepid. Harper had seen the Intrepid before and knew that Babb used in his drug business, so she asked Babb if there were drugs in the car. He said no. Babb also told her that something had come up and that he was no longer going to be going on the trip to New York. Harper then left with Moore and drove for several hours until they entered Maryland, then Moore took over driving. During the drive, Moore told her that he was the “connect” on a drug deal with Babb in Mexico. He also told her there was $300,000 in the car. At approximately 10:28 a.m. that day, Moore and Harper were stopped by Trooper Cameron, a Maryland State Police Officer, for a speeding violation while traveling on Interstate 95. Moore was unable to produce any identification or a driver’s license, and he and Harper gave conflicting stories. Trooper Cameron noticed that the trunk of the car was riding low and asked Harper about it. She stated the trunk was full of clothing and offered to show him. Harper got the keys from inside the car, walked to the trunk, and opened it. Trooper Cameron and the backup officers he had called saw two dead bodies wrapped in blankets and garbage bags laying in the trunk. Harper immediately noticed that the blankets the bodies were wrapped in were the same blankets she had previously laundered at Babb’s house. Harper and Moore were arrested. Moore waived his Miranda rights and spoke with police. He told them he was running drugs for Rey Sanchez and that he had hundreds of thousands of dollars in the car. He denied knowledge of the bodies. The victims were identified as Robinson and Alexandria Withers, another participant in the drug conspiracy. Both had been shot multiple times at close range. Upon forensic examination, Moore’s fingerprints were on the garbage bags the victims were wrapped in. 2 After Moore was arrested, Babb spoke with Bush via telephone and started sending her significant amounts of money via Western Union. Bush in turn arranged three-way phone calls between Moore in jail and Babb. During these calls, Moore and Babb arranged for payments to Bush, as well as for her to come There was myriad other evidence concerning the murders presented at trial that is not pertinent for the questions before this Court. to Greensboro to get drugs for sale from Babb. She traveled to Greensboro in early 2004 and received 200 grams of crack cocaine from Babb. In another visit she received crack and cocaine powder. Bush was arrested on July 14, 2004, for her involvement in the drug trafficking scheme. On June 9, 2004, a search warrant was executed on Babb’s former apartment, which was uninhabited after he had moved out. The police found evidence of bloodstains on the carpet and elsewhere in the apartment. On August 17, 2004, Babb was arrested in Greensboro. His current residence was searched, and two assault rifles were recovered from a crawl space in the ceiling right next to the door. A Taurus forty-five caliber handgun was recovered from the insulation, and other guns were found in a bag in the attic. Babb and Moore were charged in the District of Maryland in a seven-count indictment with: Count One conspiracy to possess with intent to distribute five kilograms or more of cocaine base in violation of 21 U.S.C. § 841(a)(1); Count Two conspiracy to carry and use firearms during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(o); Count Three knowingly carrying and discharging a firearm against Willie Robinson in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c); Count Four knowingly using and discharging a firearm against Alexandria Withers in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c); Count Five causing the death of Willie Robinson by discharging a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(i); Count Six causing the death of Alexandria Withers by discharging a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(i); and Count Seven knowingly possessing firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). At trial, the United States dismissed Counts Five and Six of the indictment at the close of evidence. The jury found Moore guilty of Counts One, Two, Three, Four and Seven. He was sentenced to life on Count One, 240 months on Count Two, 120 months on Count Three, 120 months on Count Four, and 300 months on Count Seven. The jury failed to reach a verdict on Counts Three and Four as to Babb, and convicted him of Counts One, Two and Seven. Babb was sentenced to life on Count One, twenty years on Count Two, and sixty months on Count Seven. This appeal followed. II. On appeal, Babb and Moore raise questions concerning the jury instructions given at trial, venue, and jury intimidation. We address each of these issues in turn. A. A district court’s denial of a requested jury instruction is reviewed by this Court for abuse of discretion. United States v. Romer, 148 F.3d 359, 367 (4th Cir. 1996). Babb and Moore argue that the district court erred in failing to give both a multiple conspiracies instruction and a reasonable doubt instruction. We disagree. 1. Babb and Moore first argue that the district court erred in failing to give a multiple conspiracies instruction when they requested it. They contend that there was no overarching conspiracy between them, just individual drug conspiracies, and even if they did conspire together, the evidence supports a finding that the conspiracy began in October 2003, and not earlier as charged. However, sufficient evidence exists to demonstrate that their drug trafficking activities were related and, thus a multiple conspiracies instruction was not warranted. A district court need not instruct on multiple conspiracies each time a defendant requests it. Rather, “[a] court need only instruct on multiple conspiracies if such an instruction is supported by the facts.” United States v. Mills, 995 F.2d 480, 485 (4th Cir. 1993). Thus, “[a] multiple conspiracy instruction is not required unless the proof at trial demonstrates that appellants were involved only in ‘separate conspiracies unrelated to the overall conspiracy charged in the indictment.’” United States v. Kennedy, 32 F.3d 876, 884 (4th Cir. 1994) (quoting United States v. Castaneda-Cantu, 20 F.3d 1325, 1333 (5th Cir. 1994)). Furthermore, even if one overarching conspiracy is not apparent, failure to give a multiple conspiracies instruction is reversible error only when it causes substantial prejudice to the defendant. United States v. Tipton, 90 F.3d 861, 883 (4th Cir. 1996). To find such prejudice, “the evidence of multiple conspiracies [must have been] so strong in relation to that of a single conspiracy that the jury probably would have acquitted on the conspiracy count had it been given a cautionary multiple-conspiracy instruction.” Id. This Circuit has addressed several other large drug conspiracies where both the participants and the level of their involvement evolved during the time charged. In United States v. Tipton, 90 F.3d 861 (4th Cir. 1996), the drug conspiracy charged began in New York and moved to Richmond. As a consequence, the leadership changed over time, and new participants entered and left the conspiracy. The Court held that no multiple conspiracy instruction was due in that case, even for the participant who joined shortly before the conspiracy was interrupted by arrests, because the evidence demonstrated one enduring conspiracy dedicated to distributing drugs. Id. at 882-83. Similarly in United States v. Banks, 10 F.3d 1044 (4th Cir. 1993), the coconspirators charged were cocaine suppliers and distributors in the Tidewater Virginia area. Even though the dealers were actually in competition with one another, this Court held they were all properly joined in one conspiracy because they had the same goal of creating a large cocaine market in the area. Id. at 1054. The Court further held that “one may be a member of a conspiracy without knowing its full scope, or all its members, and without taking part in the full range of its activities or over the whole period of its existence.” Id. These cases show that drug conspiracies, though they may have shifting membership, are one unit of prosecution when they have a common unifying goal. The evidence presented in this case demonstrates a single drug conspiracy during the time charged in the indictment. At the time the indictment charged as the beginning of the conspiracy, there was a well-established conspiracy involving Jackson, Robinson, Babb and Williamson. Jackson would sell powder cocaine to Robinson who would then cook it into crack. Babb would buy crack from Jackson, and then Williamson would sell it. This pattern of the conspiracy continued until Jackson was arrested in January 2003. At that time, Babb repaid the debt he owed to Jackson by giving it to Robinson. Babb and Williamson then continued their distribution activities. Meanwhile, Robinson reestablished contact with an old friend from New York, Moore, who promised to help him secure a replacement, cheaper source for cocaine. As a result, Moore traveled twice to El Paso, once alone and once with Babb and Robinson, in order to secure the cocaine. Moore was arrested on November 6, 2003 after Robinson was murdered, but he continued communicating with Babb and Bush to arrange for funds originating from the drug conspiracy to be transferred to Bush and for her to receive cocaine for sale. Bush was arrested in July of 2004, and finally Babb was arrested in August of 2004. Several firearms and a drug scale were found at his house. Given the evidence enumerated above, there was sufficient evidence for a reasonable jury to determine that there was one continuous conspiracy. Williamson and Babb continued their distribution activities after Jackson’s arrest, while Robinson and Moore planned to secure another source of cocaine. That they shared the same goal is manifested by their joint trip to El Paso with the purpose of securing cocaine from Sanchez. Therefore, the evidence does not compel the conclusion that there were two separate conspiracies. Moore and Babb thus cannot demonstrate that the jury would have acquitted as to the conspiracy count if they had been given the cautionary multiple conspiracies instruction, and we find no prejudice to the defendants and hold that the district court did not abuse its discretion denying such an instruction. 2. With regard to the question of whether a reasonable doubt instruction was required when requested by the defendants, this Court is bound by both Supreme Court and Circuit precedent directly contrary to the appellants’ contention. This Court held in United States v. Oriakhi, that no reasonable doubt instruction is constitutionally required, unless the jury requests it. 57 F.3d 1290, 1300 (4th Cir. 1995). Further, the Supreme Court held in Victor v. Nebraska that “the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.” 511 U.S. 1, 5 (1994). There has been no subsequent decision which would lead this Court to rethink its precedent that “the words ‘beyond a reasonable doubt’ have the meaning generally understood for them and that further efforts to restate their meaning with different words tend either to alter or to obfuscate that meaning.” Oriakhi, 57 F.3d at 1300. B. The second issue Moore and Babb raise on appeal concerns venue. As venue is a legal question, this Court reviews the decision of the district court de novo. United States v. Wilson, 262 F.3d 305, 320 (4th Cir. 2001). Moore and Babb argue that venue for the 924(c) offense charged in Count Seven was improper in the District of Maryland because the conspiracy had ceased at the time the firearms were seized from Babb’s home, and thus no element of those offenses occurred in Maryland. This claim relates to their unsuccessful multiple conspiracies argument above and is similarly unavailing. 1. Article III of the Constitution provides, as is relevant here, that “[t]he Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed.” U.S. Const. art. III, § 2, cl. 3. The Sixth Amendment reinforces this command, stating that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. Const. amend. VI; see Fed. R. Crim. P. 18 (“Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed.”). When multiple counts are alleged in an indictment, venue must be proper on each count. See United States v. Bowens, 224 F.3d 302, 308 (4th Cir. 2000). Venue on a count is proper only in a district in which an essential conduct element of the offense took place. Id. at 309. The burden is on the government to prove venue by a preponderance of the evidence. See United States v. Barsanti, 943 F.2d 428, 434 (4th Cir. 1991). For episodic crimes, venue is proper in the district where an essential element of the crime occurred. In continuing crimes, such as conspiracy, venue is proper in the location of any of the criminal acts. United States v. Rodriguez-Moreno, 526 U.S. 275, 279, 282 (1999). Further, in continuing offenses that are based upon some underlying criminal offense, venue for the continuing offense is proper in any district where venue lies for the underlying offense. United States v. Robinson, 275 F.3d 371, 379 (4th Cir. 2001). In Robinson, this Court held that where the defendant was charged with a violation of 18 U.S.C. § 924(j) (causing the death of a person during and in relation to a crime of violence) he could be charged in any district in which the underlying offense, a violation of 18 U.S.C. § 924(c), could have been prosecuted. Id. at 378. Additionally, and most important for this case, in Rodriguez- Moreno, the Supreme Court held that for charges of a violation of 18 U.S.C. § 924(c), venue for the weapons charge is proper anywhere the underlying crime of violence or drug crime could be prosecuted. 526 U.S. at 281-82. 2. Thus, whether venue was proper for the section 924(c) violation charged in Count Seven depends on whether an overt act occurred in Maryland. Babb and Moore argue that the conspiracy had been terminated by the arrests of Moore, Babb, and Bush at the time the weapons were seized. However, because there was no termination of the conspiracy and an overt act occurred in Maryland, venue was proper there. A conspiracy is not terminated merely because its participants are arrested. United States v. Urrego-Linares, 879 F.2d 1234, 1240 (4th Cir. 1989). Even if substantial time has passed between the formation of the conspiracy and the last overt act, the conspiracy has not necessarily ended. Joyner v. United States, 547 F.2d 1199, 1203 (4th Cir. 1977) (holding that the end of a conspiracy must be “affirmatively shown”). Instead, the defendant bears the burden to show that the conspiracy terminated when “the former coconspirator acted to defeat or disavow the purposes of the conspiracy.” United States v. Urbanik, 801 F.2d 692, 697 (4th Cir. 1986). Mere withdrawal is not enough. Here, even though Bush had been arrested a month before the weapons were seized and there was no evidence of contact between Babb and Moore, the conspiracy had not terminated. The weapons and drug scale found inside Babb’s home are evidence that the conspiracy was ongoing, with Babb as its source outside of jail. The defendants presented no evidence which suggests termination other than the arrests, and there was no evidence of disavowal. Therefore, there was sufficient evidence for the jury to conclude that the possession of the weapons was in furtherance of the drug trafficking conspiracy. The conspiracy also had an overt act in the District of Maryland, which Babb and Moore concede in their brief. They acknowledge that venue was proper in Maryland for the substantive drug traffic charge in Count One. Venue was proper in Maryland because an overt act of the drug conspiracy, the carrying of money and bodies into the state on Interstate 95, occurred there. Therefore, under Robinson and Rodriguez-Moreno, venue for the section 924(c) counts is proper as well because those charges could be brought in any district in which the underlying drug offense had venue. C. Finally, for the first time on appeal, Babb and Moore argue that the district court erred in failing to voir dire the jury concerning possible juror intimidation. As they did not object at trial, this Court reviews the district court’s actions for plain error. Fed. R. Crim. P. 52(b). In order to prevail under plain error review, a petitioner must demonstrate that: (1) an error occurred; (2) the error was plain; and (3) the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). If these three elements are met, this Court may exercise its discretion to notice error only if the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks and citations omitted); see also United States v. Hughes, 401 F.3d 540, 555 (4th Cir. 2005). 1. The defendant’s right to a fair trial by an impartial jury free from the potentially prejudicial influence of third parties includes the right to have a jury free from contact by third parties. Mattox v. United States, 146 U.S. 140, 150 (1892) (“Private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.”). There is a presumption of prejudice to the defendant when there is “any private communication, contact, or tampering, directly or indirectly with a juror during trial about the matter pending before the jury.” Remmer v. United States, 347 U.S. 227, 229 (1954). However, this presumption only arises when the defendant establishes that extra-judicial contacts occurred which cast doubt on the validity of the jury’s verdict. Stockton v. Virginia, 852 F.2d 740, 747 (4th Cir. 1988). The only case where this prejudice was said to arise because of intimidation in the courtroom was in the Ninth Circuit’s decision in United States v. Rutherford, 371 F.3d 634 (9th Cir. 2004). The court held that when the intimidation inside the courtroom was coming from the government, there was a presumption of prejudice due to the “heightened concern that the jurors will not ‘feel free to exercise [their] functions’ with the Government ‘looking over [their] shoulder[s].’” Id. at 643 (quoting Remmer, 347 U.S. at 229). Further, even if improper influence is suggested, there is no requirement that the court conduct individualized voir dire each time. The Seventh Circuit has held that individual questioning, which may tend to unsettle the jury, is only warranted in cases where there is a strong indication of bias or irregularity. United States v. Stafford, 136 F.3d 1109, 1112-13 (7th Cir. 1998.) 2. In this case, the conduct complained of was not mentioned by defense counsel, but rather the district court, and as a result this Court has very little information on what the improper influence could have been. The evidence of any bias comes in the form of this brief statement by the district judge outside of the presence of the jury and spectators: Be seated. Counsel, there have been some regular attendees at this trial who I take it are family members, acquaintances of one or both of the defendants. It would appear that perhaps jurors believe too much attention is being paid to them. It’s a rather unusual circumstance, but I’ve heard it before. Obviously, it’s not unusual for participants in a trial to watch the jury, but we want to be sure that the jury is not made uncomfortable. So if I’m correct that the regular attendees have been members of the family or friends of the defendants, I would appreciate counsel commenting to them when and as appropriate that we don’t want to make the jurors uncomfortable, and what’s actually a lot more interesting about a trial is what goes on in the well of the court and from the witness stand as opposed to the jury. So I share that with you just so you can convey the court’s mild concern that the jurors not be made uncomfortable. It’s nothing more than that. Okay? J.A. 915-16. There was no evidence that the judge had been notified by the jury that they were uncomfortable or whether he noticed it on his own. On this evidence alone, the defendant has certainly not carried his burden of showing that the jury was improperly influenced, much less that the influence was so serious that it required individual voir dire by the judge. III. For the foregoing reasons, both Babb and Moore’s convictions are AFFIRMED.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4028 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIMOTHY DARNELL BLACKWELL, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., Chief District Judge. (1:07-cr-00385-JAB-1) Submitted: February 23, 2010 Decided: March 15, 2010 Before NIEMEYER, KING, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, Federal Public Defender, Greensboro, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Angela H. Miller, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Timothy Darnell Blackwell appeals his sentence after pleading guilty to attempting to possess with intent to distribute 35.8 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(b), 846 (2006). On appeal, he contends that his sentence is unreasonably high because he was sentenced as a career offender, and the district court failed to account for the cocaine/cocaine base sentencing disparity. We affirm. We review a sentence imposed by the district court under a deferential abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007). The first step in this review requires us to ensure that the district court committed no significant procedural error, such as improperly calculating the guideline range, failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or failing to adequately explain the sentence. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). We then consider the substantive reasonableness of the sentence imposed, taking into account the totality of the circumstances. Gall, 552 U.S. at 51. On appeal, we presume that a sentence within a properly calculated guideline range is reasonable. United States v. Allen, 491 F.3d 178, 192 (4th Cir. 2007). Based on Blackwell’s prior convictions for felony assault with a deadly weapon with intent to kill and felony conspiracy to commit armed robbery, the probation officer determined that he was a career offender under U.S. Sentencing Guidelines Manual § 4B1.1(a) (2007). As his statutory maximum for the instant offense was forty years, his offense level was thirty-four under USSG § 4B1.1(b). With a three-level reduction for acceptance of responsibility and criminal history category VI, Blackwell’s advisory guideline range was 188 to 235 months in prison. Based on his substantial assistance, the Government moved for a reduction of sentence under USSG § 5K1.1 and 18 U.S.C. § 3553(e) (2006), recommending that the district court depart downward by forty percent from the applicable advisory guideline range. This range would be 112.8 to 141 months. Blackwell did not object to the facts or guideline calculations in the presentence report. However, he argued that the district court should sentence him below his applicable guideline range based on the cocaine/cocaine base disparity, and specifically, that he should be sentenced within the range that would be applicable if his offense involved powder cocaine and his statutory maximum was only twenty years. After a forty percent reduction, this range would be 90.6 to 112.8 months. The Government noted that the Sentencing Commission is required by 18 U.S.C. § 994(h) (2006) to assure that career offenders receive a sentence at or near the maximum term authorized, and argued a reasonable sentence would be within his career offender range after reduction based on the Government’s motion. The district court imposed a sentence of 120 months in prison. In explaining its sentence, the court noted that it had considered the parties’ arguments concerning the cocaine/cocaine base disparity and the career offender guideline; that it had discretion under Kimbrough v. United States, 552 U.S. 85 (2007), to take any disparities into account; and that it had taken the disparities into account in selecting a sentence. Considering all the factors in the case, the district court made a finding in its discretion that Blackwell’s sentencing range based on the career offender guideline provided an appropriate starting point in determining his sentence, and the court granted the Government’s recommended forty percent downward departure. On appeal, Blackwell argues that his sentence is unreasonably high because it is based on an “unjust disparity between a career offender sentenced for crack cocaine and a career offender sentenced for powder cocaine.” As the district court noted, it had discretion to consider Blackwell’s disparity arguments in selecting a sentence, and it did so. We conclude that the court did not abuse its discretion in sentencing him based on the career offender guideline in this case, and his sentence is both procedurally and substantively reasonable. We therefore 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. 09-4186 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT LEE CHILDERS, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:07-cr-00017-IMK-1) Submitted: February 18, 2010 Decided: March 15, 2010 Before MOTZ, GREGORY, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Brian J. Kornbrath, Federal Public Defender, Clarksburg, West Virginia, for Appellant. Sharon L. Potter, United States Attorney, Zelda E. Wesley, Assistant United States Attorney, Clarksburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert Lee Childers pled guilty to distribution of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) (2006), and was sentenced to 135 months’ imprisonment. On appeal, he raises an as-applied Sixth Amendment challenge to his sentence, arguing that his sentence would not be “reasonable” under 18 U.S.C. § 3553(a) (2006) if not for the judicially-found facts that substantially increased his guidelines range. Finding no constitutional error, we affirm. Although the count in the indictment to which Childers pled guilty charged him with distribution of approximately .23 grams of crack cocaine, at sentencing, the district court found Childers responsible under relevant conduct for a “high low of 184.94 to 260.77 [grams of cocaine base].” Childers’ ultimate advisory guidelines range based in part on this finding was 121 to 151 months’ imprisonment. The district court concluded that 135 months was a reasonable sentence in Childers’ case. On appeal, Childers raises an as-applied Sixth Amendment challenge to his sentence, arguing that his sentence would not be “reasonable” under 18 U.S.C. § 3553(a) in the absence of the district court’s factual determination as to the amount of drugs attributable to him. After United States v. Booker, 543 U.S. 220 (2005), the sentencing court still may engage in fact-finding necessary to a correct calculation of the applicable guidelines. See United States v. Battle, 499 F.3d 315, 322-23 (4th Cir. 2007). Nonetheless, Childers argues that, in his case, a constitutional violation occurred because the district court’s decision significantly increased his guideline range. Childers bases his argument on Justice Scalia’s concurring opinion in Rita v. United States, 551 U.S. 338 (2007), in which Justice Scalia stated, “there will inevitably be some constitutional violations under a system of substantive reasonableness [appellate] review, because there will be some sentences that will be upheld as reasonable only because of the existence of judge-found facts.” Id. at 374 (Scalia, J., concurring in part and concurring in the judgment) (emphasis in original). Childers argues that, because a judge-found fact (the amount of drugs attributed to him) was necessary to achieve a correct calculation of the guidelines range and a lawful sentence and that the fact determined by the court had the effect of increasing his sentence significantly, his Sixth Amendment right to a jury trial was violated. A district court violates the Sixth Amendment when it applies the guidelines as mandatory and imposes a sentence greater than the maximum allowed by the jury’s verdict. See United States v. Perry, 560 F.3d 246, 258 (4th Cir. 2009) (holding that, after Booker, district courts may “continue to make factual findings concerning sentencing factors by a preponderance of the evidence,” including relying on acquitted conduct); United States v. Webb, 545 F.3d 673, 677 (8th Cir. 2008) (finding that, as long as the sentence imposed does not exceed the statutory maximum authorized by the jury’s verdict, the district court does not violate the Sixth Amendment by imposing a sentence based on a higher drug quantity than was determined by the jury). In United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008), we specifically rejected the Sixth Amendment as- applied argument, finding it “too creative for the law as it stands.” We reiterated that “[s]entencing judges may find facts relevant to determining a Guidelines range by a preponderance of the evidence, so long as that Guidelines sentence is treated as advisory and falls within the statutory maximum authorized by the jury’s verdict.” Id. As we noted, “[t]he point is thus that the Guidelines must be advisory, not that judges may find no facts.” Id.; see also United States v. Ashqar, 582 F.3d 819, 825 (7th Cir. 2009) (“While [the as-applied Sixth Amendment] argument is not without its advocates, it is not the law.”) (internal citations omitted); United States v. Setser, 568 F.3d 482, 498 (5th Cir. 2009) (rejecting as-applied Sixth Amendment challenge to a higher sentence within the statutory maximum based on judicially-found facts); United States v. White, 551 F.3d 381, 384 (6th Cir. 2008) (en banc) (“In the post-Booker world, the relevant statutory ceiling is no longer the Guidelines range but the maximum penalty authorized by the United States Code.”); United States v. Redcorn, 528 F.3d 727, 745-46 (10th Cir. 2008) (rejecting as-applied Sixth Amendment challenge to judicially-found facts). Here, Childers pled guilty to distribution of .28 grams of cocaine base. The maximum sentence allowed under the statute based on his plea is twenty years’ imprisonment. See 21 U.S.C. § 841(b)(1)(C). The sentencing court determined by a preponderance of the evidence that Childers was responsible for between “184.94 to 260.77 [grams of cocaine base].” The 135- month sentence imposed by the district court, based on this finding and after treating the guidelines as advisory, was within the maximum authorized sentence. Therefore, we find that Childers’ sentence does not violate the Sixth Amendment. Accordingly, we affirm Childers’ sentence. 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. 09-4311 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TRAVIS EDWARD DITTRICH, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (7:08-cr-00094-D-1) Submitted: February 19, 2010 Decided: March 15, 2010 Before KING, SHEDD, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Travis Edward Dittrich pled guilty to fifteen counts of receiving child pornography, 18 U.S.C.A. § 2252(a)(2) (West Supp. 2009) (Counts 1-15), and to one count of possessing child pornography, 18 U.S.C.A. § 2252(a)(4)(B) (West Supp. 2009) (Count 16). (JA 6-41). The district court imposed a 144-month sentence for Counts 1-15 and 120-month concurrent sentence for Count 16. Both sentences were imposed within Dittrich’s properly-calculated advisory Sentencing Guidelines range. Dittrich timely appeals his sentence, alleging that the district court procedurally erred because it rejected his assertion that his criminal history was overstated. For the reasons that follow, we affirm. First, we find no abuse of discretion in the district court’s sentencing of Dittrich. Gall v. United States, 552 U.S. 38, 49 (2007) (providing review standard). Second, our review of Dittrich’s sentence reveals it was procedurally and substantively reasonable, United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009), and we apply a presumption of reasonableness to a sentence within the proper Sentencing Guidelines range. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Finally, we conclude that the district court did not err in rejecting Dittrich’s argument that his criminal history category of III over-represented his actual criminal history, see generally U.S. Sentencing Guidelines Manual § 4A1.3(b) (2008) (permitting downward departure based on over- represented criminal history), and that the district court adequately explained on the record its decision not to depart on this basis. Carter, 564 F.3d at 328. Accordingly, we affirm Dittrich’s sentence. 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

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 10a0154n.06 FILED Mar 15, 2010 LEONARD GREEN, Clerk No. 08-1524 FILED Mar 15, 2010 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT RODERICK DUANE LEWIS, Petitioner-Appellant, ON APPEAL FROM THE UNITED STATES DISTRICT COURT v. FOR THE EASTERN DISTRICT OF MICHIGAN JERI ANN SHERRY, Respondent-Appellee. / Before: MARTIN, SILER, and MOORE, Circuit Judges. PER CURIAM. Roderick Lewis appeals five issues for which the district court denied his motion for habeas relief: (1) admission of identification; (2) suppression of evidence; (3) jury instructions and communications; (4) ineffective assistance of trial counsel; and (5) ineffective assistance of appellate counsel. Having reviewed the briefs and record and heard oral argument, we find no reversible error warranting the grant of a writ of habeas corpus. But this is not to say that there was no legal error committed. Though we agree with the majority of the district court’s conclusions, Lewis v. Sherry, No. 05-74202, 2007 WL 4591299 (E.D. Mich. Dec. 28, 2007), Lewis v. Sherry, No. 05-74202, 2007 WL 1585641 (E.D. Mich. June 1, 2007), we must disagree with its conclusion that the identification was not unduly suggestive. Lewis, 2007 WL 1585641. The full circumstances associated with the identification—a line-up with few similarities among the participants; a pre-lineup sighting of the accused which showed a new, distinctive characteristic; that only the accused had the distinctive characteristic; and the knowledge that the accused was definitely in the line-up—demonstrate that this line-up was unduly suggestive. However, while the state courts and the district court erred in finding that the line-up was not unduly suggestive, the witness’ identification of Lewis was nonetheless reliable under the factors outlined in Neil v. Biggers, 409 U.S. 188, 196-97 (1972). Therefore, the state court’s admission of the identification was not an unreasonable application of federal law. We therefore DENY Lewis’ petition.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 10a0155n.06 No. 08-1964 FILED Mar 15, 2010 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT WILLIE DANSBY, ) ) Petitioner-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR THE ) EASTERN DISTRICT OF MICHIGAN JAN TROMBLEY, Warden, ) ) Respondent-Appellee. ) ) Before: MERRITT, COLE, and COOK, Circuit Judges. COOK, Circuit Judge. Willie Dansby appeals the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm the district court’s denial of habeas relief. I. The district court thoroughly detailed the facts, so we review them only briefly here. A Wayne County grand jury charged Dansby with first-degree murder, assault with intent to commit murder, and possession of a firearm during the commission of a felony (“felony firearm”). The charges stemmed from the shooting death of Clarence Perkins. No. 08-1964 Dansby v. Trombley In March of 2003, Perkins, along with Rick Ivery and Paul Cobb, remodeled Dansby’s kitchen for a fee of $4,000. When the trio went to Dansby’s house in April to collect the last several hundred dollars due them, no one answered the door. They returned later that day, with Perkins reaching the porch first, Ivery following behind, and Cobb still in his vehicle. After a brief verbal exchange, Dansby fatally shot Perkins, but missed Ivery. At trial, the parties agreed that Dansby fired the gun that killed Perkins, but disagreed as to whether he fired in self-defense. Ivery testified that neither he nor Perkins approached Dansby in a threatening manner and that there had been no arguments or problems concerning Dansby’s tardy payments. He also denied having a weapon on him that day and testified that the other men were not carrying weapons either. Cobb corroborated much of Ivery’s testimony. Two of Dansby’s foster children testified that on the morning of April 18, while their foster parents were gone, they heard men cursing and banging on the front door. The men also cut off the home’s power. Frightened, the children hid upstairs. When Dansby and their foster mother returned home, the children relayed what had occurred and identified Ivery as one of the men responsible for the disturbance. Both Ivery and Cobb maintained that they caused no trouble that morning. Taking the stand in his own defense, Dansby agreed that, prior to April 18, he and Ivery’s work crew had gotten along well; but he insisted that after hearing his children’s account of the men’s intimidating behavior at his home, he believed the men posed a threat to him and his family. Dansby testified that he shot at Perkins and Ivery in self-defense. No. 08-1964 Dansby v. Trombley Two police investigators also testified. Investigator Barbara Higgins told the jury that she advised Dansby of his constitutional rights after he turned himself in. Investigator Tawnya King testified that Dansby requested a lawyer shortly into her interrogation. Before closing arguments, defense counsel requested a jury instruction on manslaughter as a lesser-included offense. The court refused to give the requested instruction, instead instructing on first-degree premeditated murder and second-degree murder. The jury convicted Dansby of second-degree murder, Mich. Comp. Laws § 750.317, as well as assault with intent to commit murder, Mich. Comp. Laws § 750.83, and felony firearm, Mich. Comp. Laws § 750.227b. The Michigan Court of Appeals affirmed Dansby’s convictions, People v. Dansby, No. 251732, 2005 WL 387656 (Mich. Ct. App. Feb.17, 2005), and the Michigan Supreme Court denied leave to appeal, People v. Dansby, 703 N.W.2d 188 (Mich. 2005) (table). Dansby then sought federal habeas corpus relief. The district court denied the petition, but we granted a certificate of appealability on three issues: (1) whether the trial court’s jury instructions violated Dansby’s right to due process; (2) whether the admission of evidence relating to Dansby’s post-arrest statements violated his Fifth Amendment right against self-incrimination and his right to due process; and (3) whether Dansby received ineffective assistance of trial counsel. II. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs our review of No. 08-1964 Dansby v. Trombley Dansby’s petition. Thus, although we examine the district court’s legal conclusions de novo, we may not grant habeas relief unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Only Supreme Court holdings qualify as clearly established federal law for habeas purposes. Williams v. Taylor, 529 U.S. 362, 412 (2000). We review the decision of the Michigan Court of Appeals, the last state court to reach the merits of Dansby’s claims, Hunt v. Mitchell, 261 F.3d 575, 581–82 n.3 (6th Cir. 2001), addressing the three issues identified in the certificate of appealability. Under the “contrary to” clause, we may grant relief only “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412–13. Under the “unreasonable application” clause, we may grant the writ only “if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. A. Failure to Provide Jury Instructions on Lesser-Included Offenses Dansby first alleges that the trial court violated his Fourteenth Amendment right to due process when it rejected his request to instruct the jury on voluntary manslaughter and neglected to sua sponte instruct the jury on involuntary manslaughter. In Michigan, voluntary and involuntary manslaughter are necessarily lesser-included offenses of murder, and an instruction on both offenses No. 08-1964 Dansby v. Trombley must be given if a rational view of the evidence supports the instruction. People v. Mendoza, 664 N.W.2d 685, 693 (Mich. 2003). The Michigan Court of Appeals found that a rational view of the evidence did not support an instruction for voluntary manslaughter and upheld the absence of an involuntary manslaughter instruction under plain-error review.1 Dansby’s claim fails because the Supreme Court has never held that due process requires the giving of jury instructions on lesser-included offenses in noncapital cases. In Beck v. Alabama, 447 U.S. 625 (1980), the Supreme Court granted state criminal defendants in capital murder cases a constitutional right to jury instructions on lesser-included offenses, but expressly reserved the question of “whether the Due Process clause would require the giving of such instructions in a noncapital case.” Id. at 638 n.14. Because Dansby did not face capital charges, the Michigan Court of Appeals’s rejection of Dansby’s challenge to the jury instructions falls outside of AEDPA’s purview. See Carey v. Musladin, 549 U.S. 70, 76–77 (2006). Thus, the district court correctly denied his claim. B. Admission of Evidence Relating to Post-Arrest Statements Dansby next argues that the state trial court’s admission of testimony concerning his post- arrest refusal to answer further questions without a lawyer violated his rights to freedom from self- The court applied plain-error review because Dansby’s counsel neither requested an instruction on involuntary manslaughter nor objected to the absence of an involuntary manslaughter instruction. No. 08-1964 Dansby v. Trombley incrimination and due process of law. Specifically, Dansby contests the court’s admission of Investigator Tawnya King’s testimony. King, a rebuttal witness for the prosecution, interviewed Dansby after he turned himself in. On direct examination, King testified that her interview with Dansby ended when he refused to answer a question and requested a lawyer. On re-direct, the prosecutor again explored Dansby’s request for counsel, asking Investigator King: “Did you find it strange . . . when you were conducting your interview . . . that he asked for a lawyer?” King answered: “I wouldn’t call it strange. I would call it convenient.” The Michigan Court of Appeals rejected Dansby’s claim, finding “no reasonable likelihood that the prosecutor’s questioning into defendant’s request for counsel affected the outcome of the trial.” Dansby, 2005 WL 387656, at *4. Assuming a constitutional violation, we, too, find any error harmless. “[W]e need only review the State court’s finding of harmless error under Brecht, which also satisfies AEDPA’s less stringent standard.” Jaradat v. Williams, 591 F.3d 863, 869 (6th Cir. 2010). Harmless error review requires the court to assess whether the constitutional error “‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Fry v. Pliler, 551 U.S. 112, 116 (2007) (quoting Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)). Dansby argues that the admission affected the outcome of the trial by creating a potential for the jury to find Dansby’s refusal to comment on the questions asked, or his request for a lawyer, inconsistent with his self-defense claim because a person acting in self-defense would have answered King’s questions without hesitation. No. 08-1964 Dansby v. Trombley We disagree and hold that the admission did not influence the jury’s verdict. Before King took the stand, Dansby admitted that he asked to see a lawyer. And Investigator King testified that Dansby possessed a constitutional right to consult with a lawyer and that there was nothing “strange” or “peculiar” with his request. Those statements, and the absence of an argument that Dansby’s guilt should be inferred from his invocation of the right to counsel, mitigated any prejudice. Most critically, the evidence against Dansby was overwhelming. Defense counsel never disputed that Dansby shot Perkins, but instead, argued that he fired in self-defense; and the evidence presented at trial undercut Dansby’s self-defense theory. For example, although Dansby claimed that Ivery possessed a gun, Ivery and Cobb testified that neither they, nor Perkins, were armed. Moreover, Dansby claimed that he ran onto the porch to check on Perkins’s condition—an odd thing to do if he believed Ivery possessed a gun and posed a threat to his life. Indeed, despite Dansby’s claim that Ivery fired at him, all casings found at the scene came from the same weapon. Finally, no physical evidence supported Dansby’s allegation that Perkins, Ivery, and Cobb damaged his home that morning. The trial court record, with its overwhelming evidence of guilt, convinces us that the admission of King’s testimony did not influence the outcome of the trial. C. Ineffectiveness of Trial Counsel Finally, Dansby urges this court to overturn the district court’s conclusion by finding that his lawyer rendered constitutionally ineffective assistance both when he elicited testimony regarding No. 08-1964 Dansby v. Trombley Dansby’s post-arrest request for counsel and when he failed to object2 to Investigator King’s testimony concerning that same request. To prevail on his ineffective assistance claim, Dansby must show that: (1) his counsel performed deficiently; and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The Michigan Court of Appeals held that, even if defense counsel performed deficiently, Dansby failed to show prejudice. In the interest of brevity, we presume counsel’s deficiency, and test the presumed deficiency for prejudice. The same considerations that lead us to reject Dansby’s challenge to the admission of his post-arrest statements cause us to reject his ineffective assistance of counsel claim. With the overwhelming evidence of Dansby’s guilt, counsel’s decisions concerning the admission of Dansby’s post-arrest request for a lawyer did not affect the trial’s outcome. III. For these reasons, we deny Dansby’s petition for habeas corpus. Although defense counsel failed to object to the prosecutor’s question about who terminated the interview with Investigator King, he half-heartedly objected when the prosecutor asked King whether she found Dansby’s request for counsel peculiar, saying: “I don’t know, Judge. That’s kind of like on the verge of being objectionable.”

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 10a0156n.06 No. 08-4332 FILED Mar 15, 2010 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE SOUTHERN ) DISTRICT OF OHIO REAL PROPERTY LOCATED AT 2621 ) BRADFORD DRIVE, MIDDLETOWN, BUTLER ) COUNTY, OHIO, ) ) Defendant, and VIRGINIA GAIL FRANZ, as Trustee on behalf of Virginia Gail Franz Trust, Defendant-Appellant. Before: GUY, CLAY and WHITE, Circuit Judges. HELENE N. WHITE, Circuit Judge. Virginia Gail Franz (“Franz”), as trustee of the Virginia Gail Franz Trust, appeals the district court’s grant of summary judgment to the United States (“Government”) in an action for in rem civil forfeiture under 21 U.S.C. § 881(a)(7), and from the court’s subsequent denial of her motion to set aside judgment pursuant to Fed. R. Civ. P. 60(b)(1). Franz argues that she was an innocent owner of the forfeited property and that the district No. 08-4332 United States v. Real Property Located at 2621 court abused its discretion in denying her motion to set aside judgment after her attorney inadvertently failed to respond to the Government’s summary judgment motion. We AFFIRM. I. This case stems from an in rem civil forfeiture proceeding brought by the Government against real property known and numbered as 2621 Bradford Drive, Middletown, Butler County, Ohio. Jon Franz resided in a house on the property, which was owned by the Virginia Gail Franz Trust. On July 3, 2007, Middletown, Ohio police responded to a report of marijuana plants growing in plain view at the property. Officers met with Jon Franz and detected a strong odor of marijuana coming from inside the residence. After obtaining a search warrant, officers found 121 marijuana plants growing in and around the house. The search also revealed an irrigation system operated on a timer and plumbed directly into the house’s water supply, a motorized trolley with grow lights that passed over plants, high-output lights, fans with piping to supply fresh air, and a room equipped with digital scales, small bags of marijuana and larger storage containers of marijuana. Jon Franz was indicted in the Court of Common Pleas in Butler County, Ohio on a number of charges involving the possession, cultivation and distribution of marijuana. The Government then brought a civil action in rem for forfeiture of 2621 Bradford Drive. The Virginia Gail Franz Trust contested the forfeiture and, in January 2008, filed an answer to the Government’s complaint. On May 14, 2008, the Government filed a motion for summary judgment and served notice by email, in accordance with local rules. A response was due by June 9, 2008, but none was filed. On August 12, 2008, having received no response from Franz, the district court granted the Government’s No. 08-4332 United States v. Real Property Located at 2621 motion. Franz filed a motion for relief from judgment the same day, accompanied by an affidavit of counsel stating that he had not received, or had inadvertently deleted without reading, the emailed service. Counsel attested that he was unaware of the pending motion until he received an email informing him that summary judgment had been entered against his client. The district court denied Franz’s motion and Franz timely appealed both the denial of the motion and the grant of summary judgment. II. A. We review the district court’s grant of summary judgment de novo.1 Moses v. Providence Hosp. & Med. Ctrs., Inc., 561 F.3d 573, 578 (6th Cir. 2009). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party “bears the burden of proving that there are no genuine issues of material fact.” Phillips v. Roane County, Tenn., 534 F.3d 531, 538 (6th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The non-moving party must then “come Franz’s brief on appeal does not argue that summary judgment was inappropriate and raises as the sole issue whether the district court abused its discretion in denying her Rule 60(b)(1) motion. While her brief does mention that she appeals the grant of summary judgment, no effort at developing an argument on the issue was made. Such failure generally constitutes waiver. El- Moussa v. Holder, 569 F.3d 250, 257 (6th Cir. 2009) (citing McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)). We address the grant of summary judgment, nevertheless, because the denial of Franz’s Rule 60(b) motion was premised on a failure to demonstrate a meritorious defense to the motion for summary judgment. No. 08-4332 United States v. Real Property Located at 2621 forward with ‘specific facts showing a genuine issue for trial.’” Merriweather v. Zamora, 569 F.3d 307, 313 (6th Cir. 2009) (quoting Fed. R. Civ. P. 56(e)(2)). “When we review a motion for summary judgment, we must view all facts and inferences in the light most favorable to the non-moving party.” Hall v. Spencer County, Ky., 583 F.3d 930, 933 (6th Cir. 2009) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The civil forfeiture provision of the Controlled Substance Act, 21 U.S.C. § 881(a)(7), provides: The following shall be subject to forfeiture to the United States and no property right shall exist in them: . . . (7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year's imprisonment. The subchapter makes it punishable “to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). Violations involving “100 or more marijuana plants regardless of weight” are punishable by no less than five years imprisonment. 21 U.S.C. § 841(b)(1)(B)(vii). Thus, the property was subject to forfeiture. Under the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), the government must prove by a preponderance of the evidence that the property in question is subject to forfeiture under any civil forfeiture statute. 18 U.S.C. § 983(c)(1). In addition, “if the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, No. 08-4332 United States v. Real Property Located at 2621 or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense.” 18 U.S.C. § 983(c)(3). The Government made the requisite showing on both issues. There was extensive use of the property for the purpose of cultivating 121 marijuana plants, including physical improvements made to the property for the sole purpose of marijuana cultivation. Intent to distribute marijuana can be inferred from the large quantity of marijuana plants, and from the presence of scales and packaged marijuana. United States v. Bell, 516 F.3d 432, 446 (6th Cir. 2008). The substantial-connection requirement of CAFRA is supported by the same facts. While Franz denied that marijuana was being cultivated on the property, she presented no evidence to contradict the Government’s assertions. As we have held, “[t]hat the burden is on the government does not change the fact that, if the government meets its burden, it will prevail [on a motion for summary judgment] unless the claimants introduce evidence to support their case.” United States v. $174,206.00 in U.S. Currency, 320 F.3d 658, 662 (6th Cir. 2003). The district court did not err when it concluded that the subject property was subject to forfeiture. CAFRA further provides, in part: (1) An innocent owner's interest in property shall not be forfeited under any civil forfeiture statute. The claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence. (2)(A) With respect to a property interest in existence at the time the illegal conduct giving rise to forfeiture took place, the term “innocent owner” means an owner who-- (i) did not know of the conduct giving rise to forfeiture. . . 18 U.S.C. § 983(d). Franz can avoid forfeiture if she can establish that she is an “innocent owner.” Innocent ownership is an affirmative defense on which the claimant bears the burden of proof to No. 08-4332 United States v. Real Property Located at 2621 show by a preponderance of the evidence that she lacked knowledge of the illegal activity. Reviewing a motion for summary judgment “necessarily implicates the substantive evidentiary standard of proof that would apply at . . . trial . . . . The mere existence of a scintilla of evidence in support of the [opponent's] position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986). By failing to respond to the government’s motion, Franz offered no evidence at all on this issue beyond her general denial of knowledge contained in her pleadings.2 The Government, in contrast, amply supported its motion for summary judgment. Franz admitted visiting the subject property, on which marijuana was openly and extensively cultivated, numerous times. She posted bond for her son on two prior occasions for marijuana-related offenses.3 According to police reports, she further admitted knowledge of her son’s continuing marijuana use during the execution of the search warrant. While all evidence must be viewed in a light most favorable to the non-moving party, a reasonable jury could not infer in the face of Franz’s admissions that Franz had met her burden of establishing her innocent ownership on her denial alone. As the Supreme Court has held, “[w]hen The fact that her state of mind is implicated by an innocent-owner defense does not relieve her of the need to make some showing. See, e.g., Anderson, 477 U.S. at 257 (noting that even in cases where state of mind is at issue, “the [non-moving party] must present affirmative evidence in order to defeat a properly supported motion for summary judgment”). In 1994, Jon Franz was arrested on similar charges stemming from a search of the same property, and in 2007 he pleaded no contest to a charge of drug abuse, for marijuana use. No. 08-4332 United States v. Real Property Located at 2621 the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (internal citations and footnotes omitted). Franz did not supply any evidence to establish her claim of innocent ownership and provided nothing more than “metaphysical doubt” as to how the extensive and open cultivation of marijuana by her son on a property she owned and frequently visited could have gone undetected. Franz was bound by Fed. R. Civ. P. 56(e)(2) to “set out specific facts showing a genuine issue for trial.” The record before the district court contained no such facts, making summary judgment appropriate. B. We now turn to the denial of Franz’s Rule 60(b)(1) motion to set aside judgment. This court “review[s] a district court’s denial of a Rule 60(b) motion for abuse of discretion.” Info-Hold, Inc. v. Sound Merchandising, Inc., 538 F.3d 448, 453-54 (6th Cir. 2008) (citations omitted). An abuse of discretion occurs when the district court commits “a clear error of judgment, such as applying the incorrect legal standard, misapplying the correct legal standard, or relying upon clearly erroneous findings of fact.” In re Ferro Corp. Derivative Litigation, 511 F.3d 611, 623 (6th Cir. 2008) (citing Blue Diamond Coal Co. v. Trs. of the UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 2001), and Schenck v. City of Hudson, 114 F.3d 590, 593 (6th Cir. 1997)). “[R]elief under Rule 60(b) is ‘circumscribed by public policy favoring finality of judgments and termination of No. 08-4332 United States v. Real Property Located at 2621 litigation.’” Blue Diamond, 249 F.3d at 524 (quoting Waifersong Ltd., Inc. v. Classic Music Vending, 976 F.2d 290, 292 (6th Cir.1992)). Rule 60(b) states in pertinent part, “[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect.” Three factors are relevant to determine whether Rule 60(b)(1) relief is appropriate: “(1) whether the party seeking relief is culpable; (2) whether the party opposing relief will be prejudiced; and (3) whether the party seeking relief has a meritorious claim” Williams v. Meyer, 346 F.3d 607, 613 (6th Cir. 2003) (citing United Coin Meter v. Seaboard Coastline R.R., 705 F.2d 839, 844-45 (6th Cir. 1983)). The district court denied Franz’s Rule 60(b)(1) motion on the basis that Franz could not establish a meritorious defense. In her motion, Franz focused on the mistake of her counsel, attaching only an affidavit of counsel regarding his failure to receive notice of the Government’s motion for summary judgment. The motion stated that Franz had no knowledge of her son’s illegal use of the property, but did nothing more to demonstrate that she could raise a genuine issue of material fact on the issue. The district court denied Franz’s motion, concluding that the Government had presented sufficient evidence to negate Franz’s innocent-owner defense, while Franz had “not proffered any facts which tend to show that the illegal activity on the subject property took place without her knowledge or consent.” (R. 21, at 6.) On appeal, Franz presents for the first time a number of unsworn claims pertaining to her innocent-owner defense. However, none of these assertions was included in the record before the No. 08-4332 United States v. Real Property Located at 2621 district court.4 As we have held, “[o]ur function is to review the case presented to the district court, rather than a better case fashioned after a district court's unfavorable order. The court will consider an issue not raised below only when the proper resolution is beyond doubt or a plain miscarriage of justice might otherwise result.” DaimlerChrysler Corp. Healthcare Benefits Plan v. Durden, 448 F.3d 918, 922 (6th Cir. 2006) (citations omitted). The case presented to the district court seeking relief from judgment contained no new factual support for Franz’s innocent-owner defense. The district court had already properly granted the Government’s motion for summary judgment and did not abuse its discretion in concluding that Franz, having failed to present anything more than a reiteration of her previous denials, could not establish that she had a meritorious defense. III. We AFFIRM both the district court’s grant of summary judgment and its denial of Franz’s motion to set aside judgment. It is unnecessary for this court to determine whether the claims presented would have been sufficient to constitute a meritorious defense and we do not reach this issue.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 10a0157n.06 Case No. 08-6356 FILED Mar 15, 2010 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT BRANDY DELONG; BETTY DELONG, ) Guardian/representative - Brandy Delong, ) ) Plaintiffs - Appellants, ) ) v. ) ) JASON ARMS; LARRY VANHOOSE; ) CITY OF PAINTSVILLE; JOHN DOE; ) ON APPEAL FROM THE JANE DOE; K-V-A-T FOOD STORES, ) UNITED STATES DISTRICT INC., dba Food City, Inc., ) COURT FOR THE EASTERN ) DISTRICT OF KENTUCKY Defendants, ) ) and ) ) JOHNSON COUNTY; BIG SANDY ) REGIONAL DETENTION CENTER; ) CHESTER GRIFFITH, ) ) Defendants - Appellees. ) _______________________________________ ) BEFORE: BATCHELDER, Chief Judge; GRIFFIN, Circuit Judge; TARNOW*, District Judge. ALICE M. BATCHELDER, Chief Judge. Brandy Delong and her guardian, Betty Delong (“the Delongs”), brought this action against multiple defendants, including: Big Sandy Regional Detention Center (“Big Sandy”); John Doe, an agent of Big Sandy; K-V-A-T Food Stores, Inc. dba * The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by designation. Food City, Inc. (“Food City”); and Jane Doe, an agent of Food City, asserting claims under 42 U.S.C. § 1983, the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12132, and state law, for injuries alleged to have occurred as a result of Brandy Delong’s apprehension for theft by unlawful taking, disorderly conduct, assault on a police officer, and resisting arrest. The district court granted summary judgment or dismissed with prejudice all claims against all parties except for one claim against Food City, which proceeded to trial. As to that claim, the district court denied the Delongs’ motion and objection regarding jury instructions on punitive damages. The jury returned a verdict in favor of the Delongs, but found damages only in the amount of $1.00. The Delongs appeal. For the reasons that follow, we affirm. While Brandy Delong, who is mentally disabled, and her mother, Betty Delong, were shopping at the Food City store in Paintsville, Kentucky, on April 9, 2005, Brandy concealed some DVDs in her clothing and attempted to leave the store with them. Food City employees detained Brandy, questioning her first in the front of the store, and then, after Brandy became disruptive and was joined by Betty, they moved the conversation to a back room. The Paintsville, Kentucky, police were called during the encounter and Officers Jason Arms and John Epperson responded. Soon after their arrival, Brandy kicked Officer Arms and the officers arrested her for theft by unlawful taking, disorderly conduct, assault on a police officer, and resisting arrest. Officer Arms transported Brandy to the Big Sandy Regional Detention Center (“Big Sandy”), where Big Sandy employees completed the standard intake procedure, including a medical questionnaire. During this process, Brandy exhibited none of the signs that prison officials say would normally lead them to find an individual unfit for incarceration (e.g., non-responsiveness). Brandy was held in a cell at the Center for approximately six hours and claims that, while there, she suffered an “episode” due to the stress of her incarceration. The Delongs filed suit and, on May 31, 2006, filed a First Amended Complaint against Officer Arms; Larry Vanhoose, Paintsville’s police chief; the City of Paintsville; Chester Griffith, the Johnson County Jailer; John Doe, Johnson County Deputy Jailer; Johnson County, Kentucky; Big Sandy; Food City; and Jane Doe, a Food City employee. The 30-count complaint asserted claims under 42 U.S.C. § 1983 for violations of the Delongs’ First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights; claims under and related to the ADA, 42 U.S.C. § 12132; and pendent claims under Kentucky law against Johnson County and Big Sandy for negligent supervision and negligent hiring. The defendants moved for summary judgment and the Delongs responded. The district court granted summary judgment to the defendants on all counts except: the § 1983 official-capacity claims against John Doe as the agent of “Johnson County and/or [B]ig Sandy Regional Detention Center,” which the court construed as claims against Big Sandy; the negligence claim against Jane Doe as an employee of Food City; and the unlawful detention/false imprisonment claim against Food City. In a subsequent order, the district court: denied, on statute-of-limitations grounds, the Delongs’ motion to amend their complaint in order to identify the Doe defendants and to extend the time for issuance of summons, which had the effect of dismissing the claims against the Doe defendants; dismissed as moot the motion of Big Sandy and the other defendants for dismissal of the claims against John Doe; and dismissed all remaining claims against all parties except the unlawful detention/false imprisonment claim against Food City. Finally, the district court denied reconsideration of those dismissals. The claim against Food City proceeded to jury trial and resulted in a judgment in favor of the Delongs in the total sum of $1.00. The Delongs filed a timely notice of appeal, challenging only the district court’s orders granting summary judgment to Big Sandy, “granting Big Sandy Regional Detention Center’s Motion to dismiss all counts against defendant John Doe. . . with Reconsideration denied. . .,” and denying the Delongs’ motion for a jury instruction on punitive damages. After careful review of the First Amended Complaint — characterized accurately and charitably by the district court as “scattershot” — and the district court’s orders, we feel safe in saying that the Delongs’ notice of appeal raises only the § 1983 and state law claims against Big Sandy and its agent John Doe arising from and relating to Brandy Delong’s six-hour incarceration and the claims that Big Sandy violated Brandy Delong’s rights under the ADA. After their initial brief on appeal was filed, the Delongs moved to dismiss Food City, John Doe, and Jane Doe as parties to this appeal, and we entered an order granting that motion. The Delongs’ Notice of Appeal, of course, makes no mention whatever of K-V-A-T Food Stores dba Food City or Jane Doe but, in any event, after that order, all that remains before us is (1) the district court’s summary judgment in favor of Big Sandy on the claims brought directly against it and not against John Doe, see City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (no liability for entity that employed individual sued in official capacity absent finding of wrongdoing by that individual) and Monday v. Oullette, 118 F.3d 1099, 1105 (6th Cir. 1997) (same), and (2) the denial of the Delongs’ motion/objection regarding the jury instructions on punitive damages. The only claims brought directly against Big Sandy are for alleged violation of the ADA and for breach of the “statutory duty placed on [Big Sandy] by the ADA,” a breach of duty that the Delongs claim constitutes “negligence per se.” Turning first to the district court’s denial of the Delongs’ motion and objection regarding a jury instruction on punitive damages, we have searched the Delongs’ brief before us in vain for any mention whatsoever of that issue. Accordingly, we hold that issue waived. See Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005). The district court granted summary judgment to Big Sandy on the Delongs’ ADA claim and their state law negligent-hiring and negligent-supervision claims, finding that as to each of those claims, the Delongs had failed to present evidence to support all of the claim’s elements. The court held that the Delongs had conceded that their negligence-per-se and respondeat-superior claims against various other defendants could not be sustained as a matter of law, and that these claims against Big Sandy — although not conceded by the Delongs — failed for the same reasons. We note that the Delongs’ brief on appeal contains a brief general discussion of § 1983 — which is not relevant to any issue remaining before us in this appeal — and contains no legal argument specific to the ADA. We have nonetheless carefully reviewed the record, the controlling law, and the parties' briefs, and considered, as well, the parties' oral arguments, and we conclude that the district court's opinion and order contains no reversible error. See Delong v. Arms, Civ. No. 06- 77-GFVT, 2007 WL 4510323 (E.D. Ky. Dec. 21, 2007). Because issuance of a full opinion would serve no jurisprudential purpose, and would be duplicative, we AFFIRM the judgment of the district court.

NOT RECOMMENDED FOR FULL TEXT PUBLICATION File Name: 10a0158n.06 No. 09-3247 FILED Mar 15, 2010 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT LARRY GREEN, ) ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE SOUTHERN DISTRICT OF ) OHIO FIDELITY INVESTMENTS, ) ) Defendant-Appellee. ) BEFORE: MARTIN and WHITE, Circuit Judges; ZOUHARY, District Judge.* HELENE N. WHITE, Circuit Judge. Larry Green appeals from the district court’s grant of summary judgment to Fidelity Investments (Fidelity), dismissing Green’s claims of age discrimination, breach of contract, defamation, and tortious interference with business relationships. We affirm. I. The district court opinion sets forth the relevant facts: On September 14, 1999, Plaintiff Larry Green began working for Defendant Fidelity Investments (“Fidelity”) as a financial service representative. At that time, Green signed an Employee Agreement acknowledging that his employment was at-will. While employed at Fidelity, Green became licensed by the National Association of Securities Dealers (“NASD”). In May of 2005, Green transferred to Fidelity’s Investments Department to work as an Investment Representative (“IR”). As an IR, Green answered calls from * The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. current and potential customers to assist them with their financial needs, and refer them to other Fidelity departments. Green was required to “qualify” potential customers to determine which Fidelity products and services were suitable. To properly qualify a caller, an IR must ask each caller a series of pre-determined questions. When an IR determines that a caller is qualified for a particular product or service, the IR marks a “lead” in the caller’s account. A lead identifies the specific product or service for which a caller is qualified and may be interested. Based on the type of lead designated, a Fidelity business partner who specializes in that product or service will then contact the caller to provide additional information and attempt to complete the transaction. IRs are evaluated, in part, on the number and quality of leads they generate. IRs receive monetary incentives such as bonuses, trips and other awards based on their lead volume. As an IR, Green produced a high lead volume. Green won several sales campaigns and trips, including one to Las Vegas. Green also won several awards for customer service. However, Green was also disciplined several times. In July of 2000, Green’s supervisor at the time, Todd Kollman, placed him on corrective action for repeatedly violating the company’s break policy. In January of 2001, Green’s supervisor, Dawn Brewer, issued him a “Final Written Warning” for improperly taking credit for leads. Brewer wrote: “Such inappropriate coding of calls will not be permitted . . . . Improper coding, and ultimately receiving and taking credit for leads not transferred to the Investments department . . . is unacceptable.” Brewer also stated: “This warning will remain in effect for the duration of your employment with Fidelity Investments.” In June of 2003, Green’s supervisor at the time, Andrew Ritter, issued him another Final Written Warning for providing confidential account information to a caller whose identity he did not verify. In August of 2004, Green’s supervisor, Scot Herrmann, issued him a ninety-day warning for excessive trading errors. In March of 2005, Green was placed on probation for continued excessive trading errors. In March of 2006, [Green’s supervisor, Dina] Rulli attended a training session for team managers designed to improve employee performance. Rulli and the managers listened to a call handled by Green and questioned whether he had taken credit for a lead without qualifying the customer. Rulli met with Green and played the call for him. Green admitted that he had not discussed the criteria required to enter and obtain credit for the lead.1 Rulli 1 In his deposition, Green testified: Q: And then you agreed with her in this meeting that you should not have taken credit for a lead, correct? A: I shouldn’t have checked the box. 2 informed Green that she planned to review more of his calls, and she asked whether she would find other such calls. Green assured Rulli that she would not. After meeting with Rulli, Green reviewed his notes from the call. Green recalled that he had been told that the best way to communicate with the Income Planning department was through a lead. Green wanted to be sure that the proper person from the department contacted the customer. Green approached Rulli and told her that she could delete the lead from his total. When Rulli reviewed a sampling of Green’s calls from March 2006, she found that Green had falsified leads for at least six other calls during that month. Rulli did not speak to Green about these calls. Instead, Rulli sent an email to her supervisor, Mary Svitkovich, and a human resources representative, Heidi Fortune explaining that: It was discovered that Larry Green has been inappropriately submitting leads, therefore obtaining credit for work not performed. Leads were submitted for business partners in Annuities, PAS (Portfolio Advisory Services), and Income Planning in instances where these products and services were never discussed with clients. This behavior is a manipulation of the systems to receive credit for work that was not completed. This does have an impact on review scores, quarterly bonuses, and campaign awards. This is a clear violation of our policies and procedures. Rulli, Fortune and Svitkovich agreed that Green should be terminated for violating Fidelity policy. On March 27, 2006, Rulli met with Green and informed him that his employment was being terminated because he inappropriately submitted a lead. Green was 52 years old at the time. Under federal securities law, Fidelity was required to submit a Form U5 to NASD within thirty days of Green’s termination. Form U5 requires Fidelity to explain why the individual’s registration is being terminated, and then verify the accuracy and completeness of the information. Fidelity provided the following reason for terminating Green: “[E]mployee violated department procedures by recording leads to business partners when he did not have the requisite substantive conversations with the customers.” In his Amended Complaint, Green claims age discrimination under the Age Discrimination in Employment Act (“ADEA”) and Ohio Revised Code § 4112.02(A). Green also brings claims of breach of implied contract, defamation, and interference with prospective employment under Ohio law. Q: And by checking the lead box, that was one of the leads that then goes into your incentives statistics. Right? A: Right. That would have gone there. 3 Green v. Fidelity Invs., 2009 U.S. Dist. LEXIS 9949 at *1-*7 (S.D. Ohio Feb 11. 2009) (citations omitted). II. We review the district court’s grant of summary judgment de novo. Moses v. Providence Hosp. & Med. Ctrs., Inc., 561 F.3d 573, 578 (6th Cir. 2009). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party “bears the burden of proving that there are no genuine issues of material fact.” Phillips v. Roane County, Tenn., 534 F.3d 531, 538 (6th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The non-moving party must then “come forward with ‘specific facts showing a genuine issue for trial.’” Merriweather v. Zamora, 569 F.3d 307, 313 (6th Cir. 2009) (quoting Fed. R. Civ. P. 56(e)(2)). “When we review a motion for summary judgment, we must view all facts and inferences in the light most favorable to the non-moving party.” Hall v. Spencer County, Ky., 583 F.3d 930, 933 (6th Cir. 2009) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A. Age-Discrimination Claim Green contests the grant of summary judgment on his age-discrimination claim under the ADEA and the Ohio Revised Code.2 The ADEA forbids an employer to “fail or refuse to hire or to discharge any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1). Green does 2 The elements and burden of proof of an age-discrimination claim under Ohio law parallel an ADEA claim. Campbell v. PMI Food Equip. Group, Inc., 509 F.3d 776, 785 (6th Cir. 2007); see also Conley v. U.S. Bank Nat’l Ass’n, 211 F. App’x 402, 409 (6th Cir. 2006) (unpublished) (“Because summary judgment is proper on [appellant’s] ADEA claim, his claim under O.R.C. § 4112.02 also fails.”). 4 not present direct evidence of age discrimination, but contends that he can make out a prima facie case based on circumstantial evidence. He presents as evidence his firing, despite being a “top performer”; the firing of another protected-age co-worker, Debbie Collins, also for violating company policy;3 the poor treatment of a third protected-age co-worker, Tamara O’Brien; and evidence that Rulli socialized more with younger employees. This court applies the McDonnell Douglas burden-shifting framework to ADEA claims that rely on circumstantial evidence. Geiger v. Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009). To set forth a prima facie case of age discrimination, a plaintiff must establish that he or she was: 1) a member of the protected class (i.e., at least forty years old); 2) subject to adverse employment action; 3) qualified for the position; and 4) replaced by someone outside the protected class or treated differently from a similarly-situated employee outside the protected class. Mitchell v. Vanderbilt Univ., 389 F.3d 177, 181 (6th Cir. 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). “The plaintiff retains the ultimate burden of proving that ‘age was the “but-for” cause of the employer’s adverse action.’” Harris v. Metro. Gov’t of Nashville & Davidson County, 594 F.3d. 476, 485 (6th Cir. 2010) (citing Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009), and Ky. Ret. Sys. v. EEOC, 128 S. Ct. 2361, 2366 (2008)). Green concedes that he cannot establish the fourth factor, as he was not replaced and can point to no similarly-situated non-protected employee treated better than he. Green argues, however, that the district court erred by rigidly applying the McDonnell Douglas test and that the court should 3 Green concedes that Collins was fired for violating company policy. Collins used a customer’s password to access account information for the client, who wanted information available on-line but was not near a computer. Green claims that Collins “could have been counseled” instead of being fired. Appellant’s Brief at 32. 5 have applied a more flexible standard. Specifically, Green claims that the test is inapplicable because Rulli had “no control over who joined the team”—and thus no inference could be drawn from the fact that he was not “replaced”—and because he “did not assert that there was a similarly situated younger person who was treated better,” but rather “pointed to other circumstantial evidence of discrimination.” Appellant’s Brief at 31. While it is true that the McDonell Douglas test should not be formalistically applied, see, e.g., Birch v. Cuyahoga County Probate Court, 392 F.3d 151, 165-66 (6th Cir. 2004), this court routinely affirms the grant of summary judgment for failure to establish a prima facie case based on the McDonnell Douglas criteria. See, e.g., Balding-Margolis v. Cleveland Arcade, No. 09-3017, 2009 WL 3735902, at *4 (6th Cir. Nov. 9, 2009) (unpublished) (affirming summary judgment on failure to present evidence of replacement by a younger worker or more favorable treatment of a similarly situated younger employee); Johnson v. Interstate Brands Corp., No. 08-6387, 2009 WL 3583397, at *3 (6th Cir. Nov. 3, 2009) (unpublished) (affirming summary judgment where younger comparison employee was not similarly situated); Gaffney v. Potter, 345 F. App’x 991, 993 (6th Cir. 2009) (unpublished) (finding a lack of a similarly situated non-protected employee fatal to both Title VII and ADEA claims). The fact that Green cannot establish a prima facie case under the framework is not itself a sufficient reason to dispense with the test in favor of a more forgiving standard. Regardless, under any standard, Green’s circumstantial evidence, consisting primarily of perceived social slights and his own subjective view that his performance made the decision otherwise irrational, do not suggest that his age was the “but-for” cause of his termination.4 4 Because we find that Green did not establish a prima facie case of age discrimination, we need not reach the issue whether Fidelity’s stated reason for his firing was pretextual. 6 B. Breach of Implied Contract Green next argues that the district court erred when it granted summary judgment on his breach of implied contract claim. Green contends that he observed a practice at Fidelity of progressive discipline, which created an implied contract that he would only be fired for cause. This claim is without merit as no implied contract existed. As the district court noted, “not only did Green sign an agreement stating that his employment was at-will, but Fidelity’s Corrective Action Policy expressly states that ‘it does not create a contract of employment’ and that ‘certain conduct may warrant immediate termination.’” Green v. Fidelity Investments, 2009 U.S. Dist. LEXIS 9949, at *16 (S.D. Ohio Feb 11, 2009) (citation omitted). Under Ohio law, “[a]bsent fraud in the inducement, a disclaimer in an employee handbook stating that employment is at will precludes an employment contract other than at will based upon the terms of the employee handbook.” Wing v. Anchor Media, Ltd., 570 N.E.2d 1095, 1098 (Ohio 1991) (citation omitted); see also Smiddy v. Kinko’s Inc., No. C-020222, 2003 WL 203576, at *5-*6 (Ohio App. Jan. 31, 2003) (unreported). Green does not contend that Fidelity engaged in fraud in the inducement and therefore summary judgment was appropriate. C. Defamation Green argues that Fidelity defamed him through both statements made on the Form U5 it submitted to NASD following his termination and statements made by his supervisor within the company. The district court addressed only the first claim. Upon firing Green, Fidelity was obligated to submit a Form U5 explaining the reason for his termination. The reason given was that Green “violated department procedures by recording leads to business partners when he did not have the requisite substantive conversations with the customers.” R. 24, Ex. 2 at 1-2. Green does not 7 contest the accuracy of this statement but rather contends that it implies a dishonest motive. However, the statement makes no mention of any alleged motive and is substantively true. Ohio Revised Code § 2739.02 provides that truth “shall be a complete defense” to an action for defamation. Accord Ed Schory & Sons, Inc. v. Soc. Nat’l Bank, 662 N.E.2d 1074,1083-84 (Ohio 1996). With regard to the statements made by Rulli, Green objects to an email she sent to Svitkovitch and Fortune, stating that Green had been “inappropriately submitting leads, therefore obtaining credit for work not performed,” and that his actions were a “manipulation of systems to receive credit for work not performed.” These statements are protected by qualified privilege. See Gaumont v. Emery Air Freight Corp., 572 N.E.2d 747, 755 (Ohio App. 1989) (“It is well established in Ohio that communications between an employer and an employee or between two employees concerning the conduct of a third or former employee made in good faith concerning a matter of common interest are within the doctrine of qualified privilege.”). As such, they “are not actionable absent a showing of actual malice.” Matikas v. Univ. of Dayton, 788 N.E.2d 1108, 1115 (Ohio App. 2003) (citation omitted). To demonstrate actual malice, Green would need to show that Rulli made the statements “with knowledge that [they] were false or with reckless disregard of whether they were false or not.” Daubenmire v. Sommers, 805 N.E.2d 571, 587 (Ohio App. 2004) (citations omitted). Green points to no evidence from which a rational trier of fact could find actual malice. Rather, Green concedes that he violated company policy, admitted as much to Rulli, and that the reporting violation improperly gave Green credit for the lead. To survive summary judgment, Green is required to do more than simply assert that the statements were made with malice. Arendale v. 8 City of Memphis, 519 F.3d 587, 605 (6th Cir. 2008) (“In order to survive summary judgment, Plaintiff cannot rely on conjecture or conclusory accusations.”). D. Interference with Prospective Employment Green’s final claim is that the statements on the Form U5 interfered with his prospective employment. The Ohio Supreme Court has held that tortious interference with business relationships occurs “when a person, without a privilege to do so, induces or otherwise purposely causes a third person not to enter into or continue a business relation with another.” A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 651 N.E.2d 1283, 1294 (Ohio 1995). Again, Green points to no probative evidence beyond his assertions that no one would hire him because of the statements made on the Form U5. “A plaintiff’s conclusory allegations and subjective beliefs are not a sufficient basis to deny summary judgment.” Johnson v. Interstate Brands Corp., No. 08- 6387, 2009 WL 3583397, at *5 (6th Cir. Nov. 3, 2009) (unpublished) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 585 (1992)). III. Having found no error, we AFFIRM. 9

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 10a0159n.06 No. 09-5119 FILED Mar 15, 2010 LEONARD GREEN, Clerk UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT MELVIN KINDLE; BRADLEY SILVERIA; DIEDRA ADKINS, Plaintiffs-Appellants, ON APPEAL FROM THE UNITED v. STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY CITY OF JEFFERSONTOWN, KENTUCKY; CLAY FOREMAN, MAYOR, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JEFFERSONTOWN CIVIL SERVICE COMMISSION, Defendants-Appellees. / BEFORE: GUY, CLAY, and WHITE, Circuit Judges. CLAY, Circuit Judge. Plaintiffs, Melvin Kindle, Bradley Silveria, and Diedra Handy,1 appeal from the district court’s order granting summary judgment in favor of Defendants, City of Jeffersontown, Clay Foreman, and Jeffersontown Civil Service Commission, in this action alleging that the City violated Plaintiffs’ rights under the Kentucky Whistleblower Act, Ky. Rev. Stat. §§ 61.101-103, and that the City and the Mayor violated Plaintiffs’ rights under the First Amendment At the time Plaintiffs filed this action, Handy was known as “Diedra Adkins.” She married and changed her name in the interim. pursuant to 42 U.S.C. § 1983. For the reasons set forth below, we VACATE the district court’s order and REMAND for further proceedings consistent with this opinion. BACKGROUND Plaintiffs worked for the Jeffersontown Police Department (“JPD”), Kindle as a police officer and Silveria and Handy as dispatchers. On January 25, 2007, Plaintiffs were fired following a proceeding before the Jeffersontown Civil Service Commission (“JCSC” or “the Commission”). Plaintiffs were brought before the Commission after drafting and circulating a report alleging various incidents of misconduct on the part of Lieutenant Colonel Peggy Emington of the JPD, in her official capacity. Plaintiffs tendered the report to Jeffersontown Mayor Clay S. Foreman, Jeffersontown Chief of Police Colonel Fred Roemele, Emington, and members of the Jeffersontown City Council (“JCC”) as an attachment to a letter addressed to the Jeffersontown Ethics Commission (“JEC”). In September 2006, prior to filing the report, Silveria and Handy informed Roemele that Emington had created a hostile work environment that had prompted them to go on medical leave. Roemele responded that he was unable to do anything with regard to Emington because his hands were “politically tied.” (Dist. Ct. R.E. 31 Ex. 1 at 13). On October 3, 2006, while both Silveria and Handy were on medical leave, seven JPD sergeants and two JPD corporals reported allegations of misconduct by Emington to Roemele, who told Foreman about the meeting. On October 10, 2006, Plaintiffs reported to Foreman alleged violations of police department policy by Emington. Plaintiffs indicated that they had consulted an attorney and were considering filing a report pursuant to the Kentucky Whistleblower Act. Foreman told Plaintiffs to delay taking any action until after election day, which was four weeks away, because the election was consuming much of his time. Foreman asked Roemele to monitor the situation closely. On October 27, 2006, Plaintiffs tendered the report pursuant to § 61.102 of the Kentucky Whistleblower Act2 alleging: “facts and information relative to actual and/or suspected violations of laws, ordinances, policies and procedures of the City of Jeffersontown and other authorities and jurisdictions . . . [and] actual incidents and ongoing practices of mismanagement, waste, and abuse of authority occurring within the Jeffersontown Police Department and perpetrated by Lt. Col. Peggy Emington.” (Dist. Ct. R.E. 53 Am. Compl. Ex. 3). Specifically, Plaintiffs’ report alleged that Emington: (1) violated federal and state wage and hour laws by requiring dispatchers to report for duty fifteen minutes early and not paying them overtime; (2) generated unnecessary overtime by forcing some dispatchers to work overtime so that others could attend social events with Emington; (3) violated staffing policy by leaving only one dispatcher on duty so that others could accompany Emington on Secretary’s Day; (4) failed to contribute to the retirement account of a part-time employee and then reduced that employee’s work schedule when she complained to the administration; (5) improperly used an online database to check on employees’ controlled substance prescriptions; (6) failed to qualify with her firearm; and (7) committed miscellaneous acts of mismanagement and/or abuse of authority. On October 31, 2006, Roemele notified Foreman that pursuant to JPD Standard Operating Procedures (“SOPs”) he felt obligated to have the JPD investigate the allegations and file a written Ky. Rev. Stat. § 61.102 states: “No employer shall subject to reprisal . . . any employee who in good faith reports, discloses, divulges . . . any facts or information relative to an actual or suspected violation of any law, statue, executive order, administrative regulation, mandate, rule, or ordinance of the United States, the Commonwealth of Kentucky, or any of its political subdivisions, or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety.” report. On November 1, 2006, Foreman responded to Roemele that the matter had been referred to the JEC and that the JPD should not conduct an investigation. On November 20, 2006, Plaintiffs withdrew their complaint, citing retaliatory action that Jeffersontown had taken against them. Plaintiffs did not appear at the JEC hearing on November 21, 2006, which was scheduled as a result of their report. Nonetheless, the JEC reviewed and dismissed Plaintiffs’ complaint with prejudice, citing a lack of evidence establishing jurisdiction. On November 28, 2006, Emington filed a formal complaint against Plaintiffs with Foreman, which Foreman forwarded to the JCSC. Emington’s complaint requested that Jeffersontown bring a formal personnel investigation and civil service charges against Plaintiffs and alleged that Plaintiffs violated several state laws and JPD SOPs by the manner in which they disclosed false information. On December 5, 2006, the JCSC issued a notice of hearing to Plaintiffs, advising them of their procedural due process rights under the civil service ordinance and scheduling a hearing for December 13, 2006. The hearing was continued at Plaintiffs’ request to January 25, 2007. After the Jefferson Circuit Court denied Plaintiffs’ motion to prohibit the JCSC from conducting the hearing, the Commission convened as scheduled. Plaintiffs appeared by counsel and informed the Commission that they had elected to pursue their claims in circuit court and would be presenting no evidence, calling no witnesses, and making no arguments. At that point, Silveria and Handy exited the hearing room; Kindle stayed in the room for the duration of the proceedings, but did not participate. After Emington completed her case and the Commission deliberated, the Commission found that Plaintiffs had violated three JPD rules and terminated Plaintiffs’ employment with the JPD. On February 5, 2009, the Commission issued written and particularized findings of fact as required under Kentucky law. On February 26, 2007, Plaintiffs filed this action in Kentucky state court, alleging causes of action pursuant to the Kentucky Whistleblower Act and 42 U.S.C. § 1983. On March 23, 2007, Defendants removed this case to the district court. On January 9, 2009, the district court granted summary judgment in favor of Defendants. The court held that: (1) Plaintiffs’ whistleblower claim failed as a matter of law because Jeffersontown is not an employer under the Kentucky Whistleblower Act; (2) Plaintiffs’ First Amendment claim failed as a matter of law because Plaintiffs’ speech was not on a matter of public concern; (3) Plaintiffs’ First Amendment claims against Defendant Foreman in his individual capacity failed because Foreman is entitled to qualified immunity from suit; and (4) Plaintiffs’ First Amendment claims against Foreman in his official capacity and the JCSC failed as duplicative of the claims against Jeffersontown. On January 29, 2009, Plaintiffs filed a timely notice of appeal. DISCUSSION I. Standard of Review We review a district court’s grant of summary judgment de novo. Aloisi v. Lockheed Martin Energy Sys., Inc., 321 F.3d 551, 555 (6th Cir. 2003). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, “show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We must view the evidence in the light most favorable to Plaintiffs to determine whether a genuine issue of material fact exists. Birgell v. Bd. of Comm’rs of Butler County, Ohio, 125 F.3d 948, 950 (6th Cir. 1997). “The central issue is ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’” In re Calumet Farm, Inc., 398 F.3d 555, 558 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). II. Kentucky Whistleblower Act Claims Ky. Rev. Stat. § 61.102 prohibits retaliation by an “employer” against an employee who engages in any whistleblowing activity as follows: No employer shall subject to reprisal . . . any employee who in good faith reports, discloses, [or] divulges . . . any facts or information relative to an actual or suspected violation of any law, statute, executive order, administrative regulation, mandate, rule, or ordinance of the United States, the Commonwealth of Kentucky, or any of its political subdivisions, or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety. Ky. Rev. Stat. § 61.102 goes on to define “employer” as: “. . . The Commonwealth of Kentucky or any of its political subdivisions.” However, the Whistleblower Act does not define “political subdivision.” The parties agree that Jeffersontown is a municipality, or municipal corporation. However, they dispute whether it is a political subdivision of the Commonwealth of Kentucky, and, thus, whether Jeffersontown is an employer under the statute. In Consolidated Infrastructure Mgmt. Auth., Inc. v. Allen, 269 S.W.3d 852 (Ky. 2008), the Kentucky Supreme Court provided guidance as to whether a municipality is a political subdivision for purposes of the Whistleblower Act. In Allen, the Kentucky Supreme Court affirmed a jury trial award under the Whistleblower Act to a former Safety Director of the Consolidated Infrastructure Management Authority (“CIMA”) of the cities of Russellville and Auburn, who was fired after reporting numerous safety violations in the Auburn facility. Id. at 854. The former employee, Thomas Everette Allen, had worked as Safety Director for the City of Russellville before the city joined with the City of Auburn to form CIMA. Id. After Allen won his jury award, CIMA dissolved and was absorbed by the cities of Russellville and Auburn. Id. at 857. The court held that the judgment, which was entered against the municipal corporation CIMA, continued to be enforceable against the municipalities of Russellville and Auburn after CIMA dissolved. Id. (citing 56 Am. Jur. 2d, Municipal Corporations, Etc. § 80 (2008) (“if a municipal corporation goes out of existence by being annexed to, or merged in, another corporation, and if no legislative provision is made respecting the property and liabilities of the corporation which ceases to exist, the corporation to which it is annexed, or in which it is merged, is entitled to all its property and is answerable for all its liabilities”)). Thus, the court approved of applying the Whistleblower Act to a municipality by upholding the jury award. Regardless of whether the parties raised the issue, the court would have been obligated to overturn the award if the statute did not apply to the defendants. In addition, the Supreme Court of Kentucky has said that the Whistleblower Act must be liberally construed to serve its remedial purpose. Workforce Dev. Cabinet v. Gaines, 276 S.W.3d 789, 793 (Ky. 2008). In Gaines, the court indicated that the purpose of the Whistleblower Act is both “to protect employees who possess knowledge of wrongdoing that is concealed or not publicly known, and who step forward to help uncover and disclose that information” and to discourage wrongdoing in government. Id. at 792 (internal citations omitted). In the case at issue, Plaintiffs possessed knowledge of alleged misconduct at the police department that was not publicly known, and they stepped forward to help uncover and disclose that information. Thus, Plaintiffs are the type of employees that the statute was designed to protect. Defendants point to the doctrine of sovereign immunity, which Kentucky courts have extended to states and counties but not municipalities, to argue that municipalities are not political subdivisions of the state for purposes of the Whistleblower Act. See, e.g., Withers v. Univ. of Ky., 939 S.W.2d 340 (Ky. 1997); Kentucky Ctr. for the Arts v. Berns, 801 S.W.2d 327, 331 (Ky. 1990). This Court acknowledges that Kentucky courts have recognized a distinction between municipalities and counties and agencies of the state for purposes of sovereign immunity. At the same time, Kentucky courts have both declined to extend sovereign immunity to a water district, see Calvert Inv. Inc. v. Louisville & Jefferson County Metro. Sewer Dist., 805 S.W.2d 133, 136-37 (Ky. 1991), and found that a water district may be classified as a political subdivision for purposes of the Whistleblower Act. See Davis v. Powell’s Valley Water Dist., 920 S.W.2d 75, 78 (Ky. App. 1995). Thus, whether an entity receives sovereign immunity in Kentucky does not appear to be dispositive of whether that entity is a political subdivision for purposes of the Kentucky Whistleblower Act. Two unpublished federal district court opinions holding that municipalities are not political subdivisions under the Whistleblower Act were decided before the Kentucky Supreme Court provided its guidance in Allen. See Baker v. McDaniel, No. 07 CV 379, 2008 WL 215241 (E.D. Ky. Jan. 24, 2008); Nelson v. City of Somerset, et al., No. 03 CV 591, R.E. 13 (E.D. Ky. Apr. 5, 2004). Moreover, a federal district court decision is not binding on the Kentucky Supreme Court for purposes of resolving issues of Kentucky state law. Because the role of this Court is to attempt to predict what the Kentucky Supreme Court would do, we are obliged to follow the Kentucky Supreme Court’s guidance in Allen. Here, like in Allen, Plaintiffs were employed by a municipal corporation, and they were fired after reporting alleged violations committed by that employer. Consequently, like the plaintiffs in Allen, they seek to enforce the Kentucky Whistleblower Act against the municipal corporation that fired them. Because Plaintiffs engaged in precisely the type of behavior that the Whistleblower Act is designed to protect, and the Kentucky Supreme Court indicated in Allen that the statute is enforceable against municipal corporations, Plaintiffs may proceed with their claim under the Kentucky Whistleblower Act against the City of Jeffersontown. Accordingly, relying on the guidance provided by the Kentucky Supreme Court, we hold that the district court erred in holding that a municipality is not a political subdivision of the state, and, therefore, is not an employer for purposes of Kentucky’s Whistleblower Act, Ky. Rev. Stat. §§ 61.101-103. III. First Amendment Claim The Supreme Court has held that “statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors.” Pickering v. Bd. of Educ. of Township High Sch. Dist. 205, 391 U.S. 563, 574 88 S. Ct. 1731, 1737, 20 L. Ed. 2d 811 (1968) (citing Garrison v. State of Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964); Wood v. Georgia, 370 U.S. 375, 82 S. Ct. 1364, 8 L. Ed. 2d 569 (1962)). In determining whether a public employer has violated an employee’s First Amendment rights of free speech, the Supreme Court has instructed courts to engage in a three-step inquiry. See Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003) (citing Connick v. Myers, 461 U.S. 138, 143, 103 S. Ct. 1684, 1688, 75 L. Ed. 2d 708 (1983)). First, a court must determine whether the relevant speech addressed a matter of public concern. Connick, 461 U.S. at 143. If the answer is yes, the court must “balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568. Finally, the court must ascertain whether the employee’s speech was a substantial or motivating factor in the employer’s decision to take the adverse employment action against the employee. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576, 50 L. Ed. 2d 471 (1977). First, we must determine whether the relevant speech addressed a matter of public concern. Connick, 461 U.S. at 143. The court’s inquiry into “[w]hether an employee’s 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.” Connick, 461 U.S. at 147-48. Matters of public concern include speech that “relate[s] to any matter of political, social, or other concern to the community.” Id. at 146. However, speech dealing with “matters only of personal interest” to a public employee is generally not afforded constitutional protection. Id. at 147. The report alleges that Emington violated federal and state hour laws, generated unnecessary overtime, violated staffing policies of the JPD, failed to contribute to an employee’s retirement account, improperly checked employees’ controlled substance prescriptions, failed to qualify with her firearm, and committed various acts of mismanagement and abuse. Plaintiffs argue that the report at issue addresses a matter of public concern because it regards the efficiency and operations of the JPD, including violations of state and federal law and the misuse of taxpayer money, while Defendants argue that it does not touch on a matter of public concern because it is merely a litany of petty grievances and complaints rooted in Plaintiffs’ dissatisfaction with their supervisor. This court has consistently held that speech on the same topics as the report at issue–the efficacy and operations of public agencies and allegations of misconduct by public officials–addresses a matter of public concern. See, e.g., See v. City of Elyria, 502 F.3d 484, 493 (6th Cir. 2007) (finding that statements involving “alleged corruption in police department investigations, grand jury procedures, funding, and dealing with the press” addressed matters of public concern); Graham v. City of Mentor, 118 F. App’x 27, 30 (6th Cir. 2004) (holding that speech regarding police chief’s fixing of parking tickets, undeserved bonus and improper comp time, and lack of qualification to carry a weapon addressed matters of public concern); Chapel v. Montgomery County Fire Prot. Dist. No. 1, 131 F.3d 564, 576-77 (6th Cir. 1997) (finding that speech regarding fire department’s financial mismanagement, nepotism, and need for SOPs and training addressed matters of public concern). In addition, the fact that seven JPD sergeants and two JPD corporals, in addition to Plaintiffs, had reported allegations of misconduct by Emington indicates that this speech cannot be written off as a “matter only of personal interest” or a few disgruntled employees’ “grievance[s] concerning internal office policy.” Connick, 461 U.S. at 147, 154. Even if the speech was motivated by Plaintiffs’ self-interest in affecting who would succeed Chief Roemele, as Defendants claim, this Court has rejected the notion that speech does not touch on a matter of public concern because it is predominantly motivated by self-interest. Chapel, 131 F.3d at 574-75. The fundamental issue “is the distinction between matters of public concern and matters only of personal interest, not civic-minded motives and self-serving motives.” Id. at 575 (emphasis in original) (internal citation omitted). Thus, Plaintiffs’ report addresses a matter of public concern. Next, under the framework laid out in Pickering, we must balance Plaintiffs’ interest in making their speech against Defendants’ interest in promoting the efficiency of the public services they perform. However, the parties have not briefed the issue and the district court has made no factual findings regarding the balance between Plaintiffs’ interest in making their speech and Defendants’ interest in efficiently running the JPD. The necessary findings include whether the speech “meaningfully interfere[d] with the performance of [Plaintiffs’] duties, undermine[d] a legitimate goal or mission of the employer, create[d] disharmony among co-workers, impair[ed] discipline by superiors, or destroy[ed] the relationship of loyalty and trust required of confidential employees.” Williams v. Commonwealth of Ky., 24 F.3d 1526, 1536 (6th Cir. 1994). Because the parties have presented this Court with no factual bases on which to determine how Plaintiffs’ report affected the working dynamic at the JPD, we must remand for the district court to make the findings necessary to determine whether Plaintiffs’ speech is protected under the First Amendment. We note that on remand Defendants bear the burden of proving that they had legitimate efficiency interests that outweigh Plaintiffs’ speech interests and that they would have reached the same decision even in the absence of the protected conduct. See Rodgers, 344 F.3d at 601; Mt. Healthy, 429 U.S. at 287. Accordingly, we hold that the district court erred in granting summary judgment to Defendants and finding that Plaintiffs’ speech was not protected by the First Amendment because it did not touch on a matter of public concern, and we remand to the district court to conduct the second and third prongs of the Pickering test in a manner consistent with this opinion. IV. Qualified Immunity We review a district court’s grant of summary judgment on qualified immunity de novo. Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 825 (6th Cir. 2007). In reviewing claims for qualified immunity, we conduct a two-step analysis. See Scott v. Harris, 550 U.S. 372, 377 127 S. Ct. 1769, 1774, 167 L. Ed. 2d 686 (2007). First, we consider whether “[t]aken in the light most favorable to the party asserting the injury[,] . . . the facts alleged show the officer’s conduct violated a constitutional right.” Id. at 377 (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001)). If the answer is yes, we next ask “whether the right was clearly established . . . in light of the specific context of the case.” Id. (quoting Saucier, 533 U.S. at 201). “For a right to be clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (internal citations omitted). While the sequence of this two- step inquiry is often appropriate, it is no longer regarded as mandatory. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). In the instant case, the inquiry into whether Mayor Foreman should receive qualified immunity asks whether Foreman violated Plaintiffs’ First Amendment rights and whether these rights were clearly established in light of the specific context of this case. Because the finding as to whether Plaintiffs’ speech was protected under the First Amendment is a necessary component of step one of the qualified immunity analysis, we must remand on the qualified immunity question in light of the remand on the Pickering analysis. After making the factual findings necessary to determine whether Plaintiffs’ speech was protected by the First Amendment, the district court shall conduct the qualified immunity analysis in a manner consistent with this opinion.3 The Court notes that, if the district court find that Plaintiffs’ speech was protected by the First Amendment and so Foreman’s conduct violated their free speech rights under prong one, the district court should also find that the right was clearly established under prong two. A public employee’s First Amendment protection against retaliation for speech on matters of public concern has been clearly established at least since this Court’s holding in Williams v. Commonwealth of Ky., 24 F.3d at 1533-38. Foreman himself even acknowledged in his deposition that Plaintiffs each had a constitutional right to speak on matters of public concern regarding police matters. Specifically, the topics of Plaintiffs’ speech–violations of state and federal law by a public official and the misuse of taxpayer money within a public agency–address issues that have long been clearly established as matters of public concern. Given that “[a]ll public officials have been charged with knowing that public employees may not be disciplined for engaging in speech on matters of public concern, and V. The JCSC As a Necessary Party We review a district court’s ruling as to whether a party is a necessary party for an abuse of discretion. PaineWebber, Inc. v. Cohen, 276 F.3d 197, 200 (6th Cir. 2001). Under an abuse of discretion standard, we must affirm the district court’s Rule 19(a) determination unless it is “left with a definite and firm conviction that the trial court committed a clear error of judgment.” Cincinnati Ins. Co. v. Byers, 151 F.3d 574, 578 (6th Cir. 1998) (internal citations omitted). Under Federal Rule of Civil Procedure 19, “whether a party is indispensable for a just adjudication requires a determination regarding whether the absent party is necessary to the litigation; if so, whether the absent party can be joined in the litigation; and if joinder is infeasible, whether the lawsuit can nevertheless proceed ‘in equity and good conscience.’” School Dist. of City of Pontiac v. Sec’y of U.S. Dep’t of Educ., 584 F.3d 253, 264 (6th Cir. 2009) (en banc) (citing Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1494 (D.C. Cir. 1995)). An absent party must be joined if “in that person’s absence, the court cannot accord complete relief among existing parties.” Fed. R. Civ. Pro. 19(a)(1)(A). Plaintiffs argue that they included the JCSC as a Defendant because it is a necessary and indispensable party for purposes of affording complete relief, given that Plaintiffs seek reinstatement to employment. The JCSC was created by ordinance § 35.01 of the City of Jeffersontown, pursuant no reasonable public official understanding this charge could conclude that [Plaintiffs’] speech did not address such matters,” Chappel, 131 F.3d at 580, it is clear that if Plaintiffs’ speech was protected by the First Amendment, Plaintiffs’ right was clearly established in the context of this case. Furthermore, the large number of factual disputes as to whether Foreman retaliated against Plaintiffs based on their First Amendment activity, as Plaintiffs claim, or was following the protocol that the law requires when investigating complaints directed at personnel of the JPD, as Foreman claims, are precisely the type of subordinate predicate factual questions that must be resolved by a factfinder at trial. See Johnson v. Jones, 515 U.S. 304, 313-15, 115 S. Ct. 2151, 132 L. Ed. 2d 238 (1995). to Ky. Rev. Stat. § 95.761. According to § 35.06, Plaintiffs are employees who are “classified within and subject to the Civil Service Commission,” and Chapter 35 lays out the manner in which the Commission oversees the hiring and firing of these employees. (Dist. Ct. R.E. 30 Ex. M). Inasmuch as the JCSC has authority over the hiring of police officers and dispatchers, this Court agrees that the Commission is a necessary party for purposes of providing Plaintiffs with the relief of reinstatement. However, the district court did not determine whether the JCSC is a necessary party; rather, the district court held that the JCSC was created pursuant to Ky. Rev. Stat. § 95.761 and is not an entity that can be sued without providing any citations in support of this statement. Defendants cite to Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) and Smallwood v. Jefferson County Gov’t, 743 F. Supp. 502, 503 (W.D. Ky. 1990) in support of their claim that the Commission is not a proper party which may be sued under Plaintiffs’ theory of liability. In Matthews, the plaintiff sued the chief of police of Jefferson County in the chief’s official capacity. This Court first found that “[a] suit against an individual in his official capacity is the equivalent of a suit against the governmental entity,” and then held that “[s]ince the Police Department is not an entity which may be sued, Jefferson County is the proper party to address the allegations of [the plaintiff’s] complaint.” Id. at 1049. For the latter holding, this Court cited to Smallwood, which held that a suit against the equivalent of the mayor and city council of Jefferson County in their official capacities was the same as a suit against Jefferson County itself because if “a suit against a state official in their [sic] official capacity is regarded as a suit against the state, it seems logical to regard a suit against a County official in their [sic] official capacity as a suit against a County.” 743 F. Supp. at 503 (citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 109 S. Ct. 2304, 2311, 105 L. Ed. 2d 45 (1989)). Neither case involved a suit against a civil service commission, and neither case provides support for the assertion that the JCSC is not an entity that can be sued pursuant to Ky. Rev. Stat. § 95.761. Furthermore, neither Ky. Rev. Stat. § 95.761 nor Chapter 35 of the Jeffersontown ordinances prohibits suit against the JCSC. Additionally, authority from the Kentucky state courts indicates that a commission such as the JCSC is a different type of entity from a mayor or police department, and one that is properly party to a suit. See Timmons v. City of Louisville, No. 2003-CA-001631-MR, 2004 WL 1857363, at *2 (Ky. Ct. App. June 8, 2005) (finding that Louisville Civil Service Board is “not merely a nominal party” because “the Board is vested with the authority to carry out specific legislative duties and with the responsibility of administering a fair civil service system”); Vaughn v. City of Paducah, No. 2008-CA-001549-MR, 2010 WL 135107, at *3-4 (Ky. Ct. App. Jan. 15, 2010) (remanding for joinder of the Civil Service Board of the City of Paducah where the board had sole authority over dismissal of civil service employees); see also Jeffersontown, Ky., Ordinances § 35.10(F) (“No employee shall be reprimanded, removed, suspended, or dismissed except as provided in this section.”). Accordingly, we find that the JCSC is a necessary party and hold that the district court abused its discretion in finding that the JCSC is not an entity that can be sued. CONCLUSION For the reasons set forth above, we VACATE the district court’s order and REMAND for further proceedings consistent with this opinion. RALPH B. GUY, JR., Circuit Judge, dissenting. I cannot join in the decision to resolve the question of whether the Kentucky Legislature intended that the Kentucky Whistleblower Act apply to cities like Jeffersontown, Kentucky. Our task is to apply Kentucky law, as determined by the Kentucky Supreme Court, to interpret the statute. Bovee v. Coopers & Lybrand CPA, 272 F.3d 356, 361 (6th Cir. 2001). When, as here, the state supreme court has not addressed the issue, we must “predict how it would rule, by looking to ‘all available data,’ including state appellate decisions.” Id. (citation omitted). Because the available data is inconclusive on this discrete question of statutory interpretation, I believe the best course of action would be to certify the question to the Kentucky Supreme Court. See K Y. R. C IV. P. 76.37. The Kentucky Supreme Court has both emphasized the broad remedial purposes of the Whistleblower Act in drawing claims within its coverage, Workforce Dev. Cabinet v. Gaines, 276 S.W.3d 789, 792-93 (Ky. 2008), and rejected a more expansive view of the second part of the definition of “employer” on the grounds that the Legislature did not intend to impose individual civil liability on policy makers and managers under the Act, Cabinet for Families and Children v. Cummings, 163 S.W.3d 425, 434 (Ky. 2005). Unlike the majority, I cannot conclude that the decision in Allen speaks to the issue before us. Consol. Infrastructure Mgmt. Auth., Inc. (CIMA) v. Allen, 2006 WL 335816, at *1 (Ky. Ct. App. Feb. 3, 2006) (unpublished), aff’d 269 S.W.3d 852, 855 (Ky. 2008).1 For this reason, I also Liability was established against the CIMA, a combined water/sewer district, for the termination of the plaintiff’s employment without any challenge to the CIMA’s status as an “employer” under the believe that Allen does not provide a sound basis to reject out-of-hand the federal district court decisions that have squarely addressed the issue. Indeed, a very recent Kentucky decision, albeit unpublished, did not mention the decision in Allen but found these same federal court decisions to be persuasive in concluding that a municipality is not an “employer” subject to the Whistleblower Act. See Wilson v. City of Central City, No. 2008- CA-001547-MR, 2010 WL 135105 (Ky. Ct. App. Jan. 15, 2010).2 With respect to the First Amendment retaliation claims, I cannot agree that the plaintiffs’ speech—namely, the “Report Pursuant to KRS 61.102”—touched on a matter of public concern. “Whether an employee’s 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.” Connick v. Meyers, 461 U.S. 138, 147-48 (1983). Although the motivations of the speaker are relevant, “the pertinent question is not why the employee spoke, but what he said.” Farhat v. Jopke, 370 F.3d 580, 591 ( 6th Cir. 2004). A “passing” or “incidental” reference to an arguably public matter, however, does not elevate the speech to a matter of public concern “where the ‘focus’ or ‘point’ of the speech advances only a private interest.” Id. at 592-93. Whistleblower Act. The CIMA was dissolved shortly after the verdict was returned, and the Kentucky Supreme Court held that it was not error to refuse to require the CIMA to post a bond because the judgment remained enforceable against the cities that had absorbed the CIMA upon its dissolution. In another case, the state trial court found, inter alia, that the defendant city was not an “employer” as defined by the Kentucky Whistleblower Act, but the appellate court did not reach the issue because the plaintiff’s claim failed for other reasons. Throneberry v. City of Audobon Park, No. 2007-CA-001033-MR, 2008 WL 4530917 (Ky. Ct. App. Oct. 10, 2008) (unpublished). Looking beyond the superficial assertion of violations of federal and state laws, violations of departmental policy, and acts of mismanagement and abuse of authority, plaintiffs specifically complained that dispatchers were required to report for duty 15 minutes early without receiving overtime pay, that some dispatchers were forced to work overtime so others could attend social events, and that only one dispatcher was left on duty so that everyone else could go out on Secretary’s Day. Another charge was that one part-time employee who was not receiving retirement account contributions was retaliated against in the scheduling of shifts for having made the error known. Plaintiffs also alleged improper use of the KASPAR system to monitor employee prescriptions for controlled substances, and challenged whether Emington had satisfied the firearms-qualification requirement. Finally, plaintiffs complained of miscellaneous incidents of both preferential and hostile treatment of employees by Emington.3 I agree with the district court that the plaintiffs’ expression did not focus on corruption or fraud, which would address a matter of public concern. See, e.g., See v. City of Elyria, 502 F.3d 484, 493 (6th Cir. 2007). Rather, the plaintiffs’ expression focused on internal The miscellaneous acts were described as including but not limited to: “accusing an employee of lying about her medical condition and threatening her with termination, deliberately giving an employee an adverse reference to a prospective new employer because she was ‘mad at him,’ berating officers at crime scenes for their proper actions and undermining the community’s respect for those officers and this department, showing favoritism to certain persons employed as clerks by allowing them to clock in late for work and from lunch with no corrective measures, allowing some clerks to not even clock in from lunch if they are extremely late, allowing some clerical person[ne]l to take extremely long lunches with her because they are social friends outside of work, accusing employees without any basis of hiding or obscuring information concerning their military pay, and violating department policies by failing to give civilian employees yearly evaluations.” personnel disputes over pay and scheduling, dissatisfaction with Emington’s performance, and complaints about her unfair treatment of subordinates, which are not matters of public concern. See Brandenberg v. Housing Auth. of Irvine, 253 F.3d 891, 898 (6th Cir. 2001); Brown v. City of Trenton, 867 F.2d 318, 322 (6th Cir. 1989). Accordingly, I would affirm the entry of summary judgment in favor of the defendants with respect to the plaintiffs’ First Amendment retaliation claims.

In the United States Court of Appeals For the Seventh Circuit Nos. 09-2169 & 09-2186 S U Y EUN K IM , on behalf of herself and all others similarly situated, and G INA P OLUBINSKI, on behalf of herself and all others similarly situated, Plaintiffs-Appellants, v. C ARTER’S INC., Defendant-Appellee. Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 09 C 706 & 08 C 5547—Virginia M. Kendall, Judge. A RGUED D ECEMBER 2, 2009—D ECIDED M ARCH 15, 2010 Before B AUER, K ANNE, and T INDER, Circuit Judges. T INDER, Circuit Judge. Our consumer culture thrives on hunting for the best deal. Wise to this fact, retailers try to lure customers with advertised sales that promise huge savings off the regular price. But the promised savings are false if a store simply recasts its regular price 2 Nos. 09-2169 & 09-2186 as a discount off some higher, made-up, “suggested” price that no one ever pays. Plaintiffs Su Yeun Kim and Gina Polubinski claim that they were the victims of such deceptive pricing by Carter’s, Inc., a children’s clothing retailer, and have sued Carter’s for damages under Illinois contract and consumer protection law. (Kim and Polubinski actually filed two separate but substantially identical complaints against Carter’s, so we, like the district court, take up their cases together.) The district court dismissed the plaintiffs’ complaint for failure to state a claim, and in this appeal, we accept as true the following facts alleged in the complaint. Sharp Elecs. Corp. v. Metro. Life Ins. Co., 578 F.3d 505, 510 (7th Cir. 2009). Between June 2005 and March 2008, the plaintiffs pur- chased children’s clothing from several Carter’s retail outlets located in Illinois. The clothing had price tags listing a “Carter’s Suggested Price,” but Carter’s fre- quently displayed signs in its stores advertising percent discounts off these suggested prices. For example, for a child’s T-shirt with a suggested price of $16.00, Carter’s might display a “30% off” sign next to the item and then charge a sales price of $11.20 at the register. Through these advertised percent-off savings, Carter’s led cos- tumers to believe that they were getting a great deal— 30% off the regular price. The promised savings were a sham, the plaintiffs claim, because the “Suggested Prices” that Carter’s puts on its price tags are fictitious; these suggested prices are substantially higher than what Carter’s products actually sell for on a regular basis. Ignorant to this reality, the plaintiffs continued Nos. 09-2169 & 09-2186 3 buying Carter’s products thinking that they were realizing significant savings. The plaintiffs apparently caught on to the pricing scheme and brought a diversity suit against Carter’s (a Delaware corporation with its principal place of business in Georgia) on behalf of themselves and a putative class of similarly situated Carter’s customers. The plaintiffs claimed that Carter’s practice of comparing actual sales prices to higher, fictitious “Carter’s Suggested Prices” was both a breach of contract and a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/2. In response, Carter’s passed over issues of class certification and moved to dismiss the plaintiffs’ complaint on the merits for failure to state a claim. The district court granted Carter’s motion (showing, in retrospect, that class certification might have been advantageous to Carter’s, as the court’s existing judgment in favor of Carter’s binds only the individual plaintiffs Kim and Polubinski). On the contract claim, the court rejected the plaintiffs’ theory that the parties’ sales contract required Carter’s to apply the advertised percent discounts to the actual sales prices of the clothing, rather than the “Carter’s Suggested Prices” listed on the price tags. It “strains common sense,” the court reasoned, to conclude that Carter’s “30% off” signs meant “30% off an undisclosed ‘actual regular price.’ ” As for the ICFA claim, the court concluded that the plain- tiffs failed to allege the “actual damage” required for a private cause of action under the Act. See 815 ILCS 505/10a(a). 4 Nos. 09-2169 & 09-2186 The plaintiffs appeal, and we review de novo the district court’s dismissal of their complaint for failure to state a claim. Sharp Elecs., 578 F.3d at 510. Beginning with the plaintiffs’ breach of contract claim, we conclude that Carter’s fulfilled its obligations under the straightforward, everyday sales contract described in the complaint. Returning to the same T-shirt example above, Carter’s advertised the sale of a clothing item at 30% off the $16.00 “Carter’s Suggested Price,” or $11.20. The plaintiffs selected the clothing and offered to pur- chase it at the advertised price, at which point Carter’s accepted by taking the plaintiffs’ money in exchange for possession of the clothing. See Steinberg v. Chi. Med. Sch., 371 N.E.2d 634, 639 (Ill. 1977) (describing the contract formed when a merchant accepts the customer’s offer to purchase goods at an advertised price). The contract terms were memorialized in the sales receipt that the plaintiffs received at the cash register, which recorded the sale at the agreed price of $11.20. By charging this agreed price in exchange for ownership of the clothing, Carter’s gave the plaintiffs the benefit of their bargain. The plaintiffs protest that Carter’s advertised sale at 30% off an inflated, fictitious “Suggested Price” led them to believe that they were paying 30% less than what other consumers usually paid, when in fact they were simply paying the full, regular price. In an attempt to realize their expected savings, the plaintiffs suggest that the contract should be interpreted so as to apply the advertised 30% discount to the $11.20 sales price that they actually paid, rather than the $16.00 “Suggested Nos. 09-2169 & 09-2186 5 Price” listed on the price tag. Under this interpretation, the contract price is only 70% of $11.20, or $7.84, and Carter’s breached the contract by charging the plaintiffs the full $11.20. The plaintiffs’ interpretation of the contract is unrea- sonable. Courts interpret contracts with the goal of effec- tuating the parties’ intent, giving contract terms their plain and ordinary meaning. Hot Light Brands, L.L.C. v. Harris Realty Inc., 912 N.E.2d 258, 263 (Ill. App. Ct. 2009). Here, the parties intended to complete a sale in accord- ance with the plain terms of Carter’s advertising—a T-shirt for 30% off the $16.00 “Carter’s Suggested Price” displayed on the price tag. We agree with the district court that it “strains common sense” to conclude that the parties actually intended to apply the advertised 30% discount to some lower, undisclosed, regular price. The plaintiffs’ interpretation renders meaningless the $16.00 “Carter’s Suggested Price” term conspicuously displayed on the clothing’s price tag, resulting in a very peculiar sales contract that lacks any disclosed price term. See id. (Courts “will not interpret the agreement in a way that would nullify provisions or would render them meaningless.”). The only reasonable interpretation of this transaction is a contract to purchase clothing for the advertised price of $11.20. Carter’s fulfilled its ob- ligations under this contract. Although Carter’s didn’t breach any contract, its al- legedly deceptive price comparisons may violate the Illinois Consumer Fraud and Deceptive Business Practices Act. The ICFA declares unlawful “[u]nfair methods of 6 Nos. 09-2169 & 09-2186 competition and unfair or deceptive acts or practices . . . in the conduct of any trade or commerce . . . .” 815 ILCS 505/2. A deceptive practice violates the ICFA even if it doesn’t actually deceive or injure anyone, see id., and the Illinois Attorney General has the power to investigate and enjoin such a practice without a showing of actual loss, see id. §§ 505/3-4, /7. A private party, however, must show “actual damage” in order to maintain an action under the ICFA. Id. § 505/10a(a). Here, the plaintiffs have sufficiently alleged an ICFA violation by Carter’s; regulations promulgated under the Act specifically identify this type of comparison between actual and fictitious “suggested retail price[s]” as an “unfair or deceptive act.” Ill. Admin. Code tit. 14, § 470.250. The issue in this case is whether the plaintiffs’ ICFA claim nonetheless fails for lack of actual damages. The actual damage element of a private ICFA action requires that the plaintiff suffer “actual pecuniary loss.” Mulligan v. QVC, Inc., 888 N.E.2d 1190, 1197 (Ill. App. Ct. 2008). In the case of a private ICFA action brought by a business, the plaintiff may claim actual loss in the form of lost profits caused by a competitor’s unfair trade practices. See B. Sanfield, Inc. v. Finlay Fine Jewelry Corp., 258 F.3d 578, 580-81 (7th Cir. 2001) (finding that the plaintiff failed to show lost business or other financial injury from a competitor’s deceptive price comparisons); Chicago’s Pizza, Inc. v. Chicago’s Pizza Franchise Ltd. USA, 893 N.E.2d 981, 994-95 (Ill. App. Ct. 2008) (involving a failure to prove that a competitor’s adoption of the plain- tiff’s trade name and deceptive advertising caused any Nos. 09-2169 & 09-2186 7 loss of customers or revenues). In the less typical case of a private ICFA action brought by an individual con- sumer, actual loss may occur if the seller’s deception deprives the plaintiff of “the benefit of her bargain” by causing her to pay “more than the actual value of the property.” Mulligan, 888 N.E.2d at 1197-98. Mulligan involved comparative price deception similar to that alleged here. In that case, QVC listed its actual sales prices next to substantially higher but allegedly fictitious “retail values,” creating the false impression that customers were getting a better deal than they really were. 888 N.E.2d at 1192-93. A customer lured in by this comparative pricing sued QVC under the ICFA, but the Illinois Appellate Court concluded that she had not suffered actual damages. The plaintiff “agreed to purchase . . . items for a certain price” and could not show “that the value of what she received was less than the value of what she was promised.” Id. at 1197. We think that this case is substantially similar to Mulli- gan. The plaintiffs agreed to pay a certain price for Carter’s clothing, which they do not allege was defective or worth less than what they actually paid. Nor have the plaintiffs alleged that, but for Carter’s deception, they could have shopped around and obtained a better price in the marketplace. Cf. id. at 1194, 1197 (noting that the plaintiff’s own evidence showed that QVC’s actual prices were lower than what the plaintiff would have paid in the marketplace); DOD Techs. v. Mesirow Ins. Servs., Inc., 887 N.E.2d 1, 10 (Ill. App. Ct. 2008) (finding no actual damages where an insured failed to allege “that it would 8 Nos. 09-2169 & 09-2186 have bargained for better insurance prices” had it known of an insurance broker’s undisclosed commission costs). Like the plaintiff in Mulligan, and as concluded above in our discussion of the contract claim, the plaintiffs in this case got the benefit of their bargain and suffered no actual pecuniary harm. It follows that the plaintiffs’ allegations fail to establish the actual damages element of their ICFA claim. We do note one distinction between this case and Mulligan. In Mulligan, the plaintiff admitted to her suspi- cions that QVC’s retail values were much higher than what people actually paid, allowing the court to rely in part on the fact that the plaintiff wasn’t actually deceived by QVC’s pricing scheme. 888 N.E.2d at 1199. By contrast, the plaintiffs here allegedly didn’t know that Carter’s rarely if ever sells its clothing at the suggested prices listed on the price tags. Still, it is not enough that Carter’s price comparisons deceived the plaintiffs and induced them to buy Carter’s clothing. See id. at 1197 (“Even if QVC’s alleged inflated retail values may have induced Mulligan into altering her purchasing decision because of the represented bona fide savings, she suffered no actual pecuniary loss.”). To sustain their private ICFA action, the plaintiffs must sufficiently allege actual dam- ages, which, we conclude, they have failed to do. Carter’s did not breach its sales contract to sell the plaintiffs clothing at an agreed price, and Carter’s alleged ICFA violation did not cause the plaintiffs actual damage. A FFIRMED. 3-15-10

In the United States Court of Appeals For the Seventh Circuit No. 08-3278 U NITED STATES OF A MERICA, Plaintiff-Appellee, v. V ALERIAN N. L EWIS, Defendant-Appellant. Appeal from the United States District Court for the Central District of Illinois. No. 07 CR 20115—Michael P. McCuskey, Chief Judge. A RGUED D ECEMBER 3, 2009—D ECIDED M ARCH 15, 2010 Before E ASTERBROOK, Chief Judge, and M ANION and E VANS, Circuit Judges. E VANS, Circuit Judge. A jury convicted Valerian Lewis on a charge of attempting to possess, with intent to dis- tribute, over 500 grams of cocaine. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846. The jury also returned a special verdict finding that the attempt to possess involved over five kilograms of cocaine. Because this was Lewis’s second felony drug conviction, the drug 2 No. 08-3278 quantity finding triggered the imposition of a manda- tory minimum sentence of 20 years. Prior to trial, the government neglected to file an infor- mation pursuant to 21 U.S.C. § 851, which would have given Lewis notice of its intent to seek an enhanced penalty. Lewis appeals his sentence, arguing that the government’s failure to comply with § 851 stripped the district court of its “authority” to impose the 20-year mandatory minimum sentence. This is not quite right, for even without a prior conviction Lewis faced a statutory sentencing range of 10 years to life for a con- viction involving more than five kilograms of cocaine. So without regard to the filing of a § 851 information, the district court had the “authority” to impose the 20-year sentence that it ordered. Whether it should have done so, not its “authority” to do so, is the issue we con- sider on Lewis’s appeal. Lewis first found himself in federal court in 2002 when he was convicted of distributing cocaine and cocaine base. He received a 57-month sentence. In 2007, while on supervised release from his 2002 conviction, Lewis met with Fidel Sanchez at a McDonald’s on Chicago’s South Side. Lewis told Sanchez there was no cocaine to be found in the Fort Wayne (Indiana) area where he lived, so once Sanchez was “ready with the cocaine, he was going to be ready with the money.” On December 3, Lewis and Sanchez set up a deal over the phone—Lewis would buy three kilograms of cocaine at the price of $18,000 per kilogram and receive another three kilo- grams on a consignment basis. The following day, Lewis No. 08-3278 3 drove from Fort Wayne to Kankakee (Illinois), a trip of over 150 miles, to do the deal with Sanchez at a Hilton Inn. He brought $47,465 in cash with him to pay for the drugs. Unfortunately for Lewis, Sanchez was a confi- dential informant who had been working for the Drug Enforcement Agency for nearly 20 years. After Lewis arrived and met with Sanchez, DEA agents and Illinois police arrested him. During pretrial proceedings, Lewis’s prior conviction was mentioned many times. The criminal complaint issued the day after his arrest referred to it. Both the government and Lewis’s defense counsel made note of it at his initial appearance before the district court. The magistrate judge detained Lewis prior to trial primarily because he was on supervised release for the prior con- viction when he was arrested. And at Lewis’s arraignment, the judge advised him of the enhanced penalty he faced given the 2002 conviction. Additionally, Lewis filed two motions in limine seeking to prevent the government from introducing the convic- tion as Rule 404(b) evidence during the trial. The gov- ernment’s written response defended its use of the evi- dence and included the details of the 2002 prior convic- tion—the specific offense, jurisdiction, date of conviction, sentence, and release date. The district court denied the first motion in limine and granted the second one only in part. Lewis then filed a motion to reconsider, which the court granted, ruling that the government would not be able to introduce evidence of the prior conviction unless Lewis opened the door to it. 4 No. 08-3278 At sentencing, Lewis contested a two-level upward adjustment to his guideline range for his role in the offense. That was the only objection he lodged to the presentence report (“PSR”). Lewis acknowledged that he faced a mandatory minimum sentence greater than the 188 to 235 month range prescribed by the advisory guide- lines under § 841(b) and the jury’s drug quantity finding. No objection was made to the government’s failure to file a § 851 information. The district court adopted the findings of the PSR and imposed 20 years, the mandatory minimum. It is only now on appeal that Lewis contests the govern- ment’s failure to comply with § 851 prior to trial. Section 851 requires the government to provide written notice when it intends to seek an increased punishment based on prior convictions. The government believes we need not reach the substance of Lewis’s appeal, claiming that he waived his argument by affirmatively acknowl- edging the applicability of the mandatory minimum during his sentencing hearing. Waiver, of course, is the intentional relinquishment of a known right, whereas forfeiture is the failure to timely assert a right. United States v. Garcia, 580 F.3d 528, 541 (7th Cir. 2009). Waiver pre- cludes review, but forfeiture allows review albeit only for plain error. Id. The government has a strong argu- ment that Lewis waived his objection when he agreed that he faced the mandatory minimum sentence of 20 years. See United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000) (defendant waived the right to object when he knew he had a right to object to the calculation of his criminal history, knew the contents of the PSR, and affir- matively decided not to object). No. 08-3278 5 But having said that, it ultimately does not matter whether we find waiver or forfeiture as Lewis’s argu- ment fails under plain error review. To meet this exacting standard, Lewis must show that the district court made a clear error, affecting his substantial rights. United States v. Lane, 591 F.3d 921, 926 (7th Cir. 2010). Obviously § 851 was violated. The government did not file an information. However, there is no prejudice here. The two main purposes of the § 851 information requirement are to give a defendant an opportunity to contest the accuracy of his prior convictions and to inform his decision on whether to plead guilty or proceed to trial. Id. at 927. We can’t see how Lewis suffered from the lack of a formal notice. He was well aware of the prior conviction; it was the subject of the Rule 404(b) pretrial debate. Our analysis might be different if Lewis had pled guilty, expecting a lower sentence than § 841(b) would require. But he proceeded to trial. Plus, plain error review has a judicial discretion component. We only notice the error if it “seriously affect[s] the fairness, integrity or public reputation of judicial pro- ceedings.” Id. at 926 (quoting United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993)). The govern- ment’s failure to file a § 851 information was a slipup to be sure, but it does not change the fact that Lewis had full knowledge of his prior conviction and the penalty he faced. Accordingly, we A FFIRM the judgment of the district court. 3-15-10

In the United States Court of Appeals For the Seventh Circuit No. 08-2087 U NITED S TATES OF A MERICA, Plaintiff-Appellee, v. R ALPH W. A NGLE, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:98 CR 37—James T. Moody, Judge. A RGUED O CTOBER 14, 2009—D ECIDED M ARCH 15, 2010 Before C OFFEY, E VANS, and W ILLIAMS, Circuit Judges. W ILLIAMS, Circuit Judge. This is the fourth time Ralph Angle appeals the sentences imposed for his child- pornography crimes. Three times we have remanded for resentencing because of our uncertainty about the reliability of information used to justify a total period of imprisonment well above the range established by the sentencing guidelines. In our last remand we also directed the district court to explain why a “pattern of 2 No. 08-2087 abuse” upward adjustment did not fully account for the uncharged conduct used to justify the stiff punishment. Both of these concerns have now been satisfied. Finally, the district court did not abuse its discretion in thwarting Angle from gaining personal access to the Internet during the period of his supervised release. I. BACKGROUND Angle was found guilty in 1998 of possessing child pornography, attempting to receive child pornog- raphy, and attempting to entice a child to engage in prohibited sexual activity, in violation of 18 U.S.C. §§ 2252(a)(4)(B), 2252(a)(2), and 2422(b). He already had a 1977 conviction for sodomy (involving a 15-year-old) and a 1987 conviction for child molestation. At Angle’s initial sentencing hearing in September 1999, the district court imposed a sentence of 325 months in prison, a significant increase above the range of 151 to 188 months calculated by the court under the 1998 version of the sentencing guidelines. That first sentencing hearing predated United States v. Booker, 543 U.S. 220 (2005), so the judge’s freedom to exceed the guidelines range was still cabined by mandatory rules on “departures.” The judge concluded that Angle’s sodomy conviction, which was too old to count in his criminal history score, war- ranted an upward departure under U.S.S.G. § 4A1.3, which encourages sentencing courts to exceed the guidelines imprisonment range if the defendant’s criminal history category substantially understates the seriousness of his criminal history or the likelihood of recidivism. We No. 08-2087 3 ordered resentencing because the district court had not followed the specific steps that, under circuit precedent interpreting § 4A1.3, were essential to depart based on that guideline. United States v. Angle (Angle I), 234 F.3d 326, 344 (7th Cir. 2000). We also concluded that the district court might have miscalculated the guidelines range and directed further study of that question on remand. Id. at 345. The district court resentenced Angle in 2001. The court recalculated a lower guidelines range of 97 to 121 months but still imposed the same amount of imprisonment. In explaining its upward departure—a greater departure than before—the court again cited Angle’s uncounted sodomy conviction, but this time the court also explicitly relied on additional information. For example, the court noted that Angle had bragged about a sexual encounter with a Georgia boy in an online chat with an individual Angle thought was a 13-year-old boy. And the court cited accusations that Angle had traveled to Mexico to have sex with children; that he had committed acts of sexual abuse involving his niece, his nephew, and his girl- friend’s daughter; and that he preyed on children he met at a gym in Indiana. The government introduced a letter from the nephew’s wife accusing Angle of molesting several of his young relatives. Finally, a postal inspector testified that amateur videotapes recovered from Angle when he reentered the United States from Mexico depicted boys performing sex acts. But the district court did not explain why it credited these accounts of un- charged criminal acts, so we again remanded for resentencing and directed that the case be reassigned to 4 No. 08-2087 a different judge. United States v. Angle (Angle II), 315 F.3d 810 (7th Cir. 2003). At the third sentencing hearing in 2005, the new judge decided that Angle’s conduct warranted 300 months’ imprisonment, 25 fewer than before, but still well above the guidelines range. The district court took into account the evidence introduced at trial and during the first two sentencing hearings, and also allowed the gov- ernment to introduce new testimony from one previously unavailable witness, a woman who said that Angle had molested her as a child when he was dating her mother and living with them in California. The district court cited Angle’s long history of sexual abuse of children to justify the substantial increase above the guidelines range, but the judge overlooked our instruction to ex- plain why he deemed reliable the evidence of uncharged sexual abuse. We thus sent the case back again for resentencing, and this time we also directed the court to explain why its application of a 5-level upward adjustment for engaging in a “pattern of activity involving the sexual abuse or exploitation of a minor,” see U.S.S.G. § 2G2.2(b)(4) (1998) (current version at U.S.S.G. § 2G2.2(b)(5)), did not fully account for the uncharged conduct that contributed to the above- range period of incarceration. United States v. Angle (Angle III), 216 F. App’x 557 (7th Cir. 2007). In late 2007, well after Booker was decided, the district court conducted yet another sentencing hearing, which is the subject of this appeal. The court reviewed an up- dated presentence report, evaluated the evidence pre- No. 08-2087 5 sented at trial and during the prior sentencing hearings, and heard live testimony from Angle’s niece, his two nephews, an employee from the Indiana gym, a gym patron and her son, the Georgia boy, and the postal inspector. As we had directed, the court made extensive findings concerning the reliability of the allegations of molestation, and Angle does not contest those findings on appeal. Appellant’s Br. at 13. The court still applied the 1998 guidelines but also took note of amendments promulgated since Angle’s first sentencing in 1999; Angle’s imprisonment range under the 1998 version of the guidelines was 97 to 121 months but would have been 360 months to life under the 2006 version then in effect. In again settling on a total period of imprisonment of 300 months, the district court explained that the “pattern of abuse” upward adjustment under § 2G2.2(b)(4) did not fully account for Angle’s extensive history of sexual misconduct involving children. The court reasoned that the “pattern of abuse” adjustment would apply any time a defendant engaged in at least two instances of sexual abuse or exploitation, and yet Angle, whose pattern of misconduct had run virtually unchecked for 20 years, was one of the worst child predators the judge had seen in his 25 years on the bench. The court observed that Angle had abused a position of trust as a relative to three of the abused children, and had established a modus operandi of ingratiating himself with single mothers in order to abuse their children. Moreover, the court ex- plained, Angle had produced child pornography in addi- tion to consuming it. The court noted a series of e-mails Angle had sent to what he thought was a distributor 6 No. 08-2087 of child pornography in Colorado (but was actually a government front). These emails established that during a trip to Mexico, Angle helped create at least one sexually explicit video of children. In one e-mail sent before his departure, Angle boasted that he was traveling to Mexico to “play with boys” and had them “lined up already and waiting for our arrival.” This extensive evidence, the court concluded, signaled that Angle’s crimes would quickly resume upon his release from prison. He showed no remorse, and despite telling the judge that he now wanted to participate in sex-offender treatment, Angle had passed up opportunities to do so after his two prior convictions for sex offenses against children. II. ANALYSIS A. Above-range Sentence Warranted As we noted, in this appeal Angle does not dispute that the district court adequately explained why it found the evidence of uncharged acts of sexual abuse to be reliable. That prong of our last remand is satisfied. Angle contends, however, that the court still did not justify the need for an above-range sentence after applying the “pattern of abuse” upward adjustment under § 2G2.2(b)(4). That guideline mandates a 5-level increase in offense level “[i]f the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” U.S.S.G. § 2G2.2(b)(4) (1998) (current version at U.S.S.G. § 2G2.2(b)(5)); see United States v. Osborne, 551 F.3d 718, 721- 22 (7th Cir. 2009). As discussed above, the district court gave several reasons for concluding that an above-range No. 08-2087 7 sentence was warranted in addition to the “pattern of abuse” adjustment: Angle had an unbroken, 20-year pattern of abusive conduct; he exploited positions of trust to get at his young victims; he created as well as consumed child pornography; he showed no remorse; and he would have faced a significantly higher impris- onment range if sentenced under the current version of the guidelines. Angle insists that the first four reasons are fully embodied in § 2G2.2(b)(4), and that the last is im- proper given the limited scope of our remand. We reject both contentions. The district court first explained that Angle’s pattern of abuse was atypical. Many of the reported decisions analyzing the “pattern of abuse” adjustment involve a narrower range of abuse than was present in this case. See, e.g., United States v. Alvarez, 478 F.3d 864, 865-66 (8th Cir. 2007) (upholding application of the adjustment where defendant repeatedly abused one victim); United States v. Gunderson, 345 F.3d 471, 472-73 (7th Cir. 2003) (upholding application of the adjustment where de- fendant abused two victims); United States v. Lovaas, 241 F.3d 900, 901 (7th Cir. 2001) (upholding application of the adjustment where defendant abused three victims). Indeed, the commentary to § 2G2.2 encourages district courts to impose a term of imprisonment outside the guidelines range if an upward adjustment under subsec- tion (b)(4) is inadequate to account for the seriousness of the sexual abuse or the exploitation involved. U.S.S.G. § 2G2.2 cmt. n.2 (1998) (current version at U.S.S.G. § 2G2.2 cmt. n.7); United States v. Griffith, 344 F.3d 714, 719 (7th Cir. 2003). We cannot disagree with the district 8 No. 08-2087 court that Angle’s prolonged and extensive pattern of abusive conduct placed him squarely within the group of offenders contemplated by the commentary. Second, the district court thought it significant that Angle’s pattern of abuse involved exploiting positions of trust. Angle opposes this reasoning on two fronts, though his initial objection is frivolous. The govern- ment’s evidence, he says, does not show that he held a position of trust involving his victims. But sentencing judges are not bound by the stringent evidentiary stan- dards applicable at trial; rather, the evidence need only be reliable. United States v. Cooper, 591 F.3d 582, 591 (7th Cir. 2010); United States v. Johnson, 489 F.3d 794, 796 (7th Cir. 2007). At Angle’s latest sentencing hearing, the judge found that Angle had abused his niece and nephews, and had targeted single mothers whose trust he could engender in order to abuse their children. These factual findings are reviewed only for clear error, United States v. Davis, 442 F.3d 1003, 1008-09 (7th Cir. 2006), and though Angle disagrees with the inference drawn by the district court from the evidence, he has not identified any error in the court’s assessment of that evidence. Angle’s other objection to receiving an above-range sentence in part for exploiting positions of trust rests on our decision in United States v. McCaffrey, 437 F.3d 684 (7th Cir. 2006). That child-pornography prosecution in- volved a priest who was sentenced to 240 months— 60 less than Angle—after abusing more than 100 children, most of them from his congregations. 437 F.3d at 686-88. Angle reads that outcome as confirmation that his own No. 08-2087 9 situation does not warrant both a “pattern of abuse” upward adjustment and an increase above the resulting guidelines range. But Angle did not read our McCaffrey opinion carefully. In that case the government success- fully argued that the defendant’s pattern of abuse war- ranted not only the 5-level increase under the “pattern of abuse” adjustment, but also a (pre-Booker) upward depar- ture equivalent to another 5 offense levels. Id. at 686-87. We rejected the defendant’s “double counting” argument and upheld both increases, which effectively yielded a guidelines imprisonment range of 360 months to life. Id. at 687-89. The only reason that the defendant in that case averted a higher prison sentence is that he was charged with just two counts carrying a combined maxi- mum of 20 years, which is what the district court gave him. Id. at 687-88. The sentencing judge was explicit, however, that the defendant would have been impris- oned for longer if not for the statutory caps. Id. at 690. At all events, McCaffrey represents an extreme, and simply because Angle’s conduct was less egregious does not mean that his pattern of abuse could not sustain both the upward adjustment and an above-range sentence. The district court concluded that there was reliable evidence that Angle abused positions of trust and, on this basis, reasoned that Angle’s case was comparable to McCaffrey. We agree with that assessment. A third reason given by the district court for sen- tencing Angle above the guidelines range is that he created child pornography. Angle not only traveled to Mexico for the specific purpose of engaging in sexual abuse of children, but he arranged for the encounters to be 10 No. 08-2087 filmed so that he could trade the tapes. The upward adjustment for a pattern of abuse is designed to punish sexual abuse or exploitation, McCaffrey, 437 F.3d at 688; Lovaas, 241 F.3d at 904, not the production of child pornog- raphy, see U.S.S.G. § 2G2.2 cmt. n.1 (“ ‘Sexual abuse or exploitation’ ” does not include possession, accessing with intent to view, receipt, or trafficking in material relating to the sexual abuse or exploitation of a minor.”); United States v. Williamson, 439 F.3d 1125, 1139 n.16 (9th Cir. 2006); United States v. Woodward, 277 F.3d 87, 91 (1st Cir. 2002); United States v. Kemmish, 120 F.3d 937, 941-42 (9th Cir. 1997). Section 2G2.2 does not address the creation of child pornography, and it was appropriate for the district court to take into account that narrow scope in exercising its sentencing discretion. See Griffith, 344 F.3d at 719 (explaining that an upward adjustment may be inadequate to address the degree of sexual exploita- tion); see also United States v. Whorley, 550 F.3d 326, 339- 42 (4th Cir. 2008) (affirming above-range sentence as reasonable where circumstances were atypical and not taken into account by the guidelines). In fact, Angle’s involvement in making child pornography might have warranted a cross-reference to the higher offense levels in U.S.S.G. § 2G2.1 for production offenses. See U.S.S.G. § 2G2.2(c) (1998); United States v. Dawn, 129 F.3d 878, 880-81 (7th Cir. 1997). Fourth, the district court was unpersuaded that Angle had shown any remorse for his abusive conduct. Twice previously Angle had been convicted of sex offenses against children, and after those convictions he de- clined opportunities to participate in treatment for sex No. 08-2087 11 offenders. What is more, the court observed, Angle boasted about his criminal conduct in written correspon- dence and Internet chat messages. The absence of remorse, the court reasoned, made it likely that Angle would resume his abusive conduct when he is released. Angle’s future dangerousness is not accounted for in § 2G2.2(b)(4), and, thus, there was no error in the judge’s decision to impose an above-range sentence on this basis. See Griffith, 344 F.3d at 719-20 (upholding upward depar- ture based on defendant’s two prior convictions for sexual abuse of children and his three failed attempts to complete treatment for sex offenders); United States v. Turchen, 187 F.3d 735, 742 (7th Cir. 1999) (upholding upward departure in child-pornography prosecution where defendant’s criminal history and unsuccessful rehabilitation suggested risk of recidivism). Angle asserts that none of these reasons is “compelling,” but his contention is obviously subjective and, regardless, misunderstands the nature of our review. Our task is simply to assess whether the overall prison sentence imposed by the district court is reasonable in light of the justifications for that sentence. E.g., United States v. Perez, 581 F.3d 539, 548 (7th Cir. 2009); United States v. McKinney, 543 F.3d 911, 913 (7th Cir. 2008). The sentencing guide- lines are advisory; the imprisonment range is one of the factors enumerated in 18 U.S.C. § 3553(a), but a district court does not need a “compelling” reason to exceed the range. United States v. Nelson, 129 S. Ct. 890, 892 (2009); United States v. Kirkpatrick, 589 F.3d 414, 415-16 (7th Cir. 2009). That was the point of Kimbrough v. United States, 552 U.S. 85 (2007), which, after our last remand, clarified 12 No. 08-2087 that a district court is free to weigh any sentencing factor differently than the Sentencing Commission, even in a typical case. Kimbrough, 552 U.S. at 101; United States v. Alldredge, 551 F.3d 645, 647 (7th Cir. 2008). All that matters is that the sentence imposed be reasonable in relation to the “package” of reasons given by the court, and in that sense Kimbrough has eroded the premise in our last remand of requiring the district to quantify how Angle’s situation exceeded a “mine run” application of § 2G2.2(b)(5). See Kimbrough, 552 U.S. at 110; McKinney, 543 F.3d at 913. The district court did exactly what we asked in explaining its application of subsection (b)(4), but, as we now recognize, it was also within the court’s power to disagree with the weight given by the Sentencing Commission to the “pattern of abuse” adjustment. That brings us to the final reason given by the district court for its sentence: the imprisonment range that Angle would have faced under the 2006 version of the guidelines in effect when he was last sentenced. Angle principally contends that the language of our remand precluded the court from taking notice of revisions to § 2G2.2, but we imposed no such limitation. Angle is correct in assuming that a district court must adhere to the scope of a remand from this court, United States v. White, 406 F.3d 827, 831 (7th Cir. 2005), but the scope of any remand is determined from reading all, not part, of an opinion, United States v. Husband, 312 F.3d 247, 251 (7th Cir. 2002); United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996). After oral argument in Angle’s third appeal, his lawyer notified us that Angle had been apprised of the possibility that his fourth sentencing would be governed No. 08-2087 13 by the updated guidelines, and we responded with the observation that applying the current guidelines on remand would not raise an ex post facto concern; we did not imply that using the current guidelines would exceed the scope of our remand. Angle III, 216 F. App’x at 559 n.1. Our decision in Angle III was released before this court clarified that, under 18 U.S.C. § 3742(g), the guidelines in effect at the time of the original sentencing must be used again when an appeal results in an order for resentencing, United States v. Tanner, 544 F.3d 793, 795 (7th Cir. 2008), but the force of this statutory limita- tion does not alter the scope of the remand we contem- plated. Moreover, even though § 3742(g) precluded the district court from applying the 2006 guidelines, the statute did not bar the court from consulting the Sen- tencing Commission’s current views as a guide to its exercise of Booker discretion. United States v. Johnson, 427 F.3d 423, 427 (7th Cir. 2005); United States v. Coe, 220 F.3d 573, 578 (7th Cir. 2000). And that is all the district court did here. To quote the district court, “it would be impossi- ble to ignore the perverse fact that, were Angle to be sentenced for the same conduct under the current guide- lines, his advisory range would be 360 months to life, and the court would need to explain why a sentence of less than 360 months is appropriate.” Angle also contends that the district court’s assessment of his guidelines range under the 2006 version of § 2G2.2 was inaccurate. But this assertion really comes down to his belief that the court did not adequately explain its conclusion that, under the 2006 guidelines, he would receive a 5-level increase for intending to trade 14 No. 08-2087 child pornography for other child pornography, see U.S.S.G. § 2G2.2(b)(3)(B) (2006), plus a 4-level increase for possessing 300 to 600 images of child pornography, id. § 2G2.2(b)(7) (2006). Before Angle’s latest resentencing, however, the probation officer revised the presentence report to explain that Angle would be eligible for both increases. Angle did not object on the ground that the probation officer’s proposed findings were not sup- ported by the evidence, and the district court relied on those findings, which the court was entitled to do. See United States v. Heckel, 570 F.3d 791, 795 (7th Cir. 2009); United States v. Salinas, 365 F.3d 582, 587 (7th Cir. 2004). Had Angle wished to cast doubt on the reliability of the information in the revised presentence report, he was obligated to dispute its accuracy, which he did not do. See Heckel, 570 F.3d at 795. This final argument, then, like Angle’s previous contention, is without merit. We thus uphold the 300-month total imprisonment. B. Special Condition of Supervised Release Angle makes one additional argument that arose for the first time after our last remand. At the final resentencing, the district court imposed as a special condition of super- vised release that Angle “shall not have personal access to computer Internet services.” This condition was not suggested in advance but first raised in open court during sentencing. Angle objected to that condition, and on appeal he contends that the district court was required to give him notice before imposing such a condition and that barring him from using the Internet is both unneces- sary and unreasonable. No. 08-2087 15 We review special conditions of supervised release for an abuse of discretion. Angle I, 234 F.3d at 346. When imposing supervised release, a district court must include several mandatory conditions, may impose any condition set forth as a discretionary condition of proba- tion, and may also include any other condition it considers to be appropriate. See 18 U.S.C. § 3583(d); § 3563(b)(1)-(10). The conditions however, must be rea- sonably related to (1) the defendant’s offense, history and characteristics; (2) the need for adequate deterrence; (3) the need to protect the public from further crimes of the defendant; and (4) the need to provide the defendant with treatment. 18 U.S.C. § 3583(d); United States v. Holm, 326 F.3d 872, 877-78 (7th Cir. 2003). They must also “involve no greater deprivation of liberty than is reasonably neces- sary” to effectuate sentencing purposes. 18 U.S.C. § 3583(d)(2). Although we have expressed skepticism about the reasonableness of banning Internet use entirely, see United States v. Silvious, 512 F.3d 364, 371 (7th Cir. 2008); Holm, 362 F.3d at 877-78, we nonetheless have left open the possibility that such a condition might be justified if the Internet was used to commit the crime of conviction, Silvious, 512 F.3d at 371; United States v. Scott, 316 F.3d 733, 735 (7th Cir. 2003). Angle first argues that the court was required to give notice of its intent to impose this condition of supervised release because it was analogous to a departure from the guidelines. This argument fails. Post-Booker, which made the guidelines advisory, Angle III, 216 Fed. App’x at 560, and four sentencing hearings, Angle could have had no expectations for a sentence within guideline range. As 16 No. 08-2087 the guidelines contemplate a term of supervised release, and provide the district court with broad discretion in imposing appropriate conditions for the supervised release, Angle could not reasonably believe that an Internet ban was so “out of the ordinary,” as to require notice. United States v. McKissic, 428 F.3d 719, 725 (7th Cir. 2005). In fact, the 2006 guidelines which the district court had the discretion to consult, specifically contemplate limiting the use of a computer in cases where the defen- dant used a computer for sex offenses. U.S.S.G § 5D1.3(d)(7)(B) (2006). Angle next argues that the condition is unnecessary and unreasonable. We disagree. In 1997 and 1998, when the Internet was fairly new, Angle was convicted of using the Internet to solicit a minor for sex. He also used the Internet to set up a pornography trade with a distrib- uter, and possessed an extensive amount of child pornog- raphy on computer diskettes and zip disks. Furthermore, his use of the Internet was not integrally connected to his profession as he was previously employed as a salesman and mechanic. These facts easily distinguish Angle from the defendant in Holm who was convicted of simply possessing child pornography and used the computer and Internet extensively in his occupation as a information systems technologist. Finally, unlike the district court in Holm, here the district court did not impose a complete ban on the Internet, disallowing only “personal” access to Internet services. Under these cir- cumstances, we cannot conclude that the district court abused its discretion in thwarting Angle from gaining personal access to the Internet during the period of his No. 08-2087 17 supervised release. See, e.g., United States v. Zinn, 321 F.3d 1084, 1092-93 (11th Cir. 2003); United States v. Paul, 274 F.3d 155, 166-66 (5th Cir. 2001); United States v. Crandon, 173 F.3d 122, 127-28 (3d Cir. 1999); c.f. United States v. Perazza-Mercado, 553 F.3d 65, 70 (1st Cir. 2009) (holding that total Internet ban unrelated to charged offense was impermissibly broad). III. CONCLUSION Accordingly, we A FFIRM the district court’s sentence. 3-15-10

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-1929 ___________ Homer Mooney, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. AT&T Umbrella Benefit Plan #1, * * [UNPUBLISHED] Appellee. * ___________ Submitted: March 5, 2010 Filed: March 15, 2010 ___________ Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges ___________ PER CURIAM. Homer Mooney appeals the district court’s1 adverse grant of summary judgment in his Employment Retirement Income Security Act lawsuit against AT&T Umbrella Benefit Plan #1 (the Plan) arising from the denial of long-term-disability (LTD) benefits. Upon de novo review of the record, we agree with the district court that the Plan did not abuse its discretion in denying Mooney’s claim for LTD disability benefits. See Dillard’s Inc. v. Liberty Life Assurance Co. of Boston, 456 F.3d 894, The Honorable James M. Moody, United States District Judge for the Eastern District of Arkansas. 899 (8th Cir. 2006) (plan administrator’s decision will be reversed only if it was arbitrary and capricious; decision need be only reasonable, meaning it must be supported by substantial evidence); see also Norris v. Citibank, N.A. Disability Plan (501), 308 F.3d 880, 883-84 (8th Cir. 2002) (reviewing de novo district court’s application of abuse-of-discretion standard). Accordingly, we affirm, and we reject as meritless Mooney’s arguments for reversal. See 8th Cir. R. 47B. ______________________________

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-2559 ___________ Green Tree Servicing, LLC, * * Appellee, * Appeal from the United States * District Court for the v. * Eastern District of Arkansas. * Larry Thomas; Rosie Lee Thomas, * [UNPUBLISHED] * Appellants. * ___________ Submitted: March 10, 2010 Filed: March 15, 2010 ___________ Before MELLOY, BOWMAN, and SMITH, Circuit Judges. ___________ PER CURIAM. Larry and Rosie Lee Thomas, who removed this action originally brought against them in state court, appeal the order of the District Court1 remanding the case to state court. On appeal, they argue that the District Court erred in concluding that their removal notice was untimely and in failing to rule on their pending motions. They have also filed a motion in this Court seeking a contempt order. The Honorable J. Leon Holmes, Chief Judge, United States District Court for the Eastern District of Arkansas. We have jurisdiction to review the District Court's remand order only to the extent that the Thomases' removal was based upon 28 U.S.C. § 1443. See 28 U.S.C. § 1447(d) (stating that an order remanding a case to state court is not reviewable on appeal unless the case was removed to federal court pursuant to § 1443). Exercising this limited jurisdiction, we affirm the District Court's remand order because removal under § 1443 was improper. See City of Greenwood v. Peacock, 384 U.S. 808, 824 (1966) (holding that § 1443(2) allows removal only by "federal officers or agents and those authorized to act with or for them in affirmatively executing duties under any federal law providing for equal civil rights"); id. at 828 (holding that § 1443(1) permits removal only in "rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law" that federal rights will be denied by "the very act of bringing the defendant to trial in the state court"); Neal v. Wilson, 112 F.3d 351, 355 (8th Cir. 1997) (holding that removal under § 1443(1) is proper only where a party shows reliance "upon a law providing for equal civil rights stated in terms of racial equality"; removal is proper if it can be "predicted by reference to a law of general application that the defendant will be denied or cannot enforce the specified federal rights in the state courts"); see also Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005) (noting that appellate court may affirm on any basis supported by the record). We also hold that the District Court did not err in declining to rule on the Thomases' pending motions. See Vincent v. Dakota, Minn. & E. R.R. Corp., 200 F.3d 580, 582 (8th Cir. 2000) (noting that when a case is remanded to state court for lack of jurisdiction, the district court lacks jurisdiction to make any substantive rulings). Accordingly, we affirm, and we deny the Thomases' pending motion. ______________________________

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-2560 ___________ United States of America, * * Appellee, * * v. * * Vondra D. Alexander, * * Appellant. * ___________ Appeals from the United States District Court for the No. 09-2744 Eastern District of Arkansas. ___________ [UNPUBLISHED] United States of America, * * Appellee, * * v. * * Sharon L. Alexander, * * Appellant. * ___________ Submitted: March 8, 2010 Filed: March 15, 2010 ___________ Before BYE, ARNOLD, and COLLOTON, Circuit Judges. ___________ PER CURIAM. Sharon and Vondra Alexander appeal the respective 61-month and 43-month sentences they received for conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 1344 and 1349. Vondra Alexander argues the district court1 erred by imposing an excessive sentence relative to others involved in the case and by failing to consider mitigating circumstances. Sharon Alexander contends the court erred by failing to properly weigh factors justifying a variance such as her mental and physical health and her family responsibilities. We affirm. The facts underlying this appeal are more fully stated in the Alexanders' previous appeal, United States v. Alexander, 556 F.3d 890 (8th Cir. 2009). Sharon and Vondra Alexander, who are sisters, were indicted along with ten others on multiple charges in connection with stealing and passing stolen checks. Sharon and Vondra each pleaded guilty to conspiracy to commit bank fraud and the government moved to dismiss the remaining charges against them. The district court sentenced Vondra to 63 months of incarceration and Sharon to 87 months of incarceration, each at the bottom of their respective Guidelines ranges. On appeal, this Court vacated the sentences and remanded because the district court committed plain error by applying a presumption of reasonableness to the advisory Guidelines. Alexander, 556 F.3d at 893-894. On remand, the district court gave Vondra and Sharon each a 30 percent downward variance from the Guidelines, resulting in a sentence of 43 months of incarceration for Vondra and 61 months of incarceration for Sharon. The Honorable James M. Moody, United States District Judge for the Eastern District of Arkansas. We conclude the district court did not abuse its discretion by rejecting the additional grounds for variances proposed by the Alexanders. United States v. Zastrow, 534 F.3d 854, 855 (8th Cir. 2008) (setting forth the standard of review). The district court did not commit any significant procedural error because it properly calculated the Guidelines ranges and weighed the sentencing factors under 18 U.S.C. § 3553(a). United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). In Vondra's case, we reject the assertion the district court ignored the facts of the case in imposing an excessive sentence relative to others and failed to consider mitigating factors. The court stated it found the disparity among the sentences to be a compelling factor, and accordingly it granted a 30 percent downward variance for both Vondra and Sharon. The court justified the remaining disparity in sentences as being a result of Vondra and Sharon's roles in the offense, their offense levels and criminal histories, and the enhancements they received. The court also referred to the original sentencing hearing, at which it considered Vondra's caretaking role in her family as a mitigating factor. However, the court determined Vondra's caretaking role did not justify an additional variance. These are precisely the type of defendant-specific determinations more appropriately suited for the sentencing court, and we find no procedural error in the court's analysis. United States v. White, 506 F.3d 635, 644 (8th Cir. 2007) ("In reviewing whether the district court's variance fell outside the range of choice dictated by the facts of the case, we are mindful of the fact that the sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Sentencing Commission or the appeals court."). Similarly, we reject Sharon's argument regarding the district court's improper weighing of her physical and mental health condition and her family responsibilities. Under 18 U.S.C. § 3553(a)(1), courts are required to consider "the history and characteristics of the defendant," including consideration of a defendant's medical condition. Id. at 644. We cannot conclude the district court abused its discretion in weighing Sharon's health condition and family responsibilities. To the contrary, the court was presented with extensive information including testimony from Sharon and her daughter indicating the nature of Sharon's health issues and family responsibilities. The court acknowledged the genuine nature of Sharon's health problems. See United States v. Wahlstrom, 588 F.3d 538, 547 (8th Cir. 2009) (rejecting the claim the district court abused its discretion in weighing the defendant's background where the court was presented with extensive information and acknowledged the defendant's personal history). The record indicates the court considered the appropriate factors and provided adequate justification for granting a 30 percent downward variance. White, 506 F.3d at 648. Giving deference to the district court's determination, we find the sentences of 43 months of incarceration for Vondra Alexander and 61 months of incarceration for Sharon Alexander are not unreasonable and are not an abuse of discretion. Zastrow, 534 F.3d at 856. Accordingly, we affirm the judgment of the district court. ______________________________

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-2591 ___________ United States of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Thomas Boaz, * * Defendant - Appellant. * ___________ Submitted: January 15, 2010 Filed: March 15, 2010 ___________ Before MELLOY, SMITH, and COLLOTON, Circuit Judges. ___________ MELLOY, Circuit Judge. A jury convicted Appellant Thomas Monroe Boaz of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Based on prior violent felony convictions, the district court determined that Boaz was subject to the Armed Career Criminal Act, 18 U.S.C. § 924(e), and sentenced him to 190 months' imprisonment. In a prior appeal, we reversed and remanded because the parties had erroneously stated to the district court that the record contained certain identifying information as to one of the prior violent felony convictions, a 1974 Yavapai County, Arizona conviction for brandishing a weapon other than in self-defense. United States v. Boaz, 558 F.3d 800, 809 (8th Cir. 2009). We instructed the court on remand to reopen the record to permit the government an opportunity to prove whether Appellant was, in fact, the same person who was named in the 1974 Arizona conviction. Id. On remand, the district court received evidence, determined that Appellant was the subject of the 1974 conviction, and imposed the same 190-month sentence. The district court's identification determination is a factual determination that we review for clear error. See United States v. Urbina-Mejia, 450 F.3d 838, 839 (8th Cir. 2006). A certified copy of the 1974 Arizona conviction contains no identifying information other than the name, Thomas Monroe Boaz. Appellant contends this omission is fatal to the government's case. He asserts that fingerprint evidence is required to prove that he was the same Thomas Monroe Boaz who was the subject of that conviction. We disagree. Other evidence presented at the hearing included several subsequent records containing ample identification evidence listing not only the name, but also identifying characteristics such as height, weight, age, and tattoos. It is undisputed that these subsequent records, which included fingerprint evidence as to subsequent offenses, matched Appellant. At least one of these records contains a hearsay report from a probation officer who represented that he supervised Appellant in relation to probation for the 1974 offense. Another record contains a hearsay statement from Appellant himself claiming that he was on bond out of Prescott (a city in Yavapai County) at a time that corresponded with the period of time between arrest and conviction for the 1974 conviction. These statements show that Appellant was the same Thomas Monroe Boaz as listed in the 1974 conviction. Review of these records convinces us that, despite their age, they bear sufficient indicia of reliability to permit their use at sentencing. United States v. Sanchez-Garcia, 461 F.3d 939, 948 (8th Cir. 2006). In total, the identical names coupled with this evidence is sufficient to support the district court's finding, by a preponderance of the evidence, that Appellant is the same Thomas Monroe Boaz who was the subject of the 1974 Yavapai County, Arizona conviction. We affirm the judgment of the district court. ______________________________

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-2654 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Frank M. Butts, * * [UNPUBLISHED] Appellant. * ___________ Submitted: March 8, 2010 Filed: March 15, 2010 ___________ Before BYE, ARNOLD, and COLLOTON, Circuit Judges. ___________ PER CURIAM. Frank M. Butts appeals the district court's1 revocation of his supervised release and the imposition of a nine month term of incarceration. Butts contends the district court abused its discretion in revoking supervised release; he also contends the nine month sentence is unreasonable. We affirm. Upon the commencement of his supervised release term in July 2006, Butts was required to make monthly payments of $1,000 on a $750,000 restitution obligation The Honorable William R. Wilson, Jr., United States District Judge for the Eastern District of Arkansas. stemming from his conviction for Medicaid fraud.2 In January 2009, the government filed a petition to revoke supervised release because Butts was only paying $100 per month. During the course of the revocation proceedings, Butts agreed to be deposed and to produce documents relative to his financial affairs which revealed he had monthly income of over $13,000. After a revocation hearing held on July 9, 2009, the district court found Butts willfully violated the terms of his supervised release and sentenced him to nine months in prison followed by two years of supervised release. We find no clear error in the factual findings which support the revocation and no abuse of discretion in the decision to revoke supervised release. See United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003) (setting forth the standard of review). We reject the claim the district court abused its discretion by not crediting Butts's allegation that the probation office improperly interfered with his ability to work. We also reject the claim that Butts's due process and Sixth Amendment rights were violated when the district court considered a violation memorandum as evidence at the revocation hearing. See United States v. Martin, 382 F.3d 840, 844 n.4 (8th Cir. 2004) (holding that Crawford v. Washington, 541 U.S. 36 (2004) does not apply to revocation hearings). Finally, we reject the claim that the nine month sentence is unreasonable because Butts will not be able to collect social security disability benefits and income during his incarceration. Butts knew he risked additional incarceration by failing to pay restitution in the amount ordered. The loss of social security income is a direct consequence of Butts's decision to ignore the terms of his supervised release; this fact does not make Butts's sentence unreasonable. Accordingly, we affirm the judgment of the district court. ______________________________ The amount of restitution was initially $750,000. Butts paid $190,000 of that amount at the time of his original sentencing.

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-2681 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Ra'Qim Farad al-Salahuddin, * formerly known as Rayfus Ulester * [UNPUBLISHED] Dukes, Jr., * * Appellant. * ___________ Submitted: March 8, 2010 Filed: Mach 15, 2010 ___________ Before BYE, ARNOLD, and COLLOTON, Circuit Judges. ___________ PER CURIAM. Ra'Qim Farad al-Salahuddin, formerly known as Rayfus Dukes, Jr., appeals the district court's1 sentence of 48 months' incarceration. Dukes contends the court erred at sentencing by considering a charge dismissed pursuant to a plea agreement; Dukes contends the government did not prove the conduct by a preponderance of the evidence. We affirm. The Honorable James M. Moody, United States District Judge for the Eastern District of Arkansas. Dukes was charged in two counts of a 59-count indictment along with 30 other individuals with conspiracy to distribute cocaine and cocaine base and with use of a communication facility to facilitate a drug transaction. On December 12, 2008, Dukes pleaded guilty to the latter count and the government dismissed the conspiracy charge pursuant to a plea agreement. At sentencing, the district court found Dukes had a criminal history category of VI and an offense level of 21, resulting in a Guidelines range of 77 to 96 months. The court also concluded there was a 48-month statutory maximum. The government made a brief statement at the hearing, but entered no evidence and called no witnesses. The court stated the sentence under the charge for use of a communication facility was much less than Dukes would have received under the conspiracy charge, and Dukes was getting a "huge break" from the government. The court then sentenced Dukes to 48 months of incarceration and one year of supervised release. We find no plain error in the district court's sentence of 48 months' incarceration. United States v. Hill, 552 F.3d 686, 690 (8th Cir. 2009) (setting forth the standard of review). As an initial matter, "our circuit has held numerous times 'that unless a defendant objects to a specific factual allegation contained in the [presentence report (PSR)], the court may accept that fact as true for sentencing purposes.'" United States v. Arrieta-Buendia, 372 F.3d 953, 955 (8th Cir. 2004) (quoting United States v. Moser, 168 F.3d 1130, 1132 (8th Cir. 1999)). In this case, multiple paragraphs in the PSR detailed Dukes's involvement in distributing cocaine hydrochloride, (PSR ¶¶ 6, 9, 10, 12), which Dukes failed to object to at sentencing. As a result of his failure to object, Dukes admitted the facts contained in the PSR and the district court was entitled to rely on these facts. United States v. Schwalk, 412 F.3d 929, 933 (8th Cir. 2005). These facts demonstrate a factual basis for a conspiracy charge against Dukes, which carried a statutory maximum penalty of at least twenty years' imprisonment. 21 U.S.C. § 841(b)(1)(C). The record thus supported the district court's conclusions that Dukes received a "huge break" under the plea agreement, because his sentence on the communication facility was "half of what [he] would have gotten under the guidelines" for the conspiracy count. S. Tr. 11; see PSR ¶ 63. In addition, any error resulting from the district court's consideration of the dismissed conspiracy count did not rise to the level of plain error because it did not affect Dukes's substantial rights. United States v. Molnar, 590 F.3d 912, 915 (8th Cir. 2010) ("To establish plain error, [the defendant] must prove that (1) there was error, (2) the error was plain, and (3) the error affected his substantial rights."). "An error affects a substantial right if the error was prejudicial. In the sentencing context, an error is prejudicial only if the defendant proves a reasonable probability that he would have received a lighter sentence but for the error." Id. (citations omitted). Moreover, we exercise our discretion to correct such an error only if it "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (citing United States v. Olano, 507 U.S. 725, 732 (1993)). In this case, the district court opted to sentence Dukes to the statutory maximum of 48 months' incarceration, which was far less than the Guidelines range of 77-96 months. The district court noted it had carefully read the PSR and it acknowledged Dukes's extensive criminal history, which placed him in a career offender status. The district court further emphasized Dukes's criminal conduct did not cease even after being indicted and pleading guilty in this matter. After noting these circumstances in the record, the district court concluded, "so when I look at all of this, you're getting a huge break from [the government] on this." (S. Tr. 11). Based on the record as a whole, Dukes cannot show a reasonable probability he would have received a more favorable sentence but for the district court's consideration of the dismissed conspiracy charge. See United States v. Linderman, 587 F.3d 896, 899 (8th Cir. 2009) (holding we will not conclude a defendant's substantial rights were affected unless the defendant shows a reasonable probability he would have received a more favorable sentence based on the record as a whole). The district court was clearly concerned with his extensive criminal history and continuing criminal conduct after being indicted, and as a result, we cannot say there is a reasonable probability Dukes would have received a more favorable sentence had the district court not considered the dismissed conspiracy charge. Accordingly, we affirm the judgment of the district court. ______________________________

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-3021 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Martin Larry Wilson, * * [UNPUBLISHED] Appellant. * ___________ Submitted: March 10, 2010 Filed: March 15, 2010 ___________ Before BYE, RILEY, and SHEPHERD, Circuit Judges. ___________ PER CURIAM. In this direct criminal appeal after a remand, Martin Wilson, who pled guilty to being a felon in possession of a firearm, challenges the sentence the district court1 imposed upon resentencing. His counsel has moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967), challenging the district court’s decision to depart upward by raising Wilson’s criminal history category under the Sentencing Guidelines from III to IV. Specifically, counsel argues that the court abused its discretion because it relied on unscored convictions that were largely The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa. misdemeanors and reflected Wilson’s alcoholism rather than incorrigibility. Wilson argues in a pro se supplemental brief that, because he possessed the firearm as a keepsake, he should have been assigned a lower base offense level under the Guidelines. We hold that the district court did not abuse its discretion in departing upward to a Category IV criminal history, because the court explained that it was basing the upward departure on the seriousness of Wilson’s unscored convictions, his repeated assaults on his wife, and the likelihood of violent recidivism. See U.S.S.G. § 4A1.3(a)(1); United States v. Vasquez, 552 F.3d 734, 738-39 (8th Cir. 2009) (standard of review; upward departures under § 4A1.3(a) are applicable if reliable information indicates that criminal history category substantially under-represents seriousness of criminal history or likelihood that defendant will recidivate; court may take into account any evidence of obvious incorrigibility and conclude that leniency has not been effective). We further hold that Wilson’s pro se argument is foreclosed by his plea agreement, because Wilson stipulated in the plea agreement that he did not possess the firearm for lawful sporting purposes or for collection. See United States v. Paton, 535 F.3d 829, 834-35 (8th Cir. 2008) (de novo standard of review; defendant foreclosed from making arguments precluded by terms of plea agreement). Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80 (1988), we find no nonfrivolous issues. Accordingly, we affirm the district court’s judgment and we grant counsel leave to withdraw. ______________________________

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-3086 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Juan Correa-Gutierrez, also known as * Armando Valencia Andrade, * [UNPUBLISHED] * Appellant. * ___________ Submitted: March 10, 2010 Filed: March 15, 2010 ___________ Before MELLOY, BOWMAN, and SMITH, Circuit Judges. ___________ PER CURIAM. Juan Correa-Gutierrez appeals the sentence imposed by the District Court1 after he pleaded guilty to conspiring to distribute and possess with intent to distribute fifty grams or more of actual methamphetamine. 21 U.S.C. § 841(a)(1) & (b)(1). Counsel has moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967), raising as potential issues that the District Court committed procedural error The Honorable Lyle E. Strom, United States District Judge for the District of Nebraska. by assessing a four-level aggravating-role enhancement under U.S.S.G. § 3B1.1(a) and that the sentence is substantively unreasonable. The District Court did not commit procedural error by applying the aggravating-role enhancement. More than five participants were involved in the criminal activity, and Correa-Gutierrez supplied them with drugs and directed their actions. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (noting that appellate court reviews a sentence for abuse of discretion, first ensuring there are no significant procedural errors and then considering the substantive reasonableness of the sentence); United States v. Alexander, 556 F.3d 890, 894 (8th Cir. 2009) (noting that imposition of a § 3B1.1(a) aggravating-role enhancement is reviewed for clear error); United States v. Razo-Guerra, 534 F.3d 970, 976–77 (8th Cir. 2008) (upholding a § 3B1.1(a) aggravating-role enhancement where the defendant recruited seven participants for criminal activity; supplied drugs; and directed drug deliveries, transportation, and storage), cert. denied, 129 S. Ct. 1365 (2009). We further conclude that the Correa-Gutierrez's sentence, which is at the bottom of the advisory Guidelines sentencing range, was not substantively unreasonable. See United States v. Sicaros-Quintero, 557 F.3d 579, 583 (8th Cir. 2009) (according a presumption of reasonableness to a sentence at the bottom of the Guidelines range); United States v. Watson, 480 F.3d 1175, 1177 (8th Cir.) (describing what constitutes an abuse of discretion resulting in an unreasonable sentence), cert. denied, 552 U.S. 927 (2007). Finally, having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80 (1988), we have found no nonfrivolous issues for appeal. Accordingly, we affirm the judgment, and we grant counsel's motion to withdraw. ______________________________

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-3139 ___________ United States of America, * * Plaintiff – Appellee, * * Appeal from the United States v. * District Court for the * District of South Dakota. Johnny Lunderman, also known as * Johnny Iron Horse, * * [UNPUBLISHED] Defendant – Appellant. * ___________ Submitted: March 8, 2010 Filed: March 15, 2010 ___________ Before MURPHY, JOHN R. GIBSON, and RILEY, Circuit Judges. ___________ PER CURIAM. Johnny Lunderman pled guilty to engaging in sexual intercourse with a girl who was between the ages of 12 and 16 years old and at least four years his junior, in violation of 18 U.S.C. § 2243(a). The district court1 imposed a 40 month prison sentence, a three month upward variance from the advisory sentencing guideline range. On appeal Lunderman challenges his sentence as unreasonable. We affirm. The Honorable Charles B. Kornmann, United States District Judge for the District of South Dakota. The district court calculated Lunderman's advisory guideline range to be 30 to 37 months based on a criminal history category of III and total offense level of 17, including a two level enhancement under U.S.S.G. § 3C1.1 for obstruction of justice. That enhancement was based on the court's conclusion that Lunderman had "lied to a federal officer repeatedly . . . knowingly and intentionally" by explaining to the FBI on two occasions that he and the victim had not engaged in sexual relations but had merely shook hands and hugged. The court also noted that Lunderman had struck and fled from the police officer who first attempted to arrest him in connection with the instant offense. The district court touched on the statutory sentencing factors in 18 U.S.C. § 3553(a). It discussed Lunderman's criminal history, which included an extensive juvenile record, and his failure to reform after previous custodial and probationary sentences. It concluded that "[t]he circumstances of the offense and the relevant conduct justify an upward variance," and added three months to the advisory maximum "for [Lunderman's] conduct of assaulting a federal officer and fleeing." We review the sentence imposed for both procedural error and substantive reasonableness under a deferential abuse of discretion standard. Gall v. United States, 552 U.S 38, 51 (2007). In determining whether the district court imposed a substantively unreasonable sentence, we "must give due deference to [its] decision that the § 3553(a) factors, on a whole, justify the extent of the variance." Id. Lunderman argues that his sentence is unreasonable because it was based in part upon his juvenile record and because the district court "double counted" his assault of the officer by considering it in both applying an obstruction of justice enhancement and an upward variance. We disagree. The district court did not procedurally err, for it properly calculated the guideline range, treated it as advisory, considered the § 3553(a) factors, and adequately explained the sentence. See id. Nothing precluded the court from considering Lunderman's juvenile record. 18 U.S.C. § 3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."); see also United States v. Miller, 484 F.3d 968, 970–71 (8th Cir. 2007) (finding no error in consideration at sentencing of defendant's juvenile record). The assault was one of two incidents which the court considered in applying an obstruction enhancement and that did not preclude the court from determining that a guideline sentence would inadequately reflect Lunderman's history and characteristics and the purposes listed in §3553(a). The district court did not abuse its discretion in concluding that "the § 3553(a) factors, on a whole, justif[ied] the extent of the variance." See Gall, 552 U.S at 51. Accordingly, the judgment of the district court is affirmed. ______________________________

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-3802 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Dobie Lee Brown, * * [UNPUBLISHED] Appellant. * ___________ Submitted: March 10, 2010 Filed: March 15, 2010 ___________ Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges. ___________ PER CURIAM. After Dobie Brown pleaded guilty to aiding and abetting the possession with intent to distribute of 50 grams or more of a mixture or substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, the district court1 sentenced him to 151 months in prison and 5 years of supervised release. On appeal, Brown’s counsel has moved to withdraw, filing a brief under Anders v. California, 386 U.S. 738 (1967), and Brown has filed a pro se supplemental brief. Having carefully reviewed the record and the submissions on appeal, we affirm. The Honorable J. Leon Holmes, Chief Judge, United States District Court for the Eastern District of Arkansas. We address seriatim the arguments raised in the Anders and pro se briefs: (1) any issue as to Brown’s competency to plead guilty is not properly raised for the first time in this direct criminal appeal, see United States v. Murphy, 899 F.2d 714, 716 (8th Cir. 1990); (2) Brown was represented by counsel throughout these proceedings, and any issue regarding ineffective assistance is not properly before us, see United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006); (3) Brown exercised his right of allocution; and (4) his sentence, which falls within the advisory Guidelines range, is not unreasonable, see United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). Having reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous issues for review. Accordingly, the judgment is affirmed, and we grant counsel’s motion to withdraw. ______________________________

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SERVICE EMPLOYEES INTERNATIONAL  UNION; DAVID REGAN; ELISEO MEDINA, as Trustees for SEIU United Healthcare Workers– West and fiduciaries of the SEIU United Healthcare Workers–West and Joint Employer Education Fund; SEIU UNITED HEALTHCARE WORKERS–WEST, an unincorporated association and fiduciary of the SEIU United Healthcare Workers– West and Joint Employer Education Fund; REBECCA COLLINS, No. 09-15855 as a participant in the SEIU United Healthcare Workers–West D.C. No. and Joint Employer Education  3:09-cv-00404- Fund, WHA Plaintiffs-Appellees, OPINION v. NATIONAL UNION OF HEALTHCARE WORKERS; JOHN BORSOS; AARON BRICKMAN; GAIL BUHLER; WILL CLAYTON; JOAN EMSLIE; GLENN GOLDSTEIN; MARK KIPFER; GABRIEL KRISTAL; PAUL KUMAR; BARBARA LEWIS; FREJA NELSON; FRED SEAVEY; IAN SELDEN; SAL ROSSELLI; JOHN VELLARDITA; PHYLLIS WILLETT, Defendants-Appellants.  4224 SEIU v. NATIONAL UNION OF HEALTHCARE Appeal from the United States District Court for the Northern District of California William H. Alsup, District Judge, Presiding Argued and Submitted January 14, 2010—San Francisco, California Filed March 15, 2010 Before: Myron H. Bright,* Michael Daly Hawkins, and Milan D. Smith, Jr., Circuit Judges. Opinion by Judge Bright *The Honorable Myron H. Bright, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation. SEIU v. NATIONAL UNION OF HEALTHCARE 4227 COUNSEL Jeffrey B. Demain (argued), Stephen P. Berzon, Peter D. Nussbaum, Jonathan Weissglass, San Francisco, California, Robert M. Weinberg, Leon Dayan, Washington, DC, Glenn Rothner, and Emma Leheny, Pasadena, California, for the plaintiffs-appellees. Daniel Siegel (argued), Jose Luis Fuentes, and Dean Royer, Oakland, California, for the defendants-appellants. OPINION BRIGHT, Circuit Judge: When a continuing dispute over policy matters resulted in a final breakdown between the plaintiff Service Employees International Union (“SEIU”), and the leaders and officers of a local affiliate United Healthcare Workers (“UHW”), SEIU imposed a trusteeship over UHW. In response, the leaders and officers of UHW immediately resigned and organized a rival union, National Union of Healthcare Workers (“NUHW”), to compete with UHW for the representation of approximately 150,000 California healthcare workers. SEIU, UHW, and oth- ers immediately brought suit seeking injunctive relief to obtain restoration of its properties it alleged were illegally taken by the former officers and leaders of UHW. Defendants-appellants (the former officers, leaders, and NUHW) appeal from the issuance of a temporary restraining order (“TRO”), asserting that the district court lacks jurisdic- 4228 SEIU v. NATIONAL UNION OF HEALTHCARE tion in these proceedings under section 301(a) of the Labor Management Relations Act (“the Act”), 29 U.S.C. § 185(a). For the reasons explained below, we conclude that the TRO is an appealable interlocutory order in the nature of a prelimi- nary injunction, that this appeal is not moot, and that the dis- trict court possessed jurisdiction under section 301(a). We therefore affirm. I. Background and Procedural History A. Background Plaintiff-appellee SEIU is an international labor organiza- tion with approximately one-hundred-fifty local affiliates and two million members. Plaintiff-appellee UHW is a local labor organization affiliated with SEIU that represents approxi- mately 150,000 healthcare workers. UHW has been a part of SEIU since the 1930s. In recent years, the leaders of SEIU and UHW disagreed over various policy matters not germane to this appeal. As a result of those disagreements, SEIU decided to impose a trust- eeship on UHW pursuant to the SEIU constitution, under which SEIU would take full charge of the affairs of UHW. Relevant to this appeal, Article VIII, Section 7 of the constitu- tion provides: (c) Upon the institution of the trusteeship, all mon- eys, books and property of the Local Union or affiliated body shall be turned over to the Trustee. .... (e) The Trustee shall take possession of all the funds, books, papers and other property of the Local Union or affiliated body. SEIU v. NATIONAL UNION OF HEALTHCARE 4229 In the weeks and months preceding imposition of the trust- eeship, the then-leaders of UHW, who are the individual defendants-appellants in this suit, commenced a strategy to vigorously resist the trusteeship, disrupt union operations, and undermine the ability of any trustee to govern. For example, some individual defendants established a shadow email sys- tem through which they discussed how UHW should and would resist imposition of the trusteeship. In short, the leaders planned to orchestrate an ungovernable situation. Once the trusteeship was imposed on UHW in January 2009, the trustees relieved the individual defendants of man- agement responsibility. Several of the individual defendants departed their offices knowing that the offices were occupied by stewards and rank-and-file members who had barricaded themselves inside to resist the trusteeship. The district court found credible evidence established that those remaining inside removed or destroyed records and information. Further, although the individual defendants may not have expressly ordered or participated in the havoc, they anticipated the likely course of events and expected havoc to ensue. UHW information and property was removed or hidden with the tacit approval of the individual defendants. After being relieved of management responsibilities, the individual defen- dants resigned from UHW completely and formed a new union, defendant-appellant NUHW, to compete with UHW. B. Procedural History One day after imposition of the trusteeship, SEIU, UHW and others1 brought an action in federal court against NUHW, the former officers of UHW, and others.2 In the first of seven claims,3 SEIU sought injunctive relief under section 301(a), which provides: Other plaintiff-appellees are individuals with ties to SEIU and UHW. Except where noted, “SEIU” refers to plaintiffs-appellees collectively. Collectively “appellants”. Although unnecessary for our section 301 analysis, we record SEIU’s other claims. SEIU’s second and third claims alleged that the individual 4230 SEIU v. NATIONAL UNION OF HEALTHCARE Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C. § 185(a). SEIU’s section 301(a) claim complained that the individual defendants “obstructed the effectuation of the trusteeship” in violation of the SEIU constitution. SEIU alleged that the indi- vidual defendants refused to turn over to the trustee moneys, books, and property of UHW as required by Article VIII, sec- tion 7, of the constitution, and wrongfully retained or destroyed UHW records and property. SEIU sought tempo- rary and permanent injunctive relief restraining appellants from “obstructing the effectuation of the trusteeship,” and from “destroying, retaining, using, sharing, or failing to return or protect UHW’s property,” including confidential informa- tion. SEIU also sought relief requiring certain individual defendants to vacate their positions as trustees of an SEIU benefit fund. In March 2009, SEIU filed an ex parte application for a TRO along with an order to show cause. Both sides briefed defendants breached fiduciary duties under the Employee Retirement Income Security Act (“ERISA”) and the Labor Management Relations Act. The fourth claim alleged a breach of contract, including breach of confidentiality agreements, in violation of California law. The fifth claim alleged a breach of fiduciary duty in violation of California law. The sixth claim alleged defendants wrongfully took property under California law and sought specific recovery of materials, records, data, notes, correspon- dence, blueprints, etc. The seventh claim sought damages for misappropri- ation of trade secrets under California law. This last claim was later dismissed by the district court as preempted by federal law. SEIU v. NATIONAL UNION OF HEALTHCARE 4231 the matter. Appellants disputed the district court’s jurisdiction under section 301(a) to enjoin the individual defendants. On April 9, 2009, following a two-day evidentiary hearing, the district court granted the TRO. The district court determined that SEIU established a likelihood of success on the merits of their section 301(a) claim as well as a likelihood of irrepara- ble injury if relief was denied. These conclusions are not chal- lenged in this appeal. The district court rejected appellants’ jurisdictional challenge, determining that a section 301(a) claim may be asserted against individual defendants so long as only injunctive relief is sought. In the alternative, the dis- trict court issued the TRO pursuant to its authority to manage civil discovery. The TRO required appellants to (1) preserve UHW prop- erty within their possession, custody and control; (2) return to UHW all non-electronic UHW information; (3) duplicate all electronic information on any electronic storage medium; and (4) catalogue any withheld material. The TRO required com- pliance with the majority of its provisions within one week, but contained no expiration date. Instead, the TRO required compliance with its orders “pending resolution of the motion for a preliminary injunction,” which had not yet been filed. On April 27, 2009, appellants timely appealed the TRO. Meanwhile, the attorneys for both sides set to work, filing a deluge of motions and memoranda. In April 2009, the dis- trict court issued two orders responding to appellants’ requests to modify the TRO. In May, the district court denied appellants’ motion to dismiss the suit for lack of subject mat- ter jurisdiction; the court concluded federal subject matter jurisdiction was adequately pled under sections 301 and 5014 of the Act. On June 1, SEIU moved for a preliminary injunc- Section 501 imposes fiduciary duties on the “officers, agents, shop stewards, and other representatives of a labor organization.” 29 U.S.C. § 501(a). The TRO was not sought or issued under section 501 and so we do not address it here. 4232 SEIU v. NATIONAL UNION OF HEALTHCARE tion and a few days later the district court denied appellants’ motion to stay the TRO pending appeal. This court denied appellants’ motion to stay the TRO on July 1. On July 27, the district court granted the preliminary injunction in part. In so doing, the court substantially relied on its findings and conclusions contained in the TRO. The pre- liminary injunction “confirm[ed] the essential findings of the TRO” and “carri[ed] forward several governing principles from the TRO.” (Order Granting In Part Mot. For Prelim. Inj. at 4, 8, July 27, 2009). The preliminary injunction also adopted definitions articulated in the TRO. Of special impor- tance to SEIU’s motion to dismiss this appeal, the preliminary injunction states, “all defendants in this action remain subject to paragraph three of the TRO and subsequent orders regard- ing the imaging of electronic devices.” Id. at 17 (emphasis added). The preliminary injunction was not appealed and litigation has continued without pause since July 2009. On December 14, 2009, after the parties briefed the appeal and oral argu- ment was scheduled, SEIU moved this court to dismiss the appeal as moot. We deferred consideration of this motion until oral argument and address it below. II. Appellate Jurisdiction and Standard of Review Although the parties have agreed that the TRO is an appeal- able interlocutory order, we nonetheless verify our jurisdic- tion to review the TRO in light of SEIU’s motion to dismiss this appeal as moot. See Bova v. City of Medford, 564 F.3d 1093, 1095 (9th Cir. 2009) (stating that an appellate court has an independent obligation to inquire into its jurisdiction). We conclude that this TRO is an appealable interlocutory order and that this appeal is not moot. A. The TRO is an appealable interlocutory order [1] Appellate courts possess jurisdiction of appeals from interlocutory orders of the district courts pertaining to injunc- SEIU v. NATIONAL UNION OF HEALTHCARE 4233 tions. 28 U.S.C. § 1292(a)(1). Ordinarily, temporary restrain- ing orders are not appealable interlocutory orders. Bennett v. Medtronic, Inc., 285 F.3d 801, 804 (9th Cir. 2002). But “the fact that an order is simply denominated as a ‘temporary restraining order’ does not end our inquiry. It is the essence of the order, not its moniker, that determines our jurisdiction.” Id. (citation omitted); see also Negrete v. Allianz Life Ins. Co. of N. Am., 523 F.3d 1091, 1097 (9th Cir. 2008) (“[W]e are not bound by what a district court chooses to call an order . . . .”). [2] An order denominated a TRO that possesses the quali- ties of a preliminary injunction is a reviewable interlocutory order. Bennett, 285 F.3d at 804. Where a district court holds an adversary hearing and the basis for the court’s order was strongly challenged, classification as a TRO is unlikely. Sampson v. Murray, 415 U.S. 61, 87-88 (1974). Likewise, where the duration of the order exceeds the ordinary duration for TROs as set forth in the Federal Rules of Civil Procedure, classification as a TRO is unlikely. Bennett, 285 F.3d at 804. In Bennett, both parties had the opportunity to file extensive written materials and present oral argument, and the district court granted temporary relief for three times the period pro- vided by Fed. R. Civ. P. 65. Id. Thus we held the order was “akin to a preliminary injunction” and reviewable under 28 U.S.C. § 1292(a)(1). Id. [3] The circumstances here are analogous to those in Ben- nett. Both parties filed written memoranda regarding the pro- priety of the TRO. Indeed, appellants’ submissions contested the district court’s jurisdiction under section 301. Also signifi- cant is that the court held a two-day evidentiary hearing and that the TRO does not contain an expiration date within the duration for restraining orders set forth in the federal rules. See Fed. R. Civ. P. 65. Under these circumstances, we con- clude the TRO is an appealable interlocutory order. 4234 SEIU v. NATIONAL UNION OF HEALTHCARE B. The appeal is not moot As previously observed, SEIU moved this court to dismiss the appeal as moot in December 2009. SEIU argues that the district court’s subsequent order granting a preliminary injunction against appellants “superseded” the TRO and ren- dered this appeal moot. We disagree and deny SEIU’s motion. [4] “The test for mootness of an appeal is whether the appellate court can give the appellant any effective relief in the event that it decides the matter on the merits in his favor. If it can grant such relief, the matter is not moot.” Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir. 1986); see also Pub. Util. Comm’n of the State of Cal. v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996) (“The court must be able to grant effec- tive relief, or it lacks jurisdiction and must dismiss the appeal.”). As explained below, the preliminary injunction did not preclude the possibility of granting appellants effective relief. [5] SEIU’s complaint seeks permanent injunctive relief under section 301(a) and there is no indication that SEIU has abandoned this claim. Additionally, the preliminary injunction was issued by the district court pursuant to section 301(a). Thus, our resolution of the jurisdictional issue has relevance to the ongoing litigation. [6] Moreover, and essential to our determination here, in the preliminary injunction the district court explicitly pre- served a portion of the TRO as still effective after issuance of the injunction. The preliminary injunction states, “all defen- dants in this action remain subject to paragraph three of the TRO and subsequent orders regarding the imaging of elec- tronic devices.” (Order Granting In Part Mot. For Prelim. Inj. at 17). Thus it seems the TRO has not expired and remains enforceable. Compare Am. Tunaboat Ass’n v. Brown, 67 F.3d 1404, 1407 (9th Cir. 1995) (holding plaintiff’s appeal of the denial of a preliminary injunction moot where defendant’s SEIU v. NATIONAL UNION OF HEALTHCARE 4235 directive no longer in effect), with Negrete, 523 F.3d at 1098 (holding appeal from injunction not moot where the order remained viable and enforceable against the defendant). Con- trary to SEIU’s argument, the TRO was not completely super- seded by the preliminary injunction. And because there remains the possibility of providing appellants effective relief, the controversy over the district court’s subject matter juris- diction is not moot. The cases relied on by SEIU do not convince us otherwise. SEIU relies on Schainmann v. Brainard, 8 F.2d 11 (9th Cir. 1925), to argue that an appeal from a TRO is rendered moot by the subsequent issuance of a preliminary injunction. While such a claim is usually correct, that reliance here is misplaced. In Schainmann, the district court granted a TRO pending reso- lution of a temporary injunction. 8 F.2d at 12. Then the dis- trict court granted a preliminary injunction which superseded the TRO. Id. Schainmann does not support SEIU’s argument that this appeal is moot because there, the preliminary injunc- tion swallowed the whole of the TRO. That is not so here. SEIU also relies on the Second Circuit’s opinion in Glen- Arden Commodities, Inc. v. Costantino, 493 F.2d 1027 (2d Cir. 1974). In that case, appeal was taken from three tempo- rary restraining orders, which “by their own terms were effec- tive only pending determination of the motion for injunctive relief.” Id. at 1030 (quotation omitted). After appeal was taken, the district court issued a preliminary injunction, which was then appealed. Id. The Second Circuit held that appeal from the temporary restraining orders was moot because the district court had subsequently rendered its decision on the preliminary injunction. Id. And this was true even though the TROs were otherwise appealable as preliminary injunctions. Id. at n.2. Although Glen-Arden may seem to answer the mootness question in SEIU’s favor, we find distinguishable one crucial circumstance: unlike the TROs in Glen-Arden, the TRO here remained in force after issuance of the preliminary injunction, at least in part, because the district court expressly 4236 SEIU v. NATIONAL UNION OF HEALTHCARE noted the TRO’s continued effectiveness in the text of the injunction. We thus reject SEIU’s arguments that we must dismiss this appeal as moot. Turning to our posture on review, although we ordinarily review the grant or denial of injunctive relief for abuse of dis- cretion, Am. Trucking Ass’ns., Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009), here the issue is jurisdiction which we review de novo, see Ting v. AT&T, 319 F.3d 1126, 1134-35 (9th Cir. 2003) (“We review any determination underlying the grant of an injunction by the standard that applies to that determination”); Building Material & Dump Truck Drivers, Local 420 v. Traweek, 867 F.2d 500, 505 (9th Cir. 1989) (reviewing subject matter jurisdiction under section 301 de novo). III. Discussion In 1947, Congress enacted the Labor Management Rela- tions Act in order to promote industrial peace. See United Ass’n of Journeymen & Apprentices of the Plumbing & Pipe- fitting Indus. v. Local 334, 452 U.S. 615, 623 (1981) (“Local 334”). During the preceding years, “the effects of industrial strife [had] brought our country to the brink of general eco- nomic paralysis.” H.R. Rep. 80-245, at 3 (1947). Congress believed that comprehensive legislation was needed “to define clearly the legitimate rights of employers and employees in their industrial relations.” Id. [7] Section 301(a) of the Act provides for federal jurisdic- tion in “suits for violation of contracts between an employer and a labor organization . . . or between any such labor orga- nizations.” 29 U.S.C. § 185(a). But “the legislation does more than confer jurisdiction . . . . It expresses a federal policy that federal courts should enforce these agreements on behalf of or against labor organizations and that industrial peace can be best obtained only in that way.” Textile Workers Union v. Lin- coln Mills, 353 U.S. 448, 455 (1957). In other words, section SEIU v. NATIONAL UNION OF HEALTHCARE 4237 301(a) has a substantive as well as a jurisdictional component. See id. at 456 (stating the substantive law in suits under sec- tion 301(a) is federal law). The Supreme Court has instructed that section 301 “is not to be given a narrow reading.” Smith v. Evening News Ass’n, 371 U.S. 195, 199 (1962). On several occasions, the Court has affirmed the principle first expressed in Lincoln Mills, 353 U.S. at 451, that section 301(a) “authorizes federal courts to fashion a body of federal law.” See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403 (1988); Int’l Broth. of Elec. Workers v. Hechler, 481 U.S. 851, 855 (1987); Com- plete Auto Transit, Inc. v. Reis, 451 U.S. 401, 405 (1981); Local 334, 452 U.S. at 627; Int’l Union, United Auto., Aero- space & Agric. Implement Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 701 (1966). At the same time the Court has admonished federal courts not to engage in a “freewheel- ing inquiry” into what might be the most desirable rule irre- spective of congressional pronouncements. Reis, 451 U.S. at 406 (quotation omitted).5 [8] Here, there is no dispute that the SEIU constitution is a “contract between labor organizations,” within the bailiwick of federal courts. See Local 334, 452 U.S. at 623 (holding that union constitutions are “contracts between labor organiza- tions” within section 301(a)). The SEIU constitution is an agreement between the international union and its local affili- ates, providing jurisdiction over, and the rights of, its local While we recognize that we must pay deference to congressional inten- tion, see Reis, 451 U.S. at 406, the parties have not provided, nor could we discern, express congressional pronouncements on the propriety of injunctive relief against individual union members under section 301(a). One exchange in the House of Representatives indicates, but does not con- clusively establish, that injunctive relief may be appropriate in some cir- cumstances. 93 Cong. Rec. 3656-3657 (1947) (describing the LMRA as contemplating “not only the ordinary lawsuits for damages but also such other remedial proceedings, both legal and equitable, as might be appro- priate in the circumstances”). 4238 SEIU v. NATIONAL UNION OF HEALTHCARE unions. 2008 SEIU Constitution and Bylaws, Art. III, Art. XV. Thus, SEIU’s claim against the individual defendants is for breach of an “interunion contract,” see Wooddell v. Int’l Broth. of Elec. Workers, Local 71, 502 U.S. 93, 101 (1991), and ostensibly within section 301(a). [9] Despite the Court’s pronouncements on the breadth of section 301(a), the Court has approached in measured fashion the applicability of section 301(a) to actions against individual union members. For example, in Atkinson v. Sinclair Refining Co., the Court held that section 301(a) does not authorize a damages action against individual union members when their union is liable for violating a no-strike clause in a collective bargaining agreement. 370 U.S. 238, 247-48 (1962). In Reis, the Court held that section 301(a) does not sanction damages actions against individual employees for violating the no- strike provision of a collective-bargaining agreement, whether or not their union participated in or authorized the strike. 451 U.S. at 417. Reis expressly left open the issue of whether sec- tion 301(a) permits federal jurisdiction in actions against union members seeking injunctive relief for breach of a union constitution. Id. at 415 n.17. But as Atkinson and Reis illus- trate, the Court does not rush to provide a federal forum under section 301(a) in actions against individual union members. [10] Since Reis, the Second and Eleventh Circuits have expressly held that section 301(a) permits injunctive suits against individual defendants for violations of a union consti- tution. Shea v. McCarthy, 953 F.2d 29, 32 (2d Cir. 1992); Int’l Union of Elec. v. Statham, 97 F.3d 1416, 1421-22 (11th Cir. 1996). In Shea, the Second Circuit found that permitting jurisdiction over union officials in suits under section 301(a) seeking equitable relief would promote accountability, stabil- ity, and other interests. 953 F.2d at 32. In Statham, the Elev- enth Circuit considered an international union’s dispute with local officials, “rather than a strictly internal dispute within the local.” 97 F.3d at 1422. These decisions directly support SEIU v. NATIONAL UNION OF HEALTHCARE 4239 SEIU’s contention that the district court had jurisdiction to issue the TRO. [11] Other circuit courts have permitted section 301(a) actions against individual union members without expressly considering whether section 301(a) provides jurisdiction over individual union members or former officers. See Int’l Bhd. of Boilermakers v. Local Lodge D354, 897 F.2d 1400, 1401-02 (7th Cir. 1990) (concluding the district court had jurisdiction to entertain a suit brought by an international union under sec- tion 301 against a former local affiliate and its officers); Tile, Marble, Terrazzo, Finishers, Int’l Union v. Local 32, 896 F.2d 1404, 1416 (3d Cir. 1990) (“Local 32”) (affirming an equitable judgment under section 301(a) against the former officers of a local affiliate); Hansen v. Huston, 841 F.2d 862, 863-64 (8th Cir. 1988) (holding section 301(a) jurisdiction existed in a dispute between an international and a local union which arose under the union constitution and affirming a pre- liminary injunction against the suspended board members of the local); Catalytic, Inc. v. Monmouth & Ocean County Bldg. Trades Council, 829 F.2d 430, 434 (3d Cir. 1987) (upholding an injunction issued under section 301 against a local union and its individual officers); Consolidation Coal Co. v. Local 1702, United Mineworkers, 683 F.2d 827, 829-30 (4th Cir. 1982) (rejecting the argument that section 301(a) precluded a district court from issuing civil contempt fines against union officials for disobeying the court’s back-to-work order because the power to fine is based on the power to fashion equitable relief). Although these decisions did not directly address the propriety of section 301(a) jurisdiction over indi- vidual defendants in actions for breach of a union constitu- tion, they demonstrate that federal courts have applied section 301(a) in a manner similar to the district court here. Thus in its order issuing the TRO, the district court was not without support in concluding that a section 301 claim “may be asserted against individual defendants so long as only injunc- tive relief is sought.” 4240 SEIU v. NATIONAL UNION OF HEALTHCARE Against this backdrop, appellants argue that this court fore- closed section 301(a) jurisdiction over individual union mem- bers in Building Material & Dump Truck Drivers, Local 420 v. Traweek, 867 F.2d 500 (9th Cir. 1989). Appellants assert that Traweek stands for the proposition that a union cannot sue one of its members under section 301(a). Further, appellants argue that we affirmed this propo- sition in Breda v. Scott, 1 F.3d 908 (9th Cir. 1993). SEIU responds that Traweek and Breda are distinguishable because those cases concerned section 301(a) actions for damages, not injunctive relief. We agree with SEIU.6 Our decision in Traweek arose from a union’s action against two former officers of a local union for misuse of union funds and other violations of union rules, which resulted in an order directing the former officers to repay $55,000 to the union. 867 F.2d at 503-05. On appeal, the offi- cers challenged the district court’s subject matter jurisdiction. Id. at 505. The Traweek court broadly framed the section 301(a) issue as whether the statute “contemplates a suit brought by a union against an individual union member for breach of internal union rules.” 867 F.2d at 507. This court’s analysis focused on language in Supreme Court decisions describing the purpose of section 301(a) as focusing on the accountability of unions, not union members. Id. We also expressed concerns with creating a federal forum for every “minor infraction of union rules” and “internal squabble[ ].” We note that the question dividing the parties here has divided our dis- trict courts as well. Here, the district court’s order granting the TRO con- cludes that a section 301 claim may be asserted against individual defendants so long as only injunctive relief is sought. But another district court has held that Traweek prohibits unions from seeking injunctive relief against a member under section 301. See SEIU v. Rosselli, 2008 WL 3342721, at *4 (C.D. Cal. July 22, 2008). See also Int’l Bhd. of Elec. Workers v. Dueck, 148 F. Supp. 2d 955, 963 (D. Ariz. 2000) (stating Traweek held that a union’s lawsuit against one of its members does not fall within the ambit of section 301). SEIU v. NATIONAL UNION OF HEALTHCARE 4241 Id. at 508. In discussing Reis, we explained that the Court’s “primary focus . . . was on Congress’ intent to immunize indi- vidual members from a [section 301] suit.” Id. at 508. Thus in our evaluation of the union’s action for damages we held that the district court lacked subject matter jurisdiction over the union’s section 301(a) claim. We acknowledge that Traweek broadly framed the issue before it. But neither the question of injunctive relief, nor cir- cumstances similar to this case were before us. Traweek con- cerned individual wrongs and individual liability. In such cases, there is good reason to deny jurisdiction. See id. (expressing concern with creating a federal forum for every internal squabble and infraction). Here we have not the per- sonal liability of one or two former officers, but a contest between two unions competing for the hearts and minds of the rank and file. The TRO was issued because of conduct by for- mer officers and leaders of a local union who left that union and organized a new competing union. Moreover, in Traweek this court had the benefit of the Supreme Court’s decisions in Reis and Atkinson, which thor- oughly explained that Congress, in enacting section 301, intended to shield individual members from financial liability. But Reis made no pretensions of determining the question of injunctive relief. See 451 U.S. at 415 n.17 (“[W]e have no occasion to decide that issue now.”). We believe that ques- tions of jurisdiction under section 301(a) are best approached piecemeal. Because the matter of injunctive relief was not before this court in Traweek, we conclude that Traweek does not foreclose SEIU from seeking injunctive relief.7 Having concluded that Traweek does not dispose of this appeal, we must consider whether section 301(a) provides federal jurisdiction for an international union’s action for This same reasoning distinguishes Breda. See 1 F.3d at 909 (giving passing mention to Traweek in a suit for damages under section 301(a)). 4242 SEIU v. NATIONAL UNION OF HEALTHCARE breach of the union constitution against the former officers of a local union. [12] We agree with the Eleventh Circuit in Statham that section 301(a) jurisdiction is proper in a case such as this. In Statham, an international union brought suit against former local union officers who had sold real estate the international union claimed belonged to it. 97 F.3d at 1417. The interna- tional union filed suit in federal court asserting breach of fidu- ciary duty under 29 U.S.C. § 501, breach of contract under section 301(a), and numerous state law claims. Id. at 1418. The district court dismissed the suit for lack of jurisdiction, concluding that section 301(a) does not permit suits by a union against individuals. Id. The Eleventh Circuit reversed, holding jurisdiction under section 301(a) was proper where the union sought equitable relief against the former officers. Id. at 1422. We agree with Statham for several reasons. First, we find persuasive the Second Circuit’s reasoning in Shea that the “interests of accountability, consistency, conformity and sta- bility [in labor relations] will be served if union officials who violate obligations” under the union constitution are subject to suit under section 301(a). 953 F.2d at 32; see also Smith, 371 U.S. at 200 (discussing these considerations). SEIU seeks the return of moneys, books, and property that rightfully belong to UHW and to prevent the use of confidential information in the ongoing struggle between UHW and the newly formed NUHW, which is controlled by the former officers of UHW. Providing a federal forum for injunctive relief against the for- mer officers and leaders of UHW promotes the stability of the parent-local relationship and the representation of rank-and- file members. Second, permitting section 301(a) jurisdiction here pro- motes a consistent forum for labor disputes. In Kinney v. International Brotherhood of Electrical Workers, 669 F.2d 1222, 1229 (9th Cir. 1981), this court held that section 301(a) SEIU v. NATIONAL UNION OF HEALTHCARE 4243 allowed a union member to bring suit in federal court against his union for breach of the union constitution. And federal courts have jurisdiction to review trusteeships to insure that they were imposed for legitimate purposes. See Lynn v. Sheet Metal Workers’ Int’l. Ass’n, 804 F.2d 1472, 1480 (9th Cir. 1986); Local 32, 896 F.2d at 1410-11. As such, “it makes no sense to require [a union] to seek equitable relief from the wrongdoing individuals in a separate forum, where different rules of law might apply.” Shea, 953 F.2d at 33. Third, we do not believe that permitting suits for injunctive relief will involve the federal courts in every “minor infrac- tion of union rules” and “internal [union] squabble[ ].” Traweek, 867 F.2d at 508. Certainly, the costs of litigation and the high bar to obtaining injunctive relief are deterrents. Additionally, we see no flood of litigation in the Second and Eleventh Circuits which already permit suits like the one here. Moreover, any concerns are outweighed by the circumstances here: in resisting the trusteeship, the individual defendants went so far as to orchestrate the removal and destruction of documents rightfully belonging to the local union. Preventing our district courts from enjoining such behavior frustrates the Act’s purpose of promoting industrial peace. [13] Finally, we are guided by the principles that section 301(a) is not to be interpreted narrowly and that section 301(a) contemplates that federal courts fashion a body of law for the enforcement of contracts between labor organizations. See Lincoln Mills, 353 U.S. at 451. Here, SEIU and the newly-formed NUHW are actively engaged in a struggle over representation of the 150,000 members of UHW. This strug- gle began when the individual defendants, who were in con- trol of an SEIU affiliate (UHW), vigorously opposed imposition of a trusteeship under the SEIU constitution. The federal responsibility in promoting industrial peace and in providing a forum for disputes concerning union constitutions requires federal courts have jurisdiction to provide injunctive relief where an international union brings an action against 4244 SEIU v. NATIONAL UNION OF HEALTHCARE the former officers of a local affiliate for breach of the union constitution.8 AFFIRMED. MOTION TO DISMISS DENIED. We reject appellants’ argument that the district court cannot order injunctive relief against NUHW because enforcement against the individ- ual defendants who control NUHW effectively enjoins NUHW. See Fed. R. Civ. P. 65(d)(2) (stating injunction binds persons in active concert or participation with the parties). We reject appellants’ failure-to-exhaust- intraunion-remedies argument on the ground that it was not raised below. See Rothman v. Hosp. Serv. of S. Cal., 510 F.2d 956, 960 (9th Cir. 1975) (“It is a well-established principle that in most instances an appellant may not present arguments in the Court of Appeals that it did not properly raise in the court below.”). Moreover, appellants have not explained what reme- dies were not exhausted or how intra-union remedies apply to individuals who have resigned from the union.

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2009-3262 LENORA PORZILLO, Petitioner, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. Lenora Porzillo, of Crofton, Maryland, pro se. Jeffrey D. Klingman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Deborah A. Bynum, Assistant Director. Appealed from: Merit Systems Protection Board NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2009-3262 LENORA PORZILLO, Petitioner, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. Petition for review of the Merit Systems Protection Board in DC0752080517-I-2. ___________________________ DECIDED: March 12, 2010 ___________________________ Before BRYSON, GAJARSA , and PROST, Circuit Judges. PER CURIAM. DECISION Lenora Porzillo challenges the decision of the Merit Systems Protection Board sustaining her removal from her position in the Administrative Operations Service (“AOS”) of the Department of Health and Human Services (“HHS”). We affirm. BACKGROUND Ms. Porzillo, who was employed by HHS as a Program Support Specialist, was responsible for administering the agency’s child care subsidy program, a discretionary employee financial assistance program. She approved employees’ participation in the program, assessed the dollar amount of any subsidies, and forwarded the information to the vendor for payment. Beginning in December 2006, Ms. Porzillo’s first-level supervisor was Dan Clutch. In a memorandum dated December 4, 2007, Mr. Clutch proposed that Ms. Porzillo be removed based on charges of (1) violating information technology (“IT”) security measures (with three specifications); (2) improperly approving child care subsidy payments (with five specifications); and (3) failing to follow supervisory guidance (with one specification). Mr. Clutch’s memorandum noted that Ms. Porzillo had been suspended for 14 days in October 2007 for failing to follow supervisory guidance related to the proper use of government e-mail. With respect to the charge of violating IT security measures, the agency alleged that Ms. Porzillo downloaded copies of an Excel file containing the names and social security numbers of more than 1,000 federal employees from a restricted office file to the hard drive of her government computer. Ms. Porzillo then allegedly e-mailed the Excel file to her personal, commercial e-mail accounts, all in violation of IT security policies. The agency further charged that Ms. Porzillo improperly used the name and password of another employee to gain access to the agency’s Management Information Technical Tracking System (“MITTS”). Finally, the agency charged that Ms. Porzillo provided another employee with the combination to the lock on her office door so that he could gain entrance while she was on leave, even though Ms. Porzillo’s office contained personally identifiable information (“PII”) subject to the Privacy Act. With respect to the charge of improperly approving child care subsidy payments, the agency alleged that Ms. Porzillo retroactively approved a non-compliant subsidy 2009-3262 2 application without first seeking the necessary authorization from Mr. Clutch and from the applicant’s employer; that Ms. Porzillo failed to obtain the necessary approval from another applicant’s employer before retroactively approving an annual subsidy recertification; and that Ms. Porzillo approved subsidy payments for three agency employees at improper rates. With respect to the charge of failure to follow supervisory guidance, the agency alleged that Ms. Porzillo disregarded Mr. Clutch’s instruction to cease further contact with fellow employee Mary Akel. The agency alleged that contrary to that instruction, Ms. Porzillo subsequently sent a message to Ms. Akel accusing her of lying about a previous incident. After considering Ms. Porzillo’s written replies to the removal memorandum, AOS Director Michael Tyllas determined that the charges were supported by the evidence and warranted Ms. Porzillo’s removal. Ms. Porzillo appealed her removal to the Board. The administrative judge who was assigned to the appeal held a two-day evidentiary hearing. In the course of the hearing, Ms. Porzillo denied any misconduct and claimed that the penalty of removal was too severe. She also asserted two affirmative defenses. First, she argued that she was removed for making disclosures protected under the Whistleblower Protection Act, including (1) informing agency officials about the unprotected Excel file containing PII, which was accessible without a password on a public drive; (2) advising officials that Mr. Clutch and others had permitted PII to be transmitted over an insecure fax in a heavily trafficked area of the Program Support Center; and (3) disclosing fraud, waste, and abuse regarding the use of government funds by Program Support Center employees. 2009-3262 3 Second, Ms. Porzillo claimed that she was removed in reprisal for filing equal employment opportunity complaints. The administrative judge sustained all three charges against Ms. Porzillo and found that she had failed to prove her affirmative defenses. The administrative judge also concluded that the penalty of removal was reasonable and that the agency had given proper consideration to relevant aggravating and mitigating factors. When the full Board denied Ms. Porzillo’s petition for review, the administrative judge’s decision became the final decision of the Board. She now petitions for review by this court. DISCUSSION 1. Ms. Porzillo argues that the administrative judge erred by failing to take into account all the instances of protected whistleblowing activity that she asserted, such as her disclosures of a potential conflict of interest on the part of an agency official; a personal relationship between a senior employee and his subordinate; and threats of removal directed toward employees who had associated with Ms. Porzillo while she was a union representative. The administrative judge discussed the whistleblowing allegations that he considered strong enough to support a potential defense. Those were her disclosure of the agency’s under-protection and unprotected transmission of documents containing PII (which Ms. Porzillo supported with the Excel document containing PII that she downloaded and sent to her personal e-mail account) and her disclosure of the agency’s mismanagement of government funds (which Ms. Porzillo based, in part, on a document she found while using another employee’s user name and password to gain unauthorized access to the MITTS system). 2009-3262 4 The administrative judge found that those disclosures did not lead to Ms. Porzillo’s removal. That finding is well supported. With respect to the IT security charges, the evidence shows that the agency removed Ms. Porzillo because she downloaded and e-mailed PII in violation of agency rules and because she used another employee’s digital authentication to access documents for which she had no authorization or work-related need, not because she disclosed that the agency had failed adequately to protect the PII information or because materials she found when she obtained unauthorized access to the MITTS system showed mismanagement of funds. Substantial evidence supports the administrative judge’s conclusion that HHS showed by clear and convincing evidence that it would have removed Ms. Porzillo without regard to the disclosures she made as a result of her IT policy violations. As to Ms. Porzillo’s contention that the administrative judge overlooked her other claims of whistleblowing disclosures, the administrative judge addressed the two alleged whistleblowing disclosures relating to her IT security violations after considering “the circumstances (as described by the appellant in her appeal and accompanying submissions).” The administrative judge’s reference to the “circumstances” described by Ms. Porzillo indicates that he considered the full record, and not merely the particular disclosures he discussed in his opinion. Moreover, a fact-finder’s failure to refer to a particular piece of evidence does not mean that the evidence was not considered. See Medtronic, Inc. v. Daig Corp., 789 F.2d 903, 906 (Fed. Cir. 1986) (“We presume that a fact finder reviews all the evidence presented unless he explicitly expresses otherwise.”). In any event, Ms. Porzillo states in her brief in this court that she included “[e]xtensive documentation” of more than 40 complaints and grievances in her appeal 2009-3262 5 submissions. Moreover, in her petition for review to the full Board she stated that the administrative judge “assured me that he read everything I submitted. The administrative judge made it perfectly clear during the hearing that all documents submitted were considered evidence and considered.” We thus have no reason to believe that the administrative judge ignored any of the evidence regarding whistleblowing that was before him. 2. Ms. Porzillo asserts that HHS violated 5 U.S.C. § 7513(e) by not enabling her to access and review the original files and e-mail messages on the C: drive of her work computer. She makes the related claim that the administrative judge erred by relying on that evidence, which she was unable to verify in its original format. It appears to be undisputed that the agency provided Ms. Porzillo with a CD containing the relevant e-mail messages and also provided her with paper copies of those materials. Ms. Porzillo contends, however, that it was “my right to see the actual email message on the computer Microsoft Outlook and verify its existence, not a paper copy of an email message. In this day, it is extremely easy to edit computer generated documents, change dates on computers, and move documents from drives.” She thus suggests that the agency may have tampered with key documents that were relied upon in charging and removing her. Government officials are presumed to carry out their duties in good faith. “Unsubstantiated suspicions and allegations are not enough” to overcome that presumption. Spezzaferro v. FAA, 807 F.2d 169, 173 (Fed. Cir. 1986). Ms. Porzillo offers no evidence that any of the files in question were altered or tampered with. We therefore cannot credit her unsubstantiated suggestions of government misconduct. 2009-3262 6 Section 7513(e), on which Ms. Porzillo relies, provides as follows: Copies of the notice of proposed action, the answer of the employee when written, a summary thereof when made orally, the notice of decision and reasons therefor, and any order effecting an action covered by this subchapter, together with any supporting material, . . . shall be furnished . . . to the employee affected upon the employee’s request. The use of the phrase “copies of” indicates that an employee’s right to review the designated materials does not include the right to examine the original documents or the databases in which they are stored. We are unaware of any authority suggesting that, in addition to furnishing paper copies of documents, an agency must give a former employee access to the agency’s computer system to view documents in their original environment and format. Such a policy would be difficult and time-consuming to implement, and would raise security concerns. Ms. Porzillo does not deny that she received (or already possessed) accessible, readable copies of all the supporting materials relied upon by the agency. 1 The agency thus met its burden under 5 U.S.C. § 7513(e), and the administrative judge was justified in relying on those materials. 3. Ms. Porzillo makes the related claim that the Board failed to take into account “new evidence that was not readily available” to her prior to the hearing. Listing five examples of such “new evidence,” Ms. Porzillo argues that, despite her due diligence, she was “not aware of documents” located on the CD that the government provided to Ms. Porzillo argues that without access to the agency’s computer databases she was unable to verify whether the Excel file containing PII was actually attached to the e-mail that she was accused of sending to her personal e-mail accounts. She has admitted, however, that she forwarded the e-mail to her personal addresses, and several witnesses (as well as the documents themselves) indicated that the Excel file was attached. Because her argument appears to turn on her inability to confirm the authenticity of government-provided documents, and because she has offered no reason to question the authenticity of those documents, we reject her claim of error. 2009-3262 7 her before the hearing, which contained the e-mail messages sent to and from her computer at work. Ms. Porzillo asserts that she “could not access the files because they were blocked by Outlook and the email showed the attachments as ‘place marks.’” Ms. Porzillo’s argument again appears to focus on her inability to review or verify the original files and e-mail messages on the actual computer databases where they are stored. To the extent she is making the further assertion that she was denied access to certain documents because of technical difficulties that went uncorrected by the agency, our review of the record indicates that Ms. Porzillo failed to raise that discovery issue in her submissions to the administrative judge. As such, she has waived that argument. See, e.g., Pierce v. Merit Sys. Prot. Bd., 242 F.3d 1373, 1375 (Fed. Cir. 2001); Synan v. Merit Sys. Prot. Bd., 765 F.2d 1099, 1101 (Fed. Cir. 1985). In any event, there is nothing in the record to suggest that Ms. Porzillo did not receive (or did not already possess) all the relevant documents in some accessible form (paper, electronic, or otherwise) prior to the hearing. Ms. Porzillo does not challenge the agency’s representation that she received paper copies of the relevant e-mails on which the agency relied. Moreover, in her petition for review she stated that she had saved “over 15,000 email messages [from her] employment at HHS” but “did not have enough time” to review them prior to the hearing. Ms. Porzillo provides no explanation for why she did not have enough time to locate the relevant documents that were apparently within her possession. We therefore conclude that Ms. Porzillo has failed to establish that her petition for review presented new evidence that was not previously available to her despite due diligence. See 5 C.F.R. § 1201.115(d)(1). 2009-3262 8 4. Ms. Porzillo asserts that she was prejudiced because she was not given a copy of a memorandum by Mr. Clutch that related to the charge of failure to follow supervisory guidance. However, the record shows (and Ms. Porzillo does not deny) that the agency provided her with a copy of the memorandum prior to the November 18, 2007, hearing and that it was a part of the record before the administrative judge. To the extent that she claims the production of that document was delayed, she has failed to explain how any such delay prejudiced her. 5. Ms. Porzillo argues that the administrative judge improperly conducted ex parte settlement discussions with the agency without her approval. Her allegations, however, are contradictory. She argues that she was “never given the opportunity to enter into [ ] negotiations” with the agency, yet she concedes that she was offered (and declined) at least one settlement proposal. She further contends that the administrative judge “interfered and took over the negotiations,” but also states that “there is no evidence that settlement negotiations actually took place.” As support for her contention regarding the administrative judge’s “interference,” Ms. Porzillo references a voicemail message from the administrative judge, in which he allegedly “accused [her] of making ‘demands’” and stated that she was unlikely to prevail in her case. The voicemail message and Ms. Porzillo’s own brief demonstrate that the administrative judge simply attempted to facilitate settlement discussions by conveying information from the agency to her. The voicemail message relays a settlement offer made by the agency. It also references the “letter and accompanying chart” that she sent to the agency, which listed the minimum amount that she insisted on to settle her appeal and indicated that “anything less than [that amount] is unacceptable.” The 2009-3262 9 administrative judge’s message encouraged Ms. Porzillo to submit a more “reasonable” counteroffer and offered the administrative judge’s “considered opinion,” upon review of the full record, that there was a risk that she might “walk away with nothing” if the case went to a hearing. Ms. Porzillo ultimately rejected the agency’s settlement offer. The recited evidence shows that Ms. Porzillo was able to participate meaningfully in settlement discussions with the agency. Contrary to Ms. Porzillo’s contentions, nothing suggests that the administrative judge was negotiating unilaterally with the agency. The administrative judge served merely as a facilitator of communications between the parties, a role that is expressly permitted by the relevant regulations. See 5 C.F.R. § 1201.41(c)(1) (“The judge may initiate attempts to settle the appeal informally at any time.”). 6. Ms. Porzillo contends that the Board ignored the “favoritism demonstrated by the administrative judge to the agency and the continuous antagonism he demonstrated” toward her. She bases that assertion on several incidents, including the administrative judge’s allegedly improper conduct in settlement discussions, his alleged reference to Ms. Porzillo as a “dry drunk,” his reprimand of Ms. Porzillo for showing emotion during the hearing, and his reference to Jesus Christ in his opinion. In order to be entitled to a new hearing on the basis of bias, Ms. Porzillo must show that the administrative judge exhibited “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Dep’t of the Army, 287 F.3d 1358, 1362 (Fed. Cir. 2002). “[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that 2009-3262 10 derives from an extradministrative judicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” Id. None of Ms. Porzillo’s evidence even remotely satisfies that standard. The administrative judge’s involvement in the settlement discussions was not improper, and the administrative judge’s statement that Ms. Porzillo faced the risk that she might “walk away with nothing” did not establish “a deep-seated favoritism or antagonism that would make fair judgment impossible.” See Atanus v. Merit Sys. Prot. Bd., 434 F.3d 1324, 1327 (Fed. Cir. 2006). Nor is there any impropriety in the administrative judge’s reference to the term “dry drunk.” Ms. Porzillo initially introduced that term during the hearing, and the administrative judge used the term only in seeking clarification regarding its relevance, e.g., “Why do I need to know about a dry drunk?”; “it can only be relevant if [Dr. Presant] can state to me, with some specificity, that you were a dry drunk and that it did impair your ability[.]” Such use does not evidence antagonism or the potential for unfairness. The administrative judge’s reprimand of Ms. Porzillo during the hearing likewise does not constitute reversible error. He merely reminded Ms. Porzillo to conduct herself in accordance with proper hearing decorum: “We have to not express any emotion or laughter or disappoint[ment] or crying . . . . I don’t want [you] to . . . make faces at the witness . . . that’s not fair.” Such instructions were well within the administrative judge’s authority in conducting the hearing, and he similarly admonished the agency’s counsel later in the hearing. Finally, the administrative judge’s reference to Jesus Christ in the opinion was in a quotation of Ms. Porzillo’s e-mail message that accused Ms. Akel of lying. There was nothing improper in quoting the message, which was the subject of Charge 3 (failure to follow supervisory guidance); it does not in any 2009-3262 11 way demonstrate bias against Ms. Porzillo. Having reviewed the hearing transcript in its entirety, we conclude that Ms. Porzillo’s claims of bias or partiality on the part of the administrative judge are unsubstantiated and clearly do not constitute reversible error. 7. Ms. Porzillo argues that the administrative judge erred by not requiring the agency to prove that her misconduct was willful. It appears that her argument applies only to Charge 2 (the subsidy payment errors), as the record establishes—and Ms. Porzillo largely acknowledges—that she acted intentionally with respect to the conduct alleged in Charges 1 and 3. 2 With respect to Charge 2, the administrative judge properly considered intent where it was required by the charge and properly ignored intent where it was not. An agency “must prove all of the elements of the substantive offense with which an individual is charged.” King v. Nazelrod, 43 F.3d 663, 666 (Fed. Cir. 1994). Intent or willfulness is not necessarily an element of every charge of misconduct against an employee; it is only required to support particular types of charges. See Lachance v. Merit Sys. Prot. Bd., 147 F.3d 1367, 1372-73 (Fed. Cir. 1998) (Board erred in ruling that the specification required the agency to prove intent to impede an investigation, where a review of the proposal and decision notices made clear that intent was “not an essential part of the charge”). 3 Regarding Charge 1, Ms. Porzillo admitted that she forwarded to her personal e-mail accounts the message that attached the PII-laden Excel file; she admitted that she deliberately used another employee’s password to access the MITTS database; and she acknowledged that she gave that employee the cipher combination to her office door. In addition, regarding Charge 3, Ms. Porzillo concedes that on September 21, 2007, she intentionally sent an e-mail to Ms. Akel after being told by Mr. Clutch that Ms. Akel did not wish to associate with her any further. The case that Ms. Porzillo cites in her petition for review, Murray v. Department of the Army, addressed charges based on falsification or fraud, which can 2009-3262 12 Regarding the first two specifications of Charge 2—Ms. Porzillo’s retroactive approval of a childcare subsidy payment and a recertification without the approval of her supervisor or the applicant’s employer—the administrative judge properly considered whether Ms. Porzillo deliberately failed to seek the necessary authorization. That inquiry was warranted, as those specifications allege that Ms. Porzillo acted “without authority” or “without the approval” to act. However, the last three specifications of Charge 2 appear to require only error (e.g., as to the amount of the subsidy), regardless of whether or not such error was willful. Although the last three specifications suggest that Ms. Porzillo possessed sufficient knowledge to realize that the payments she approved were erroneous, those specifications do not require a showing of intent or willfulness; rather, the language of the charge would encompass even inadvertent or careless error. The administrative judge thus properly sustained the charges, even absent a showing of intent. Finally, contrary to Ms. Porzillo’s suggestion, the agency never alleged, in any specification, that Ms. Porzillo intended to cause harm to the government or to her coworkers; thus, it was not required to prove such intent. We find no error in the administrative judge’s conclusion that the agency met its burden of establishing all requisite elements of the charges. 8. Ms. Porzillo claims that the Board failed to consider evidence that allegedly refutes the charges of misconduct against her. We have reviewed each identifiable item that Ms. Porzillo alleges was not considered. We conclude that the evidence in be sustained only upon a finding of intent to deceive or mislead. 40 M.S.P.R. 250, 255 (1989). By contrast, as the administrative judge noted, the charge of failure to follow supervisory instructions “does not turn on proof of intent.” Hamilton v. U.S. Postal Serv., 71 M.S.P.R. 547, 555-56 (1996). 2009-3262 13 question was either already before the administrative judge (i.e., contained in hearing testimony and/or exhibits), 4 or was not relevant to the charges against Ms. Porzillo. For example, Ms. Porzillo’s ability to access the restricted P: drive, even though it was discussed extensively at the hearing, is not relevant to Charge 1, Specification 1, which alleges that Ms. Porzillo’s violations resulted from her acts of downloading and e-mailing documents containing PII, not merely from accessing them on the P: drive. Likewise, the fact that retroactive approval of childcare subsidy payments was occasionally granted cannot assist Ms. Porzillo with respect to Charge 2, Specifications 1 and 2, as she did not refute the evidence that she failed to obtain the required supervisory approval for the retroactive payments at issue. Even taking into account all of Ms. Porzillo’s cited evidence (as we presume the administrative judge did), we find substantial support for the administrative judge’s decision to sustain the charges and penalty. Upon appellate review, “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.” Simpson v. Office of Pers. Mgmt., 347 F.3d 1361, 1364 (Fed. Cir. 2003). “We do not substitute our judgment for that of the board as to the weight of the evidence or the inferences to be drawn therefrom.” Cross v. Dep’t of Transp., 127 F.3d 1443, 1449 Although Ms. Porzillo questions whether the administrative judge and the Board were “aware of certain facts and evidence,” she lists many items with a citation to the record before the administrative judge. In certain cases, such as for the material cited for Charge 3, Ms. Porzillo acknowledges that “the MSPB and administrative judge had sufficient evidence” to consider her position on that issue. As we have noted, absent an express statement to the contrary, a fact-finder is presumed to have reviewed all the evidence presented. Medtronic, 789 F.2d at 906. 2009-3262 14 (Fed. Cir. 1997). In light of this deferential standard of review and upon review of the extensive documentary and testimonial evidence cited by the administrative judge in his opinion, 5 we hold that the Board’s decision is supported by substantial evidence and is not infected with legal error. With respect to other assertions in Ms. Porzillo’s brief, we note that an appellant ordinarily waives any arguments that are not developed on appeal. See SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320-21 (Fed. Cir. 2006) (treating insufficiently developed arguments as waived). Thus, for example, Ms. Porzillo’s statement that “[t]here were other indications and/or demonstrations of error[,]” coupled with a reference to “Charge 2: 162 points,” is insufficient to preserve the 162 points of argument for appeal. Nevertheless, in light of Ms. Porzillo’s pro se status, we have undertaken to review what we presume to be the points pertaining to each charge in Ms. Porzillo’s petition for review submitted to the full Board. Following our review of those points, we conclude that they included no new, previously unavailable evidence and failed to demonstrate reversible error in the administrative judge’s interpretation of the laws or regulations governing this action. Accordingly, we uphold the Board’s order sustaining the charges and penalty. Ms. Porzillo chose not to testify at the hearing. She attempted to make certain assertions as to the facts while she was questioning other witnesses, but those unsworn assertions were appropriately ruled to be inadmissible as evidence. 2009-3262 15

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2010-3008 DAVID A. DOLINSKY, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Respondent. David A. Dolinsky, of Alexandria, Virginia, pro se. Scott T. Palmer, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director. Appealed from: Merit Systems Protection Board NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2010-3008 DAVID A. DOLINSKY, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Respondent. Petition for review of the Merit Systems Protection Board in CH1221090173-W-1. __________________________ DECIDED: March 12, 2010 __________________________ Before GAJARSA, ARCHER, and PROST, Circuit Judges. PER CURIAM. David A. Dolinsky petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that denied his request for corrective action sought in his Individual Right of Action (“IRA”) appeal under the Whistleblower Protection Act (“WPA”), 5 U.S.C. § 2302(b)(8) (2000). The Government has moved for partial remand on one issue. See Dolinsky v. Dep’t of the Homeland Sec., No. CH-1221-09-0173-W-1, 2009 MSPB LEXIS 5218 (M.S.P.B. Aug. 07, 2009), review denied, 112 M.S.P.R. 301 (2009) (final decision). For the reasons stated herein, we affirm in part, vacate in part, and remand to the Board. BACKGROUND Mr. Dolinsky is the Great Lakes Region, Regional Emergency Coordinator for the General Services Administration (“GSA”) in Chicago, Illinois. Mr. Dolinsky applied for three positions with Department of Homeland Security (“DHS” or “Agency”) during the period from August 2007 through January 2008. The Agency selected someone other than Mr. Dolinsky for two of those positions and canceled the vacancy announcement for the third. After filing a complaint at the Office of Special Counsel (“OSC”), Mr. Dolinsky filed an IRA appeal to the Board, alleging that the Agency retaliated against him for making certain disclosures that were protected under the WPA. At issue in this appeal are two of those disclosures. First, Mr. Dolinsky contends that he disclosed that Mr. Robert Thibeault, a political appointee with whom he worked, illegally disclosed classified information. Specifically, he contends that Mr. Thibeault revealed to Mr. Michael Gelber, GSA Deputy Regional Administrator, as well as Mr. James Handley, GSA Regional Administrator, and Mr. Dolinsky himself, that in an upcoming 2005 GSA emergency exercise the President was scheduled to die. The administrative judge (“AJ”) found that the information about the simulation of the killing of the President was not established as classified, and thus Mr. Dolinsky had not proven by preponderant evidence that he made a “protected” disclosure under the WPA. Dolinsky v. Dep’t of the Homeland Sec., No. CH-1221-09-0173-W-1, 2009 MSPB LEXIS 1631 (M.S.P.B. Mar. 24, 2009) (initial decision). 2010-3008 2 Second, Mr. Dolinsky contends that he disclosed a violation of the Hatch Act because he attended a meeting in 2004 with Mr. Thibeault in which Mr. Thibeault asked Mr. Dolinsky to take Mr. Thibeault’s photograph and e-mail it to the Republican National Committee so that Mr. Thibeault could attend a Republican National Convention. The AJ dismissed this claim for lack of jurisdiction because Mr. Dolinsky failed to “present[] a non-frivolous allegation he had a reasonable belief his actions and those of Mr. Thibeault clearly implicated an identifiable law, rule, or regulation.” Dolinsky v. Dep’t of the Homeland Sec., No. CH-1221-09-0173-W-1 (M.S.P.B. Mar. 16, 2009) (order).1 Additionally, Mr. Dolinsky contends that the Board should have applied the doctrine of collateral estoppel to his disclosure regarding the alleged improper release of classified information. The record reflects that in a prior MSPB action involving Mr. Dolinsky, he filed a request on January 12, 2007 for corrective action with the OSC, alleging that GSA officials retaliated against him for disclosures he believed were protected by the WPA. Judge Packard in her initial decision indicated that “[i]n his January 2007 OSC complaint, the appellant stated that on November 6, 2006 he told Mr. Gelber ‘I am not going to stay quiet any longer regarding Robert Thibeault’s . . . incident where he disclosed Top Secret information to those who didn’t have a need to know’” and “[t]he Appellant’s statement that he would now report these to the agency’s Inspector General is protected.” Dolinsky v. Gen. Servs. Admin., No. CH-1221-07- Before the Board, Mr. Dolinsky made another allegation of whistleblowing, involving his disclosure to GSA’s Office of the Inspector General, that Rex Wamsley, Director of the Plans Division with Federal Emergency Management Agency (“FEMA”), initiated an investigation, through sending out an e-mail to other employees, based on an allegation of ethical impropriety of Mr. Dolinsky’s use of his government position to maintain a personal website. The AJ found that Mr. Dolinsky had not shown by preponderant evidence his disclosure of Mr. Wamsley’s e-mail message constituted a whistleblowing disclosure. This issue is not on appeal before this court. 2010-3008 3 0461-W-1 (M.S.P.B. Mar. 11, 2008) (initial decision). Based on this prior MSPB decision, Mr. Dolinsky argued that the Agency should be estopped from re-litigating whether Mr. Dolinsky had a reasonable belief that Mr. Thibeault improperly disclosed secret information. Mr. Dolinsky appealed the AJ’s initial decision to the full Board. The Board denied his petition for review, thus rendering the initial decision final. 5 C.F.R. § 1201.113(b). Mr. Dolinsky timely appealed to this court. Mr. Dolinsky has raised three issues on appeal: (1) whether the AJ erred in not applying collateral estoppel to Mr. Dolinsky’s disclosure regarding allegedly classified information; (2) whether the AJ erred in concluding that Mr. Dolinsky’s disclosure regarding the allegedly improper release of top secret information was not protected by the WPA; and (3) whether the AJ erred in dismissing Mr. Dolinsky’s claim regarding the alleged Hatch Act violation. In addition, the Government, as respondent, has moved for partial remand limited to the second issue. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2006). DISCUSSION The scope of our review of a decision by the Board is limited. We may only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2006); see Dickey v. Office of Pers. Mgmt., 419 F.3d 1336, 1339 (Fed. Cir. 2005). Whether the Board has jurisdiction to adjudicate an appeal is a question of law, which we review de novo. Herman v. Dep’t of Justice, 193 F.3d 1375, 2010-3008 4 1378 (Fed. Cir. 1999); Middleton v. Dep’t of Defense, 185 F.3d 1374, 1379 (Fed. Cir. 1999). This court has held that the Board has jurisdiction over an IRA appeal if the appellant has exhausted his administrative remedies before the OSC and makes “non- frivolous allegations” that (1) he engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). See Briley v. Nat’l Archives & Records Admin., 236 F.3d 1373, 1378 (Fed. Cir. 2001); Meuwissen v. Dep’t of Interior, 234 F.3d 9, 12 (Fed. Cir. 2000); Schmittling v. Dep’t of the Army, 219 F.3d 1332, 1336 (Fed. Cir. 2000); Willis v. Dep’t of Agric., 141 F.3d 1139, 1142 (Fed. Cir. 1998); see generally Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 686-89 (Fed. Cir. 1992). The burden is on the petitioner to establish the Board’s jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i); Campion v. Merit Sys. Prot. Bd., 326 F.3d 1210, 1213-14 (Fed. Cir. 2003). I. We first address Mr. Dolinsky’s claim that the Board erred in not applying collateral estoppel to his disclosure regarding allegedly classified information. We find no error in the Board’s decision on this issue. Collateral estoppel bars a litigant from re-litigating the same issue decided in a previous case where (1) the issue is identical to that involved in the prior action, (2) the issue was actually litigated in the prior action, (3) the determination on the issue was necessary to the resulting judgment in the earlier action, and (4) the interests of the 2010-3008 5 precluded party were fully represented in the prior action. Mother’s Restaurant, Inc. v. Mama’s Pizza, Inc., 723 F.2d 1566, 1569 (Fed. Cir. 1983). Here, the Board in the previous case held only that Mr. Dolinsky’s statement that he would report disclosure to the Agency’s Inspector General was protected, not that the disclosures themselves were protected. Whether Mr. Dolinsky’s statement that he would report disclosure to an inspector general is protected is not an issue in this appeal. Because issue preclusion is only applicable when “the issue previously adjudicated is identical with that now presented,” Thomas v. Gen. Servs. Admin., 794 F.2d 661, 664 (Fed. Cir. 1986), Mr. Dolinsky’s argument that the doctrine of issue preclusion applies here fails. We therefore affirm the Board’s decision on this issue. II. We next turn to Mr. Dolinsky’s claim that the Board, by incorrectly deciding certain facts, erred in concluding his disclosure regarding the allegedly improper release of top secret information was not protected. The Government agrees with Mr. Dolinsky and has requested a partial remand limited to this issue. Mr. Dolinsky testified that there were two different portions of the GSA’s emergency response exercise: a continuity of government (“COG”) portion and a continuity of operation program (“COOP”) portion. He noted that COG was always classified. Mr. Dolinsky also testified, without rebuttal, that the scenario regarding the hypothetical death of the President was part of the COG plan and was classified at the time of its unauthorized disclosure. The AJ in his initial decision appeared to fail to distinguish between the COG portion and the COOP portion of GSA’s emergency 2010-3008 6 response exercise. The AJ ruled that because COOP was not classified, Mr. Dolinsky failed to establish that the scenario of the President’s hypothetical death was classified. There is no testimony or affidavits or other evidence submitted by the Agency to rebut Mr. Dolinsky’s testimony. Therefore, in light of Mr. Dolinsky’s testimony regarding the different nature of the two portions of GSA’s emergency response exercise, we remand to the Board for reconsideration whether the hypothetical death of the President was part of the COG portion of the exercise and whether information under the COG was classified. In addition, Mr. Dolinsky argues that the AJ erred in concluding that “a disinterested person, based on available information and information that was readily ascertainable, would not necessarily conclude that disclosure of [classified information] . . . violated the law” because “the officials in charge of the COOP had reason to know the parameters of the upcoming COOP in order to adequately prepare for it.” Dolinsky v. Dep’t of Homeland Sec., CH-1221-09-0173-W-1, at *5-6 (M.S.P.B. Mar. 24, 2009) (initial decision). Mr. Dolinsky contends that this conclusion was improperly based on the AJ’s finding that “[t]he appellant had a top secret clearance and the officials in charge of the COOP had reason to know the parameters of the upcoming COOP in order to adequately prepare for it.” Id. at *6. Mr. Dolinsky’s testimony from another MSPB appeal indicated that Mr. Gelbert was not involved in the 2005 GSA training exercise, and neither Mr. Gelbert, Mr. Handley nor Mr. Dolinsky himself should have had access to the classified information at issue. Mr. Dolinsky’s testimony from that MSPB appeal other than the one below was contradicted by the Agency’s exhibits or briefing in that appeal. For example, the AJ during that case’s hearing, referring in 2010-3008 7 part to Mr. Gelber, stated that “[t]he Agency made a statement that both individuals played key roles in the exercise and had to be, I can show you that, had to be aware of what was doing on.” Therefore, in light of Mr. Dolinsky’s assertions regarding Mr. Gelber’s involvement in the 2005 GSA training exercise, we remand for the Board for reconsideration whether a disinterested person, based on available information and information that was readily ascertainable, would not necessarily conclude that disclosure of such information to Mr. Handley, Mr. Gelber, and Mr. Dolinsky violated the law. Further, because the Board held that Mr. Dolinsky’s disclosure was not protected by the WPA, the Board did not address whether Mr. Dolinsky’s disclosure regarding the release of classified information was “a contributing factor in an adverse action against him” and whether the Agency established, “by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure.” See Fellhoelter v. Dep’t of Agric., 568 F.3d 965, 970-71 (Fed. Cir. 2009) (citing 5 U.S. C. § 121(e)). Accordingly, we grant the Government’s motion for partial remand for the Board to consider whether Mr. Dolinsky’s statements constituted a protected disclosure, and if so, whether such statements were a contributing factor in the Agency’s decision. III. Finally, Mr. Dolinsky argued that the Board erred in dismissing his claim regarding his disclosure of an alleged Hatch Act violation. We see no reason to disturb the Board’s ruling on this issue. 2010-3008 8 Section 2302(b)(8) protects several types of disclosures, one being a disclosure regarding what an employee “reasonably believes” to be a “violation of any law, rule, or regulation.” 5 U.S.C. § 2302(b)(8). Mr. Dolinsky alleges he made such a disclosure; we deem his allegations frivolous. In order for Mr. Dolinsky to prevail in his IRA appeal, he was first required to demonstrate by a preponderance of the evidence that he made a disclosure that he reasonably believed evidenced a violation of a law, rule, or regulation. Willis, 141 F.3d at 1143. The proper test for determining whether an employee had a reasonable belief that his disclosures revealed misconduct prohibited under the WPA is whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee would reasonably conclude that the actions of the government evidence wrongdoing as defined by the WPA. Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 1153 (2000). At issue in this appeal is Mr. Dolinsky’s disclosure that Mr. Thibeault requested Mr. Dolinsky to take Mr. Thibeault’s photograph and e-mail it to the Republican National Committee so that Mr. Thibeault could attend a Republican National Convention. The AJ correctly explained that the Hatch Act prohibits “federal employees from using their official authority or influence to interfere with an election, solicit or receive political contributions, be candidates for public office in partisan elections, solicit or discourage political activity while on duty, in a government office, wearing an official uniform, or using a government vehicle.” Dolinsky v. Dep’t of Homeland Sec., CH-1221-09-0173- W-1, at *2 (M.S.P.B. Mar. 16, 2009) (order) (citing 5 U.S.C. §§ 7323-7324; 5 C.F.R. § 734.302-.306). The AJ then properly noted that Mr. Dolinsky’s “disclosure does not 2010-3008 9 indicate either he or Mr. Thibeault used their official positions to interfere with an election, that they solicited or received political contributions, that they ran for office in a partisan election, that they solicited or discouraged the political activity of anyone with business before the [GSA], or that, as defined by regulation, they engaged in a political activity.” Id. at *2-3. We agree that it is frivolous to suggest the act at issue constituted political activity that violated the Hatch Act, and thus Mr. Dolinsky has failed to show a reasonable belief that he made a disclosure evidencing a violation of law, rule, or regulation. For the foregoing reasons, we affirm in part, vacate in part, and remand to the Board for reconsideration 1) whether the hypothetical death of the President was classified information under the COG portion of the 2005 GSA emergency exercise; 2) whether a disinterested person would not necessarily conclude that disclosure of such information to Mr. Handley, Mr. Gelber, and Mr. Dolinsky violated the law; and 3) whether Mr. Dolinsky’s disclosure regarding the release of such information was a contributing factor in an adverse action against him. We reject the remainder of his challenges to the Board’s decision. No costs. 2010-3008 10

United States Court of Appeals for the Federal Circuit 2009-8004 CYNTHIA WOODWARD, on behalf of herself and minor daughter MOLLY WOODWARD, ASHLEY MARTIN individually and BRANDON MARTIN individually, Petitioners, v. DEPARTMENT OF JUSTICE, Respondent. Tara S. Emory and Joshua B. Smith, Skadden, Arps, Slate, Meagher & Flom, LLP, of Washington, DC, argued for petitioners. With them on the brief were Ross W. Tucker and Nicolas E. Boring. Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director. Of counsel on the brief were Rafael A. Madan, General Counsel, and Gregory C. Brady and Rosemary Carradini, Deputy General Counsel, Bureau of Justice Assistance, of Washington, DC. Roncevert Almond, The Wicks Group, PLLC, of Washington, DC, for amicus curiae National Volunteer Fire Council. On petition from: Bureau of Justice Assistance United States Court of Appeals for the Federal Circuit 2009-8004 CYNTHIA WOODWARD, on behalf of herself and minor daughter MOLLY WOODWARD, ASHLEY MARTIN individually and BRANDON MARTIN individually, Petitioners, v. DEPARTMENT OF JUSTICE, Respondent. On petition for review of a decision of the Bureau of Justice Assistance in PSOB Claim No. 2004-13. ____________________ DECIDED: March 15, 2010 ____________________ Before MAYER, FRIEDMAN, and GAJARSA, Circuit Judges. GAJARSA, Circuit Judge. Petitioners Cindy Woodward and her children, Ashley Martin, Brandon Martin and minor Molly Woodward (“Petitioners”), are the family of Daniel Neil Woodward, a volunteer firefighter with the Blackman Florida Volunteer Fire Department. Mr. Woodward died in 2001 shortly after fighting a fire. Petitioners submitted a claim to the Bureau of Justice Assistance (“BJA”) seeking death benefits under the Public Safety Officers’ Benefits Act (“PSOBA”), 42 U.S.C. § 3796. The BJA Director (“Director”) denied Petitioners’ claim based on the conclusion that smoke inhalation was not a “substantial factor” in Mr. Woodward’s death. For the reasons stated below, we reverse and remand. BACKGROUND On the evening of September 6, 2001, Mr. Woodward reported a fire occurring in the bathroom of his own home. The fire department responded with two fire engines within ten minutes. Mr. Woodward did not have his protective gear with him, but pulled the fire hose from the engine and assisted another firefighter for about fifteen to thirty minutes. After the fire was extinguished, Mr. Woodward walked around the lawn, leaned against his vehicle, and talked on his cell phone with his wife. About half an hour later, Mr. Woodward reported minor chest pain to the emergency medical technician on the scene. Initially, his pain responded to oxygen treatment, but returned several minutes later. Subsequently, Mr. Woodward had a seizure and stopped breathing. He was taken by ambulance to the hospital, but after significant efforts to revive him, he was pronounced dead. The Florida State Medical Examiner’s Office conducted an autopsy. Dr. Michael Berkland, the medical examiner who performed the autopsy, determined that Mr. Woodward died of natural causes. Shortly thereafter, the State of Florida completed an investigation of Dr. Berkland and found he had falsified several autopsy reports, including that of Mr. Woodward. The investigation revealed that the toxicology evidence cited by Dr. Berkland, allegedly showing no smoke inhalation, was entirely fabricated. The toxicology tests were never requested or performed. The State of Florida disciplined Dr. Berkland and amended Mr. Woodward’s autopsy report to find that he died of probable smoke inhalation. Before Dr. Berkland’s falsification was discovered, the National Institute for Occupational Safety & Health (“NIOSH”) had issued a report regarding Mr. Woodward’s death. The report relied on medical conclusions consistent with the falsified findings of 2009-8004 2 Dr. Berkland. The report also contained discussion of interviews of eyewitnesses by an independent investigator. It did not state whether any firefighters reported that Mr. Woodward inhaled smoke during the incident. After discovering Dr. Berkland’s falsification of the autopsy report, NIOSH retracted the 2002 report and issued a revised report. The revised report advises that Mr. Woodward’s cause of death cannot be determined with certainty, and speculates that one possible cause was smoke inhalation “either by itself or as a triggering agent for a heart attack or a cardiac arrhythmia.” It also states that at least one firefighter reported that Mr. Woodward inhaled smoke during the fire, and notes that Mr. Woodward’s electrocardiogram was not consistent with a heart attack. Due to the fact that Mr. Woodward’s remains were cremated upon his death, it is impossible to perform a new autopsy to determine his cause of death with certainty. On October 31, 2003, Petitioners filed a claim for death benefits with the Public Safety Officers’ Benefit Office (“Office”). On February 9, 2004, the Office denied the claim concluding that Mr. Woodward’s death was not a result of a personal injury covered by the PSOBA, but was the result of preexisting coronary artery disease. Petitioners then requested a hearing officer review of their claim. Petitioners waived their right to a hearing before an independent hearing officer, but submitted affidavits in support of their claim. Petitioners submitted affidavits from Kenneth Finkel, the Fire Chief, Stephen Marcotte, a member of the fire department, and Larry Matthews, the emergency medical technician who treated Mr. Woodward on the night of his death. Petitioners also submitted declarations from two physicians, Dr. DeSimone and Dr. Picketing, who provided medical opinions regarding the cause of Mr. Woodward’s death. The two 2009-8004 3 physicians opined that, considering the evidence other than the autopsy report, it was “impossible” to determine the cause of Mr. Woodward’s death. Nonetheless, both physicians concluded that smoke inhalation was a “substantial factor” in Mr. Woodward’s death. After reviewing Petitioners’ evidence, the hearing officer determined that Mr. Woodward’s death was not covered by the PSOBA. The hearing officer found that “the weight of the evidence shows that VFF Woodward had only been exposed to smoke for a short time, and for the next half-hour he did not show any respiratory effects of carbon monoxide inhalation as he engaged in salvage and overhaul activities.” On October 20, 2006, Petitioners appealed the hearing officer’s determination to the Director and sought to introduce new evidence. Petitioners submitted the amended autopsy report, death certificate, and related documents. Given the unusual circumstance of an amended autopsy report and death certificate, the Director suggested remanding the case to a hearing officer for consideration of additional evidence. Petitioners waived their right to a new hearing, explaining that “additional factual discovery could not affect the result of the Final Agency Determination.” Accordingly, the Director considered the claim for a final determination based on the existing evidence in the record. On October 28, 2008, the Director issued a final determination denying benefits. The Director found it more likely than not that Mr. Woodward died as a result of atherosclerotic cardiovascular disease. Although the Director acknowledged that the original autopsy was no longer credible, he found the Woodward family did not sufficiently prove that Mr. Woodward died of smoke inhalation. The Director relied almost entirely on the NIOSH report, despite the fact that the report relied on 2009-8004 4 Dr. Berkland’s falsified autopsy. Moreover, the Director applied 28 C.F.R. § 32.4 (2007), a regulation implemented in 2006 which provides a more burdensome standard of proof for certain aspects of claims made under the amended version of the PSOBA. Thus, Petitioners were denied the death benefits due to their inability to produce certain medical evidence, which is unavailable as a result of Dr. Berkland’s misconduct. Petitioners timely appealed the Director’s determination. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1295(a)(3). DISCUSSION The PSOBA provides death and education benefits to survivors of public safety officers killed in the line of duty. To qualify for benefits, a petitioner must show that “a public safety officer has died as the direct and proximate result of a personal injury sustained in the line of duty.” 42 U.S.C. § 3796(a). In this case, the Director was required to determine whether Mr. Woodward suffered a “personal injury” as defined by the PSOBA. If the stress associated with fighting the fire was the proximate cause of Mr. Woodward’s heart attack, the death is excluded from the PSOBA’s coverage. However, if smoke inhalation was a substantial factor in triggering Mr. Woodward’s heart attack, then it constitutes a “personal injury” covered by the PSOBA. Ultimately, the Director concluded that the evidence on the record showed that Mr. Woodward died of a heart attack, not smoke inhalation. In 2003, when the Woodward family first filed its claim, the following regulation was in effect: “[T]he [BJA] shall resolve any reasonable doubt arising from the circumstances of the officer’s death . . . in favor of payment of the death . . . benefit.” 28 C.F.R. § 32.5(a) (1999) (“original regulation”). In 2006, during the pendency of the Woodward’s appeal, the federal regulations were amended. The amended regulations 2009-8004 5 were intended to implement the Hometown Heroes Act of 2003 (“HHA”), which creates a presumption that the benefit must be paid to the family of any public safety officer who dies within twenty-four hours of engaging in non-routine activity in the line of duty, without regard to whether there was a traumatic personal injury. 42 U.S.C. § 3796 (2004). The HHA presumptively permits death benefits in cases where a safety officer suffers a heart attack while engaged in fire suppression, but it is not retroactive. Most notably, the amendment changed a petitioner’s burden of proof for a claim brought pursuant to the PSOBA: “a claimant has the burden of persuasion as to all material issues of fact, and by the standard of proof of ‘more likely than not.’” 28 C.F.R. § 32.5 (2007) (“amended regulation”). The amended regulations took effect in August 2006, about three years after the Woodward family filed their claim. During their appeal, the Director required the Woodward family to carry the burden of proving Mr. Woodward’s personal injury by a “more likely than not” standard. Petitioners assert that the BJA incorrectly applied the amended regulation during their appeal, changing their burden of proof midstream through the agency proceedings. Petitioners argue that application of the amended regulation is strongly disfavored in this case because it represents a significant change in the burden of proof. In Princess Cruises v. United States, we found that a change in evidentiary presumption resulted in a significant change in the law, disfavoring retroactive application of the new law. 397 F.3d 1358, 1364 (Fed. Cir. 2005). In this case, the amended regulation changed the burden of proof from a lenient standard resolving any reasonable doubt in favor of the claimant to the more stringent standard requiring that a claimant prove all material issues of fact by a “more likely than not” standard. This is a significant change in the law that disfavors retroactive application of the amended regulation. 2009-8004 6 Petitioners further argue that retroactive application of an amended regulation is disfavored where claimants made strategic decisions in reliance on the old standard, before the new standard existed. See id. at 1366. We agree. Petitioners made strategic decisions in reliance on the “reasonable doubt” burden of proof. Petitioners waived the remand hearing, believing that the evidence on the record was sufficient to show that Mr. Woodward died of smoke inhalation. Moreover, Petitioners chose not to supplement the record upon learning that the initial autopsy report was falsified, believing that the evidence before the Director was sufficient to satisfy the original burden of proof. When the BJA changed Petitioners’ burden of proof during the course of their appeal, Petitioners had no opportunity to introduce additional evidence to satisfy the heightened burden of proof. CONCLUSION Accordingly, we reverse and remand the case for application of the original regulation to Petitioners’ appeal. REVERSED and REMANDED. COSTS Costs to Petitioners. 2009-8004 7

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2009-3149 VENANCIO CABANAYAN, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. Steven P. Cohn, Advocacy Center for Employment Law, of San Jose, California, for petitioner. Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Appealed from: Merit Systems Protection Board NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2009-3149 VENANCIO CABANAYAN, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. Petition for review of the Merit Systems Protection Board in SF844E080686-I-1. __________________________ DECIDED: March 12, 2010 __________________________ Before BRYSON, ARCHER, and PROST, Circuit Judges. PROST, Circuit Judge. Petitioner Venancio Cabanayan (“Cabanayan”) appeals the final decision of the Merit Systems Protection Board (“Board”) affirming the Office of Personnel Management (“OPM”)’s denial of his application for disability retirement benefits. Cabanayan v. Office of Pers. Mgmt., No. SF844E080686-I-1 (M.S.P.B. Dec. 23, 2008) (“Cabanayan”). Because the Board did not credit some of Cabanayan’s medical evidence based on a legal standard we have since held to be erroneous, we vacate and remand for reconsideration under the proper legal standard. BACKGROUND Cabanayan worked as a mail carrier for the U.S. Postal Service for more than twenty years prior to his resignation on December 26, 2006. Cabanayan timely filed an application for disability retirement under the Federal Employees Retirement System (“FERS”), alleging a right shoulder injury as the basis for his disability. OPM denied Cabanyan’s application on June 10, 2008 and, upon reconsideration, affirmed its earlier decision on July 28, 2008. Cabanayan appealed OPM’s decision to the Board. In support of his appeal, Cabanayan submitted medical records regarding his shoulder injury from April 2006 through June 2008, i.e., from before and after his December 26, 2006 resignation. At a hearing before an administrative judge, Cabanayan presented four witnesses: Cabanayan, his wife, Gregory Cheung, M.D. (“Dr. Cheung”), and Kevin Murray, M.D. (“Dr. Murray”). Dr. Cheung explained that he examined Cabanayan for right shoulder pain on five occasions, the first of which was three months after Cabanayan’s retirement, and that his associate examined Cabanayan’s shoulder nine months before Cabanayan’s retirement. He testified that, in his opinion, Cabanayan was disabled before retirement and remained disabled as of his last examination in June 2008. Dr. Murray, an orthopedic surgeon, testified that he performed an arthroscopy and debridement of Cabanayan’s right shoulder in June 2008, during which he found degenerative change and fraying of the labrum, an inflamed subacromial bursa, and a boney spur. Dr. Murray testified that it was impossible to know whether these conditions existed at the time of Cabanayan’s retirement, but that the conditions would, at present, prevent him from performing the duties of a mail carrier. In an initial decision dated December 23, 2008, the administrative judge found that Cabanayan was not eligible for disability retirement because he failed to establish 2009-3149 2 that, while working at the U.S. Postal Service, he became disabled due to a medical condition causing deficient performance or that, absent such deficiency, his medical condition was incompatible with either useful or efficient service. Cabanayan, slip op. at 11, 13. Cabanayan did not appeal this initial decision to the Board. The initial decision therefore became the final decision of the Board. Cabanayan timely petitioned for review in this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION Our review of disability retirement decisions under FERS is limited to determining whether “there has been a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error ‘going to the heart of the administrative determination.’” Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 791 (1985) (quoting Scroggins v. United States, 397 F.2d 295, 297 (Ct. Cl. 1968)); Anthony v. Office of Pers. Mgmt., 58 F.3d 620, 622, 625-26 (Fed. Cir. 1995). We cannot review the “factual underpinnings” of such decisions. Lindahl, 470 U.S. at 791. This limitation prevents us from addressing challenges to “the Board’s factual determination as to whether [a] Petitioner was disabled within the meaning of the FERS statute,” Trevan v. Office of Pers. Mgmt., 69 F.3d 520, 523-24 (Fed. Cir. 1995), as well as assertions that the Board wrongly weighed the evidence, Anthony, 58 F.3d at 626; see Davis v. Office of Pers. Mgmt., 470 F.3d 1059, 1060-61 (Fed. Cir. 2006). Cabanayan’s main arguments are outside our limited scope of review. Specifically, Cabanayan’s contention that he met his burden of proof with “uncontroverted” evidence showing that he was disabled prior to retirement and that the 2009-3149 3 Board erred in reaching a contrary conclusion challenges the “factual underpinnings” of the Board’s determination that he was not disabled within the meaning of the FERS statute, which we lack authority to review. See Smith v. Office of Pers. Mgmt., 784 F.2d 397, 399-400 (Fed. Cir. 1986); see also Trevan, 69 F.3d at 523-24. Similarly, we cannot entertain Cabanayan’s fact-based argument that the Board improperly weighed the evidence before it. See Davis, 470 F.3d at 1060-61; Anthony, 58 F.3d at 626. We now turn to Cabanayan’s argument that the Board, in discounting the testimony and opinions of his witness, Dr. Cheung, misapplied the legal standard for assessing medical evidence. In reviewing a disability retirement determination, we have an obligation to assure that the Board applied the correct legal standards, Bruner v. Office of Pers. Mgmt., 996 F.2d 290, 291 (Fed. Cir. 1993), and must address any “critical legal errors” in the Board’s decision, Vanieken-Ryals v. Office of Pers. Mgmt., 508 F.3d 1034, 1038 (Fed. Cir. 2007). Specifically, we have the authority “to determine whether the Board gave no weight to evidence pursuant to a legal ‘error going to the heart of the administrative determination’ or ‘a substantial departure from important procedural rights.’” Reilly v. Office of Pers. Mgmt., 571 F.3d 1372, 1379 (Fed. Cir. 2009) (“Reilly II”) (quoting Scroggins, 397 F.2d 295). Cabanayan’s argument that the Board committed legal error in failing to credit Dr. Cheung’s testimony is therefore within our scope of review. In his analysis of Cabanayan’s post-retirement medical evidence, the administrative judge cited to Reilly v. Office of Personnel Management, 108 M.S.P.R. 360 (2008) (“Reilly I”). Cabanayan, slip op. at 12 & n.6. Reilly I held that the Board will consider a medical opinion rendered post-retirement only if the opinion is “based on pre- 2009-3149 4 retirement tests, observations, interviews, and medical examinations[] and address[es] the employee’s pre-retirement condition.” Reilly II, 571 F.3d at 1380; see Reilly I, 108 M.S.P.R. at 363-65. On July 15, 2009, after the administrative judge issued his decision denying Cabanayan’s appeal, this court vacated the Reilly I decision in Reilly II. Reilly II, 571 F.3d at 1380-82. In Reilly II, we concluded that the Board committed legal error in categorically rejecting medical evidence or opinions not based on pre-retirement tests or examinations. Id. After citing to Reilly I, the administrative judge discounted Dr. Cheung’s opinion that Cabanayan was disabled at the time he retired. Specifically, in the only reference to Dr. Cheung’s testimony in the administrative judge’s analysis, the administrative judge explained, “Dr. Cheung opined that [Cabanayan] was disabled as of December 26, 2006, but I find that Dr. Cheung’s opinion was based in significant part on Dr. Murray’s surgical findings of a condition in 2008.” Cabanayan, slip op. at 12 & n.6. In our view, the administrative judge did not give any weight to Dr. Cheung’s opinion solely because it was based on a medical condition found in 2008, after Cabanayan had retired. This reasoning is consistent with Reilly I’s standard for rejecting post-retirement medical opinions, which we have since concluded is legally erroneous. See Reilly II, 571 F.3d at 1380. While we recognize that, as the Government contends, there may be valid and permissible reasons for discounting Dr. Cheung’s opinion, the administrative judge did not articulate any other reason for his failure to credit Dr. Cheung’s testimony. Thus, we conclude that the administrative judge committed legal error by relying on Reilly I’s improper legal standard, to which he expressly cited before addressing this evidence. As we held in Reilly II, this legal error constitutes “a substantial departure 2009-3149 5 from important procedural rights and goes to the heart of the administrative determination” and is therefore the type of error that the Supreme Court charged this court to guard against in the disability retirement context. 571 F.3d at 1382-83 (citing Vanieken-Ryals, 508 F.3d at 1043-44). Because the Board applied an erroneous legal standard in assessing Cabanayan’s medical evidence, we vacate the Board’s decision and remand for reconsideration under the correct legal standard. See Vanieken-Ryals, 508 F.3d at 1036. On remand, the Board should apply the standard detailed in our recent decision in Reilly II. Specifically, the Board must consider all competent medical evidence, including post-retirement medical evidence, and may not reject such evidence solely because it is based on post-retirement examinations or observations. Reilly II, 571 F.3d at 1381-82. Of course, as we recognized in Reilly II, such post-retirement medical evidence may be irrelevant or entitled to little weight based on the factual circumstances, “such as where the later medical condition is attributable to some incident that occurred after the period in question, or where there is a substantial lapse of time and a lack of evidence connecting the prior condition to the more recent medical evidence.” Id. at 1382. Based on this standard, the Board must, in the first instance, consider the relevance and probative value of the proffered medical evidence. 2009-3149 6

United States Court of Appeals for the Federal Circuit 2008-1597 LABORATORY CORPORATION OF AMERICA HOLDINGS (doing business as LabCorp), Plaintiff-Appellee, v. METABOLITE LABORATORIES, INC., Defendant-Appellant. Gregory A. Castanias, Jones Day, of Washington, DC, argued for plaintiff- appellee. With him on the brief was Leon F. DeJulius, Jr., of Pittsburgh, Pennsylvania. Of counsel on the brief were Natalie Hanlon-Leh and Nina Y. Wang, Faegre & Benson LLP, of Denver, Colorado. Mark A. Perry, Gibson, Dunn & Crutcher LLP, of Washington, DC, argued for defendant-appellant. With him on the brief were Glenn K. Beaton and Kourtney M. Mueller, of Denver, Colorado. Appealed from: United States District Court for the District of Colorado Senior Judge Zita L. Weinshienk United States Court of Appeals for the Federal Circuit 2008-1597 LABORATORY CORPORATION OF AMERICA HOLDINGS (doing business as LabCorp), Plaintiff-Appellee, v. METABOLITE LABORATORIES, INC., Defendant-Appellant. Appeal from the United States District Court for the District of Colorado in case no. 04-CV-1662, Senior Judge Zita L. Weinshienk. _________________________ DECIDED: March 11, 2010 _________________________ Before GAJARSA, DYK, and MOORE, Circuit Judges. Opinion for the court filed by Circuit Judge GAJARSA. Dissenting opinion filed by Circuit Judge DYK. GAJARSA, Circuit Judge. Metabolite appeals from the United States District Court for the District of Colorado’s grant of summary judgment. See Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 571 F. Supp. 2d 1199 (D. Colo. 2008). The district court granted LabCorp’s motion for summary judgment on its complaint for declaratory judgment that it did not breach a license agreement for failure to pay know-how royalties on homocysteine assays performed after judgment had been entered in a prior patent infringement and breach of contract action brought, in part, by Metabolite. Because the present cause of action does not arise under federal patent law nor does Metabolite’s right to relief necessarily depend on resolution of a substantial question of federal patent law, this court does not have jurisdiction over this appeal. The action is a state law contract dispute over know-how royalties brought pursuant to the district court’s diversity jurisdiction. Therefore, we transfer the appeal to the United States Court of Appeals for the Tenth Circuit. BACKGROUND Competitive Technologies, Inc. (“CTI”) owns U.S. Patent No. 4,940,658 (the “’658 patent”). The ’658 patent claims a method for detecting deficiencies of vitamin B12 and folate by assaying total homocysteine levels and correlating an elevated level of total homocysteine with a deficiency in either cobalamin or folate. Metabolite is a non- exclusive licensee of the ’658 patent with the right to sublicense. It also developed know-how technology, including software, to automate the testing process. In 1991, Metabolite granted LabCorp a license to the know-how and a sublicense to the ’658 patent (“License Agreement”). The License Agreement covered four assays, including a total homocysteine assay referred to as the “homocysteine-only assay.” In 1998, LabCorp began using an alternative homocysteine-only assay in serum samples using an immunoassay kit developed by Abbott Laboratories (the “Abbott Test”) and stopped paying both patent and know-how royalties on just the serum-based homocysteine-only 2008-1597 2 assays. 1 Metabolite and CTI brought an action against LabCorp for breach of contract and patent infringement. Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 2001 WL 34778749 (D. Colo., Dec. 3, 2001) (“Metabolite I”) (jury trial) aff’d, 370 F.3d 1354 (Fed. Cir. 2004) (“Metabolite II”), cert. granted, 546 U.S. 999 (2005), cert. dismissed as improvidently granted, 548 U.S. 124 (2006). A. In the first case, Metabolite claimed breach of contract with respect to the homocysteine-only assay for failing to pay know-how royalties and sought contract damages, and CTI claimed patent infringement and sought infringement damages. The case was tried before a jury (Metabolite I). LabCorp contended that because the Abbott Test did not infringe the ’658 patent it was not a Licensed Assay as defined by the License Agreement. The termination provision of the License Agreement states in relevant part: 4.02 [LabCorp] shall have the right . . . to terminate this Agreement with respect to a particular Licensed Assay if (i) in the case of Licensed Assays of homocysteine, a more cost effective commercial alternative is available that does not infringe a valid and enforceable claim of the Licensed Patents; . . . . 2 J.A. 8999. Thus, LabCorp argued, it did not violate its contractual obligations for the homocysteine-only assay as to either the know-how license or the patent sublicense. LabCorp tests for total homocysteine in both urine and plasma. LabCorp continued to pay royalties for its urine-based assays utilizing Metabolite’s gas chromatography/mass spectrometry know-how. LabCorp also continued to pay royalties on the three other licensed assays that tested for deficiencies in vitamin B12 and/or folate also using the royalty-bearing GCMS method. Only the serum-based homocysteine-only assay was the subject of the lawsuits below. Pursuant to § 4.02 of the License Agreement, LabCorp could sever and terminate the License Agreement as to individual Licensed Assays. Subsections (ii)- (iv), not quoted above, provide how LabCorp could selectively terminate the remaining three Licensed Assays. 2008-1597 3 A Special Verdict Form was submitted to the jury. It was asked the threshold question of whether the License Agreement had been terminated with respect to the homocysteine-only assay. Do you find, by a preponderance of the evidence, that LabCorp breached its license agreement by terminating it with respect to its performance of the Abbott [T]est? J.A. 21072-73. The jury found in the affirmative. It awarded infringement damages to CTI of $1.02 million and breach of contract damages to Metabolite of $3.65 million. Upon Metabolite’s and CTI’s post-verdict motions in Metabolite I, the district court granted a permanent injunction to enjoin LabCorp from performing any homocysteine- only assay, including any homocysteine-only assay performed using the Abbott Test. LabCorp moved for a stay pending appeal, and the court entered the stay subject to LabCorp paying a 6% royalty to CTI for all homocysteine-only assays performed after entry of judgment. LabCorp was further required to provide Metabolite with an accounting of the 21.5% of the sales attributable to the homocysteine-only assays that LabCorp performed after entry of judgment. This court affirmed the jury’s finding that LabCorp breached the License Agreement holding that LabCorp’s refusal to pay royalties was a material breach that constitutes termination even if the contract requires written notice. See Metabolite II, 370 F.3d at 1370. Once the stay of the injunction was lifted, LabCorp stopped performing the homocysteine-only assays itself but outsourced the assay by entering into an agreement with Specialty Laboratories, Inc. (“Specialty”) that was independently licensed by CTI to perform the homocysteine-only assays referred by LabCorp. In response, Metabolite filed a post-judgment motion in Metabolite I asserting that 2008-1597 4 LabCorp’s referral of the assays to a third party violated the injunction. LabCorp also filed a post-judgment motion in Metabolite I seeking clarification of the injunction. Simultaneously, LabCorp filed a new action in the same district court seeking a declaratory judgment that it had not violated the License Agreement. Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 571 F. Supp. 2d 1199 (D. Colo. 2008) (“Metabolite III”) (instant matter below). On September 21, 2006, the district court ruled on the post- judgment motions, filed in Metabolite I, and stated in relevant part: [T]here has never been a legal determination that LabCorp actually committed any breach after the date of the Amended Judgment, or of the amount of any resulting damages. Because there are no claims remaining in this case, the issue of whether actions taken by LabCorp subsequent to the Amended Judgment constitute breach of contract, and the amount of damages for any such breach, cannot be resolved herein as a matter of procedure. As a result, the Court is not able to state in this case, at this juncture, that the amount stated on the letter of credit is now “due and owing to Metabolite Laboratories.” However, LabCorp has filed a separate action [Metabolite III], seeking “a declaratory judgment that LabCorp has not violated the Agreement with various conduct occurring since the time period covered by the Amended Judgment and occurring into the future.” Whether LabCorp committed a contract breach after the date of the Amended Judgment is appropriately resolved in [Metabolite III]. J.A. 21124-25 (emphasis added). The ’658 patent expired on July 9, 2007. B. As noted above, in Metabolite III, LabCorp brought a declaratory judgment action, premised upon diversity jurisdiction, under 28 U.S.C. § 1332, seeking a judgment on “whether Metabolite can recover damages for activity occurring after the time period covered by the Amended Judgment with respect to a part of an Agreement that has been terminated,” and “whether LabCorp’s outsourcing activity violates any existing contract between LabCorp and Metabolite.” In response to the declaratory 2008-1597 5 judgment action, Metabolite counterclaimed for breach of contract, among other state- law claims, including breach of obligation of good faith and fair dealing, unjust enrichment, promissory estoppel, fraud, and equitable estoppel. The breach of contract claim was premised on LabCorp’s continued referral of homocysteine-only assays to a third party without paying know-how royalties after entry of the jury’s verdict. The parties filed cross motions for summary judgment. LabCorp moved for judgment on its contract claim and on each of Metabolite’s counterclaims, and Metabolite moved for judgment on LabCorp’s declaratory judgment claim and its breach of contract counterclaim. The Metabolite III district court held that no further royalties were due under the License Agreement. The court further stated that “[a] plain reading of the verdict form, coupled with the language of the License Agreement, leads to the conclusion that the License Agreement was both breached and terminated,” and resulted in the loss of all rights (both patent and know-how) under the contract, albeit limited to the homocysteine-only assay. Metabolite appeals. On appeal, LabCorp filed a motion to dismiss or, in the alternative, transfer the appeal to the Tenth Circuit, for lack of jurisdiction. On February 2, 2009, a motion panel of this court denied the motion without prejudice to allow the parties to raise the jurisdictional issues in their merits briefs. The issue of this court’s jurisdiction over Metabolite’s appeal is now squarely before us. DISCUSSION Before reaching the merits of this case, we must, however, first address whether we have appellate jurisdiction under 28 U.S.C. § 1295(a) (1). 2008-1597 6 Under 28 U.S.C. § 1295(a)(1), this circuit has exclusive jurisdiction over an appeal from a final decision of a district court “if the jurisdiction of that court was based, in whole or in part, on § 1338.” See Bd. of Regents, Univ. of Tex. v. Nippon Tel. & Tel. Corp., 414 F.3d 1358, 1361 (Fed. Cir. 2005). Section 1338(a) confers the district courts with original jurisdiction over “any civil action arising under any Act of Congress relating to patents.” The Supreme Court in Christianson v. Colt Industries Operating Corp., 486 U.S. 800 (1988) outlined a two-part test for § 1338 jurisdiction. Under Christianson, “arising under” jurisdiction “extend[s] only to those cases in which a well-pleaded complaint establishes either that federal patent law creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims.” Christianson, 486 U.S. at 808-09. The Supreme Court in Christianson and also in Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826, 830 (2002), grafted § 1331 precedent onto its § 1338 analysis and equated the statutory “arising under” standard under § 1338 for patent cases with that established for claims invoking general federal question under § 1331. Christianson, 486 U.S. at 808-09; Vornado, 535 U.S. at 830. Accordingly, the Supreme Court’s decision in Grable & Sons Metal Products, Inc., v. Darue Engineering & Manufacturing., 545 U.S. 308, 314 (2005), addressing general federal question jurisdiction refined the Christianson two-part test for § 1338 jurisdiction by requiring a determination of whether “a state-law claim necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of 2008-1597 7 federal and state judicial responsibilities.” Grable, 545 U.S. at 314; see also Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 689-90 (2006). Under the well-pleaded complaint rule, “arising under” jurisdiction is determined from the plaintiff’s statement of his or her own claim “unaided by anything alleged in anticipation or avoidance of defenses which it is thought the defendant may interpose.” Christianson, 486 U.S. at 809 (internal quotation marks and citation omitted). In an action for declaratory judgment, we look “not to the declaratory judgment complaint, but to the action that the declaratory defendant would have brought.” Speedco Inc. v. Estes, 853 F.2d 909, 912 (Fed. Cir. 1988); Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1578 (Fed. Cir. 1993). Metabolite, as the appellant, bears the burden of demonstrating that its hypothetical claim depends on resolution of a substantial question of federal patent law. Christianson, 486 U.S. at 808-09. The question is, does Metabolite’s hypothetical claim necessarily raise a stated patent law issue that is actually disputed and substantial. See Grable, 545 U.S. at 314. Metabolite does not meet this burden. A. Metabolite’s hypothetical claim would have been a breach of contract claim premised on LabCorp’s continued referral of homocysteine-only assays to a third party without paying know-how royalties on its post-judgment “Net Sales of Licensed Assays.” Under the License Agreement, the payment of royalties to Metabolite was for performance by LabCorp or referral of a Licensed Assay by LabCorp to Metabolite. Section 2.02 In consideration of the grants made in Article 1, [LabCorp] agrees to pay to [Metabolite] a royalty of 21.5% in respect to [LabCorp’s] Net Sales of Licensed Assays other than Referral Assays. 2008-1597 8 J.A. 20784 (emphasis added). The Licensed Assays cover four types of assays: (i) assays of homocysteine using methods and materials falling within the claims of the Licensed Patents; . . . (ii) [methylmalonic acid]. . . (iii) [2- methylcritic acid] . . . (iv) [cystathionine]. . . . J.A. 20782-83 (emphasis added). “Licensed Patents” is defined as the ’658 patent and any patents issuing from any continuations, continuations-in-part, divisions, and/or reissues therefrom. We have held “that issues of inventorship, infringement, validity and enforceability present sufficiently substantial questions of federal patent law to support jurisdiction under section 1338(a).” Bd. of Regents, 414 F.3d at 1363. In its hypothetical claim, Metabolite would be required to prove the elements of a breach of contract cause of action under New Jersey law—existence of a valid contract, breach, and damages. See, e.g., Grow Co., Inc., v. Chokshi, 959 A.2d 252, 269 (N.J. Super. Ct. App. Div. 2008). Metabolite contends that its entitlement to royalties requires it to prove infringement as a necessary component of the breach element, i.e., “whether the homocysteine[-only] assays performed by LabCorp fell within the claims of the Licensed Patents and therefore were Licensed Assays.” Petr.’s Rep. Br. 19. Because infringement of the ’658 patent was determined in Metabolite I, here Metabolite’s hypothetical action does not require resolution of a disputed question of patent law central to the disposition of the breach of contract claim. See Grable, 545 U.S. at 314- 15 (conferring federal jurisdiction where plaintiff’s state-law complaint, which sought to quiet title to property that the IRS seized and sold at auction, depended solely on a dispute about the adequacy of the IRS’s compliance with seizure notification procedures set forth in the federal tax law). To be clear, we are not setting forth a new rule of law 2008-1597 9 that a concession after the filing of a complaint operates to defeat jurisdiction. Such a rule would be contrary to established precedent. See Keene Corp. v. United States, 508 U.S. 200, 207 (1993)(citing Mollan v. Torrance, 22 U.S. 537, 539 (1824)(“It is quite clear, that the jurisdiction of the Court depends upon the state of things at the time of the action brought, and that after vesting, it cannot be ousted by subsequent events.”)). Grable and Empire Healthchoice guide our analysis. First, for jurisdiction to exist in our court, the substantial question of patent law must be disputed and require resolution on the merits. Christianson, 486 U.S. at 808-09; Empire Healthchoice, 547 U.S. at 700-01. Here, the jury verdict and subsequent judgment in Metabolite I determined that the homocysteine-only assay is a Licensed Assay because it infringes the ’658 patent, and LabCorp materially breached the License Agreement by performing assays without paying know-how royalties. See Special Verdict Form at J.A. 21072-74. We affirmed. See Metabolite II, 370 F.3d at 1370. The issue of infringement, therefore, has been resolved and is no longer disputed. Accordingly, Metabolite’s hypothetical breach of contract claim presents this court with no disputed issue of patent law. See Speedco, 853 F.2d at 912-13 (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 13 (1983), for the proposition that “original federal jurisdiction is unavailable unless it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims”). This is not a case in which the contract claim requires resolution of a related question of patent law. Cf. Air Measurement Tech., Inc. v. Akin Gump Strauss Hauer & Feld, LLP, 504 F.3d 1262, 1272 (Fed. Cir. 2007) (finding a disputed, substantial issue of patent law exists when a party is required to prove its patent infringement suit to satisfy 2008-1597 10 the “but for” causation requirement of a state legal malpractice claim); Immunocept, LLC v. Fulbright & Jaworski, LLP, 504 F.3d 1281, 1285 (Fed. Cir. 2007) (same); U.S. Valves, Inc. v. Dray, 212 F.3d 1368, 1372 (Fed. Cir. 2000) (holding that the exercise of § 1338 jurisdiction by a district court is proper when a plaintiff, in order to succeed on a breach of contract action, is required to prove that certain of defendant’s products infringe). Such cases are distinguishable because the instant matter does not present a “case within a case.” Here, it is undisputed that the post-trial conduct falls within the scope of the ’658 patent. While the finding of breach is based on a finding of infringement, the district court would not have to conduct an infringement analysis because Metabolite I established infringement and neither party contests that decision. Moreover, in Board of Regents, we clarified the scope of Valves and made clear that not “all breach of contract actions involving patents require” a determination of patent infringement. Bd. of Regents, 414 F.3d at 1364. Second, the mere presence of a patent as relevant evidence to a claim does not by itself present a substantial issue of patent law. See Excelstor Tech., Inc. v. Papst Licensing GMBH & Co. KG, 541 F.3d 1373, 1376-77 (Fed. Cir. 2008) (affirming dismissal for lack of § 1338 jurisdiction when declaratory judgment claim raised patent exhaustion to challenge royalties due under a license agreement). Like the declaratory defendant in Speedco, Metabolite’s claim would concern only state law contract claims. Speedco, 853 F.2d at 912-13 (dismissing the declaratory judgment complaint for lack of § 1338 jurisdiction because defendant’s hypothetical claim would be to recover damages under a contract to transfer patent ownership and plaintiff’s patent claims only related to possible state law defenses). This case is even more attenuated than 2008-1597 11 Speedco because here the subject of the contractual dispute is not a patent, but rather know-how rights that refer to a patent. Id. at 912. Unlike Grable where the “meaning of the federal tax provision . . . [was] an important issue of federal law that sensibly belongs in federal court,” breach of contract is a fact specific application of state law. Empire Healthchoice, 547 U.S. at 700. Though significant to Metabolite’s claim, a breach of contract analysis would not require “resort to the experience, solicitude, and hope of uniformity that a federal forum offers.” Grable, 545 U.S. at 312. Hearing a context-driven, state law contract issue in this court provides no “hope of uniformity” in the patent laws. And adjudication of patent law issues in the decisions of a regional circuit court would not defeat Congress’s goal of uniformity in the patent laws. See Speedco, 853 F.2d at 913-14 (“[T]he statutory limitations on the jurisdiction of this court and the federal district courts, in conjunction with the well-pleaded complaint rule, can and do result in state courts resolving patent issues.”); Green v. Hendrickson Publishers, Inc., 770 N.E. 2d 784, 793 (Ind. 2002) (relying on Vornado to conclude in dicta that state courts can hear patent law claims included in the answer and/or counterclaims because post-Vornado a patent law counterclaim does not “arise under” within the meaning of § 1338). Because the issue of patent law is not disputed and substantial, we do not have jurisdiction over this appeal. See Grable, 545 U.S. at 314-15. The dissent’s argument is based on a fundamental misunderstanding that because LabCorp began to outsource the homocysteine-only assays after this court issued its decision finding infringement, this court could not have resolved the issue of whether LabCorp’s outsourced assays infringe the ’658 patent. Dissent, Op. at 4-5. But 2008-1597 12 at the time of filing of the complaint, neither party contended that the outsourced homocysteine-only assays were different from the infringing in-house Abbott Test. See Minneapolis & St. Louis R.R. Co. v. Peoria & Pekin Union Ry. Co., 270 U.S. 580, 586 (1926) (Jurisdiction depends upon “the state of things existing at the time the suit was brought.”). The dissent cites to LabCorp’s statement in the second case’s Final Pretrial Order, where LabCorp stated that “the homocysteine-only assays at issue in this case are not ‘Licensed Assays,’” as a concession that Metabolite would have to establish that the outsourced homocysteine assays were in fact covered by the ’658 patent in order to prevail on its claim. However, the pretrial order is not relevant because jurisdiction over a declaratory judgment action must be derived from Metabolite’s hypothetical claims. The one-count complaint requested resolution of a contract dispute—a declaration regarding whether the judgment in Metabolite I terminated the know-how license, and if the agreement was still valid whether it was contractually obligated to pay a royalty on homocysteine-only assays performed by a third party. Thus, Metabolite’s hypothetical claims could not involve resolution of a substantial question of patent law because it was undisputed that the outsourced conduct is the same as the in-house performance of the Abbott Test. 3 Therefore, the issue is not whether the outsourced assays fall within the claims of the ’658 patent but whether LabCorp breached the terms of the License Agreement by its outsourcing activity. Also, we do not agree that the res judicata effect of a prior judgment under a At oral argument, counsel for Metabolite acknowledged that the outsourced assays are the same as the infringing, in-house assays. Oral Arg. at 10:12- 11:00 (“We took the position, and still take the position, that the fact that these assays are covered by the patent can’t be disputed because the judgment of the first case is that these assays are covered by the patent.”). 2008-1597 13 “look through” approach provides the missing jurisdictional predicate under § 1338. Dissent, Op. at 3. Relying on Semtek Int’l, Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001), and Vaden v. Discover Bank, 129 S. Ct. 1262 (2008), the dissent claims that “if a claimant is bringing a suit to enforce or determine the res judicata effect of a prior judgment ‘arising under’ federal patent laws, that is a suit that itself arises under the federal patent laws.” Dissent, Op. at 4. However, in Semtek, the Supreme Court simply recognized that “federal common law governs the claim-preclusive effect of a dismissal by a federal court sitting in diversity” and then announced as a matter of federal common law that such an effect is governed by “the law that would be applied by state courts in the State in which the federal diversity court sits.” 531 U.S. at 507-08. Semtek is inapposite here because the Metabolite I court’s jurisdiction was not based on diversity. Furthermore, in Vaden, the Supreme Court interpreted § 4 of the Federal Arbitration Act, which authorizes a district court “to entertain a petition to compel arbitration if the court would have jurisdiction, ’save for [the arbitration] agreement,’ over ’a suit arising out of the controversy between the parties.’” 129 S. Ct. at 1267-68 (alteration in original); see 9 U.S.C. § 4. According to the Vaden Court, “a complaint purporting to rest on state law, we have recognized, can be recharacterized as one ‘arising under’ federal law if the law governing the complaint is exclusively federal.” 129 S. Ct. at 1273. The Court then approved this so-called “look through” approach in the context of § 4, explaining that “[a] federal court may ‘look through’ a § 4 petition to determine whether it is predicated on an action that ‘arises under’ federal law.” Id. The present case, by contrast, does not invoke § 4 of the Federal Arbitration Act and cannot be recharacterized as one arising under federal patent law. Thus the “look through” 2008-1597 14 approach does not support the dissent’s position. All federal courts are courts of limited jurisdiction, and we do not take jurisdiction over cases simply because they relate to the res judicata effect of our prior judgment. We have considered the remainder of Metabolite’s arguments and find them unpersuasive. CONCLUSION Metabolite has thus failed to show that we have jurisdiction under 28 U.S.C. § 1338 to resolve this case on the merits. Accordingly, pursuant to 28 U.S.C. § 1631, we consider it in the interest of justice to transfer the present appeal to the Tenth Circuit. TRANSFERRED TO TENTH CIRCUIT COSTS Costs to Appellee. 2008-1597 15 United States Court of Appeals for the Federal Circuit 2008-1597 LABORATORY CORPORATION OF AMERICA HOLDINGS (doing business as LabCorp), Plaintiff-Appellee, v. METABOLITE LABORATORIES, INC., Defendant-Appellant. Appeal from the United States District Court for the District of Colorado in case no. 04-CV-1662, Senior Judge Zita L. Weinshienk. DYK, Circuit Judge, dissenting. At its heart, this case involves the question whether the res judicata effect of our earlier decision in Metabolite Laboratories, Inc. v. Laboratory Corp. of America Holdings, 370 F.3d 1354 (Fed. Cir. 2004) (“Metabolite II”), requires that the contract provision here be treated as terminated. The majority finds that we lack jurisdiction over that question and transfers to the 10th Circuit, so that the 10th Circuit must determine the res judicata effect of our prior judgment. In my view, jurisdiction over this case lies in this court for at least two reasons. First, we have jurisdiction because a suit to enforce or determine the res judicata effect of a prior judgment “arising under” the federal patent laws is itself a suit that arises under the federal patent laws. Second, the determination of contract entitlement rests on a substantial question of patent law. I The present case arises from a declaratory judgment action filed in 2005, Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc., 571 F. Supp. 2d 1199 (D. Colo. 2008) (“Metabolite III”), subsequent to our decision in Metabolite II, affirming Metabolite Laboratories, Inc. v. Laboratory Corp. of America Holdings, No. 99- CV-870, 2001 WL 34778749 (D. Colo. Dec. 3, 2001) (“Metabolite I”). Laboratory Corporation of America Holdings (“LabCorp”) sought a declaration that Metabolite Laboratories, Inc. (“Metabolite”) was not entitled to recover breach of contract damages for activity occurring after the time period covered by the Amended Judgment in Metabolite I, because the jury in Metabolite I had found that the License Agreement had been terminated as to the homocysteine-only assay. Metabolite III, 571 F. Supp. 2d at 1204. Metabolite opposed declaratory relief, contending that the jury had not terminated the License Agreement as to homocysteine assays, and that LabCorp breached the still-valid license through its post-judgment performance of the homocysteine-only test and refusal to pay know-how royalties. Id. Thus, the scope of the prior judgment in Metabolite II is part of Metabolite’s hypothetical claim in this case, 1 In a declaratory judgment action, the court must look to the hypothetical action that the declaratory defendant would have brought, rather than the complaint, in order to determine whether jurisdiction attaches. See Speedco, Inc. v. Estes, 853 F.2d 909, 912 (Fed. Cir. 1988). 2008-1597 2 because the existence of a valid contractual obligation is a necessary predicate to recovery of damages for breach of such contractual obligation. 2 In order to adjudicate Metabolite’s claim on the merits in this case, we would be required to determine the scope of our prior judgment in Metabolite II, and assess whether it would be entitled to res judicata effect. The issue of the res judicata effect of the prior judgment suffices for the exercise of “arising under” jurisdiction. The res judicata effect of a prior federal court judgment is itself determined by federal law. See, e.g., Stoll v. Gottlieb, 305 U.S. 165, 171-72 (1938); Deposit Bank v. Frankfort, 191 U.S. 499, 514-15 (1903); see also Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507-08 (2001). A suit to determine the res judicata effect of a judgment thus arises under federal law. 3 The question is whether it also “arises under” federal patent law. See 28 U.S.C. § 1338(a). That question depends on whether we should “look through” the prior judgment to determine whether it is predicated on an action that “arises under” the federal patent laws. The Supreme Court’s decision in Semtek International (which looked through the original judgment to determine that it rested on diversity) supports looking through the prior judgment to determine the original source of jurisdiction in order to characterize the judgment for res judicata purposes. 531 U.S. at 508-09. Similarly, under Vaden v. Discover Bank, 129 S. Ct. 1262 (2009), the Supreme Court approved the “look through” See, e.g., Persson v. Scotia Prince Cruises, Ltd., 330 F.3d 28, 34 (1st Cir. 2003) (“A breach of contract complaint must allege (1) the existence of a valid and binding contract; (2) that plaintiff has complied with the contract and performed his own obligations under it; and (3) breach of the contract causing damages.”); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1235, at 388- 91 (3d ed. 2004). In contrast, a suit to collect on a federal law judgment does not present a federal question. See Metcalf v. Watertown, 128 U.S. 586, 588 (1888). 2008-1597 3 approach to “arising under” jurisdiction in the context of the Federal Arbitration Act. Id. at 1273 (“A federal court may ‘look through’ a § 4 petition to determine whether it is predicated on an action that ‘arises under’ federal law . . . .”). Under the look through approach, since the original judgment here depended in part on patent jurisdiction, we have jurisdiction over the appeal. In other words, if a claimant is bringing a suit to enforce or determine the res judicata effect of a prior judgment “arising under” federal patent laws, that is a suit that itself arises under the federal patent laws. II Even putting to one side the res judicata issue, the majority has adopted an erroneous construction of “arising under” jurisdiction under 28 U.S.C. § 1338(a) as to the underlying contract claim. When filed, this case presented a substantial disputed issue of patent law that had not been determined in our earlier decision in Metabolite II. It is undisputed that the contract between LabCorp and Metabolite does make an issue of patent law a determinative issue in this case. The royalties under the License Agreement are tied to net sales of “Licensed Assays,” and licensed assays for homocysteine are defined as “assays . . . using methods and materials falling within the claims of the Licensed Patents.” J.A. 20782. Thus, royalties are only due under the agreement if the assays LabCorp sold fall within the scope of the licensed patents, i.e., only if the unauthorized sales would be infringing. Under very similar facts in U.S. Valves, Inc. v. Dray, 212 F.3d 1368 (Fed. Cir. 2000), we concluded that the case raised a substantial question of federal patent law, and that jurisdiction existed. See id. at 1372. In Valves, the plaintiff (an exclusive patent licensee) brought an action against the licensor, alleging breach of contract 2008-1597 4 based on the licensor’s sale of allegedly equivalent valves in contravention of the exclusive license agreement. We held that in order to show that the licensor sold valves in contravention of the agreement, the licensee was required to show that the licensor sold valves that were covered by the licensed patents. Consequently, “a court must interpret the patents and then determine whether the . . . valve[s] infringe[] these patents. Thus patent law is a necessary element of U.S. Valves’ breach of contract action.” Id. In this case, as in Valves, the question of whether LabCorp breached the agreement to pay “know-how” royalties necessarily turns on the question of infringement of the ’658 patent, and this implicates a substantial question of patent law. The majority does not appear to dispute this point. Instead, the majority points to Supreme Court cases stating that the federal issue must be “actually disputed” and concludes that there is no substantial disputed issue of patent law here because infringement of the ’658 patent was determined in our earlier decision and is now not contested. Majority Op. at 10. The majority’s reasoning is flawed in two critical respects: (1) our decision in Metabolite II did not in fact determine whether the outsourced assays were covered by the patent claims, and (2) the fact that the federal issue becomes undisputed after the case was filed does not deprive a court of jurisdiction. The original Metabolite case involved the question of whether LabCorp induced infringement of claim 13 of the ’658 patent. See Metabolite II, 370 F.3d at 1358-59. Claim 13 of the ’658 patent claims the total homocysteine test: “[a] method for detecting a deficiency of cobalamin or folate in warm-blooded animals comprising the steps of: 2008-1597 5 assaying a body fluid for an elevated level of homocysteine; and correlating an elevated level of total homocysteine in said body fluid with a deficiency of cobalamin or folate.” ’658 patent col.41 ll.58-65. Metabolite’s theory at the first trial was apparently that the Abbott assays were licensed assays because LabCorp had induced infringement of claim 13 of the patent with respect to the Abbott assays. See Appellee’s Br. 50, Metabolite II, 370 F.3d 1354 (No. 03-1120). Once we issued our mandate in Metabolite II on August 12, 2004, and the injunction stay was lifted, LabCorp stopped performing homocysteine-only tests itself and instead entered into an agreement with Specialty Laboratories, Inc. (“Speciality”), which is licensed by Competitive Technologies, Inc. under the ’658 patent, for Specialty to perform homocysteine-only tests for LabCorp. Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, No. 99-cv-870-ZLW-CBS, slip op. at 8-9 (D. Colo. Sept. 21, 2006). This court in Metabolite II did not address the question of whether the outsourced assays were licensed assays. At the time the complaint was filed in this case, there was a substantial, disputed issue of patent law, because the issue of whether the outsourced homocysteine assays were in fact covered by the ’658 patent claims was contested by LabCorp. The theory in Metabolite I was not (as the majority assumes) that the Abbott assays standing alone were “licensed assays” protected by the ’658 patent, but that the Abbott assays were “licensed assays” because LabCorp had induced infringement of claim 13 of the patent using those assays; claim 13 of the patent did not in fact specify use of a patented assay. See ’658 patent col.41 ll.58-65. The inducement issue with 2008-1597 6 respect to the outsourced assays could well have been different than the original inducement question resolved in Metabolite I. In its initial complaint in this case in the district court, LabCorp sought a declaratory judgment that it was not liable for any royalties with respect to the newly outsourced homocysteine-only assays. First Amended Complaint for Declaratory Judgment at 5, Metabolite III, 571 F. Supp. 2d 1199 (No. 04-cv-1662). As referenced in the Final Pretrial Order signed by both parties, LabCorp asserted that the homocysteine assays were not “Licensed Assays” because they did not fall within the claims of the ’658 patent. Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., No. 04-cv-1662, slip op. at 3 (D. Colo. Feb. 7, 2008) (final pretrial order). At oral argument, counsel for LabCorp conceded that “it is possible that the court could have had to decide [the question of whether the outsourced homocysteine assays fell within the claims of the ’658 patent] in this case.” Oral Arg. at 22:58-23:01. In order for Metabolite to prevail on its hypothetical claim for royalties, it would have had to establish that the outsourced homocysteine assays were in fact covered by the ’658 patent. The fundamental error of the majority is that, while it claims otherwise, it fails to look at the controversy prevailing at the time that the complaint was filed. Under established Supreme Court authority, later concessions (such as those ultimately made in this case that the outsourced assays were licensed assays) do not operate to defeat jurisdiction that rightfully attached at the outset of the case. See, e.g., Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289-90 (1938) (“Events occurring subsequent to the institution of suit . . . do not oust jurisdiction.”); Minneapolis & St. Louis R.R. Co. v. Peoria & Pekin 2008-1597 7 Union Ry. Co., 270 U.S. 580, 586 (1926) (“The jurisdiction of the lower court depends upon the state of things existing at the time the suit was brought.”); Anderson v. Watt, 138 U.S. 694, 702-03 (1891) (“And the [jurisdictional] inquiry is determined by the condition of the parties at the commencement of the suit.”); Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539 (1824) (“[T]he jurisdiction of the Court depends upon the state of things at the time of the action brought, and . . . after vesting, it cannot be ousted by subsequent events.”). Thus, I think that the district court had jurisdiction over this case under 28 U.S.C. § 1338(a), and we accordingly can and must address the merits. I respectfully dissent from the majority’s contrary holding. 2008-1597 8

United States Court of Appeals for the Federal Circuit 2009-1357 DELAWARE VALLEY FLORAL GROUP, INC. (formerly known as Flower Transfers, Inc. and Delaware Valley Wholesale Florist, Inc.) and ESPRIT MIAMI, INC., Plaintiffs-Appellees, and SUPERIOR FLORALS, INC., Plaintiff-Appellee, and CHOICE FARMS CORP., Plaintiff-Appellee, and CONTINENTAL FARMS, LLC and CONTINENTAL FLOWERS, INC., Plaintiffs-Appellees, and OLAMOR FLOWERS, INC., Plaintiff, v. SHAW ROSE NETS, LLC and KENNETH P. SHAW, Defendants-Appellants. Ury Fischer, Lott & Friedland, P.A., of Coral Gables, Florida, argued for all plaintiffs-appellees. With him on the brief for Continental Farms, LLC, et al., was Geoffrey Lottenberg. James A. Gale, Feldman Gale, P.A., of Miami, Florida, for plaintiffs-appellees Delaware Valley Floral Group, Inc., et al. With him on the brief was Richard Guerra. Ted H. Bartelstone, Ted H. Bartelstone P.A., of Miami, Florida, for plaintiff- appellee Superior Florals, Inc. Steven R. Reininger, Rasco Klock Reininger Perez Esquenazi Vigil & Nieto, P.L., of Coral Gables, Florida, for plaintiff-appellee Choice Farms Corp. Rhett Traband, Broad and Cassel, of Miami, Florida, argued for defendants- appellants. Appealed from: United States District Court for the Southern District of Florida Judge Adalberto Jordan United States Court of Appeals for the Federal Circuit 2009-1357 DELAWARE VALLEY FLORAL GROUP, INC. (formerly known as Flower Transfers, Inc. and Delaware Valley Wholesale Florist, Inc.) and ESPRIT MIAMI, INC., Plaintiffs-Appellees, and SUPERIOR FLORALS, INC., Plaintiff-Appellee, and CHOICE FARMS CORP., Plaintiff-Appellee, and CONTINENTAL FARMS, LLC and CONTINENTAL FLOWERS, INC., Plaintiffs-Appellees, and OLAMOR FLOWERS, INC., Plaintiff, v. SHAW ROSE NETS, LLC and KENNETH P. SHAW, Defendants-Appellants. Appeal from the United States District Court for the Southern District of Florida in case no. 07-CV-20199, Judge Adalberto Jordan. __________________________ DECIDED: March 11, 2010 __________________________ Before BRYSON, LINN, and PROST, Circuit Judges. PROST, Circuit Judge. Appellants Shaw Rose Nets, LLC and Kenneth P. Shaw (“Mr. Shaw”) (collectively, “Shaw”) appeal a final judgment in a patent infringement case in favor of Plaintiffs-Appellees Delaware Valley Floral Group, Inc. (formerly known as Flower Transfers, Inc. and Delaware Valley Wholesale Florist, Inc.) and Esprit Miami, Inc., and Superior Florals, Inc., and Choice Farms Corp., and Continental Farms, LLC and Continental Flowers, Inc., and Olamor Flowers, Inc. (collectively, “Plaintiffs”). Shaw appeals the district court’s grant of summary judgment that U.S. Patent No. 5,765,305 (“’305 patent”) is invalid based on the application of the on-sale bar pursuant to 35 U.S.C. § 102(b), and the court’s subsequent denial of its motion for reconsideration. We affirm. BACKGROUND It is undisputed that Mr. Shaw is the inventor and owner of the ’305 patent, applied for on January 16, 1996 and issued on June 16, 1998. The ’305 patent describes a process that produces larger rose heads by placing elastic, porous nets over the rose heads during the growing process and removing them before the roses are cut and sold. After Shaw sent Plaintiffs several cease-and-desist letters based upon their purported infringement of the ’305 patent, Plaintiffs filed a lawsuit against Shaw seeking declaratory relief. Shaw counterclaimed for infringement. 2009-1357 2 When Mr. Shaw answered Plaintiffs’ interrogatories on December 20, 2007 and February 25, 2008, he averred that he invented the process described and claimed in the ’305 patent in August 1995. J.A. 201. He also explained that he first offered to sell a product using this process “in or around August/September 1995” to a flower shop in Chicago, Illinois. J.A. 197-98. On March 13, 2008, Plaintiffs deposed Mr. Shaw. Mr. Shaw testified eighteen times that he invented the process described and claimed in the ’305 patent in 1994. When Plaintiffs’ counsel asked Mr. Shaw about the discrepancy between his interrogatories and deposition testimony, he responded “[t]hat [the interrogatory answer] was either a mistype or whatever. However, it was August of ’94 and I wasn’t sure if it was August or about early ’94. I thought we had answered with early 1994 . . . .” J.A. 183. When then shown his interrogatory answer indicating August 1995 in Ecuador as the earliest date and location of the conception, Mr. Shaw explained “[i]t was a typo error and I didn’t notice it. I read these documents over, too, and I didn’t notice the error.” Id. Mr. Shaw testified that he knew he developed the invention on May 11 through 14 of 1994 because he confirmed the timing with (1) David Sperber (“Sperber”), his personal assistant in Ecuador; (2) Govindarajan Muthiah (“Muthiah”), a graduate student at the University of Florida hired by Shaw as an employee; and (3) his passport, which he reviewed the night before the deposition and offered for evidentiary support. J.A. 175, 184, 784. Mr. Shaw explained that Pedro Salzedo (“Salzedo”), a Shaw employee, figured out how to get the right size and quantity nets from the manufacturer. J.A. 178. Mr. Shaw testified that they “ironed out all the wrinkles” and started commercially exporting 2009-1357 3 roses grown with the patented process in September 1994 to Royal Floral Distributors, who then sold them to hundreds of customers. J.A. 178-80. While he was not sure of the exact date Muthiah started working for him, Mr. Shaw explained that it was approximately September 1994 and that he hired Muthiah after Shaw began commercial sales. J.A. 182. Mr. Shaw stated that he hired Muthiah “to do all the testing, experimental, whatever was necessary to bring [his] patent to market.” J.A. 784. Mr. Shaw also discussed his experimentation with Salzedo, using garbage bags and rubber bands instead of netting, in 1995. J.A. 184-85. At the end of Mr. Shaw’s deposition, Plaintiffs’ counsel announced: “I’m adjourning. We’re not done . . . we will reconvene.” J.A. 875. They never did reconvene. Mr. Shaw’s deposition transcript was available on March 27, 2008. On May 6, 2008, Plaintiffs served Shaw with a motion for sanctions under Federal Rule of Civil Procedure (“FRCP”) 11. Plaintiffs demanded that Shaw withdraw its allegations of infringement due to patent invalidity based upon the application of the on-sale bar pursuant to 35 U.S.C. § 102(b). Shaw responded with a declaration from Muthiah, stating that Mr. Shaw hired him in August 1995. Muthiah explained that he was responsible for “assisting Mr. Shaw in testing, refining and improving his newly discovered method of growing roses with nets on the rose bud.” J.A. 518. Muthiah testified that he went to Ecuador in October and November 1995 to test and refine the process, and he completed the testing and prepared the drawings contained in the application for the patent-in-suit in December 1995. J.A. 518-19. Mr. Shaw also executed an errata sheet, on May 23, 2008, in an effort to alter his deposition testimony 2009-1357 4 to say that the date of the invention and the commercial sales of the roses grown using the patented process was 1995, rather than 1994. On June 11, 2008, Plaintiffs moved for summary judgment, arguing that the inventor’s testimony about the date of the invention and sales of roses grown with the patented process demonstrates that the on-sale bar in 35 U.S.C. § 102(b) invalidates the patent-in-suit. On September 29, 2008, Mr. Shaw executed a declaration in opposition to Plaintiffs’ motion, averring that “[t]he year that I conceived the patented method and began selling and importing roses grown utilizing the patented method was 1995, not 1994 as I stated during my deposition.” J.A. 465. Mr. Shaw explained that he had confused 1994 with 1995 based upon a last-minute review of his passport, which included many stamps reflecting trips to Ecuador. J.A. 464. After oral argument, the district court granted summary judgment, dismissing Shaw’s counterclaim and invalidating the ’305 patent. The district court explained that the only real dispute concerned the dates of conception and commercial sales. The district court dismissed Mr. Shaw’s attempt to correct his allegedly mistaken deposition testimony as untimely under FRCP 30. The district court also excluded Mr. Shaw’s errata sheet because (1) Mr. Shaw did not equivocate during his deposition and (2) Mr. Shaw “is a seasoned deponent; he stated in his deposition that he has been deposed 40 to 50 times.” Del. Valley Floral Group, Inc. v. Shaw Rose Nets, LLC, No. 07-CV- 20199, slip op. at 11-12 (S.D. Fla. Dec. 10, 2008) (“Summary Judgment Op.”). Similarly, the court did not permit Mr. Shaw to use his declaration of September 29, 2008 (“2008 declaration”) to create a genuine issue of material fact with respect to the dates of conception or commercial sales. The district court also concluded that 2009-1357 5 Muthiah’s statement that the invention was “newly discovered” in 1995 could not be used to create a genuine issue of material fact with regard to the date of conception because Muthiah lacked personal knowledge of events that occurred before he was hired. Further, the court found that the process was “ready for patenting” before the statutory critical date, which Shaw did not dispute. After the district court granted summary judgment, Shaw filed a motion for reconsideration and presented what it termed “newly discovered evidence of the date of the invention and the dates of experimentation with the process after the statutory critical date.” The district court denied this motion, finding that the two declarations were not newly discovered because the testimony was not unavailable prior to the grant of summary judgment. Shaw timely appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION Shaw raises several issues on appeal. First, it challenges the district court’s grant of summary judgment, arguing that the district court erred in excluding evidence that demonstrates genuine issues of material fact with respect to (1) the date of invention and commercial sales as well as (2) whether the process was “ready for patenting.” Second, Shaw challenges the district court’s denial of its motion for reconsideration, urging us to consider the additional declarations it submitted. We address these issues in turn. I. Standard of Review We review a district court’s grant of summary judgment de novo. Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363, 1378 (Fed. Cir. 2008). Summary judgment is only 2009-1357 6 appropriate when 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). All reasonable inferences are drawn in favor of the non-movant, and the evidence is viewed in the light most favorable to the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We review a district court’s decision to exclude evidence and to deny a motion for reconsideration under the law of the pertinent regional circuit. Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387, 1390-91 (Fed. Cir. 2003) (exclude evidence); Minton v. Nat’l Ass’n Sec. Dealers, Inc., 336 F.3d 1373, 1378 (Fed. Cir. 2003) (motions for reconsideration). The Eleventh Circuit, the pertinent regional circuit here, reviews a district court’s decision to exclude evidence for abuse of discretion. Schafer v. Time, Inc., 142 F.3d 1361, 1370 (11th Cir. 1998). Similarly, the Eleventh Circuit reviews a ruling on a motion for reconsideration under the abuse of discretion standard. See Corwin v. Walt Disney World Co., 475 F.3d 1239. 1254 (11th Cir. 2007). II. Summary Judgment On appeal, the first challenge by appellants is that genuine issues of material fact preclude summary judgment based on the application of the on-sale bar. The Supreme Court has established a two-part test for the on-sale bar set forth in 35 U.S.C. § 102(b). Under this test, an inventor is barred from obtaining a patent where the patent application is filed more than one year after (1) the product was sold or offered for sale and (2) the invention is ready for patenting. Pfaff v. Wells Elecs., Inc., 525 U.S. 55, 67 (1998). A patentee that demonstrates experimental use may overcome the application 2009-1357 7 of the on-sale bar. See EZ Dock, Inc. v. Schafer Sys., Inc., 276 F.3d 1347, 1352 (Fed. Cir. 2002). Whether summary judgment was proper in this case rests principally on whether the district court erred in rejecting certain submissions by Shaw that arguably would have, if considered, presented a dispute over issues of material fact, i.e., whether the date of conception and commercial sales of products using the patented process was in 1994 or 1995. Faced with a motion for sanctions based on Mr. Shaw’s deposition testimony stating that 1994 was the date of conception and commercial sales, Shaw tried to recover in several ways. First, it submitted an errata sheet. Second, after Plaintiffs moved for summary judgment, it submitted Mr. Shaw’s declaration. Third, it submitted Muthiah’s declaration. All of these were efforts to create a dispute between its newly minted documents and Mr. Shaw’s deposition testimony. The district court dismissed these efforts after determining that each was inadmissible evidence. With respect to its exclusion of Mr. Shaw’s errata sheet, the district court explained that, indisputably, Mr. Shaw’s errata sheet was not submitted until well beyond the thirty days FRCP 30(e) affords to deponents to make changes to deposition testimony. Further, the court determined that Mr. Shaw was a seasoned deponent, giving forty to fifty depositions, who unequivocally and repeatedly testified that he invented the process and sold roses grown via the patented process in 1994 rather than 1995. Moreover, the court explained that when Plaintiffs’ counsel directly and repeatedly confronted Mr. Shaw regarding the discrepancy between his deposition testimony and his interrogatory answers, Mr. Shaw adamantly maintained that 1994 rather than 1995 was the correct date. He even “offered his passport for verification 2009-1357 8 and referred to specific stamps and pages from his passport” to support the 1994 dates. Summary Judgment Op. at 12. In addition, Mr. Shaw did not serve his errata sheet until about two and a half weeks after Plaintiffs served him with their motion for sanctions, notifying him that his testimony was fatal to his claim. Id. Based on this record, the district court found that Mr. Shaw’s errata sheet and attempt to substantively alter his deposition testimony was untimely and not admissible. Similarly, the district court rejected Mr. Shaw’s newly executed declaration, which sought to make the same changes as his errata sheet in a different format. Finally, the district court excluded Muthiah’s declaration because Muthiah lacked personal knowledge as to the events about which he testified. On appeal, Shaw makes several arguments in challenging the district court’s rejection of all three documents. Specifically, Shaw submits that the district court erred in exclusively relying on Mr. Shaw’s mistaken and incomplete deposition testimony without consideration of his subsequent errata sheet or declaration. It further argues that the court erred in failing to consider Muthiah’s declaration and other evidence, 2009-1357 9 namely the declarations of Sperber and Salzedo. 1 We review a district court’s decision to exclude evidence for abuse of discretion. We do not find such abuse here. It is undisputed that Mr. Shaw’s errata sheet was not executed until May 23, 2008, fifty-seven days after March 27, 2008, the date the deposition transcript was available. Nonetheless, Shaw argues that the district court erred in failing to consider Mr. Shaw’s errata sheet because Rule 30(e) does not prohibit such substantive changes, presumably beyond the thirty days. The district court did not abuse its discretion in this regard. The Eleventh Circuit has not determined whether Rule 30(e) ever allows for substantive changes to deposition testimony through an errata sheet. See Cultivos Yadran S.A. v. Rodriquez, 258 F.R.D. 530, 532 (S.D. Fla. 2009). 2 It is undisputed that Sperber’s and Salzedo’s affidavits were not offered into evidence until Shaw submitted its motion for reconsideration. To the extent that Shaw offers this testimony to bolster its argument that summary judgment was inappropriate, we will not consider it here. This evidence could not have been considered by the district court at that time. Similarly, based on the facts and circumstances surrounding this case, it would be improper to consider this evidence when determining whether summary judgment was appropriate. See Dakota Indus., Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th Cir. 1993) (“Th[e] authority to enlarge a record is rarely exercised and is a narrow exception [when the interests of justice demand it] to the general rule that an appellate court may consider only the record made before the district court.” (citations omitted)); Dickerson v. Alabama, 667 F.2d 1364, 1367 (11th Cir. 1982) (“federal appellate courts do not often supplement the record on appeal with evidence not reviewed by the court below, . . . [w]hether an appellate record should be supplemented under the particular circumstances of a case is a matter left to the discretion of the federal courts of appeals”), cert. denied, 459 U.S. 878 (1982). We will appropriately address this additional evidence when we turn to the motion for reconsideration. See infra Part III. At least one circuit, however, has determined that a party cannot create an issue of fact by amending his deposition under Rule 30(e). See Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397, F.3d 1217, 1225-26 (9th Cir. 2005) (“While the language of FRCP 30(e) permits corrections ‘in form or substance,’ this permission does not properly include changes offered solely to create a material factual dispute in a tactical attempt to evade an unfavorable summary judgment.”). 2009-1357 10 However, even if Rule 30(e) does not prohibit such substantive changes, it certainly does not require them, particularly after the thirty-day period has passed. Mr. Shaw did not attempt to submit an errata sheet to make substantive changes to his unequivocal testimony until after the thirty days permitted under Rule 30(e) and after Plaintiffs moved for sanctions due to the application of the on-sale bar. Under the circumstances here, Shaw has failed to demonstrate that the district court abused its discretion by excluding his errata sheet. 3 Further, beyond the errata sheet, Shaw argues that the district court clearly erred in failing to consider Mr. Shaw’s 2008 declaration submitted in opposition to summary judgment. Shaw relies primarily on McCormick v. City of Fort Lauderdale, 333 F.3d 1234 (11th Cir. 2003), to support its assertion. We disagree. As the Eleventh Circuit has explained, “[w]hen a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” McCormick, 333 F.3d at 1240 n.7 (quoting Van T. Junkins & Assocs. v. U.S. Indus., 736 F.2d 656, 657 (11th Cir. 1984)) (emphasis in McCormick and alterations added). Rather, that affidavit would be a sham. Id. Shaw also argues that the district court erred in relying on Mr. Shaw’s deposition because it was “incomplete.” Shaw complains that Plaintiffs adjourned Mr. Shaw’s deposition while indicating that they would reconvene. They never did. Shaw does not dispute, however, that it failed to raise this argument before the district court. As a general rule, federal appellate courts will not consider issues that were not clearly raised in the proceedings below. Singleton v. Wulff, 428 U.S. 106, 120 (1976); Boggs v. West, 188 F.3d 1335, 1337-38 (Fed. Cir. 1999). Because Shaw failed to raise this argument below, it has been waived and we need not consider it here. 2009-1357 11 In McCormick, the plaintiff on summary judgment submitted an affidavit that contradicted some of the material facts of a previous sworn statement. Id. The plaintiff explained that his testimony was contradictory because the initial statement was given shortly after he underwent surgery for a gunshot wound and he was recovering from the effects of anesthesia and other pain medications. Id. The Eleventh Circuit wrote: [b]ecause McCormick offers some explanation for why his statements directly contradict one another—an explanation that does not appear to us to be itself a complete sham—we will accept and credit McCormick’s affidavit submitted on summary judgment. Although McCormick’s explanations may not credibly withstand cross-examination, weighing the contradictory statements along with the explanations for those contradictions are judgments of credibility. Issues of credibility and the weight afforded to certain evidence are determinations appropriately made by a finder of fact and not a court deciding summary judgment. Id. On appeal, Shaw argues that, under McCormick, the explanation that Mr. Shaw provided ought to be sufficient. The circumstances of McCormick, however, are easily distinguishable from those here. Mr. Shaw does not assert that any medical conditions affected his memory or awareness. Rather, his only explanation for his “mistaken deposition testimony” is that he looked at the wrong passport date stamps. However, the logic, persuasiveness, and viability of Shaw’s effort to show his deposition testimony was in error is severely undermined by his purported explanation for his inconsistency. Indeed, the documentation Shaw offers for support that there are genuine issues in dispute is the same he offered for why his deposition was correct and his interrogatory answers were mistaken. It is well settled that a court may “disregard an affidavit submitted solely for the purpose of opposing a motion for summary judgment when that affidavit is directly 2009-1357 12 contradicted by deposition testimony.” Id. During his deposition, Plaintiffs’ counsel directly asked Mr. Shaw about the discrepancy between the 1994 dates he was currently asserting and the 1995 dates previously averred. In response, Mr. Shaw unequivocally and repeatedly dismissed his earlier interrogatory answers as a mistake. J.A. 175. Further, Mr. Shaw testified eighteen times that he invented the process described and claimed in the ’305 patent in 1994 during the deposition. In this case, we cannot conclude that Shaw does anything more than offer a contradictory declaration to create a genuine issue of material fact. Therefore, this case is clearly distinguishable from the facts in McCormick, where the plaintiff proffered an “explanation that d[id] not appear to [the Eleventh Circuit] to be itself a complete sham.” McCormick, 333 F.3d at 1240 n.7. With regard to the district court’s failure to consider Mr. Shaw’s 2008 declaration, Shaw also cites to this court’s opinion in Gemmy Industries Corp. v. Chrisha Creations Ltd., 452 F.3d 1353 (Fed. Cir. 2006). Like McCormick, the facts and circumstances in this case are distinguishable from Gemmy. In Gemmy, we concluded that the district court erred in not considering the later sworn testimony because there was credible evidence in the form of an opposing party’s testimony and contemporaneous photographs supporting the contradiction. 452 F.3d at 1358-59. In that case, it was undisputed that the invention offered for sale did not contain the fan unit that was required by all of the claims. Id. at 1359. Instead, the prototypes were inflated with an external hair dryer, which suggested that it was not ready for patenting. Id. In the instant case, there is no corroborating admissible evidence supplied as there was in 2009-1357 13 Gemmy. Therefore, Shaw fails to demonstrate that the district court abused its discretion in excluding Mr. Shaw’s declaration. In addition to challenging the district court’s refusal to admit Mr. Shaw’s errata sheet and 2008 declaration, Shaw argues on appeal that the district court erred in excluding Muthiah’s declaration, submitted in opposition to summary judgment. According to Shaw, Muthiah was purportedly hired to assist with refining and testing of the patented process. Shaw asserts that Muthiah’s declaration further supports its contention that Mr. Shaw mistakenly testified at his deposition that the dates of the invention of the process and the first commercial sales were in 1994, when both actually occurred in 1995. The district court found that the critical aspects of Muthiah’s testimony, including the dates of the invention and commercial sale, occurred before Muthiah was hired. He therefore lacked personal knowledge of those events. Thus, according to the district court, Muthiah’s declaration cannot be used to create a genuine issue of material fact that would preclude summary judgment because it was not based on personal knowledge. Reviewing the district court’s decision to exclude this evidence for abuse of discretion, we find none. FRCP 56(e) and the Eleventh Circuit require that affidavits in support of or in opposition to summary judgment must be made with personal knowledge in order to create a genuine issue of material fact. See Pace v. Capobianco, 283 F.3d 1275, 1278 (11th Cir. 2002). Here, there is no dispute that Muthiah started working after the commercial sales took place—whether those sales occurred in either 1994 or 1995— and therefore lacked personal knowledge as to the timing of these events. Accordingly, 2009-1357 14 the district court did not err in excluding Muthiah’s declaration as it relates to the timing of the invention’s conception or commercial sales. Finally, Shaw asserts on appeal that there is also a genuine issue of material fact that precludes summary judgment with regard to whether the process was ready for patenting at the time of the offer to sell. The district court, however, explained that Mr. Shaw testified he “had ironed out all the wrinkles” and started in commercial exportation of roses grown with the process by September 1994. Summary Judgment Op. at 7. Further, the district court explicitly noted that Shaw did not dispute that the invention was ready for patenting at the time roses using the patented process were offered for sale. Id. Therefore, the court found there was no record evidence raising a genuine issue with respect to this prong. At oral argument on appeal, when questioned about whether Shaw waived this argument, counsel’s response was that the argument was “subtly” raised at oral argument before the district court even though it was not the subject of any heading in its brief, and he did not believe the words “ready for patenting” were used. Oral Argument 6:47-7:24, http://oralarguments.cafc.uscourts.gov/mp3/2009-1357.mp3. We conclude that Shaw failed to contest whether the invention was ready for patenting below and that argument is therefore waived. In sum, the district court did not abuse its discretion when it failed to consider Mr. Shaw’s errata sheet or declaration, relied on Mr. Shaw’s deposition testimony, or excluded Muthiah’s declaration. Because we affirm the district court’s findings, the only admissible record evidence does not raise an issue of fact that precludes summary judgment. Rather, upon review, the undisputed evidence demonstrates that the 2009-1357 15 process was developed, ironed out, and thus ready for patenting, with commercial sales occurring in 1994. As this was all before the statutory critical date, it meets the two prongs of the on-sale bar and summary judgment was proper. III. Motion for Reconsideration The second principal question on appeal is whether the district court abused its discretion in denying Shaw’s motion for reconsideration. According to Shaw, the district court erred in failing to consider its “newly-discovered evidence,” namely declarations from Sperber and Salzedo, which allegedly corroborate Mr. Shaw’s corrected deposition testimony and creates a genuine issue of material fact with regard to when the patented process was ready for patenting. The three primary grounds that justify reconsideration are: “(1) an intervening change in the controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice.” Degirmenci v. Sapphire-Fort Lauderdale, LLLP, 642 F. Supp. 2d 1344, 1353 (S.D. Fla. 2009) (quotation marks and citation omitted). “[W]here a party attempts to introduce previously unsubmitted evidence on a motion to reconsider, the court should not grant the motion absent some showing that the evidence was not available during the pendency of the motion.” Shuford v. Fid. Nat’l Prop. & Cas. Ins. Co., 508 F.3d 1337, 1345 (11th Cir. 2007) (quotation marks and citation omitted, alteration in original). In denying Shaw’s motion for reconsideration, the district court found that Shaw failed to show that either Salzedo’s or Sperber’s testimony was unavailable during the pendency of the motion for summary judgment. The court noted that Shaw admittedly attempted to locate Salzedo by contacting Salzedo’s brother in Florida after the district 2009-1357 16 court entered final judgment and thus determined Salzedo’s testimony was not unavailable or newly-discovered. Del. Valley Floral Group, Inc. v. Shaw Rose Nets, LLC, No. 07-CV-20199, slip op. at 3 (S.D. Fla. Apr. 28, 2009). We review the district court’s denial of reconsideration for abuse of discretion. On appeal, Shaw concedes that Sperber’s testimony was not newly discovered evidence. With respect to Salzedo’s testimony, Shaw contends that the district court abused its discretion because the record indicates that Mr. Shaw was unaware of Salzedo’s location prior to the grant of summary judgment, and that he was only able to locate Salzedo by happenstance. However, Shaw’s evidence does not demonstrate that Salzedo was unavailable; it merely shows that Mr. Shaw made no effort to locate him prior to summary judgment. As Shaw failed to provide evidence to establish that Salzedo’s testimony was unavailable prior to summary judgment, the court did not abuse its discretion in denying reconsideration. With respect to its half-hearted argument that manifest injustice requires reconsideration, Shaw appears to assert that this new evidence creates a genuine issue of material fact that precludes summary judgment. However, “[a] motion for reconsideration should not be used as a vehicle to present authorities available at the time of the first decision or to reiterate arguments previously made.” Z.K. Marine, Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992). Rather, it is appropriate where the “Court has patently misunderstood a party, or has made a decision outside of the adversarial issues presented to the Court by the parties, or has made an error not of reasoning, but of apprehension . . . . Such problems rarely arise and the motion to reconsider should be equally rare.” Ass’n for Disabled Ams., Inc. v. Amoco Oil Co., 211 2009-1357 17 F.R.D. 457, 477 (S.D. Fla. 2002) (quoting Z.K. Marine, 808 F. Supp. at 1563). Shaw fails to show that manifest injustice requires reconsideration or that the district court abused its discretion finding the same. CONCLUSION The district court did not abuse its discretion in failing to consider Mr. Shaw’s errata sheet or declaration, or Muthiah’s declaration. In light of the admissible evidence, Shaw failed to raise a genuine issue of material fact surrounding the dates of conception or commercial sales. Shaw further failed to dispute that the invention was “ready for patenting.” Therefore, we affirm the district court’s grant of summary judgment pursuant to the on-sale bar under § 102(b). Finally, because Shaw failed to show that the district court erred in disregarding the evidence presented in its motion for reconsideration, we affirm the district court’s ruling on Shaw’s motion for reconsideration. AFFIRMED 2009-1357 18

United States Court of Appeals for the Federal Circuit 2010-1023 AMERICAN SIGNATURE, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee, and AMERICAN FURNITURE MANUFACTURERS COMMITTEE FOR LEGAL TRADE and VAUGHAN-BASSETT FURNITURE COMPANY, INC., Defendants-Appellees. R. Will Planert, Troutman Sanders LLP, of Washington, DC, argued for plaintiff- appellant. With him on the brief were Jeffrey S. Grimson, Donald B. Cameron, Julie C. Mendoza, Brady W. Mills and Mary S. Hodgins. Stephen C. Tosini, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee United States. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Edward N. Maurer, Deputy Assistant Chief Counsel, International Trade Litigation, United States Customs and Border Protection, of New York, New York. Joseph W. Dorn, King & Spalding LLP, of Washington, DC, argued for defendants- appellees American Furniture Manufacturers Committee for Legal Trade, et al. With him on the brief were Ashley C. Parrish, J. Michael Taylor, Eric M. Wachter and Steven R. Keener. Appealed from: United States Court of International Trade Judge Leo M. Gordon United States Court of Appeals for the Federal Circuit 2010-1023 AMERICAN SIGNATURE, INC., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee, and AMERICAN FURNITURE MANUFACTURERS COMMITTEE FOR LEGAL TRADE and VAUGHAN-BASSETT FURNITURE COMPANY, INC., Defendants-Appellees. Appeal from the United States Court of International Trade in case no. 09-CV-0400, Judge Leo M. Gordon. ___________________________ DECIDED: March 10, 2010 ___________________________ Before RADER, CLEVENGER, and DYK, Circuit Judges. DYK, Circuit Judge. American Signature, Inc. (“ASI”) appeals from a decision of the Court of International Trade denying ASI’s motion for a preliminary injunction. See Am. Signature, Inc. v. United States, No. 09-00400 (Ct. Int’l Trade Oct. 13, 2009) (“ASI I”). Because we conclude that ASI has satisfied the conditions for the issuance of a preliminary injunction, we reverse. BACKGROUND The antidumping law imposes special duties upon imports of merchandise sold at less than normal value to the detriment of a domestic industry. 19 U.S.C. § 1673. ASI is an importer of furniture that is subject to a January 4, 2005, antidumping duty order on certain entries of wooden bedroom furniture from China. 1 The second administrative review of this order was initiated on March 7, 2007. Such administrative reviews are designed to revisit the original antidumping duty order in order to determine whether dumping has occurred and, if so, the amount of antidumping duties that are owed, and the amount of future cash deposit rates (in effect, dumping duties imposed on future entries). See generally Ugine & ALZ Belg. v. United States, 551 F.3d 1339, 1341 (Fed. Cir. 2009) (“Ugine II”). ASI imported subject merchandise exported by the Chinese exporter Dare Group during the second period of review, that is, January 1, 2006 – December 31, 2006, and participated as a party to that review. The Department of Commerce (“Commerce”) published its final results of that administrative review on August 20, 2008 (“Final Results”). 2 For the purpose of calculating antidumping duties in its administrative reviews, Commerce calculates a dumping margin for each exporter, which is calculated based See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Wooden Bedroom Furniture From the People's Republic of China, 70 Fed. Reg. 329 (Dep’t Commerce Jan. 4, 2005). See Wooden Bedroom Furniture from the People’s Republic of China: Final Results of Antidumping Duty Administrative Review and New Shipper Review, 73 Fed. Reg. 49,162-01 (Aug. 20, 2008) (“Final Results”). 2010-1023 2 on all of the subject merchandise it exports to the United States. 3 The dumping margin is a dollar figure and is defined as “the amount by which the normal value exceeds the export price . . . of the subject merchandise.” 19 U.S.C. § 1677(35)(A); see also § 1675(a)(2)(A) (Commerce shall calculate “the normal value and export price (or constructed export price) of each entry of the subject merchandise” and “the dumping margin for each such entry.”). Overall weighted average dumping margin rates for each exporter (percentage figures) are calculated and published in the Federal Register. 4 See id. § 1675(a)(1). Section 1675(a)(2)(C) provides that “[t]he determination under this paragraph shall be the basis for the assessment of countervailing or antidumping duties on entries of merchandise covered by the determination and for deposits of estimated duties.” Using the dumping margins for each exporter’s goods, Commerce then calculates importer-specific ad valorem assessment rates for each such importer. See 19 U.S.C. § 1675(a)(2)(A)(ii); 19 C.F.R. § 351.212(b). 5 These importer-specific rates “The term ‘subject merchandise’ means the class or kind of merchandise that is within the scope of an investigation, a review, a suspension agreement, [or] an order . . . .” 19 U.S.C. § 1677(25). “The term ‘weighted average dumping margin’ is the percentage determined by dividing the aggregate dumping margins determined for a specific exporter or producer by the aggregate export prices and constructed export prices of such exporter or producer.” 19 U.S.C § 1677(35)(B). Commerce’s implementing regulation, 19 C.F.R. § 351.212(b)(1), provides for the calculation of assessment rates. It provides: (b) Assessment of antidumping and countervailing duties as the result of a review― (1) Antidumping duties. If the Secretary has conducted a review of an antidumping order under § 351.213 (administrative review), § 351.214 (new shipper review), or § 351.215 (expedited antidumping review), the 2010-1023 3 are treated as confidential and are not published in the Federal Register. Normally, after publication of Final Results, Commerce issues liquidation instructions to Customs and Border Protection (“Customs”) with respect to the entries of subject merchandise. Liquidation of entries represents the “final computation or ascertainment of the duties . . . accruing on an entry.” 19 C.F.R. § 159.1. Liquidation instructions include importer- specific assessment rates. Customs then liquidates the goods at the importer-specific rates determined by Commerce. Here, after Commerce published the Final Results of its administrative review on August 20, 2008, the American Furniture Manufacturers Committee for Legal Trade and Vaughan-Basset Furniture Company, Inc. (the “domestic producers”), ASI, and other parties filed actions in the Court of International Trade challenging various aspects of the Final Results. While those appeals were pending, Commerce twice sought and received leave of the Court of International Trade to amend the Final Results to correct ministerial errors. 6 There was no dispute among the parties that correction of these errors was appropriate. These corrections eventually led to the issuance of the Second Secretary normally will calculate an assessment rate for each importer of subject merchandise covered by the review. The Secretary normally will calculate the assessment rate by dividing the dumping margin found on the subject merchandise examined by the entered value of such merchandise for normal customs duty purposes. The Secretary then will instruct the Customs Service to assess antidumping duties by applying the assessment rate to the entered value of the merchandise. A ministerial error is defined in 19 C.F.R. § 351.224(f) as “an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial.” 2010-1023 4 Amended Final Results. 7 In its Second Amended Final Results, Commerce calculated and published in the Federal Register overall weighted average dumping margin rates for each exporter. See 19 U.S.C. § 1675(a)(1); id. § 1677(35)(B). The overall exporter dumping margin ultimately calculated for exporter Dare Group was 39.46 percent. There is no dispute about this rate. In connection with the preparation of its final results, Commerce calculated importer-specific ad valorem assessment rates using the foreign exporters’ dumping margins. Due to a computer programming error in Commerce’s antidumping margin calculation computer program, the assessment rate pertaining to ASI was much lower than the rate ASI would have received in the absence of the error. 8 The calculations reflecting this error were apparently disclosed by Commerce to the domestic producers after the release of the Second Amended Final Results in accordance with the regulations discussed below, but the error was not then noted by See Second Amended Final Results of Antidumping Duty Administrative Review: Wooden Bedroom Furniture from the People’s Republic of China, 74 Fed. Reg. 13,417-01 (Mar. 27, 2009) (“Second Amended Final Results”). The Court of International Trade misunderstood the issue when it stated that “Commerce erred by incorrectly calculating the denominator of Dare Group’s dumping margin by multiplying per-unit entered value by quantity twice, instead of only once.” Am. Signature, Inc. v. United States, No. 09-00400, slip op. at 2 (Ct. Int’l Trade Oct. 26, 2009) (“ASI II”). In fact, the denominator does not reflect the Dare Group’s dumping margin but rather the entered value of the subject merchandise. The Dare Group’s dumping margin had already been calculated and was published in the Federal Register. All parties agree that there was no error in the dumping margin. Here, Commerce’s SAS margin calculation program, which it uses to calculate importer- specific assessment rates, erroneously multiplied the “entered value” by quantity twice, thereby substantially increasing the amount of the denominator. When the program calculated the importer-specific assessment rate by dividing the dumping margin found on the subject merchandise examined (the numerator) by the entered value (the denominator), the resulting number was much lower than it should have been, because the denominator was incorrectly inflated. See 19 U.S.C. § 1675(a)(2)(A); 19 C.F.R. § 351.212(b)(1). 2010-1023 5 the domestic producers. After Commerce issued the Second Amended Final Results, all parties by mutual agreement, on May 15, 2008, dismissed their pending appeals before the Court of International Trade. 9 On July 10, 2009, Commerce transmitted liquidation instructions to Customs, which reflected the error in the assessment rate as to ASI for entries during the period covered by the review. On July 31, 2009, the domestic producers requested a copy of the July 10 liquidation instructions. Commerce released the liquidation instructions on August 24, 2009. On August 25, 2009, the domestic producers’ counsel alerted Commerce to the existence of the error. Commerce confirmed the existence of the error and then on August 26, 2009, at Commerce’s request, the domestic producers filed and served on all parties a written submission, alleging that the liquidation instructions contained errors resulting in a significant error in the assessment rates for ASI and other importers. Later that day, Commerce contacted Customs and informed Customs that it planned to issue instructions suspending liquidation of the Dare Group’s 2006 entries while Commerce decided how to correct the error in the margin calculation program. 10 For the unliquidated entries, Customs said that it could liquidate pursuant to corrected instructions as soon as it received such instructions. However, Customs replied that it had already liquidated the majority of ASI’s entries in accordance with the incorrect July 10, 2009, liquidation instructions. Customs also indicated that it would be able to Am. Signature, Inc. v. United States, No. 08-00316 (Ct. Int’l Trade May 15, 2008) (joint stipulation of dismissal). Commerce issued such instructions to suspend liquidation on August 28, 2009. 2010-1023 6 reliquidate those entries within the ninety-day statutory window specified in 19 U.S.C. § 1501 at the correct rate if it promptly received corrected instructions. The statutory ninety-day window in which Customs could reliquidate entries was set to expire on October 29, 2009. See 19 U.S.C. § 1501 (providing Customs with discretionary authority to reliquidate within ninety days). Upon review of interested party comments, on September 17, 2009, Commerce issued its final decision regarding the liquidation instructions. This decision took the form of a memorandum to file in the second administrative review. In its memorandum, Commerce noted that in order to ensure that the liquidation instructions are consistent with the Final Results, [Commerce] must correct the programming language . . . . Further, the Department notes that none of the parties have argued that the Department did not generate incorrect assessment rates as a result of the programming error . . . . Accordingly . . . [Commerce] has corrected the programming language to comport with the Final Results and is issuing to [Customs] corrected liquidation instructions containing the assessment rates resulting from the corrected margin program. ASI I, slip op. at 4. Commerce further explained that it “has not determined that the Final Results were in error and, accordingly is not amending the Final Results. Instead the Department is correcting the margin program language in order to ensure that the liquidation instructions are consistent with the Final Results . . . .” Id. The same day that it issued this memorandum, Commerce attempted to transmit corrected liquidation instructions, which were rejected by Customs because they contained language errors. The next day, September 18, 2009, ASI filed suit in the Court of International Trade pursuant to 28 U.S.C. § 1581(i), alleging that Commerce had no authority to correct the error, and, inter alia, requesting the court to order Commerce to instruct Customs to resume liquidation in accordance with the original 2010-1023 7 liquidation instructions. That same day, the Court of International Trade entered a temporary restraining order (“TRO”) preventing Customs or Commerce from taking any action to liquidate or reliquidate ASI’s entries of merchandise exported by the Dare Group. However, on October 13, 2009, the Court of International Trade denied ASI’s motion for a preliminary injunction and dissolved the TRO. ASI I, slip op. at 11. The court found that ASI had established a likelihood of success on the merits of its claim that the liquidation instructions were unlawful, concluding that Commerce’s purported correction of the liquidation instructions “made a substantive change to the Second Amended Final Results” and “arbitrarily avoids express statutory and regulatory provisions governing the correction of ministerial errors.” Id. at 7, 8. The court noted that it “will be inclined to remand the matter to the agency to address the calculation error against 19 U.S.C. § 1675(h) and 19 C.F.R. § 351.224.” Id. at 8. Nevertheless, the court found that ASI had not established that it would suffer irreparable harm from having its entries liquidated because it has an adequate remedy under our decision in Shinyei Corp. of America v. United States, 355 F.3d 1297, 1311-12 (Fed. Cir. 2004). Id. at 8-9. The court also held that the balance of hardships weighed in favor of the government because the government might be harmed by being statutorily foreclosed from reliquidation. Id. at 10. On October 22, 2009, ASI learned that Customs was beginning the process of liquidating ASI’s entries at the higher rate. The Court of International Trade denied ASI’s motion for injunction pending appeal on October 26, 2009. See Am. Signature, Inc. v. United States, No. 09-00400 (Ct. Int’l Trade Oct. 26, 2009) (“ASI II”). On October 2010-1023 8 27, 2009, ASI filed an emergency motion for an injunction pending appeal with this court, which we granted on October 28, 2009, on the condition that ASI file a waiver of the time period requirement of 19 U.S.C. § 1501. The next day, ASI delivered the waiver. We heard oral argument on November 19, 2009. We thereafter requested and received supplemental briefs as to the scope of Commerce’s authority to correct ministerial errors. We have jurisdiction over the Court of International Trade’s denial of ASI’s motion for a preliminary injunction under 28 U.S.C. § 1292 (c)(1). DISCUSSION In determining whether a preliminary injunction should issue, we apply the four factor test set forth by the Supreme Court. In general, “[a] plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008); see Titan Tire Corp. v. Case New Holland, Inc., 566 F.3d 1372, 1375-76 (Fed. Cir. 2009). The governing standard of review on appeal of a grant or denial of a preliminary injunction is abuse of discretion. Titan Tire, 566 F.3d at 1365. “An abuse of discretion may be established under Federal Circuit law by showing that the court made a clear error of judgment in weighing the relevant factors or exercised its discretion based on an error of law or clearly erroneous fact finding.” Quingdao Taifa Group Co., Ltd. v. United States, 581 F.3d 1375, 1379 (Fed. Cir. 2009) (internal citation and quotation marks omitted). We address these factors in turn. 2010-1023 9 I Likelihood of Success on the Merits We first consider ASI’s likelihood of success on the merits. The government and the domestic producers contend that the error in ASI’s assessment rate is an error in the July 10, 2009, liquidation instructions, and that under our decision in Ugine II, the error could thereafter be corrected at any time before liquidation occurred. ASI on the other hand contends that the error was an error “in” the Second Amended Final Results and can only be corrected in accordance with the procedures set forth in 19 U.S.C. § 1675(h) and Commerce’s implementing ministerial error regulation, 19 C.F.R. § 351.224. 19 U.S.C. § 1675(h) authorizes the correction of ministerial errors “in final determinations within a reasonable time,” and authorizes Commerce to promulgate regulations providing for such corrections. 11 Commerce has promulgated such regulations. See 19 C.F.R. § 351.224. The Court of International Trade agreed with ASI that the errors were “in” the final results, stating that “Commerce[] [is attempting] to correct a routine ministerial error contained in the Second Amended Final Results through a purported correction to liquidation instructions,” ASI II, slip op. at 8, and that “ASI’s calculated assessment rate 19 U.S.C. § 1675(h) provides: The administering authority shall establish procedures for the correction of ministerial errors in final determinations within a reasonable time after the determinations are issued under this section. Such procedures shall ensure opportunity for interested parties to present their views regarding any such errors. As used in this subsection, the term “ministerial error” includes errors in addition, subtraction, or other arithmetic function, clerical errors resulting from inaccurate copying, duplication, or the like, and any other type of unintentional error which the administering authority considers ministerial. 2010-1023 10 [is] in the Second Amended Final Results” and “is an integral part of Commerce’s administrative review determination.” ASI I, slip op. at 7. We agree with the Court of International Trade and ASI that the corrections to the assessment rates were corrections of errors “in” the Second Amended Final Results, i.e., that the calculations performed using Commerce’s antidumping margin calculation program formed a part of Commerce’s administrative review determination under 19 U.S.C. § 1675(a)(2)(A). See ASI I, slip op. at 7. This is so for several reasons. First, Commerce’s regulations implementing section 1675(h) (subsections (b) and (c) of section 351.224) treat errors in data prepared “in connection with” the final results as being subject to the section 1675(h) procedure, i.e., the regulations equate “in” with “in connection with.” We give Chevron deference to this regulatory construction. See Chevron, U.S.A., Inc., v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984). Second, as Commerce conceded at oral argument, the calculations at issue here were prepared “at the same time as” and “in connection with” preparation of Commerce’s final determination. See Oral Arg. at 22:53-55, 24:00-09; see also Def.- Appellee’s Br. 5 (“In practice, the calculation of importer specific assessment rates under section 351.212(b)(1) occurs concurrently with the determination of exporter specific dumping margins within the same computer program.”). This conclusion is supported by the record. On August 20, 2008, Commerce published the Final Results in the Federal Register. The Final Results themselves noted that “we [Commerce] have calculated customer/importer-specific antidumping duty assessment amounts.” Final 2010-1023 11 Results, 73 Fed. Reg. at 49,167 (emphasis added). The record reflects that Commerce ran its margin calculation program on August 11, 2008 (before the publication of the Final Results) and at that time calculated an importer-specific percent ad valorem assessment rate for ASI. Though the margin calculation program was run again several days after the publication of the Second Amended Final Results to produce the assessment rate at issue here, it is clear that the preparation of such assessment rates using the margin calculation program is a part of Commerce’s administrative review procedures. Third, though the importer-specific assessment rates themselves were not disclosed in the Federal Register, Commerce agrees that this is not dispositive as to the question of whether they are a part of the final results of the administrative review. Indeed, Commerce conceded at oral argument that many calculations are not published in the Federal Register, but Commerce still regards them as being a part of their final results. See Oral Arg. at 24:44-25:09 (“[A] number of things also don’t get published in the Federal Register or in the decision memo and . . . those things still would be subsumed within the final results.”). Fourth, we have recognized that challenges to dumping margins and other aspects of final results are properly brought in the Court of International Trade under 28 U.S.C. § 1581(c). See Consol. Bearings Co. v. United States, 348 F.3d 997, 1002 (Fed. Cir. 2003). The Court of International Trade has routinely exercised jurisdiction in those proceedings to consider challenges to assessment rate methodology and requests to correct ministerial errors in assessment rates. See, e.g., Fujian Lianfu Forestry Co., Ltd. v. United States, 638 F. Supp. 2d 1325, 1333 (Ct. Int’l Trade 2009) (exercising 2010-1023 12 jurisdiction under section 1581(c) in a challenge to Commerce’s method of calculating assessment rates); Hyundai Elec. Indus. Co. v. United States, 395 F. Supp. 2d. 1231, 1234, 1242-43 (Ct. Int’l Trade 2005) (exercising jurisdiction under section 1581(c) and permitting Commerce to correct a ministerial error in the program that calculates assessment rates); Koyo Seiko Co., Ltd. v. United States, 110 F. Supp. 2d 934, 935 (Ct. Int’l Trade 2000) (exercising jurisdiction under section 1581(c) in a challenge to Commerce’s method of calculating assessment rates), aff’d, 258 F.3d 1340 (Fed. Cir. 2001). Commerce has apparently never before challenged jurisdiction under section 1581(c) to consider such assessment rate issues. If we were to adopt the view that errors in the calculations of assessment rates do not form a part of final determinations, a party seeking to challenge the manner in which Commerce calculated assessment rates would need to wait until liquidation instructions were issued, and then bring a separate action under 28 U.S.C. § 1581(i). It is only logical for the Court of International Trade to consider any alleged errors in the assessment rates when challenges to the dumping margins are also being considered because assessment rates are affected by dumping margin calculations. While the domestic producers argue that we owe Chevron deference to Commerce’s determination in its September 18, 2009, memorandum to file that the error was not “in” the final results, 12 we think no such deference is owed because Commerce’s construction is not a reasonable construction of the statute, for the reasons we have described immediately above. Even now, Commerce is unable to articulate a See ASI I, slip op. at 5 (“[Commerce] does not consider that it is correcting an error in the Final Results. Instead, it is correcting the margin program to ensure that the liquidation instructions are consistent with the Final Results.”). 2010-1023 13 coherent theory as to why we should adopt its approach. For the same reason, we see no need to remand this proceeding for further consideration by Commerce as to the scope of Commerce’s authority under 1675(h). We conclude that the errors in question were “in” the Second Amended Final Results. In light of our conclusion that the error here was an error in the final results of the administrative review, we consider whether Commerce had the authority to correct the error sua sponte. 13 This turns on whether Commerce acted within a “reasonable time” under section 1675(h). The statute does not define what constitutes a “reasonable time,” but leaves it to Commerce to define what constitutes a “reasonable time.” Under Chevron, Commerce has considerable discretion in defining a “reasonable time.” See Chevron, 467 U.S. at 842-43; United States v. Eurodif S.A., 129 S. Ct. 878, 886-87 (2009). The question is whether it has in fact defined a “reasonable time” in the regulations. Commerce’s implementing ministerial error regulation provides for ministerial error correction at the request of interested parties. The regulations set forth various time limits for the correction of errors at the request of a party to the proceeding, but do not deal explicitly with sua sponte error correction by Commerce. However, Commerce has long claimed the authority to correct ministerial errors during judicial review of final results even when no request to correct the error has been made by an interested party The domestic producers do not argue that Commerce was compelled to correct the errors upon the domestic producers’ request; no timely request was made for a correction by the domestic producers after the disclosures mandated by section 351.224(b) of the regulations. 2010-1023 14 pursuant to the regulations. See, e.g., Hyundai Elec. Indus. Co. v. United States, 395 F. Supp. 2d 1231, 1243 (Ct. Int’l Trade 2005) (citing Shandong Huarong Gen. Corp. v. United States, 159 F. Supp. 2d 714, 727 (Ct. Int’l Trade 2001); Aramide Maatschappij V.o.F. v. United States, 901 F. Supp. 353, 361 (Ct. Int’l Trade 1995)), aff’d sub nom. Shandong Huarong Gen. Group Corp. v. United States, 60 F. App’x 797 (Fed. Cir. 2003). The statute and the regulation clearly permit the sua sponte correction of a ministerial error by Commerce whether or not a party has requested correction within the period specified in the regulation. The question is then whether the regulation establishes a time limit for such sua sponte corrections. On its face the preamble to the regulation contemplates that corrections will be made before Commerce’s final determination becomes final, i.e., before the time for judicial review has expired. See Antidumping Duties; Countervailing Duties; Proposed Rules, 61 Fed. Reg. 7308, 7320 (Feb. 27, 1996). The principal goal of these changes is to provide for the issuance of a correction notice normally within 30 days after the date of public announcement of the preliminary or final determination or final results of review. The date of public announcement is the date on which the signed determination or results of review is first made available to interested parties. This goal is consistent with the proposal from a number of commentators that the Department should respond to ministerial error allegations prior to the date when a summons must be filed with the Court of International Trade or when a notice of intent to commence panel review must be filed with the NAFTA Secretariat. This 30-day framework is intended to avert needless litigation by allowing parties sufficient time to review the correction notice before the litigation deadline arrives. Id. (emphases added). The regulation itself also provides that [w]here practicable, the Secretary will announce publicly the issuance of a correction notice, and normally will do so within 30 days after the date of public announcement, or, if there is no public announcement, within 30 days after the date of publication, of the preliminary determination, final determination, or final results of review (whichever is applicable). In 2010-1023 15 addition, the Secretary will publish notice of such corrections in the Federal Register. 19 C.F.R. § 351.224(e) (emphasis added). While the regulation is perhaps not a model of clarity, Commerce in its supplemental brief has interpreted the regulation to impose such a time limit. 14 See Def.-Appellee’s Supplemental Br. 2-3. Commerce’s brief states that “Commerce may not correct ministerial errors in final results of administrative reviews . . . if those errors are discovered after the expiration of the 30-day deadline for seeking judicial review of those results. Id. Similarly, “Commerce promulgated its regulation and explained that it must normally correct ministerial errors within 30 days because 19 U.S.C. § 1516a requires that an interested party commence an action within 30 days of the publication in the Federal Register of final results.” Id. at 4. In general, “[t]he agency’s construction of its own regulations is ‘of controlling weight unless it is plainly erroneous or inconsistent with the regulation.’” Reizenstein v. Shinseki, 583 F.3d 1331, 1335 (Fed. Cir. 2009) (citing Cathedral Candle Co. v. U.S. Int'l Trade Comm’n, 400 F.3d 1352, 1364 (Fed. Cir. 2005)) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)); Christensen v. Harris County, 529 U.S. 576, 588 (2000); Auer v. Robbins, 519 U.S. 452, 461 (1997); Gose v. U.S. Postal Serv., 451 F.3d 831, 836 (Fed. Cir. 2006) (“As a general rule, we must defer to an agency’s interpretations of the regulations it promulgates, as long as the regulation is ambiguous and the agency’s interpretation is neither plainly erroneous nor inconsistent with the Commerce indicated at oral argument that it does not have the authority to correct ministerial errors pursuant to its regulations after the time for judicial review of final results has expired. See Oral Arg. at 35:12-36:00. After oral argument, this court requested supplemental briefs on the issue in order to provide the opportunity for Commerce to more formally present its position. 2010-1023 16 regulation.” (citing Gonzalez v. Oregon, 126 S. Ct. 904, 914; Christensen, 529 U.S. at 588; and Seminole Rock, 325 U.S. at 413-14)). However, the question whether an agency’s interpretation of its regulations announced for the first time in a brief is entitled to deference has generated considerable authority both in the Supreme Court and our own court. See Auer, 519 U.S. at 462-63; Reizenstein, 583 F.3d at 1335; Abbott Labs. v. United States, 573 F.3d 1327, 1332-33 (Fed. Cir. 2009); Caribbean Ispat Ltd. v. United States, 450 F.3d 1336, 1340 (Fed. Cir. 2006). Where the agency’s interpretation seeks to advance its litigating position, deference is typically not afforded to the agency’s position announced in a brief. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988) (“Deference to what appears to be nothing more than an agency’s convenient litigating position would be entirely inappropriate.”). But where the agency is not advancing its litigating position, deference may be afforded an agency’s position articulated in its brief. For example, in Auer, the Supreme Court deferred to an agency’s position, advanced in an amicus brief. 519 U.S. at 461. Distinguishing that circumstance from the situation where the agency’s position is a “post hoc rationalizatio[n] advanced by an agency seeking to defend past agency action from attack,” the Supreme Court noted that “[t]here is simply no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.” Id. at 462 (citation and internal quotation omitted). While here the agency’s position is not contained in an amicus brief, it is also not a situation in which the agency interpretation advances the agency’s litigating position. Quite the contrary. The agency’s interpretation of the regulations is in fact contrary to the agency’s litigating position—that it had the authority to correct the error. Under such 2010-1023 17 circumstances we conclude that deference under Auer is owed to Commerce’s interpretation of its regulation, and that Commerce’s sua sponte corrections must be made before the final determination is no longer subject to judicial review. Here, as Commerce concedes, the error was not corrected within this timeframe; indeed it was not discovered until ninety-nine days after the dismissal by the domestic petitioners of their lawsuit before the Court of International Trade. Because Commerce did not correct the error before the time for judicial review had expired, we conclude that the error cannot now be corrected and that ASI has demonstrated a likelihood of success, indeed a certainty of success, on the merits. 15 II Irreparable Harm We next consider the question of irreparable injury. The Court of International Trade concluded that ASI failed to demonstrate irreparable harm. ASI II, slip op. at 13; ASI I, slip op. at 9. Citing Shinyei Corp. of America v. United States, 355 F.3d 1297, 1311-12 (Fed. Cir. 2004)), the Court of International Trade concluded that ASI has an The government argues that ASI is judicially estopped from challenging Commerce’s authority to make the correction at issue here. Def.-Appellee’s Br. 14-17. This argument is premised on the government’s assertion that ASI raised the opposite argument from the one they raise here, and prevailed, in a previous case concerning earlier furniture imports. See Am. Signature, Inc., v. United States, 477 F. Supp. 2d 1281 (Ct. Int’l Trade Feb. 14, 2007), rev’d, No. 2007-1216 (Fed. Cir. Nov. 30, 2007). We agree with ASI that ASI’s legal position in the previous case and this case are entirely consistent. In the previous case, ASI challenged the lawfulness of liquidation instructions, which were issued pursuant to 19 C.F.R. § 351.212(c), because they did not reflect corrections Commerce had already made to cash deposit rates in the administrative review. Thus, in that case, unlike here, Commerce had made timely determinations to correct ministerial errors during the investigation. ASI argued that those corrections must be reflected in the liquidation instructions issued by Commerce. ASI did not argue that Commerce was authorized to correct an error in assessment rates by issuing liquidation instructions whose assessment rates differed from those calculated during the administrative review proceeding. 2010-1023 18 available and adequate remedy to correct the erroneous liquidation of entries caused by incorrect liquidation instructions, even if liquidation is permitted to go forward. ASI I, slip op. at 9. In Zenith Radio Corp. v. United States, we held that absent a preliminary injunction, a challenge to an administrative review proceeding became moot when liquidation occurred. 710 F.2d 806, 810 (Fed. Cir. 1983). We explained that “[o]nce liquidation occurs, a subsequent decision by the trial court on the merits . . . can have no effect on the dumping duties assessed on entries.” Id.; see ASI II, slip op. at 14. This court therefore concluded that Zenith would suffer irreparable harm if liquidation was not enjoined, and reversed the trial court’s denial of a preliminary injunction on that basis. Zenith, 710 F.2d at 810. In Shinyei, the plaintiff challenged Commerce’s liquidation instructions as inconsistent with rates set forth in the amended review results that allegedly covered its entries. 355 F.3d at 1299, 1303. We held that in an action challenging liquidation instructions under 28 U.S.C. § 1581(i), the Court of International Trade may, under certain circumstances, use its equitable powers to compel reliquidation of entries if a preliminary injunction has been sought and denied. Id. at 1312. 16 In Ugine & Alz Belgium v. United States, where the challenge was to liquidation instructions, we held that, despite potential for Shinyei relief, irreparable injury may exist from the denial of a preliminary injunction. 452 F.3d 1289, 1297 (Fed. Cir. 2006) However, in Mukand International, Ltd. v. United States, 502 F.3d 1366 (Fed. Cir. 2007), we upheld a decision of the Court of International Trade to deny Shinyei reliquidation because the plaintiff failed to seek an injunction against liquidation from the Court of International Trade before its entries had liquidated. 2010-1023 19 (“Ugine I”). We noted that the question of the scope of Shinyei is a difficult one, for which the resolution is not obvious . . . . Rather than deciding the scope of Shinyei in a preliminary injunction context . . . we conclude that the issue is sufficiently complex that we should resolve it only in a setting in which it has been litigated by the parties and decided by the trial court. Id. As in Ugine I, we conclude that the possibility of Shinyei relief does not defeat ASI’s claim of irreparable harm. The domestic producers also argue that ASI has made no showing that it is unable to protect its interests by protesting a reliquidation of entries under 19 U.S.C. § 1514. The domestic petitioners appear to argue that a protest would automatically bar liquidation or reliquidation. This statute authorizes importers to protest “decisions of the Customs Service, including the legality of all orders and findings entering into the same, as to . . . (5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof.” 19 U.S.C. § 1514(a). In Shinyei, we addressed the scope of this section, concluding that the protest provisions only apply to "decisions" of the “Customs Service.” Shinyei, 355 F.3d at 1311. Here, as in Shinyei, the alleged agency error is on the part of Commerce, not Customs. Therefore, section 1514(a) is inapplicable. In conclusion, in view of our determination that the availability of Shinyei relief to ASI is uncertain and our determination that ASI may not have a remedy under section 1514(a), we conclude that ASI has made a sufficient showing of irreparable harm. III Balance of Equities/Hardships The Court of International Trade concluded that the balance of equities tips in Commerce’s favor. ASI II, slip op. at 15. It based its conclusion on its perceived 2010-1023 20 inability to toll or permit waiver of the time limits of 19 U.S.C. § 1501 and remarked that “Commerce faces a significant hardship if it loses its ability to request Customs to reliquidate the entries pursuant to § 1501.” Id. at 14-15. We agree that if Commerce were to be foreclosed from reliquidation by section 1501, this would indeed be a significant hardship. However, we disagree with the Court of International Trade that this outcome is likely. Commerce argues that a preliminary injunction would foreclose Customs from reliquidating entries pursuant to 19 U.S.C. § 1501 due to the expiration of the ninety-day window in the statute. We cannot agree that Commerce is without a remedy if the ninety-day period elapses without reliquidation, for two reasons. First, under Shinyei, the deadline is inapplicable if reliquidation is ordered by a court. 17 As we noted in that case, the Court of International Trade’s relief statute provides for entry of a money judgment “for or against the United States in any civil action commenced under section 1581 or 1582 of this title,” [19 U.S.C.] § 2643(a)(1), and allows the court to “order any other form of relief that is appropriate in a civil action . . . . ” Id. § 2643(c)(1) (emphasis added). The absence of an express reliquidation provision should not be read as a prohibition of such relief when the statute provides the Court of International Trade with such broad remedial powers. Here, the requested relief [reliquidation] is easily construed as “any other form of relief that is appropriate in a civil action.” Shinyei, 355 F.3d at 1312. Second, and more importantly, waiver by ASI obviates any problem with the ninety-day deadline. In view of the potential hardship, this court required in its October Commerce agrees that this concern is inapplicable to entries that have yet to be liquidated. As to such entries, the grant of a preliminary injunction suspends the liquidation deadline. 2010-1023 21 28, 2009, order, and ASI submitted, a waiver of “any defense it might otherwise have against reliquidation of [the applicable] entries pursuant to 19 U.S.C. § 1501 based on the expiration of the 90-day period for reliquidation set forth therein, during the period in which the injunction entered by this Court is in effect.” Waiver of Statute of Limitations Defense at 1, Am. Signature v. United States, No. 2010-1023 (Fed. Cir. Oct. 29, 2009). The Supreme Court has remarked that it has “‘in the context of a broad array of constitutional and statutory provisions,’ articulated a general rule that presumes the availability of waiver, United States v. Mezzanatto, 513 U.S. 196, 200-01 (1995).” New York v. Hill, 528 U.S. 110, 114 (2000). Further, the Supreme Court has announced that “absent some affirmative indication of Congress’ intent to preclude waiver, we have presumed that statutory provisions are subject to waiver by voluntary agreement of the parties.” Mezzanatto, 513 U.S. at 201. Therefore, we conclude this voluntary waiver adequately protects Commerce’s interests in being able to reliquidate ASI’s entries and prevents it from sustaining irreparable injury. Thus, we conclude that the Court of International Trade erred in its analysis of the potential harm to Commerce. In view of our assessment that Commerce will not be foreclosed from reliquidation, if appropriate, and the uncertainty concerning the remedies available to ASI, we find that the balance of equities favors ASI. IV Public Interest The public interest is served by ensuring that governmental bodies comply with the law, and interpret and apply trade statutes uniformly and fairly. Both sides in this dispute contend that they are seeking to effectuate these important goals. Therefore we find that the public interest does not clearly favor either party in this dispute. 2010-1023 22 CONCLUSION We conclude that ASI has satisfied the requirements for a preliminary injunction. We reverse the Court of International Trade and require that the court grant the preliminary injunction prohibiting Customs or Commerce from taking any action to liquidate or reliquidate ASI’s import entries that are the subject of this action, and for further proceedings consistent with this opinion. REVERSED COSTS No costs. 2010-1023 23

United States Court of Appeals for the Federal Circuit 2008-5175, - 5182 ANCHOR SAVINGS BANK, FSB, Plaintiff-Cross Appellant, v. UNITED STATES, Defendant-Appellant. Edwin L. Fountain, Jones Day, of Washington, DC, argued for plaintiff-cross appellant. With him on the brief were Michael A. Carvin, Adrian Wager-Zito, Gregory A. Castanias, Michael S. Fried, Geoffrey S. Irwin, Debra Satinoff Clayman, Erin M. Fishman and Hashim M. Mooppan; and George T. Manning, of Dallas, Texas. John J. Todor, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant. With him on the brief were Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E. Davidson, Director. Of counsel on the brief were Kenneth M. Dintzer, Assistant Director, and Scott D. Austin, Senior Trial Counsel. Of counsel were Brian A. Mizoguchi and Delisa M. Sanchez, Trial Attorneys. Appealed from: United States Court of Federal Claims Judge Lawrence J. Block United States Court of Appeals for the Federal Circuit 2008-5175, -5182 ANCHOR SAVINGS BANK, FSB, Plaintiff-Cross Appellant, v. UNITED STATES, Defendant-Appellant. Appeal from the United States Court of Federal Claims in 95-CV-039, Judge Lawrence J. Block. __________________________ DECIDED: March 10, 2010 __________________________ Before NEWMAN, RADER, and BRYSON, Circuit Judges. BRYSON, Circuit Judge. This is one of the last of the “Winstar” cases arising out of the savings and loan crisis of the late 1970s and early 1980s. See United States v. Winstar Corp., 518 U.S. 839 (1996). During those years, high interest rates and inflation placed hundreds of savings and loan institutions, or “thrifts,” in severe financial distress. In order to prevent the thrifts’ collapse and the resulting burden on the federal government, which insured many of the thrifts’ depositors, the government developed a plan to induce healthy financial institutions to take over the failing thrifts through so-called “supervisory mergers.” Because the troubled thrifts were unattractive investments on their own, the government offered significant incentives to the acquiring institutions. Those incentives included cash and cash substitutes in the form of what was called “supervisory goodwill.” Supervisory goodwill was an accounting credit equal to the negative net worth of the thrift. Pursuant to the supervisory merger agreements, the acquiring institution was permitted to treat supervisory goodwill as an asset and to amortize the goodwill over a period of many years. That arrangement enabled the acquiring institution to satisfy its regulatory capital requirements while working to integrate and rehabilitate the failing thrift. Anchor Savings Bank was among the institutions that contracted with the government in the 1980s to acquire several failing thrifts. Anchor was a relatively strong institution that had already engaged in significant expansion of its business and was positioning itself to become a major player in the mortgage banking industry. Between 1982 and 1985, Anchor acquired the assets and assumed the liabilities of four failing thrifts in a series of supervisory mergers arranged by the government. As part of the transactions, the government promised Anchor that it could use more than $550 million in supervisory goodwill in calculating its regulatory capital and that it could amortize that supervisory goodwill over a period of 25 to 40 years. As the government understood, the major attraction of the acquisition agreements to Anchor was the favorable regulatory treatment of supervisory goodwill. Without those forbearances, Anchor would have failed to satisfy its regulatory requirements as a result of acquiring so much liability. 2008-5175, -5182 2 In June 1988, Anchor purchased Residential Funding Corporation (“RFC”), a mortgage banking company. That purchase was consistent with Anchor’s long-term business plan to become more involved in mortgage banking as a way to insulate itself from operating deficits created by the “interest rate spread”—the difference between the high interest rates it had to pay on deposits at the time and the low interest rates it was receiving on the fixed-rate mortgages in its loan portfolio. Anchor had already begun to implement its plan through its 1983 supervisory merger with mortgage-banking enterprise Suburban, which became Anchor Mortgage Services (“AMS”). AMS acquired and sold whole mortgage loans, but it retained the servicing rights on those loans so as to generate regular fees for the bank independent of interest rates. Like AMS, RFC specialized in acquiring whole mortgage loans and reselling them in the secondary market. However, RFC served a niche market as a “conduit” specializing in wholesale originations of jumbo mortgages for resale as “private-label” mortgage-backed securities (“MBS”). 1 RFC performed “master servicing” for the MBS, generating steady servicing fees. RFC was an industry leader at the time Anchor purchased it. In the first quarter of 1988, RFC was the largest issuer of private MBS in the nation. RFC generated over $10.5 million in net profit in its first year under Anchor and $7.8 million in net profit “Private-label” mortgage-backed securities are so designated because they are not backed by government-sponsored entities and therefore must be credit- enhanced by the issuer in order to receive an “investment grade” (AA or AAA) rating by one of the nationally recognized credit rating agencies. Credit enhancement typically occurs through a “senior-subordinated structure,” in which the security is divided into two or more classes, with the subordinated class, or “B piece,” absorbing a disproportionately larger share of any pool losses, so that the senior class, or “A piece,” is insulated from loss and therefore qualifies for a higher credit rating. 2008-5175, -5182 3 during the first seven months of the following year. The business was highly successful and fit well with Anchor’s long-term business plans—so well, in fact, that Anchor largely discontinued its operation of AMS in favor of RFC. In mid-1989, Anchor’s CEO wrote that RFC “continues to fly” and was “authorized to double its volume in 1990.” At about the same time, Anchor and RFC developed a business plan designed to expand RFC’s business into other areas. On August 9, 1989, Congress enacted the Financial Institutions Reform, Recovery, and Enforcement Act, Pub. L. No. 101-73, 103 Stat. 183 (1989) (“FIRREA”). The new statute—and particularly its implementing regulations, which were announced in October 1989—effectively terminated the favorable treatment of supervisory goodwill that had been promised to Anchor at the time of the supervisory mergers. The sudden eradication of more than half a billion dollars of regulatory capital caused Anchor to fall out of capital compliance by more than $300 million. Facing the threat of seizure and liquidation by the government, Anchor scrambled to raise the necessary capital through a swift series of asset sales. Those sales resulted in the divestiture of RFC and a majority of Anchor’s branch offices. Anchor sold RFC in March 1990 to General Motors Acceptance Corporation (“GMAC”) for $64.4 million. Under GMAC’s ownership, RFC continued to operate with largely the same management, and it continued to implement the Anchor-developed plan to expand its business. Unlike some other thrifts at the time, Anchor survived FIRREA, and by July 1993 it received a “well capitalized” rating. At that point, it was able to resume its long-term business plans. In January 1995, Anchor merged with Dime Savings Bank of New York. Like post-FIRREA Anchor, Dime lacked a sophisticated mortgage banking 2008-5175, -5182 4 operation. Accordingly, in October 1997 the Anchor/Dime entity acquired the North American Mortgage Company (“NAMCO”) for $351 million. Like RFC, NAMCO engaged mostly in wholesale mortgage origination and was a major player in the secondary mortgage market. NAMCO also provided and serviced individual mortgages, generating regular fees. Unlike RFC, however, NAMCO operated primarily in the market for mortgages that met the underwriting criteria of government-sponsored entities (the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, and the Government National Mortgage Association). Meanwhile, on January 13, 1995, Anchor filed suit in the Court of Federal Claims, alleging that the adoption of FIRREA and its implementing regulations breached the government’s obligations under the supervisory merger contracts. In accordance with the Supreme Court’s decision in Winstar, which had held that those actions could constitute a breach of contract by the government, the trial court concluded that the United States had breached its supervisory merger contracts with Anchor. The trial court then conducted a five-week trial on damages. Following the trial, the court entered an award of $356,454,910.91 in damages to Anchor and issued a detailed opinion explaining its decision. The damages award consisted of lost profits from RFC’s operations after Anchor sold RFC to GMAC; mitigation costs for Anchor’s purchase of NAMCO to replace RFC; expectancy damages for stock proceeds Anchor would have received from a post-FIRREA stock offering if it had retained RFC; damages from the sale of portions of Anchor’s branch network; increased FDIC insurance premiums; and “wounded bank” damages. Anchor Sav. Bank, FSB v. United 2008-5175, -5182 5 States, 81 Fed. Cl. 1, 153 (2008). More than 90 percent of the award was attributable to Anchor’s sale of RFC. On appeal, the government challenges the trial court’s award of damages related to the sale of RFC. The government argues that the trial court erred in four principal respects: (1) it improperly applied the law of foreseeability and erred in finding that the type and magnitude of damages from Anchor’s sale of RFC were reasonably foreseeable; (2) it erred in finding that the government’s breach caused Anchor to sell RFC; (3) it erred by measuring damages based on RFC’s profits after it was sold to GMAC, rather than RFC’s market value at the time of the breach or the sale; and (4) it erred in finding that the NAMCO purchase constituted mitigation for the loss of RFC. In its cross-appeal, Anchor argues that the trial court made a calculation error that erroneously reduced Anchor’s damages by more than $63 million. Anchor has also filed a conditional cross-appeal in which it contends that if this court does not affirm the award of expectancy damages, it should reverse the trial court’s decision denying Anchor’s alternative claim for reliance damages. I Damages for breach of contract are designed to make the non-breaching party whole. One way to accomplish that objective is to award “expectancy damages,” i.e., the benefits the non-breaching party would have expected to receive had the breach not occurred. Glendale Fed. Bank, FSB v. United States, 239 F.3d 1374, 1380 (Fed. Cir. 2001). Expectancy damages “are often equated with lost profits, although they can include other damage elements as well.” Id. To recover lost profits for breach of contract, the plaintiff must establish by a preponderance of the evidence that (1) the lost 2008-5175, -5182 6 profits were reasonably foreseeable or actually foreseen by the breaching party at the time of contracting; (2) the loss of profits was caused by the breach; and (3) the amount of the lost profits has been established with reasonable certainty. Cal. Fed. Bank v. United States, 395 F.3d 1263, 1267 (Fed. Cir. 2005); Energy Capital Corp. v. United States, 302 F.3d 1314, 1324-25 (Fed. Cir. 2002). Each of those inquiries presents a question of fact as to which we exercise “clear error” review. Landmark Land Co. v. FDIC, 256 F.3d 1365, 1379 (Fed. Cir. 2001); Bluebonnet Sav. Bank, F.S.B. v. United States, 266 F.3d 1348, 1356-58 (Fed. Cir. 2001). Although we have noted that the lost profits theory of damages in Winstar cases often fails because it is too speculative, “[w]e have not . . . barred as a matter of law the use of expectancy/lost profits theory.” Glendale Fed. Bank, FSB v. United States, 378 F.3d 1308, 1313 (Fed. Cir. 2004). In its appeal of the lost profits award relating to Anchor’s sale of RFC, the government challenges the trial court’s conclusions as to each of the three elements of a lost profits claim set forth above. A The government first argues that the trial court erred in finding that the damages relating to the RFC sale were reasonably foreseeable. The government contends that the court should have found those damages to be available only if the government could have foreseen that Anchor would purchase and then sell RFC or an asset like RFC. In the trial court’s view, the proper question was whether a reasonable person in the government’s position could have foreseen the general type of use Anchor made of its supervisory goodwill and that a profitable enterprise would be sacrificed if Anchor lost that supervisory goodwill. It was enough, the court found, that the government could 2008-5175, -5182 7 reasonably have foreseen that its breach would force Anchor to divest itself of profitable assets purchased in reliance on the benefits conferred by the contracts. 2 Anchor, 81 Fed. Cl. at 80-81. According to the government, the breaching party must be able to foresee the particular asset or type of asset to be purchased and sold in order to appreciate the risk of loss flowing from a breach. The government argues that when the contract was formed neither Anchor nor any other thrift had entered into RFC’s line of business, which was novel and considered risky at that time. Therefore, the government contends that it could not have foreseen: (1) that Anchor would purchase that type of asset, let alone that it would later sell that asset to attain capital compliance in the wake of FIRREA; and (2) that RFC would be so profitable, thus substantially increasing the magnitude of the damages flowing from a contract breach. The test that the government proposes is too narrow. In previous Winstar cases we have recognized that the particular details of a loss need not be foreseeable, as long as the plaintiff bank’s “need to raise capital in the event of a breach was foreseeable.” See Fifth Third Bank v. United States, 518 F.3d 1368, 1376 (Fed. Cir. 2008) (plaintiff was entitled to compensation for damages incurred in generating regulatory capital, through branch sales, to replace lost goodwill and was not required to establish the foreseeability of the poor economic conditions that created difficulties in raising capital). The trial court found that even under the heightened burden of foreseeability urged by the government, “[t]he record indicates that it was in fact reasonable at the time of contracting for defendant to foresee that Anchor might become heavily engaged in the type of business in which RFC specialized, and that a breach might force Anchor from that market.” Anchor, 81 Fed. Cl. at 81. Because we conclude that the plaintiff need not satisfy that heightened burden, we do not address the question whether the court’s findings on that issue are supportable. 2008-5175, -5182 8 “If it was foreseeable that the breach would cause the other party to obtain additional capital, there is no requirement that the particular method used to raise that capital or its consequences also be foreseeable.” Citizens Fed. Bank v. United States, 474 F.3d 1314, 1321 (Fed. Cir. 2007) (plaintiff was entitled to compensation for negative tax consequences incurred in raising capital to replace lost goodwill; it did not need to prove that the specific tax consequences were foreseeable). The government contends that the loss at issue in this case was not foreseeable because Anchor did not own RFC at the time it entered into the relevant contracts. It is logical, however, to apply the reasoning of Fifth Third Bank and Citizens Federal Bank to situations in which the government’s breach causes a bank to sell an asset that was purchased prior to FIRREA in reliance on the supervisory goodwill obtained in the mergers. First, the importance of supervisory goodwill to the merger agreements is undeniable. Goodwill was critical to the government’s ability to induce banks to enter into the supervisory mergers; without that inducement, the banks would have had little incentive to purchase failing thrifts with substantial net liabilities. See, e.g., Winstar, 518 U.S. at 921 (Scalia, J., concurring) (characterizing favorable regulatory treatment as “an essential part of the quid pro quo” of the merger contracts with the government); Cal. Fed. Bank, FSB v. United States, 245 F.3d 1342, 1349 (Fed. Cir. 2001) (“The continued use of supervisory goodwill as regulatory capital for the entire 35-40 year amortization period initially promised was . . . a central focus of the contract and the subject of the government’s breach.”). Second, the government expected the infusion of regulatory capital in the form of supervisory goodwill to allow the acquiring institutions to make profitable investments that could rehabilitate the failing thrifts. As the trial court found, 2008-5175, -5182 9 “the government needed and expected an acquiring thrift to leverage its goodwill into profitable investments because retained earnings were essential to replace the regulatory capital that a thrift lost each year when its goodwill was amortized.” Anchor, 81 Fed. Cl. at 78. By providing that supervisory goodwill would be amortized over time, the government’s contracts encouraged institutions such as Anchor to invest early and aggressively so as to take advantage of the supervisory goodwill before it was gone. Under these circumstances, it was reasonable for the trial court to apply the foreseeability rule in a manner that encompassed both the purchase and the ultimate sale of assets. The trial court thus properly required only a general showing that (1) the government could reasonably have foreseen that the influx of supervisory goodwill under the contracts would cause the acquiring institution to make investments in order to generate profit and rehabilitate the failing acquired thrifts; and (2) the government could reasonably have foreseen that a breach of contract would cause the acquiring institution to sell off those very investments in order to raise capital to meet regulatory requirements. The government argues that our decision in Old Stone Corp. v. United States, 450 F.3d 1360 (Fed. Cir. 2006), stands for the proposition that damages cannot be awarded unless the loss that actually occurred—here, the loss of the profits that RFC would have generated if it had not been sold—was foreseeable. Old Stone, however, involved quite different facts, and the analysis employed by the court in that case does not preclude a damages award here. Like this case, Old Stone involved supervisory mergers that generated supervisory goodwill for the acquiring bank. This court in Old Stone allowed a recovery 2008-5175, -5182 10 of the payments made by the plaintiff to replace the regulatory capital eliminated by FIRREA. However, the court denied an award of damages flowing from the bank’s seizure, which resulted from “other problems” that were unrelated to the loss of supervisory goodwill. According to the bank’s theory, it was entitled to a damages award equal to the full amount that it had contributed to the acquired thrifts in the supervisory mergers because (1) the breach had deprived the bank of regulatory capital; (2) when the bank encountered the “other problems” unrelated to FIRREA, it was forced to sell valuable assets that it would not have had to sell if it had retained the regulatory capital from the supervisory mergers; and (3) the valuable assets, if they had been retained, would have been sufficient to enable the bank to avoid seizure. 450 F.3d at 1376. The Old Stone court pointed out that there was no testimony in that case “that would suggest that the seizure of the thrift by itself was a foreseeable result of the shrinkage,” and that the trial court did not find that the forced shrinkage of the bank had “a foreseeable relationship to the seizure.” 450 F.3d at 1376. Because the plaintiff had “failed to establish that [the] extended chain of causation” leading to the seizure of the bank was foreseeable at the time of contract formation, this court rejected the plaintiff’s reliance damages claim. Id. The court acknowledged that recovery can be predicated on the need to replace regulatory capital or on the failure of a thrift due to a deficiency in regulatory capital. Id. at 1376-77. In the case before it, however, the court held that the bank’s theory of foreseeability—“that the seizure resulted from the fact that the replacement capital was unavailable to resolve other problems not caused by 2008-5175, -5182 11 FIRREA”—was both unsupported by the evidence and too attenuated to support a damages award. Id. at 1377. In the course of its opinion, the court in Old Stone noted that “even if the need for replacement capital was foreseeable, that hardly establishes that the adverse consequences alleged to flow from the need to make infusions were foreseeable.” The court then quoted from the Restatement of Contracts, which provides that the “mere circumstance that some loss was foreseeable, or even that some loss of the same general kind was foreseeable, will not suffice if the loss that actually occurred was not foreseeable.” Restatement (Second) of Contracts § 351 cmt. a (1981), quoted in Old Stone, 450 F.3d at 1376. While the quoted comment from the Restatement limits damages awards when unforeseeable events result in enhanced losses to the non-breaching party, it does not suggest that the specific loss in question must have been within the contemplation of the parties at the time of contracting. The Restatement makes that point clear, stating that “the party in breach need not have made a ‘tacit agreement’ to be liable for the loss. Nor must he have had the loss in mind when making the contract, for the test is an objective one based on what he had reason to foresee.” Restatement § 351 cmt. a. As a leading commentator has explained, summarizing the foreseeability limitation on expectancy damages, [t]he magnitude of the loss need not have been foreseeable, and a party is not disadvantaged by its failure to disclose the profits that it expected to make from the contract. However, the mere circumstance that some loss was foreseeable may not suffice to impose liability for a particular type of loss that was so unusual as not to be foreseeable. E. Allan Farnsworth, Farnsworth on Contracts § 12.14, at 262 (3d ed. 2004). 2008-5175, -5182 12 The principle recited in Old Stone is consistent with the generally recognized rule that foreseeability for purposes of determining contract damages requires “merely that the injury actually suffered must be one of a kind that the defendant had reason to foresee and of an amount that is not beyond the bounds of reasonable prediction.” 11 Joseph M. Perillo, Corbin on Contracts § 56.7, at 108 (rev. ed. 2005). “Just as reason to foresee does not mean actual foresight, so also it is not required that the facts actually known to the defendant are enough to enable the defendant to foresee that a breach will cause a specific injury or a particular amount in money.” Id.; see also Farnsworth, supra, § 12.14, at 260-61 (“There is no requirement that the breach itself or the particular way that the loss came about be foreseeable.”). Contrary to the government’s contention, Old Stone does not depart from those general principles and impose a restrictive test of foreseeability in which the specific mechanism of loss must be foreseeable. As this court stated in Citizens Federal Bank, “If it was foreseeable that the breach would cause the other party to obtain additional capital, there is no requirement that the particular method used to raise that capital or its consequences also be foreseeable.” 474 F.3d at 1321. In light of the applicable test, the trial court did not commit clear error in finding that Anchor’s loss was foreseeable. As the trial court found (and the government does not dispute), the government expected that Anchor would “take advantage of the special treatment of supervisory goodwill to acquire additional assets, grow the bank, and generate new profits that would fill the capital void created by the annual amortization of goodwill.” Anchor, 81 Fed. Cl. at 79. The evidence also supports the court’s conclusion that it was foreseeable that the withdrawal of favorable regulatory treatment for goodwill 2008-5175, -5182 13 would deprive Anchor of capital, that Anchor would have difficulty or be delayed in raising the required capital, and that Anchor would therefore have “to sacrifice assets and forgo the very profit opportunity that made the contracts appealing in the first place.” Id. at 78-79; see also Restatement § 351 cmt. e (where “the lender has reason to foresee that the borrower will be unable to borrow elsewhere or will be delayed in borrowing elsewhere, the lender may be liable for much heavier damages based on the borrower’s inability to take advantage of a specific opportunity . . . , his having to postpone or abandon a profitable project . . . , or his forfeiture of security for failure to make prompt payment”). The evidence also shows that the specific type of investment made by Anchor was among the options available to Anchor at the time of contracting. As the market for private MBS issuers was emerging and thriving during that period, it was reasonable to expect that thrifts would gravitate toward that industry, as they were already familiar with many aspects of that trade. The government even sold Anchor a mortgage-banking enterprise (Suburban, later AMS) through one of the early supervisory mergers. Anchor described that acquisition in its 1983 Annual Report as a means of “positioning itself for a major entrance into nationwide mortgage origination and secondary market activity.” A memorandum from the Federal Home Loan Bank Board to Anchor describing the large amount of new capital needed to sustain and grow Suburban is a further indication that the government was aware that Anchor was becoming more involved in that type of capital-intensive business. In light of that evidence, we reject the government’s contention that the trial court committed clear error in finding the type of Anchor’s damages to be foreseeable. 2008-5175, -5182 14 We also sustain the trial court’s finding that the magnitude of Anchor’s damages was foreseeable. See Anchor, 81 Fed. Cl. at 79 (finding that the “sheer volume of goodwill” rendered the magnitude of the lost profits from RFC’s sale foreseeable). This case involved an exceptionally large amount of supervisory goodwill. The court found that the contracts, which provided Anchor with more than $550 million in regulatory capital, permitted it to leverage more than ten billion dollars in assets while still meeting its regulatory capital requirements. Id. Moreover, as the court noted, the supervisory mergers at issue did not involve “small ‘mom and pop’ thrifts or single-branch institutions”; the agreements constituted “big business.” Id. Anchor was expected to contribute nearly $80 million to Suburban alone over a six-year period, and the acquired thrift was expected to experience nearly $100 million in losses during that same period. In light of that substantial anticipated commitment, it was reasonable for the trial court to conclude that the government expected that Anchor would use each dollar of regulatory capital allotted to create a dollar of capital through future profits. Id. at 81. The trial court thus did not commit clear error in finding that it was foreseeable that the breach would result in lost profits to Anchor in an amount commensurate with the ultimate award for lost profits. 3 We also reject the government’s argument that RFC’s post-sale profits were not foreseeable because they exceeded contemporaneous estimates of RFC’s value, based on a preliminary, non-binding 1988 merger offer of $170 million for Anchor as a whole. The trial court found “little evidence to suggest that the $170 million . . . offered for the entire Anchor franchise was probative of the bank’s value at the time.” Anchor, 81 Fed. Cl. at 54. According to the court, the government did not present credible evidence that Anchor could not have exacted a higher price, or that no other potential buyers might have made an offer. In addition, a shareholder lawsuit challenged the offer as “substantially below [Anchor’s] fair or inherent value.” 2008-5175, -5182 15 B The government next asserts that the trial court erred when it found that the breaching provisions of FIRREA, which deprived Anchor of more than $500 million in regulatory capital, caused Anchor to sell RFC. The government asserts that, even absent the breach, Anchor would have sold RFC because the risk-based capital requirements that were enacted as part of FIRREA (and did not breach the supervisory merger agreements) would have made it impossible for Anchor to operate RFC profitably. Under the risk-based capital provisions, a thrift was required to “risk-weigh” its assets, so that a smaller percentage of “riskier” assets could be counted toward its regulatory capital obligations. That requirement was a particular problem for RFC, which relied on a senior/subordinated MBS structure in which the securities in the subordinated class absorbed a large percentage of the risk, were of non-investment grade, and were frequently held for extended periods for “credit enhancement” purposes. The trial court disagreed with the government’s contention that it was the risk- based capital requirements that caused Anchor to sell RFC, rather than the changes in the treatment of supervisory goodwill. The court made detailed findings as to that issue, devoting 16 pages of its opinion to its findings on causation and another 20 pages to its discussion of the expert testimony regarding Anchor’s ability to retain and operate RFC in a hypothetical non-breach world. Anchor, 81 Fed. Cl. at 59-75, 98-117. Causation is an “intensely factual determination.” Cal. Fed. Bank, 395 F.3d at 1270. While a “causal connection between the breach and the loss of profits must be definitely established,” id. at 1268, the breach need not be the sole factor or the sole 2008-5175, -5182 16 cause of the plaintiff’s loss. Although a plaintiff may recover only for those losses that would not have occurred but for the breach, “[t]he existence of other factors operating in confluence with the breach will not necessarily preclude recovery based on the breach.” Id. We find no clear error in the trial court’s determination that Anchor established a causal connection between the government’s breach and the sale of RFC. The court’s findings are well supported by the record and reflect a careful weighing of documentary and expert evidence. The court relied on contemporaneous documents and “highly credible” testimony from Anchor and RFC officials, which revealed that Anchor never planned to sell RFC unless absolutely necessary, because RFC was performing well beyond Anchor’s expectations and provided Anchor with its pick of “spectacular” quality loans. Anchor, 81 Fed. Cl. at 60-61. Even with the threat of FIRREA looming in mid- 1989, Anchor’s contemporaneous documents describe the sale of RFC as merely a “[b]ack up plan” and note that RFC “continues to fly” and is “authorized to double its volume in 1990.” The documents support the trial court’s conclusion that only after the full extent of FIRREA’s impact became known—including its effect in creating an enormous capital shortfall for Anchor—did Anchor’s management conclude that the sale of RFC was necessary as part of company-wide “triage” efforts. Id. at 60, 68. The evidence also supports the trial court’s finding that the “risk-based capital provisions required the sale of RFC only because of Anchor’s capital deficiency resulting from the breach.” Anchor, 81 Fed. Cl. at 70. In other words, but for the breach, Anchor’s supervisory goodwill would have given it an ample capital cushion with which to continue operating RFC even under the risk-based capital regime. The 2008-5175, -5182 17 government’s own expert acknowledged that, absent the breach, Anchor would have been well capitalized (and able to absorb additional assets) when the risk-based capital provisions went into effect. Anchor’s MBS expert, Mr. Lederman, whose testimony the trial court deemed “extremely credible,” explained that Anchor and RFC could have employed other credit enhancement options (besides retaining the subordinated securities) by selling the subordinated pieces into the secondary market or using pool insurance to credit enhance the securities. The trial court was entitled to weigh the competing expert testimony on that issue and find Anchor’s evidence more persuasive. The government asserts that in a non-breach world Anchor and RFC would not or could not have implemented Mr. Lederman’s suggestions of eliminating the risky “B” pieces and purchasing pool insurance as a means of dealing with the risk-based capital requirements. Contrary to the government’s contention, not only were Anchor and RFC aware of Mr. Lederman’s options for alternative credit enhancement, but they had actually used both measures prior to the sale of RFC. RFC sold $66 million in “B” pieces in early 1990. Anchor, 81 Fed. Cl. at 71 (citing Mr. Lederman’s testimony that his own investment company participated in the purchase of all of those “B” pieces). In addition, Mr. Lederman testified that RFC had used pool insurance in 1989, after the enactment of FIRREA. Id. Documents from March and December 1989 confirm that RFC considered, and ultimately used, pool insurance in at least 37 different transactions. Finally, it was not error for the trial court to discount the government’s evidence purporting to show that Anchor sold RFC because of the risk-based capital requirements. The government introduced evidence that Anchor’s executives had 2008-5175, -5182 18 made public statements, including a 1991 filing with the Securities and Exchange Commission, suggesting that it was the risk-based capital requirements that caused RFC’s sale. The trial court, however, noted that it had difficulty evaluating those documents, particularly in light of credible contrary testimony by Anchor’s witnesses, because the government never presented the documents to Anchor’s witnesses at trial. Moreover, the court observed that nearly all of Anchor’s public statements (including its SEC filing) were made after the breach and must be read in the context of Anchor’s severely impaired capital position. The post-breach statements thus shed no light on whether the risk-based provisions would have forced the sale in the absence of any loss of supervisory goodwill. In fact, the statements are consistent with the court’s finding that, while the risk-based capital requirements operated in confluence with the breach, Anchor’s post-breach, impaired capital condition was the but-for cause of RFC’s sale. 4 We thus uphold the trial court’s finding of a causal connection between the government’s breach of contract and Anchor’s sale of RFC. C The government argues that the trial court erred as a matter of law by measuring damages based on the profits RFC earned after Anchor sold it. According to the For a similar reason, we reject the government’s argument that the trial court’s position is internally inconsistent because “the court found that a capital shortage forced Anchor to cease an activity that the trial court found Anchor could have continued without additional capital.” The court’s suggestion that Anchor could have eliminated most of its recourse, and thus could have continued to operate RFC absent a breach, does not compel the conclusion that the breach had no effect on Anchor’s ability to retain RFC. As the court found, Anchor’s breach-induced capital deficit necessitated a swift shedding of assets, which included assets that Anchor could have retained if it had had to contend only with FIRREA’s risk-based capital requirements. 2008-5175, -5182 19 government, damages should have been measured based on RFC’s market value at the time of the contract breach or RFC’s sale. The trial court first addressed whether to measure damages based on RFC’s fair market value at the time of its sale to GMAC shortly after the breach. The court noted that, in early 1990, Goldman Sachs valued RFC at approximately $60-70 million, which is consistent with the $64.4 million price paid for RFC in March 1990. Nevertheless, the court concluded that the Goldman Sachs appraisal did not reflect RFC’s fair market value because in the tumultuous post-FIRREA climate all prospective buyers knew that Anchor was desperate to sell RFC quickly. Anchor, 81 Fed. Cl. at 86-87. The court then addressed whether to measure damages based on RFC’s post- breach profits as a GMAC subsidiary. The court concluded that the latter method was more reliable, particularly because, after its acquisition by GMAC, RFC continued to operate under largely the same management and in accordance with the business plan developed under Anchor. The court concluded that “where the goal of the contracts was to enable the plaintiffs to generate ongoing profits that would, over time, fill the shortfall between the various acquired institutions’ assets and liabilities, it seems especially and unreasonably static and wooden to limit the expectation interest to the then-present value of individual assets.” Anchor, 81 Fed. Cl. at 89. The government argues that the trial court erred as a matter of law by considering post-breach evidence of damages, when the only relevant evidence concerns RFC’s market value at the time of the March 1990 sale. The government cites this court’s decision in First Federal Lincoln Bank v. United States, 518 F.3d 1308 (Fed. Cir. 2008), for the proposition that damages for the loss of “income-generating property” 2008-5175, -5182 20 must be measured by the asset’s market value as of the time the property is lost, not by the loss of the profits the asset could have produced in the future. Id. at 1317. According to the government’s theory, the market valuation should already reflect RFC’s expected future risks and future profit stream. While the trial court did not consider Lincoln, which issued just nine days before its own opinion, we conclude that the trial court’s approach is consistent with our precedent, including Lincoln. In Lincoln, this court reviewed a damages award to a thrift that had prevailed on its Winstar-related breach-of-contract claim. 518 F.3d at 1311. The damages were allegedly incurred when the thrift reduced its deposit base to raise regulatory capital following the enactment of FIRREA. Although the trial court permitted the plaintiff to recover the lost value of the deposits as of the time of trial, it rejected the plaintiff’s theory that it should recover for future lost profits that would have been generated by the forgone deposits. On appeal, the parties disputed only the ruling as to the claim for the lost value of the deposits. Characterizing that claim as one “for loss of income- generating property,” this court stated that “damages for lost income-producing property is properly determined as of the time the property is lost (usually the time of the breach) because the market value of the lost property reflects the then-prevailing market expectation as to the future income potential of the property.” Id. at 1317. For support, the court cited the Second Circuit’s decision in Schonfeld v. Hilliard, which stated that [w]hen the defendant’s conduct results in the loss of an income-producing asset with an ascertainable market value, the most accurate and immediate measure of damages is the market value of the asset at the time of breach—not the lost profits that the asset could have produced in the future. 2008-5175, -5182 21 218 F.3d 164, 176 (2d Cir. 2000). Based on that language, the government argues that Lincoln adopted the rule that damages for the loss of income-generating assets must always be measured by the market value of the lost asset at the time it is lost, and never by evidence of post-breach profits generated by the asset after it has been purchased by a third party. The government’s interpretation of Lincoln is incorrect for two reasons. First, Lincoln recognized two permissible methods of measuring damages: (1) the market value of a lost income-producing asset (“lost asset” or “lost asset value” damages); and (2) future lost profits that could have been derived from the lost income-producing asset (“lost profits” damages). Both Lincoln and Schonfeld discuss the award of lost asset damages as an alternative to lost profits damages. See Lincoln, 518 F.3d at 1317 (“First Federal has [correctly] recognized that ‘The Trial Court Awarded Damages Based on the Value of the Foregone Deposits, Not the Earnings that the Foregone Deposits Would have Generated.’”); Schonfeld, 218 F.3d at 176 (“Although lost profits and . . . lost asset damages are both consequential, rather than general, in nature, courts have universally recognized that they are separate and distinct categories of damages.”). Neither decision mandates that one measurement method must invariably be used, as opposed to the other. Second, the procedural posture and factual circumstances of Lincoln differ from those in the present case. In Lincoln, only lost asset damages were at issue on appeal. The plaintiff did not appeal the denial of lost profits damages, which the trial court had considered and rejected as speculative. Lincoln, 518 F.3d at 1315, 1317. Therefore, Lincoln’s focus on a market value measurement stemmed from the posture of that case, 2008-5175, -5182 22 not from any conclusion that market value was the only permissible method of measuring damages under the law. 5 Moreover, rather than favoring one method of measuring damages over the other, Lincoln focused more specifically on the proper timing of the damages measurement, ruling that the trial court had erred in valuing the lost deposits as of the date of trial rather than the date the breach. Id. at 1317-18. Neither Lincoln nor any of our other Winstar decisions bars the court from considering post-breach evidence in determining the quantum of a lost profits award. As we have repeatedly recognized, the rule favoring the measurement of damages as of the time of the breach “does not apply . . . to anticipated profits or to other expectancy damages that, absent the breach, would have accrued on an ongoing basis over the course of the contract. In those circumstances, damages are measured throughout the course of the contract.” Energy Capital Corp., 302 F.3d at 1330; see also Lincoln, 518 F.3d at 1316. Likewise, our decision in Fifth Third Bank, issued shortly after Lincoln, recognized that “strict application of the [time-of-breach] rule may not result in the most accurate assessment of expectancy damages.” 518 F.3d at 1377. Thus, where it is necessary to fashion an appropriate award, a court “may consider post-breach evidence when determining damages in order to place the non-breaching party in as good a position as he would have been had the contract been performed.” Id.; see also Cal. Fed. Bank, 245 F.3d at 1349-50 (reversing award of summary judgment for defendant and remanding because plaintiff’s evidence, including the actual post-sale performance In Schonfeld, the Second Circuit likewise discussed the measurement of lost asset damages only after reviewing and affirming the trial court’s determination that the plaintiff’s separate lost profits claim was too speculative. 218 F.3d 164, 172-76. 2008-5175, -5182 23 of assets the plaintiff was forced to sell, created a genuine issue of material fact as to the existence and quantum of lost profits). That is particularly apt to be true where, as here, the court is required to choose between (1) equivocal evidence as to the market value of an income-generating asset many years earlier, unenhanced by interest, and (2) reliable evidence as to the actual earnings the asset would have produced over the pertinent period. Notably, this is not a case in which the government’s breach forced Anchor to sell RFC but left it free to invest the proceeds of the sale in another equally profitable income-generating asset, so that the forced sale would in theory produce little by way of damages. In this case, by requiring Anchor to sell RFC in order to buttress its capital accounts, the breach deprived Anchor of the profits it would have obtained from retaining RFC while at the same time preventing Anchor from investing the proceeds of the RFC sale in a similarly profitable enterprise. In effect, that meant that the proceeds of the RFC sale lost much of their value as a potential source of profit, and thus that the difference between the fair market value of RFC and the proceeds from the sale was not necessarily a reliable measure of Anchor’s loss from the breach. The trial court, which presided over the five-week-long trial on damages and was intimately familiar with the circumstances of the breach and the parties’ competing arguments, considered the two permissible methods of calculating damages—lost asset value and lost profits. It also reviewed extensive documentary and testimonial evidence and weighed the relevant expert analysis. Ultimately, the court concluded that the most accurate approach was to base the award of damages on RFC’s actual post-breach 2008-5175, -5182 24 profits under GMAC. We hold that the court did not abuse its discretion in measuring Anchor’s damages by the post-breach profits generated by RFC. 6 Quite apart from the unsuitability of RFC’s fair market value to provide full compensation to Anchor for the breach, the evidence supports the trial court’s finding that the $64.4 million estimate of RFC’s value was likely a substantial undervaluation of RFC’s fair market value on the date of sale. As the Supreme Court has held, “fair market value presumes conditions that, by definition, simply do not obtain in the context of a forced sale.” BFP v. Resolution Trust Corp., 511 U.S. 531, 538 (1994). Those conditions include a price “fixed by negotiation and mutual agreement, after ample time to find a purchaser, as between a vendor who is willing (but not compelled) to sell and a purchaser who desires to buy but is not compelled to take the particular . . . piece of property.” Id. at 538. Here, the evidence suggests that “RFC was sold in a veritable fire sale” and that there was “blood in the water,” because potential buyers knew of Anchor’s need to sell RFC. Anchor, 81 Fed. Cl. at 63, 87. Contrary to the government’s argument, the trial court reasonably concluded that assessing RFC’s fair market value at the time of the breach would have been a more speculative means of measuring Anchor’s damages than looking to RFC’s actual post-breach profits. The record also reflects that the trial court carefully weighed the pertinent expert testimony. While acknowledging that Anchor’s damages model was not a perfect proxy for the profits that an Anchor-owned RFC (as opposed to a GMAC-owned RFC) would The government argues that Lincoln also bars the trial court’s award of $42 million for lost stock proceeds, which was based on RFC’s post-sale profits. Because we disagree with the government’s interpretation of Lincoln, and because the government has not offered any other specific reason to question that component of the court’s damages award, we reject the government’s argument. 2008-5175, -5182 25 have earned, the court concluded that it nevertheless provided “a concrete, reasonable and appropriate model” by which to develop a “sound and appropriate” damages award. Anchor, 81 Fed. Cl. at 107-08. The evidence showed that, even after its sale to GMAC, RFC’s management team remained in place and that RFC followed the same business plan it had developed under Anchor, including entering into all the new lines of business it had planned to enter under Anchor. Id. at 118. Where “reasonable certainty” as to lost profits was established, such as for the 1990 to 1995 period, the trial court used Anchor’s damages model. However, where the model broke down, such as for 1996 and 1997, the trial court denied lost profits, instead crediting the government’s argument that RFC’s large post-1995 increase in volume, if risk-weighted under FIRREA, would have caused Anchor to incur a capital deficiency. Id. at 121. We conclude that the trial court’s findings and analysis are reasonable and well supported by the record. Accordingly, we uphold the trial court’s award of the lost profits damages attributable to Anchor’s forced sale of RFC. II The government challenges the trial court’s decision to award damages based on the amount paid by Anchor/Dime to purchase NAMCO in 1997. The government asserts that the trial court erred when it found that Anchor’s purchase of NAMCO constituted a compensable form of mitigation for the loss of RFC. While the government does not dispute either the trial court’s application of the mitigation doctrine or its calculation of mitigation costs, the government contests the court’s finding that NAMCO constituted a commercially reasonable substitute for RFC. 2008-5175, -5182 26 As the trial court noted, our decision in Hughes Communications Galaxy, Inc. v. United States, 271 F.3d 1060 (Fed. Cir. 2001), likened damages for substitute goods or performance to the Uniform Commercial Code concept of “cover.” Regarding the types of goods or services that constitute “cover,” or mitigation, we held: The substitute goods or services involved in cover need not be identical to those involved in the contract, but they must be “commercially usable as reasonable substitutes under the circumstances.” Whether cover provides a reasonable substitute under the circumstances is a question of fact. Id. at 1066 (citing U.C.C. § 2-712 cmt. 2 (1997)). Under that standard, a court must determine what a reasonable person in the non-breaching party’s position would consider to be commercially useable as a substitute, in light of the particular circumstances of the transaction. Following that approach, the trial court focused on the reasonableness of NAMCO as a substitute for RFC, given Anchor’s business purposes and needs. We conclude that the court’s findings are not clearly erroneous. The trial court found that NAMCO was an appropriate substitute for RFC. According to the court, the two companies “are functionally similar, operate in the same market, require similar skills to effectively operate, and provide many similar operational benefits.” Anchor, 81 Fed. Cl. at 126. Both originated mortgages nationally and in large volume; both sold a majority of mortgages into the secondary market, while providing Anchor the opportunity to cherry-pick a preferred handful of mortgages to be held in portfolio; both generated servicing rights that led to steady servicing fee income; and both were a source of interest-free financing for Anchor. Id. at 130. Moreover, NAMCO and RFC were similar in size with respect to the volume of their originations and earnings. Id. Even the government’s expert, Dr. Carron, conceded that NAMCO and RFC brought the same functional attributes and benefits to Anchor and served the same 2008-5175, -5182 27 needs. Id. at 132. The trial court gave weight to the similarities between the companies, while regarding the “slightly different product focuses” as less significant. Id. at 132. The government maintains that NAMCO and RFC were fundamentally different businesses that operated in different markets. RFC issued private-label MBS (for which RFC provided credit enhancement), whereas NAMCO issued only agency-sponsored MBS (for which government-sponsored entities provided credit enhancement). RFC did not directly make loans, whereas NAMCO did so for a certain percentage of its mortgages. RFC maintained no direct contact with borrowers, whereas NAMCO maintained contact with some borrowers to service the loans it originated. According to the government, the trial court’s conclusion that those differences were only a matter of “product focus” fails to acknowledge that NAMCO and RFC were in different businesses altogether. The trial court’s findings as to the significance of the differences between the two companies are not clearly erroneous. The court considered and analyzed each point raised by the government. It noted, for example, that most of NAMCO’s mortgages were wholesale originations, like RFC’s mortgages, and that both NAMCO and RFC engaged in servicing and generating servicing income, albeit at different ends of the “servicing spectrum.” See Anchor, 81 Fed. Cl. at 130-32. The court also pointed to considerable evidentiary support for its conclusion that the similarities between NAMCO and RFC outweighed the differences between the two companies. See id. at 126, 129- 30 (discussing documents and testimony describing NAMCO’s large geographic 2008-5175, -5182 28 presence, significant proportion of wholesale mortgage originations, and reliable non- interest revenue streams). Under the mitigation standard articulated by this court, the substitute services “need not be identical,” but merely a “reasonable” replacement in light of the particular circumstances. Hughes, 271 F.3d at 1066. While NAMCO and RFC may not have served identical markets or used identical strategies, they were both major players in the secondary mortgage market that Anchor sought to re-enter, generating interest-rate- independent servicing fees and allowing Anchor to diversify its portfolio and its risk. The court therefore permissibly concluded that NAMCO was a reasonable commercial substitute for RFC, and its purchase thus qualified as mitigation for the loss of RFC. III In light of our conclusion that the trial court did not err in measuring and awarding expectancy damages, we need not address Anchor’s conditional cross-appeal seeking reliance damages. Anchor’s remaining argument on cross-appeal concerns a purported “calculation error” by the trial court in the portion of the award relating to mitigation damages. After concluding in its mitigation analysis that NAMCO was a reasonable substitute for RFC, the trial court quantified Anchor’s costs associated with acquiring NAMCO. The court agreed with the government that the purchase price of $351 million was partially duplicative of Anchor’s 1990 to 1997 lost profits claim. That is because NAMCO traditionally distributed very little of its profits to shareholders as dividends, and the amount of shareholders’ equity consisting of retained earnings increased each year. The trial court credited the government’s expert’s conclusion that 2008-5175, -5182 29 [i]f the court were to award plaintiff damages based on RFC’s lost profits from 1990 to 1997, it would be duplicative to also reimburse the full purchase price of NAMCO since much of that purchase price simply liquidated the shareholder equity (including retained earnings) that built up over the same 1990-97 period. In other words, such a damage award would provide plaintiff with RFC’s profits and NAMCO’s profits over the same period. Anchor, 81 Fed. Cl. at 133. As a result, the court reduced the $351 million purchase price to $185.9 million, which was shown (in Dime’s 1997 Annual Report) to be the “premium” that Anchor paid, over and above accumulated assets. The trial court concluded that the $165.1 million reduction constituted a “conservative best estimate” of the offset for NAMCO’s retained earnings (i.e., the duplicate profit for 1990-97). Id. at 134. The court did not address or make any adjustment for the fact that it had only awarded RFC-related lost profits for 1990 to 1995. Anchor argues that because the court declined to award any RFC-related lost profits damages for the years 1996 and 1997, it should not have reduced NAMCO’s purchase price by the amount of NAMCO’s retained earnings through 1997. Anchor asserts that a proper offset would reduce NAMCO’s purchase price only by its retained earnings through 1995. According to Anchor, there is no need for a remand on this issue, because the proper “correction” amount is clear from the record. Anchor calculates that amount by subtracting NAMCO’s retained earnings through 1995 ($101,909,000, according to NAMCO’s 1996 Annual Report) from the trial court’s “best estimate” of retained earnings through 1997 ($165,100,000). Thus, Anchor requests that we increase its damages by $63,191,000, for a total award of mitigation costs of $249,091,000. 2008-5175, -5182 30 It appears that the trial court may have reduced Anchor’s mitigation costs to avoid a “double counting” that did not actually occur. As we understand it, the trial court determined that Anchor would have been entitled to recover the full purchase price of NAMCO, were it not for a concern about double counting profits from both RFC and NAMCO during “the same 1990-97 period.” See Anchor, 81 Fed. Cl. at 133. However, because no lost profits were awarded for 1996 and 1997, there could have been no double recovery that would justify extending the offset of mitigation damages to those years. Nevertheless, we are not sufficiently confident that our assessment comports with the trial court’s methodology and intent, or that Anchor’s proposed correction would appropriately and reliably “correct” the error, if any. In fact, Anchor’s calculation mixes a precise figure (derived from the NAMCO annual report) with an admittedly imprecise “estimate” by the trial court. Thus, while it appears possible that a correction is warranted, it also appears possible that no correction is required—either because the trial court’s mitigation estimate was “close enough” or because the trial court’s full 1990- 97 offset was made deliberately and appropriately in the first instance. On the information before us, we cannot make that determination. We therefore remand to the Court of Federal Claims to allow that court to determine whether an error was made in offsetting Anchor’s mitigation costs by NAMCO’s retained earnings through 1997 (rather than through 1995) and, if so, how to correct that error. AFFIRMED IN PART and REMANDED IN PART. 2008-5175, -5182 31

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2010-3037 RICHARD A. BECKER, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Richard A. Becker, of Coram, New York, pro se. Joan Stentiford Swyers, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Steven J. Gillingham, Assistant Director. Appealed from: Merit Systems Protection Board NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2010-3037 RICHARD A. BECKER, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Petition for review of the Merit Systems Protection Board in NY4324090141-I-1. ______________________ DECIDED: March 10, 2010 ______________________ Before GAJARSA, PLAGER, and DYK, Circuit Judges. PER CURIAM. Richard A. Becker petitions for review of a final decision of the Merit Systems Protection Board (“Board”) denying his claim under the Uniformed Services Employment and Reemployment Rights Act of 1999 (“USERRA”), 38 U.S.C. §§ 4301– 4333. See Becker v. Dep’t of Veterans Affairs, NY4324-09-0141-I-1 (M.S.P.B. Nov. 3, 2009). For the reasons noted, we affirm the decision of the Board. BACKGROUND In 1999, Congress enacted the USERRA to prevent employers from discriminating against persons because of military service. 38 U.S.C. § 4301(a)(1) (2006). As a result, the USERRA prohibits employers from “den[ying] initial employment, reemployment, retention in employment, promotion, or any benefit of employment” on the basis of an applicant’s military service. Id. § 4311(a). Furthermore, the USERRA prohibits an employer from taking adverse action against an employee who has taken an action under the USERRA. Id. at § 4311(b). Becker served in the United States Army (“Army”) for twenty-two years including active duty from 1958 to 1961, service in the Gulf war in 1991, and reserve duty. Because of his service in the Army, Becker is afforded USERRA protection. See id. § 4311(a). He holds the position of Nursing Assistant, GS-5, with the Department of Veterans Affairs (“DVA”), Northport, New York. Over the past ten years, Becker has applied for various positions within the DVA but has not been promoted. He contends that less-qualified non-veterans have been selected for the positions. During an investigation of an equal employment opportunity (“EEO”) complaint in 2007, an investigator learned that the head of the Human Resources office at the facility informed the management about numerous appeals that Becker and others had filed with the Board. Becker argues that as a result of that statement, he and other employees are not selected when they apply for new positions. In January of 2009, Becker applied for a position as a Human Resources Assistant at the Veterans Affairs Medical Center in Northport, New York. Becker and six other candidates applied for and were interviewed for the position. The DVA determined that Becker was qualified, but another employee was selected and accepted the position. The DVA submitted declarations to the Board, regarding the interviews, from the selecting official and the panel members who interviewed the seven 2010-3037 2 candidates. The declarations stated that all seven candidates answered the same seven questions. Each of the seven candidates were scored by each member of the interview panel on a scale of 0-5 based on responses to the questions; Becker ranked fifth out of the seven candidates. The candidate with the highest score was selected for the position; and neither Becker’s veteran status nor prior appeals had any impact on his failure to be selected. The selection panel’s notes also indicated that Becker mentioned his duties as a nursing assistant and a part-time clerk at Wal-Mart. The panel’s notes further indicated that the selected candidate discussed her experience with credentialing and privileges, the admissions office, and hospital accreditation. The selected candidate is not a veteran. On February 13, 2009, Becker appealed the DVA’s decision claiming that the DVA’s failure to select him, over a non-veteran, for the Human Resources Assistant position constituted a violation of the USERRA, 38 U.S.C. §§ 4301–4333. The USERRA prohibits an employer from denying a person a promotion or employment because of such person’s military service. 38 U.S.C. § 4311(a). On July 16, 2009, an administrative judge (“AJ”) issued an Order stating that to prevail on the merits of his claim, “[Becker] would have to show that his military service was at least a motivating or substantial factor in management’s decision not to select him for the position of Human Resources Assistant.” Becker did not request a hearing, and on September 9, 2009, the AJ issued an initial decision denying Becker’s claim. The AJ considered the fact that the head of Human Resources had advised certain management officials that Becker had filed appeals with the Board. The AJ, however, found that there was no evidence of “any 2010-3037 3 anti-veteran animus” or “any negative remarks about [Becker]” communicated from the management to the members of the interviewing panel. Therefore, the AJ found that there was insufficient evidence that Becker’s “military service was a substantial or motivating factor in the agency’s decision not to select him for the position of Human Resources Assistant.” Becker’s claim was therefore denied. Becker sought review of the AJ’s decision before the Board. The Board will only review the decision of an administrative judge when significant new evidence is presented that was not available for consideration or when the AJ made an error interpreting a statute or regulation. See 5 C.F.R. § 1201.115. The Board denied review and the decision of the AJ thus became final. This appeal followed. DISCUSSION This court has jurisdiction over Becker’s petition pursuant to 5 U.S.C. § 7703. This court must sustain a decision of the Board unless it is “found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; [or] (3) unsupported by substantial evidence.” Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1545 (Fed. Cir. 1994) (citing 5 U.S.C. § 7703(c) (2006)). This court “will not overturn an agency decision if it is supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Hogan v. Dep’t of the Navy, 218 F.3d 1361, 1364 (Fed. Cir. 2000) (quoting Brewer v. United States Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981)). An employer engages in the conduct proscribed under § 4311(a) if the performance of service “is a motivating factor in the employer’s action.” Id. 2010-3037 4 § 4311(c)(1). In addition, an employer may not discriminate in employment against an employee because such employee “has taken action to enforce a protection afforded any person under [the USERRA].” Id. § 4311(b)(1). USERRA claims are analyzed under a burden-shifting mechanism, where an employee making a claim under the Act “bears the initial burden of showing by a preponderance of the evidence that his military service was a substantial or motivating factor in the adverse employment action.” Erickson v. U.S. Postal Serv., 571 F.3d 1364, 1368 (Fed. Cir. 2009). The employer, however, does not violate the Act if it can show “that the action would have been taken in the absence of such . . . service.” 38 U.S.C. § 4311(c)(1), (c)(2)(D); see also Erickson, 571 F.3d at 1364 (“If the employee makes that prima facie showing, the employer can avoid liability by demonstrating, as an affirmative defense, that it would have taken the same action without regard to the employee's military service.”). In other words, an employer only violates § 4311 “if it would not have taken the adverse employment action but for the employee’s military service.” Erickson, 571 F.3d at 1364. Becker’s claim against the Department of Veterans Affairs does not provide sufficient evidence to meet his initial burden. First, there is no evidence presented that Becker’s military service was “a motivating factor” in the agency’s decision. The Board relied on the agency’s submission of declarations from the interviewing panel that all seven candidates were asked the same seven questions and evaluated under the same scale of 0-5. Also, each panel member declared that Becker’s military service was not a factor in the panel’s decision. Becker has presented no evidence disputing the panel members’ declarations. 2010-3037 5 Second, there is insufficient evidence that the DVA’s decision not to offer the position to Becker was based on Becker’s prior actions under the USERRA. Although during an EEO investigation an investigator discovered that the head of the Human Resources office notified management about Becker’s actions, the Board did not find any evidence that this information was communicated to the members of the interviewing panel. Rather, the panel members’ declarations indicated that Becker’s prior actions were not considered in their decision making process. Becker, therefore, has not shown by a preponderance of the evidence that his military service or prior USERRA actions were a motivating factor in the agency’s decision. Because Becker did not meet his “initial burden of showing by a preponderance of the evidence that his military service [or prior USERRA actions] was a substantial or motivating factor in the adverse employment action,” we need not address whether the agency would have taken the same action regardless of Becker’s service. See Erickson, 571 F.3d at 1364. Because the Board’s decision is supported by substantial evidence that neither Becker’s military service nor his prior USERRA actions were “motivating factor[s]” in the agency’s decision, this court affirms. No costs. 2010-3037 6

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2009-1506 (Serial No. 10/131,778) IN RE ARUN ARORA David Leason, Leason Ellis LLP, of White Plains, New York, for appellant. Raymond T. Chen, Solicitor, Office of the Solicitor, United States Patent and Trademark Office, of Arlington, Virginia, for the Director of the United States Patent and Trademark Office. With him on the brief were Robert J. McManus and Frances M. Lynch, Associate Solicitors. Appealed from: United States Patent and Trademark Office Board of Patent Appeals and Interferences NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2009-1506 (Serial No. 10/131,778) IN RE ARUN ARORA Appeal from the United States Patent and Trademark Office, Board of Patent Appeals and Interferences. __________________________ DECIDED: March 10, 2010 __________________________ Before GAJARSA, PLAGER, and DYK, Circuit Judges. PER CURIAM. Arun Arora appeals the decision of the Board of Patent Appeals and Interferences (Board), affirming the rejection of claims 11-16 of his patent application. We affirm. Claims 11-16 of Dr. Arora’s application relate to a method for converting drug dosages to prevent overdose. Representative claim 11 reads (with emphasis added to disputed limitations): 11. A method for converting drug dosages to prevent overdose, comprising the steps of: defining a common medication reference range; assigning dosages of first and second drugs to respective values within the common medication reference range; prescribing a particular dosage of the first drug; identifying a value within the common medication reference range for the particular dosage; and permitting prescription fulfillment with a dosage of the second drug which corresponds [to] the dosage of the first drug using the common medication reference range. The examiner rejected Dr. Arora’s claims under 35 U.S.C. § 103(a) as unpatentable over Francis (U.S. Patent No. 6,978,286) in view of Andersson (U.S. Patent No. 5,934,273). The Board affirmed the examiner’s obviousness rejection. The determination of obviousness under 35 U.S.C. § 103 is a legal conclusion based on underlying facts. In re Kumar, 418 F.3d 1361, 1365 (Fed. Cir. 2005). We review the Board’s ultimate determination of obviousness without deference and the Board’s underlying fact findings for substantial evidence. In re Kotzab, 217 F.3d 1365, 1369 (Fed. Cir. 2000). Dr. Arora argues on appeal, as he did before the Board, that Francis and Andersson, either taken alone or in combination, fail to disclose or suggest the features of “assigning dosages of first and second drugs to respective values within the common medication reference range” and “permitting prescription fulfillment with a dosage of the second drug which corresponds [to] the dosage of the first drug using the common medication reference range.” However, substantial evidence supports the Board’s finding that the references teach those two limitations, and we agree with the Board that Dr. Arora’s claims would have been obvious to a person of ordinary skill in the art in light of the cited references. Francis discloses a method and device for calculating medication dosages. Among other things, Francis teaches the conversion of a drug dosage value in one reference range into an equivalent dosage in a second reference range. See, e.g., Francis col.2 ll.57-59 (“Still another aspect of this present invention is to convert 2009-1506 2 inputted drug measurement units into desired units of measurement.”). Andersson discloses a system for dispensing safe and clinically effective doses of inhalable medications. Andersson also teaches the broad principle that “drugs targeted at the same disease are commonly not equipotent, even if they act by generally the same mechanism.” Andersson col.4 ll.62-64. Andersson further explains that “in any assessment of efficiency comparing different drugs, equipotent doses of pharmaceutically active compounds should be directly compared.” Id. col.5 ll.4-6. While Dr. Arora acknowledges that Francis converts drug dosages from one reference range into another, he argues that Francis does not teach “assigning dosages" of two different drugs to values in the same reference range, i.e., the claimed “common medication reference range.” Even if Francis does not explicitly disclose conversion to a common reference range, however, the Board found that a person of ordinary skill in the art would appreciate that dosages should be assigned to respective values in a common reference range based on Andersson’s teaching that equipotent doses of different medications should be directly compared. Dr. Arora argues that Andersson should be understood as limited to the narrow teaching that a smaller amount of a drug is needed when delivered via Andersson’s inventive dry powder inhaler instead of a metered dose inhaler. It is well-settled, however, that a prior art reference must be considered for all that it teaches to those of ordinary skill in the art, not just the embodiments disclosed therein. See In re Inland Steel Co., 265 F.3d 1354, 1361 (Fed. Cir. 2001); In re Fritch, 972 F.2d 1260, 1264 (Fed. Cir. 1992). Andersson teaches the broad principle that different drugs are equipotent at different dosages, and even provides an example of that principle. Andersson, col.5 2009-1506 3 ll.2-3 (“0.1 mg of salbutamol generally [is] regarded as equipotent to 0.25 mg of terbutaline sulphate.”). Substantial evidence supports the Board’s findings regarding the teachings of Andersson, and the Board did not err in concluding that a person of ordinary skill in the art would apply those teachings to Francis to convert dosages of two different drugs into a “common medication reference range.” Dr. Arora also argues that the cited references do not teach “permitting prescription fulfillment with a dosage of the second drug which corresponds [to] the dosage of the first drug using the common medication reference range.” His argument, however, is based on his limited reading of Andersson, which has been rejected. The Board properly applied the equipotency principle disclosed in Andersson to conclude that a person of ordinary skill in the art would have converted the dosage of one drug into an equipotent dosage of another drug to prevent overdose, as required by claim 11. For the foregoing reasons, the Board correctly affirmed the examiner’s rejection of claims 11-16 of Dr. Arora’s application. Its factual findings were supported by substantial evidence and its conclusion that the claims would have been obvious in light of the prior art references was not in error. Accordingly, we affirm the decision of the Board. 2009-1506 4

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2009-1504 I4I LIMITED PARTNERSHIP and INFRASTRUCTURES FOR INFORMATION INC., Plaintiffs-Appellees, v. MICROSOFT CORPORATION, Defendant-Appellant. Before SCHALL, PROST, and MOORE, Circuit Judges. PROST, Circuit Judge. ON PETITION FOR PANEL REHEARING A combined petition for panel rehearing and rehearing en banc was filed by Microsoft Corporation. A response was invited by the panel and filed by i4i Limited Partnership. That was followed by Microsoft’s Motion for Leave to File a Reply in Support of Combined Petition for Panel Rehearing and Rehearing En Banc. Among the issues on which Microsoft has sought rehearing is the holding that Microsoft did not challenge the district court’s denial of Microsoft’s post-verdict JMOL on willfulness. i4i Ltd. v. Microsoft Corp., 589 F.3d 1246, 1273 (Fed. Cir. 2009). Microsoft argues that this conclusion is factually incorrect, that review of the jury’s willfulness verdict is required, and that it should prevail on that question. IT IS ORDERED THAT: (1) Microsoft’s Motion for Leave to File a Reply in Support of Combined Petition for Panel Rehearing and Rehearing En Banc is granted. (2) Microsoft’s Petition for Panel Rehearing is granted for the limited purpose of revising portions of the discussion of willfulness. (3) The previous opinion in this appeal issued December 22, 2009 and reported at i4i Ltd. v. Microsoft Corp., 589 F.3d 1246 (Fed. Cir. 2009), is withdrawn and replaced with the revised opinion accompanying this order. The Petition for Rehearing En Banc will be circulated to the full court along with a copy of this order. FOR THE COURT March 10, 2010 ___ /s/ Jan Horbaly Date Jan Horbaly Clerk cc: Matthew D. Powers Donald R. Dunner John W. Thornburgh Richard Samp 2009-1504 2

United States Court of Appeals for the Federal Circuit 2009-1504 I4I LIMITED PARTNERSHIP and INFRASTRUCTURES FOR INFORMATION INC., Plaintiffs-Appellees, v. MICROSOFT CORPORATION, Defendant-Appellant. Donald R. Dunner, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., of Washington, DC, argued for plaintiffs-appellees. With him on the brief were Don O. Burley, Kara F. Stoll and Jason W. Melvin; and Erik R. Puknys, of Palo Alto, California. Of counsel on the brief were Douglas A. Cawley and Jeffrey A. Carter, McKool Smith, P.C. of Dallas, Texas, and T. Gordon White, of Austin, Texas. Matthew D. Powers, Weil, Gotshal & Manges LLP, of Redwood Shores, California, argued for defendant-appellant. With him on the brief were Kevin S. Kudlac and Amber H. Rovner, of Austin, Texas. Of counsel on the brief were Matthew D. McGill, Minodora D. Vancea, Gibson, Dunn & Crutcher LLP, of Washington, DC; and Isabella E. Fu, Microsoft Corporation, of Redmond, Washington. Of counsel was David J. Lender, Weil, Gotshal & Manges LLP, of New York, New York. John W. Thornburgh, Fish & Richardson, P.C., of San Diego, California, for amici curiae Dell Inc. and Hewlett-Packard Company. With him on the brief were John E. Gartman; and Indranil Mukerji, of Washington, DC. Richard A. Samp, Washington Legal Foundation, of Washington, DC, for amicus curiae Washington Legal Foundation, of Washington, DC. With him on the brief was Daniel J. Popeo. Appealed from: United States District Court for the Eastern District of Texas Judge Leonard Davis United States Court of Appeals for the Federal Circuit 2009-1504 I4I LIMITED PARTNERSHIP and INFRASTRUCTURES FOR INFORMATION INC., Plaintiffs-Appellees, v. MICROSOFT CORPORATION, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Texas in case no. 07-CV-113, Judge Leonard Davis. __________________________ DECIDED: March 10, 2010 __________________________ Before SCHALL, PROST, and MOORE, Circuit Judges. PROST, Circuit Judge. This is a patent infringement case about an invention for editing custom XML, a computer language. The owner of the patent, i4i Limited Partnership (“i4i”), brought suit against Microsoft Corporation (“Microsoft”), alleging that the custom XML editor in certain versions of Microsoft Word (“Word”), Microsoft’s word-processing software, infringed i4i’s patent. After a seven-day trial, the jury found Microsoft liable for willful infringement. The jury rejected Microsoft’s argument that the patent was invalid, and awarded $200 million in damages to i4i. The district court denied Microsoft’s motions for judgment as a matter of law and motions for a new trial, finding that Microsoft had waived its right to challenge, among other things, the validity of the patent based on all but one piece of prior art and the sufficiency of the evidence supporting the jury’s damage award. Although statutorily authorized to triple the jury’s damages award because of Microsoft’s willful infringement, the district court awarded only $40 million in additional damages. It also granted i4i’s motion for a permanent injunction. This injunction, which this court stayed pending the outcome of this appeal, is narrow. i4i Ltd. v. Microsoft Corp., No. 2009-1504 (Fed. Cir. Sept. 3, 2009). It does not affect copies of Word sold or licensed before the injunction goes into effect. Thus, users who bought or licensed Word before the injunction becomes effective will still be able to use the infringing custom XML editor, and receive technical support from Microsoft. After its effective date, the injunction prohibits Microsoft from selling, offering to sell, importing, or using copies of Word with the infringing custom XML editor. Microsoft is also prohibited from instructing or assisting new customers in the custom XML editor’s use. On appeal, Microsoft challenges the jury verdict and injunction on multiple grounds. Because this case went to trial and we are in large part reviewing what the jury found, our review is limited and deferential. We affirm the issuance of the permanent injunction, though we modify its effective date to accord with the evidence. In all other respects, we affirm for the reasons set forth below. BACKGROUND i4i began as a software consulting company in the late 1980s. Basically, companies would hire i4i to develop and maintain customized software for them. Thus, while consumers might not find i4i’s products on the shelves at Best Buy or CompUSA, i4i was in the business of actively creating, marketing, and selling software. In June 1994, i4i applied for a patent concerning a method for processing and storing 2009-1504 2 information about the structure of electronic documents. After approximately four years, the United States Patent and Trademark Office (“PTO”) allowed the application, which issued as U.S. Patent No. 5,787,449 (“’449 patent”). The invention claimed in the ’449 patent forms the basis of this litigation. Since then, i4i has developed several software products that practice the invention. One of these products is “add-on” software for Microsoft Word, which expands Word’s capability to work with documents containing custom XML. XML is one of many markup languages. Markup languages tell the computer how text should be processed by inserting “tags” around text. Tags give the computer information about the text. For example, some tags might tell the computer how to display text, such as what words should appear in bold or italics. Tags can also tell the computer about the text’s content, identifying it as a person’s name or social security number, for instance. Each tag consists of a delimiter and tag name. The delimiter sets the tag apart from the content. Thus, a tag indicating that “717 Madison Pl. NW” is an address might appear as <address>717 Madison Pl. NW</address> where “address” is the tag’s name and “<” and “>” are the delimiters. Custom XML allows users to create and define their own tags. i4i refers to tags and similar information about a document’s structure as “metacodes.” The specification of the ’449 patent defines “metacode” as “an individual instruction which controls the interpretation of the content of the data.” ’449 patent col.4 ll.15-16. The ’449 patent claims an improved method for editing documents containing markup languages like XML. The improvement stems from storing a document’s content and metacodes separately. Id. at col.6 ll.18-21. The invention primarily 2009-1504 3 achieves this separation by creating a “metacode map,” a data structure that stores the metacodes and their locations within the document. The document’s content is stored in a data structure called “mapped content.” Claim 14 is illustrative: A method for producing a first map of metacodes and their addresses of use in association with mapped content and stored in distinct map storage means, the method comprising: providing the mapped content to mapped content storage means; providing a menu of metacodes; and compiling a map of the metacodes in the distinct storage means, by locating, detecting and addressing the metacodes; and providing the document as the content of the document and the metacode map of the document. Id. at col.16 ll.18-30. Separate storage of a document’s structure and content was an improvement over prior technology in several respects. Importantly, it has allowed users to work solely on a document’s content or its structure. Id. at col.7 ll.6-11, 17-20. Since 2003, versions of Microsoft Word, a word processing and editing software, have had XML editing capabilities. In 2007, i4i filed this action against Microsoft, the developer and seller of Word. i4i alleged that Microsoft infringed claims 14, 18, and 20 of the ’449 patent by making, using, selling, offering to sell, and/or importing Word products capable of processing or editing custom XML. i4i further alleged that Microsoft’s infringement was willful. Microsoft counterclaimed, seeking a declaratory judgment that the ’449 patent was invalid and unenforceable. Before the case was submitted to the jury, Microsoft moved for judgment as a matter of law (“JMOL”) on the issues of infringement, willfulness, and validity. The 2009-1504 4 district court denied Microsoft’s motions, and the case was submitted to the jury. The jury found that Word infringed all asserted claims of the ’449 patent. The jury further found that the patent was not invalid, and that Microsoft’s infringement was willful. It awarded $200 million in damages. After trial, Microsoft renewed its motions for JMOL on infringement, validity, and willfulness. In the alternative, Microsoft moved for a new trial on these issues based on the sufficiency of the evidence supporting the jury’s findings. Microsoft also argued it was entitled to a new trial based on errors in the claim construction, evidentiary rulings, and jury instructions. The district court denied Microsoft’s motions. It granted i4i’s motion for a permanent injunction and awarded $40 million in enhanced damages. Microsoft now appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION Microsoft raises numerous issues on appeal. First, Microsoft challenges the district court’s construction of the claim term “distinct.” Second, Microsoft challenges the jury’s validity finding, urging us to find that the ’449 patent was anticipated or obvious as a matter of law, or at least grant a new trial on those issues. Third, Microsoft argues that the jury’s infringement finding must be set aside because it is unsupported by substantial evidence. Fourth, Microsoft challenges the damages award, specifically the admission of certain expert testimony and the sufficiency of the evidence supporting the award. Finally, Microsoft challenges the issuance and terms of the permanent injunction. We address each of these issues in turn. 2009-1504 5 I. Standards of Review For issues not unique to patent law, we apply the law of the regional circuit in which this appeal would otherwise lie. Thus, we apply Fifth Circuit law when reviewing evidentiary rulings and denials of motions for JMOL or new trial. Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1328 (Fed. Cir. 2008). We review denials of JMOL de novo. Cambridge Toxicology Group, Inc. v. Exnicios, 495 F.3d 169, 179 (5th Cir. 2007). JMOL is appropriate only if the court finds that a “reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a)(1); see Cambridge Toxicology, 495 F.3d at 179. We review the denial of a new trial motion for abuse of discretion. Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293 F.3d 912, 924 (5th Cir. 2002). We will not reverse a denial absent a “clear showing” of an “absolute absence of evidence to support the jury’s verdict.” Duff v. Werner Enters., Inc., 489 F.3d 727, 729 (5th Cir. 2007) (emphasis added). We review jury instructions for abuse of discretion, cognizant as we do so of the district court’s broad discretion to compose jury instructions, so long as the instructions accurately describe the law. Baker v. Canadian Nat’l/Ill. Cent. R.R., 536 F.3d 357, 363- 64 (5th Cir. 2008); Walther v. Lone Star Gas Co., 952 F.2d 119, 125 (5th Cir. 1992); see also Barton’s Disposal Serv., Inc. v. Tiger Corp., 886 F.2d 1430, 1434 (5th Cir. 1989). We will reverse a judgment “only if the [jury instructions] as a whole create[] a substantial doubt as to whether the jury has been properly guided in its deliberations.” Baker, 536 F.3d at 363-64. Erroneous instructions are subject to harmless error review. 2009-1504 6 We will not reverse if, considering the record as a whole, the erroneous instruction “could not have affected the outcome of the case.” Wright v. Ford Motor Co., 508 F.3d 263, 268 (5th Cir. 2007). II. Claim Construction On appeal, we must decide whether the district court properly construed the claim term “distinct.” In the asserted claims, the term “distinct” is used to describe how the metacode map and the mapped content are stored. Specifically, the claims say the metacode map is stored in “distinct map storage means” or “distinct storage means.” See, e.g., ’449 patent col.16 ll.20, 25-26, 53-54. Analogously, the document’s content is stored in “mapped content storage,” id. at col.16 ll.22-23, or “mapped content distinct storage means.” Id. at col.15 l.51 (emphasis added). Before the district court, Microsoft argued that “distinct” added two requirements: (1) storing the metacode map and mapped content in separate files, not just separate portions of the computer’s memory; and (2) the ability to edit the document’s content and its metacode map “independently and without access” to each other. The district court rejected both of Microsoft’s proposed limitations. Based on its review of the claim language, the specification, and prosecution history, the district court concluded that “distinct” did not require storage in separate files. Similarly, it concluded that the user’s ability to independently edit the document’s structure or content was a benefit of separate storage, not a claim limitation. The district court then defined “distinct map storage means” in more general terms, as “a portion of memory for storing a metacode map.” “Mapped content distinct storage means” was defined as “a portion of memory for storing mapped content.” 2009-1504 7 On appeal, Microsoft renews both arguments about the meaning of “distinct.” We review the district court’s claim construction de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454-55 (Fed. Cir. 1998) (en banc). To ascertain the scope and meaning of the asserted claims, we look to the words of the claims themselves, the specification, and the prosecution history. Phillips v. AWH Corp., 415 F.3d 1303, 1315- 17 (Fed. Cir. 2005) (en banc); see also 35 U.S.C. § 112 ¶ 2; Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115-16 (Fed. Cir. 2004) (holding that the claims are not “presumed” to be restricted to the embodiments disclosed in the specification). We conclude that the district court properly rejected both of Microsoft’s proposed limitations. A. Separate Files To determine whether “distinct” adds the requirement of storage in separate files, we begin with the claim language. See Phillips, 415 F.3d at 1312. In this case, the claim’s plain language does not require storage of the metacode map and mapped content in separate files. The term “file” appears nowhere in the ’449 patent. Instead, the claims use “storage means”; the specification uses “structures.” ’449 patent col.16 ll.22-26, 53; see also id. at col.4 ll.7-13, 21-24. Both “storage means” and “structures” are broader terms than “file,” suggesting no particular format. At trial, i4i’s expert testified that a person of ordinary skill in the art would understand “structures” to store and organize data, but not as limited to a particular storage format. Indeed, the specification arguably renounces particular formats by defining “document” as a “non- random aggregation of data irrespective of its mode of storage or presentation.” Id. at col.4 ll.57-59 (emphasis added). 2009-1504 8 Turning to the specification, we similarly see no “clear intent[] to limit the claim scope” to storage in files. Abbott Labs. v. Sandoz, Inc., 566 F.3d 1282, 1288 (Fed. Cir. 2009). The sample algorithms do not say the storage means is restricted to “files.” ’449 patent col.8 ll.53-62; see Innova/Pure Water, 381 F.3d at 1121-22. Instead, they use the more generic term “storage space,” creating one for the mapped content and another for the metacode map. As for the prosecution history, we do not read it as limiting storage to files. During prosecution, i4i distinguished its invention from U.S. Patent No. 5,280,574 (“Mizuta”) prior art in part because Mizuta stored “all document information . . . in one file . . . the document file.” But this is not all i4i said. i4i then explained that Mizuta “lacked any notion of a metacode map” or “distinct storage means.” In evaluating whether a patentee has disavowed claim scope, context matters. Together, these statements make clear that what distinguished the Mizuta prior art was not the storage type (file or no file), but rather the separation of a document’s content and structure. The statements Microsoft now plucks from the prosecution history do not “clear[ly] and unmistakabl[y] disavow” storage means that are not files. Computer Docking Station Corp. v. Dell, Inc., 519 F.3d 1366, 1374 (Fed. Cir. 2008) (citing Purdue Pharma L.P. v. Endo Pharms., Inc., 438 F.3d 1123, 1136 (Fed. Cir. 2006)). Because the claims themselves do not use the word “file” and the specification discloses embodiments where the storage format is not a file, we conclude that “distinct” does not require storage in separate files. Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 907-08 (Fed. Cir. 2004) (declining to limit the invention’s scope to the disclosed embodiments when the specification did “not expressly or by clear implication 2009-1504 9 reject the scope of the invention” to those embodiments); see also Boston Scientific Scimed, Inc. v. Cordis Corp., 554 F.3d 982, 987 (Fed. Cir. 2009). B. Independent Manipulation The closer question is whether “distinct” requires independent manipulation of the metacode map and mapped content. Several of the embodiments in the ’449 patent allow the user to manipulate only the metacode map or mapped content. ’449 patent figs.4, 5, 6, 8. However, based on our review of the claim language, the specification, and the prosecution history, we conclude that the claims are not limited to these particular embodiments. Generally, a claim is not limited to the embodiments described in the specification unless the patentee has demonstrated a “clear intention” to limit the claim’s scope with “words or expressions of manifest exclusion or restriction.” Liebel- Flarsheim, 358 F.3d at 906; see also Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed. Cir. 2002). By the same token, not every benefit flowing from an invention is a claim limitation. See Computer Docking, 519 F.3d at 1374; Verizon Servs. Corp. v. Vonage Holding Corp., 503 F.3d 1295, 1302-03 (Fed. Cir. 2007). We begin again with the claim language. None of the claims mention “independent manipulation” of the mapped content and metacode map, an omission we find significant. Had the inventors intended this limitation, they could have drafted the claims to expressly include it. Similarly, the specification refers to “separate,” rather than “independent,” manipulation of the document’s architecture and content. The specification goes on to describe the storage of the metacode map and content as “distinct and separate.” 2009-1504 10 “Distinct” and “separate” are not the same as “independent.” Moreover, the specification teaches that “separate manipulation” describes the user’s ability to work on only the metacode map or content. Behind the scenes, the invention keeps the metacode map and content synchronized. For example, Figure 9 teaches that updates to the content may require the invention to make corresponding changes to the metacode map. ’449 patent col.14 l.49-col.15 l.5. Microsoft is correct that the specification refers to working on “solely” the document’s structure (metacode map): The present invention provides the ability to work solely on metacodes. The process allows changes to be made to the structure of a document without requiring the content. A metacode map could be edited directly without the mapped content. Additionally a new map can be created based solely on an existing map without requiring the content. Id. at col.7 ll.6-11 (emphases added). Read as a whole, however, these statements are best understood as describing the advantages of separate storage, the real claim limitation. See Abbott Labs., 566 F.3d at 1289-90. The specification’s permissive language, “could be edited,” “can be created,” and “ability to work,” does not clearly disclaim systems lacking these benefits. An examination of the prosecution history similarly reveals no statements that unequivocally narrow the claims to require independent manipulation. Initially, the examiner rejected several claims as obvious, explaining that “[s]torage is always distinct, even if at distinct addresses.” In response, i4i stated: [T]he architecture of a document can be treated as a separate entity from the content of the document. Thus, the architecture of the document can be treated as an entity having distinct storage from the content of the document. This separation allows distinct processes to operate on the content and the architecture, with or without knowledge of the other. In other words, using the present invention, one could change the 2009-1504 11 architecture, (layout, structure, or presentation formation) of a document without even having access to the actual content of the document. This is achieved by extracting the metacodes from an existing document and creating a map of the location of the metacodes in the document and then storing the map and the content of the document separately. The reason for the examiner’s rejection helps us understand i4i’s response. In context, i4i’s response is best read as clarifying why the invention’s “storage means” are more than just “distinct addresses.” i4i’s subsequent discussion of the benefits of separate storage is not sufficiently “clear and unmistakable” to disavow embodiments lacking independent manipulation. Purdue Pharma, 438 F.3d at 1136. In light of the specification’s permissive language, the prosecution history, and the claim language, we conclude that “independent manipulation” is a benefit of separate storage, but not itself a limitation. III. Validity Microsoft also appeals two issues regarding the validity of i4i’s patent. The first is whether the invention would have been obvious to one of skill in the art. The second is whether Microsoft is entitled to JMOL or a new trial on validity, due to anticipation by a software program called S4. At trial, Microsoft argued that the ’449 patent was invalid based on several pieces of prior art. As relevant here, Microsoft argued that i4i’s invention would have been obvious in light of U.S. Patent No. 5,587,902 (“Kugimiya”), when combined with either an SGML editor known as Rita or U.S. Patent No. 6,101,512 (“DeRose”). In the alternative, Microsoft argued that i4i’s invention was anticipated under 35 U.S.C. § 102(b) by the sale of a software program, SEMI-S4 (“S4”), by i4i before the critical date. 2009-1504 12 i4i disputed that it would have been obvious to combine Kugimiya with Rita or DeRose. i4i presented evidence that Kugimiya was in a different field (language translation) than Rita, DeRose, or the ’449 patent, which address document editing. i4i also presented evidence of secondary considerations, including long-felt need, failure of others, and commercial success. As to anticipation, i4i also argued that S4 did not practice the ’449 patent because it did not create a “metacode map.” Before the case was submitted to the jury, Microsoft moved for JMOL on invalidity, arguing that i4i’s sale of S4 violated the on-sale bar under § 102(b). Microsoft did not move for pre-verdict JMOL on obviousness or with regard to other prior art. The verdict form did not require the jury to make separate findings for the different pieces of prior art. Instead, the form asked: “Did Microsoft prove by clear and convincing evidence that any of the listed claims of the ’449 patent are invalid?” The jury was instructed to answer “yes” if it found a particular claim invalid, but otherwise answer “no.” The jury found all the asserted claims not invalid. A. Obviousness On appeal we must decide whether the ’449 patent would have been obvious in light of some combination of Rita or DeRose with Kugimiya. The Rita prior art is a software program that allows users to create and edit documents using SGML, a markup language like XML. Rita stores the SGML tags and document’s content in a “tree structure.” This tree stores the tags and content together. DeRose discloses a system for generating, analyzing, and navigating electronic documents containing a markup language, such as XML or SGML. To assist navigation, DeRose and Rita use “pointers,” which allow the user to move between 2009-1504 13 different branches of the tree structure. Kugimiya discloses a system for translating documents from English to Japanese. As part of the translation process, Kugimiya finds, removes, and stores any XML tags in a separate file. The program then translates the document’s content from English to Japanese, after which it puts the XML tags into the translated document. After the tags are replaced, the separate file containing the tags is discarded. Although obviousness is a question of law, it is based on factual underpinnings. As always, our review of the ultimate legal question, whether the claimed invention would have been obvious, is de novo. Duro-Last, Inc. v. Custom Seal, Inc., 321 F.3d 1098, 1108 (Fed. Cir. 2003). The extent to which we may review the jury’s implicit factual findings depends on whether a pre-verdict JMOL was filed on obviousness. Id.; see also Jurgens v. McKasy, 927 F.2d 1552, 1557-58 (Fed. Cir. 1991). In this case, Microsoft has waived its right to challenge the factual findings underlying the jury’s implicit obviousness verdict because it did not file a pre-verdict JMOL on obviousness for the Rita, DeRose and Kugimiya references. Fed. R. Civ. P. 50(a), (b). As we explained in Duro-Last, a party must file a pre-verdict JMOL motion on all theories, and with respect to all prior art references, that it wishes to challenge with a post-verdict JMOL. 321 F.3d at 1107-08. Microsoft’s pre-verdict JMOL on anticipation, based on S4, was insufficient to preserve its right to post-verdict JMOL on a different theory (obviousness), or on different prior art (Rita, DeRose, Kugimiya). Duro-Last, 321 F.3d at 1107-08. Accordingly, we do not consider whether the evidence presented at trial was legally sufficient to support the jury’s verdict. Our review is limited to determining 2009-1504 14 whether the district court’s legal conclusion of nonobviousness was correct, based on the presumed factual findings. Id. at 1108-09; Kinetic Concepts, Inc. v. Blue Sky Med. Group, Inc., 554 F.3d 1010, 1020-21 (Fed. Cir. 2009). In conducting this review, we must presume the jury resolved underlying factual disputes in i4i’s favor because the jury made no explicit factual findings. Duro-Last, 321 F.3d at 1108. This presumption applies to disputes about (1) the scope and content of the prior art; (2) differences between the prior art and asserted claims; (3) the existence of motivation to modify prior art references; and (4) the level of ordinary skill in the pertinent art. Id. at 1109; see also Graham v. John Deere Co., 383 U.S. 1, 17 (1966); Kinetic Concepts, 554 F.3d at 1019. Microsoft’s argument on appeal—that it would have been obvious to combine DeRose or Rita with Kugimiya—depends heavily on (1) the scope of the prior art, and (2) whether a person of ordinary skill would have been motivated to combine the references’ teachings. These are questions of fact. Kinetic Concepts, 554 F.3d at 1020-21. Similarly, Microsoft’s argument that the prior art discloses all of the claim limitations boils down to questions of fact: whether the “tree structure” in Rita and DeRose is a “metacode map,” and whether a “pointer” is an “address of use.” See id.; Graham, 383 U.S. at 17. The jury found all of the asserted claims not invalid, meaning the jury must have believed that there were differences between the prior art and asserted claims, and that a person of ordinary skill would not have been motivated to combine the references. Cf. Kinetic Concepts, 554 F.3d at 1019-20; Duro-Last, 321 F.3d at 1108-09. Because we must view the evidence in the light most favorable to the verdict, all of these questions must be resolved against Microsoft, and in favor of i4i. 2009-1504 15 Arsement v. Spinnaker Exploration Co., 400 F.3d 238, 249, 252-53 (5th Cir. 2005); see Jurgens, 927 F.2d at 1557-58. In light of the jury’s implicit factual findings, Microsoft has not established that the asserted claims would have been obvious. B. Anticipation For anticipation, the question is whether the district court erred in denying Microsoft’s motion for post-verdict JMOL on invalidity, or alternatively a new trial, based on the sale of S4 violating the on-sale bar. See 35 U.S.C. § 102(b). S4 was a software program developed for a client called SEMI by i4i’s corporate predecessor. i4i’s founder, Michel Vulpe, hired Stephen Owens to help develop S4, which they delivered to SEMI in early 1993. S4 allowed the user to add and edit SGML tags in electronic documents. For storage purposes, S4 divided the document into “entities.” According to Vulpe and Owens, these entities were simply chunks of the SGML document, where the SGML tags were intermixed with the content. Both Vulpe and Owens testified that S4 did not create a “metacode map.” At trial, Microsoft argued that the sale of S4 before the critical date violated the on-sale bar. To prove invalidity by the on-sale bar, a challenger must show by clear and convincing evidence that the claimed invention was “on sale in this country, more than one year prior to the date of the application for patent in the United States.” Id.; Adenta GmbH v. OrthoArm, Inc., 501 F.3d 1364, 1371 (Fed. Cir. 2007). It is uncontested that S4 was sold in the United States before the critical date. At trial, the dispute was whether S4 practiced the “metacode map” limitation of the ’449 patent. Because the S4 source code was destroyed after the project with SEMI was completed (years before this litigation began), the dispute turned largely on the 2009-1504 16 credibility of S4’s creators, Vulpe and Owens, who are also the named inventors on the ’449 patent. Both testified that the S4 software sold to SEMI did not practice the ’449 patent, for which they claimed the key innovation—the metacode map—was not even conceived until after the critical date. Both were extensively cross-examined. Vulpe was impeached with statements from a letter he had written to investors, as well as a funding application submitted to the Canadian government. On appeal, Microsoft argues that it was entitled to JMOL because it established a prima facie case of anticipation, which i4i could not rebut by relying on the inventors’ testimony alone, absent corroboration. Alternatively, Microsoft contends the evidence was not sufficient to support the jury’s verdict of validity. 1. Burden of Proof Microsoft’s contention regarding a prima facie case and i4i’s “rebuttal” misunderstands the nature of an anticipation claim under 35 U.S.C. § 102(b). Anticipation is an affirmative defense. See, e.g., Electro Med. Sys., S.A. v. Cooper Life Scis., Inc., 34 F.3d 1048, 1052 (Fed. Cir. 1994). We do not agree that i4i was required to come forward with corroboration to “rebut” Microsoft’s prima facie case of anticipation. Corroboration is required in certain circumstances. See, e.g., Martek Biosciences Corp. v. Nutrinova, Inc., 579 F.3d 1363, 1374-76 (Fed. Cir. 2009) (“Because Lonza sought to introduce the testimony of an alleged prior inventor under § 102(g) for the purpose of invalidating a patent, Lonza was required to produce evidence corroborating Dr. Long's testimony.”); Procter & Gamble Co. v. Teva Pharms. USA, Inc., 566 F.3d 989, 989-99 (Fed. Cir. 2009) (requiring corroboration where patentee tried to prove that the conception date was earlier than the filing date of a 2009-1504 17 potentially anticipatory patent); Henkel Corp. v. Procter & Gamble Co., 560 F.3d 1286 (Fed. Cir. 2009) (interference); Symantec Corp. v. Computer Assocs. Int’l, Inc., 522 F.3d 1279, 1295-96 (Fed. Cir. 2008) (“An alleged co-inventor's testimony, standing alone, cannot rise to the level of clear and convincing evidence; he must supply evidence to corroborate his testimony.”). However, this is not a case where witness testimony was being used to overcome prior art by establishing an earlier date of invention. To support its argument that S4 practiced the ’449 patent, Microsoft offered testimony by a former i4i employee and its expert. i4i responded with evidence, specifically testimony by S4’s inventors, that S4 did not practice the claimed method. Though we require corroboration of “any witness whose testimony alone is asserted to invalidate a patent,” Finnigan Corp. v. Int’l Trade Comm’n, 180 F.3d 1354, 1369-70 (Fed. Cir. 1999) (emphasis added), here the inventor testimony was offered by i4i in response to Microsoft’s attack on the validity of the ’449 patent. It was not offered to meet Microsoft’s burden of proving invalidity by clear and convincing evidence. Cf. TypeRight Keyboard Corp. v. Microsoft Corp., 374 F.3d 1151, 1159-60 (Fed. Cir. 2004); Tex. Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1217 (Fed. Cir. 2002); Finnigan, 180 F.3d at 1367. We know of no corroboration requirement for inventor testimony asserted to defend against a finding of invalidity by pointing to deficiencies in the prior art. Accordingly, we hold that corroboration was not required in this instance, where the testimony was offered in response to a claim of anticipation and pertained to whether the prior art practiced the claimed invention. 2009-1504 18 2. Sufficiency of the Evidence In contrast to obviousness, Microsoft did move for pre-verdict JMOL regarding anticipation based on S4. We nonetheless conclude that there was sufficient evidence for a reasonable jury to find that the ’449 patent was not anticipated by the sale of S4. See Bellows v. Amoco Oil Co., 118 F.3d 268, 273 (5th Cir. 1997). At trial, the jury heard conflicting testimony on whether S4 met the “metacode map” limitation. In evaluating the evidence, the jury was free to disbelieve Microsoft’s expert, who relied on the S4 user manual, and credit i4i’s expert, who opined that it was impossible to know whether the claim limitation was met without looking at S4’s source code. Although the absence of the source code is not Microsoft’s fault, the burden was still on Microsoft to show by clear and convincing evidence that S4 embodied all of the claim limitations. The jury’s finding of validity was supported by the testimony of the inventors (Vulpe and Owens), as well as their faxes to an attorney regarding the patent application. 3. Jury Instructions Microsoft also challenges the jury instructions on its burden of proving anticipation. According to Microsoft, the burden of proof should have been less for prior art that was not before the PTO, as was the case for Rita and DeRose. We conclude that the jury instructions were correct in light of this court’s precedent, which requires the challenger to prove invalidity by clear and convincing evidence. See, e.g., Zenith Elecs. Corp. v. PDI Commc’n Sys., Inc., 522 F.3d 1348, 1363-64 (Fed. Cir. 2008). This court’s decisions in Lucent Technologies, Inc. v. Gateway, Inc., 580 F.3d 1301, 1311-16 (Fed. Cir. 2009), and Technology Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1327 (Fed. Cir. 2008), make clear that the 2009-1504 19 Supreme Court’s decision in KSR International Co. v. Teleflex Inc., 550 U.S. 398, 426 (2007) did not change the burden of proving invalidity by clear and convincing evidence. Thus, based on our precedent, we cannot discern any error in the jury instructions. IV. Infringement Taking Microsoft’s arguments with regard to infringement in turn, we first review the jury instructions on infringement. We then decide whether the verdict is supported by substantial evidence. A. Jury Instructions At trial, i4i presented three theories of liability: direct, contributory, and induced infringement. Over Microsoft’s objection, the district court used a general verdict form, which did not require separate findings on the different theories. Instead, the form asked: “Did i4i prove by a preponderance of the evidence that Microsoft infringes Claims 14, 18, or 20 of the ’449 patent?” The form then instructed the jury to answer “yes” or “no” for each claim. The jury answered “yes” for all asserted claims. On appeal, Microsoft argues that it is entitled to a new trial because of two alleged errors in the jury instructions regarding contributory infringement. First, Microsoft argues it was error to use the term “component” rather than “material or apparatus.” In relevant part, the instructions provided: If you find someone has directly infringed the ’449 patent, then contributory infringement exists if i4i establishes by a preponderance of evidence that: 1) Microsoft sold, offered for sale, or imported; 2) A material component for use in practicing the patented claim—or patented method that is not a staple article of commerce suitable for substantial non-infringing use; 3) With knowledge that the component was especially made or adapted for use in an infringing manner. 2009-1504 20 The corresponding statutory section, 35 U.S.C. § 271(c), uses the words “material or apparatus,” not “component,” for patented processes. Although the district court’s instructions differed from the statute, this is not a case where the difference mattered. See Baker, 536 F.3d at 363-64 (reversing a jury verdict “only if the charge as a whole creates a substantial doubt as to whether the jury has been properly guided in its deliberations”). The parties’ infringement arguments did not turn on whether Word’s custom XML editor was a “component,” versus a “material or apparatus.” Nor is there any reason to think the jury was aware of the difference, or would have viewed the difference as anything but semantics had it known, because both parties used the terms interchangeably at trial. Under these circumstances, we are satisfied that the instruction properly guided the jury in its deliberations. Microsoft also argues that the district court erred by instructing the jury to focus on the custom XML editor, rather than all of Word, when deciding whether any noninfringing uses were “substantial.” Given the evidence presented at trial, the district court did not abuse its discretion. As we explained in Lucent, a particular tool within a larger software package may be the relevant “material or apparatus” when that tool is a separate and distinct feature. 580 F.3d at 1320-21. In Lucent, the infringement inquiry accordingly focused on the date-picker, even though that tool was included in Microsoft Outlook, a larger software package. Id. Although the software differs, our reasoning in Lucent applies equally here. At trial, i4i showed that some versions of Word 2003 included the custom XML editor, while others did not. Dr. Rhyne opined that this ability to “leave [the editor] out or put it in” various Word products showed that the editor was a separate and distinct feature. Thus, there was sufficient evidence before the jury for it 2009-1504 21 to conclude that the relevant “material or apparatus” was the custom XML editor, not all of Word. Accordingly, the jury was properly instructed that it should focus on the editor, not all of Word. See Ricoh Co. v. Quanta Computer Inc., 550 F.3d 1325, 1337 (Fed. Cir. 2008). B. Sufficiency of the Evidence Microsoft also challenges the sufficiency of evidence supporting the jury’s general verdict of infringement. Infringement is a question of fact. Because infringement was tried to a jury, we review the verdict only for substantial evidence. ACCO Brands, Inc. v. ABA Locks Mfrs. Co., 501 F.3d 1307, 1311 (Fed. Cir. 2007). Before we consider the evidence, we pause briefly to address what errors are fatal to a general verdict. Different rules apply depending upon whether the flaw is in the legal theory or the evidence. We must set aside a general verdict if the jury was told it could rely on any of two or more independent legal theories, one of which was defective. Walther, 952 F.2d at 126; see Northpoint Tech., Ltd. v. MDS Am., Inc., 413 F.3d 1301, 1311-12 (Fed. Cir. 2005). However, we will not set aside a general verdict “simply because the jury might have decided on a ground that was supported by insufficient evidence.” Walther, 952 F.2d at 126 (emphasis added). We will uphold such a verdict if there was sufficient evidence to support any of the plaintiff’s alternative factual theories; we assume the jury considered all the evidence and relied upon a factual theory for which the burden of proof was satisfied. See Northpoint Tech., 413 F.3d at 1311-12. In this case, Microsoft argues that the general verdict must be set aside unless both of i4i’s alternative legal theories, contributory infringement and induced 2009-1504 22 infringement, are supported by substantial evidence. We disagree: the verdict must be upheld if substantial evidence supports either legal theory. Microsoft’s argument fails to distinguish between defects in legal theories and defects in the factual evidence. In this case, the jury was instructed that it could rely on any of three legal theories—direct, contributory, or induced infringement. All of these theories are legally valid and the corresponding instructions on each were proper. Because the jury could not have relied on a legally defective theory, the only remaining question is whether there was sufficient evidence to support either of i4i’s independently sufficient legal theories, contributory infringement or induced infringement. 1 We conclude that there was. 1. Direct Infringement To succeed on a theory of contributory or induced infringement, i4i was required to show direct infringement of the ’449 patent. Lucent, 580 F.3d at 1317; see also Glenayre Elecs., Inc. v. Jackson, 443 F.3d 851, 858 (Fed. Cir. 2006). Because the claims asserted by i4i are method claims, Microsoft’s sale of Word, without more, did not infringe the ’449 patent. Lucent, 580 F.3d at 1317. Direct infringement occurs only when someone performs the claimed method. Id. Based on the evidence presented at trial, a reasonable jury could have found that at least one person performed the methods claimed in the ’449 patent. This evidence included testimony by i4i’s expert (Dr. Rhyne), a joint stipulation, and Microsoft’s response to interrogatories. Rhyne opined that Word’s custom XML editor met all of the Even though we could affirm the jury’s verdict of infringement so long as there was sufficient evidence of direct infringement by Microsoft, here we focus on indirect infringement because that was the basis for i4i’s damages estimate, which the jury apparently credited. See Lucent, 580 F.3d at 1334-35; Dynacore Holdings Corp. v. U.S. Philips Corp., 363 F.3d 1263, 1274 (Fed. Cir. 2004). 2009-1504 23 limitations of the asserted claims because the editor separated a document into a “CP stream” of content and a separate data structure containing the metacodes and their addresses of use. Rhyne testified that this separate data structure met the “metacode map” limitation. Though Microsoft’s expert offered conflicting evidence, opining that Word did not infringe the asserted claims, the jury was free to disbelieve Microsoft’s expert and credit i4i’s expert, who testified that the ’449 patent was infringed if Word was used to open an XML document, edit an XML document, or save a document containing custom XML in an XML file format. The joint stipulation and Microsoft’s interrogatory responses unequivocally state that Word was used in these ways. Cf. Fresenius USA, Inc. v. Baxter Int’l, Inc., 582 F.3d 1288, 1298-99 (Fed. Cir. 2009); Martek, 579 F.3d at 1371-72. 2. Contributory Infringement For contributory infringement, the question is whether there is substantial evidence to support a finding under this theory. A party is liable for contributory infringement if that party sells, or offers to sell, a material or apparatus for use in practicing a patented process. That “material or apparatus” must be a material part of the invention, have no substantial noninfringing uses, and be known (by the party) “to be especially made or especially adapted for use in an infringement of such patent.” 35 U.S.C. § 271(c); Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1312 (Fed. Cir. 2005). Based on the evidence presented at trial, the jury could have reasonably concluded that the custom XML editor had no substantial, noninfringing uses and that Microsoft knew that the use of the custom XML editor would infringe i4i’s patent. At 2009-1504 24 trial, Rhyne agreed that the custom XML editor could be used in three noninfringing ways, but opined that none were “substantial.” Rhyne explained that saving a document in the noninfringing, binary format deprived users of the very benefit XML was intended to provide: namely, allowing another program to search and read the document’s metacode tags. Despite Microsoft’s contention to the contrary, evidence that some users saved XML documents in these noninfringing formats does not render the jury’s verdict unreasonable. Whether a use is “substantial,” rather than just “unusual, far-fetched, illusory, impractical, occasional, aberrant, or experimental,” cannot be evaluated in a vacuum. Vita-Mix Corp. v. Basic Holding, Inc., 581 F.3d 1317, 1327 (Fed. Cir. 2009). In assessing whether an asserted noninfringing use was “substantial,” the jury was allowed to consider not only the use’s frequency, but also the use’s practicality, the invention’s intended purpose, and the intended market. See id. Here, the jury heard ample testimony that the noninfringing, binary file format was not a practical or worthwhile use for the XML community, for which the custom XML editor was designed and marketed. Further, the jury could have reasonably concluded that Microsoft knew that use of the editor would infringe the ’449 patent, based on the circumstantial evidence presented at trial. Cf. Lucent, 580 F.3d at 1318, 1321-22; Fuji Photo Film Co. v. Jazz Photo Corp., 394 F.3d 1368, 1377-78 (Fed. Cir. 2005). Here, the evidence showed that the Word development team heard a presentation by i4i about software practicing the ’449 patent, asked how the software worked, and received marketing materials on the software. Internal Microsoft emails showed that other Microsoft employees received a 2009-1504 25 marketing email from i4i containing the patent number, were “familiar” with i4i’s products, and believed the Word’s custom XML editor would render that product “obsolete.” Based on this evidence, the jury could have reasonably concluded that Microsoft knew about the ’449 patent and knew use of its custom XML editor would infringe. 3. Induced Infringement Though we need not reach this theory because substantial evidence supports i4i’s theory of contributory infringement, we do so for the sake of completeness. On appeal, the sole question is whether there is substantial evidence to support a verdict of induced infringement. To prove inducement, the patentee must show direct infringement, and that the alleged infringer “knowingly induced infringement and possessed specific intent to encourage another’s infringement.” MEMC Elec. Materials, Inc. v. Mitsubishi Materials Silicon Corp., 420 F.3d 1369, 1378 (Fed. Cir. 2005); see 35 U.S.C. § 271(b). Based on the evidence presented at trial, a reasonable jury could have concluded that Microsoft had the “affirmative intent to cause direct infringement.” DSU Med. Corp v. JMS Co., 471 F.3d 1293, 1306 (Fed. Cir. 2006) (en banc in relevant part). The jury saw and heard about Microsoft’s online training and user support resources, which provided detailed instructions on using Word’s custom XML editor. i4i’s expert opined that using the editor as directed by these materials would infringe the ’449 patent. The instructional materials were thus substantial evidence that Microsoft intended the product to be used in an infringing manner. See DSU, 471 F.3d at 1303, 1305. Unlike the instructions in Vita-Mix, 581 F.3d at 1328-29, which taught a use the 2009-1504 26 defendant “could have reasonably believed was non-infringing” and another use that was “non-infringing,” here there was substantial evidence Microsoft knew its instructions would result in infringing use. As explained in our discussion of contributory infringement, Microsoft’s internal emails are substantial evidence of Microsoft’s knowledge, both of the ’449 patent and the infringing nature of Word’s custom XML editor. Regarding i4i’s software that practiced the invention, one Microsoft employee remarked: “[W]e saw this tool some time ago and met its creators. Word [2003] will make it obsolete. It looks great for XP though.” Evidence that consumers were using Word in an infringing manner included Microsoft data on usage of Word, as well as a Microsoft marketing document listing “real” examples of custom XML’s use in Word. V. Damages Microsoft protests the $200 million damages award on several grounds. We begin by reviewing the propriety of various evidentiary rulings. We then decide whether the district court abused its discretion by denying Microsoft a new trial on damages. A. Evidentiary Rulings We review evidentiary rulings for abuse of discretion. Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009); see Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 387-88 (5th Cir. 2009). Microsoft challenges the admission of expert testimony on damages, as well as a survey relied on by the expert. We address each in turn. 1. Expert Testimony To determine whether expert testimony was properly admitted under Rule 702 of the Federal Rules of Evidence, we use the framework set out in Daubert v. Merrell Dow 2009-1504 27 Pharmaceuticals, Inc., 509 U.S. 579, 589-90 (1993). 2 Daubert requires the district court ensure that any scientific testimony “is not only relevant, but reliable.” Id. at 589; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42 (1999). When the methodology is sound, and the evidence relied upon sufficiently related to the case at hand, disputes about the degree of relevance or accuracy (above this minimum threshold) may go to the testimony’s weight, but not its admissibility. Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007); Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc). On appeal, Microsoft challenges the expert testimony by Dr. Wagner, i4i’s damages expert. Wagner opined that a reasonable damages award would be $200 million dollars, based on a hypothetical negotiation between i4i and Microsoft at the time the infringement began. To come up with the $200 million figure, Wagner calculated a royalty rate ($98), then multiplied that rate by the number of Word products actually used in an infringing manner (2.1 million). At trial, the parties hotly disputed the correctness of the $98 royalty rate. Microsoft argued that this rate was exorbitant given the price of certain Word products, which could be as little as $97. As further evidence of its unreasonableness, Microsoft pointed out that the rate resulted in a total damages amount ($200 million) greatly exceeding the $1-$5 million Microsoft had paid to license other patents. In response, i4i had its expert (Wagner) give a detailed explanation for how he arrived at the $98 royalty An expert witness with “scientific, technical, or otherwise specialized knowledge,” may testify and form an opinion “if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case.” Fed. R. Evid. 702. 2009-1504 28 rate. Wagner testified that he first chose an appropriate “benchmark” in order to value Microsoft’s use of the claimed invention at the time of the hypothetical negotiation. Wagner chose a product called XMetaL as his benchmark, which had a retail price of $499. To calculate the licensing fee, Wagner multiplied the price of XMetaL ($499) by Microsoft’s profit margin (76.6%), based on his assumption that any licensing fee would be a fraction of the profits. Wagner then applied the 25-percent rule to this number, which assumes the inventor will keep 25% of the profits from any infringing sales. This resulted in a baseline royalty rate of $96. Wagner testified that the 25-percent rule was “well-recognized” and “widely used” by people in his field. To support his royalty calculation, Wagner adjusted the baseline royalty rate of ($96) using the factors set out in Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970). 3 Based on the Georgia-Pacific factors, Wagner then increased the baseline from $96 to $98, which was the “reasonable royalty rate” he These factors include: (1) royalties the patentee has received for licensing the patent to others; (2) rates paid by the licensee for the use of comparable patents; (3) the nature and scope of the license (exclusive or nonexclusive, restricted or non- restricted by territory or product type); (4) any established policies or marketing programs by the licensor to maintain its patent monopoly by not licensing others to use the invention or granting licenses under special conditions to maintain the monopoly; (5) the commercial relationship between the licensor and licensee, such as whether they are competitors; (6) the effect of selling the patented specialty in promoting sales of other products of the licensee; (7) the duration of the patent and license term; (8) the established profitability of the product made under the patent, including its commercial success and current popularity; (9) the utility and advantages of the patent property over old modes or devices; (10) the nature of the patented invention and the benefits to those who have used the invention; (11) the extent to which the infringer has used the invention and the value of that use; (12) the portion of profit or of the selling price that may be customary in that particular business to allow for use of the invention or analogous inventions; (13) the portion of the realizable profit that should be credited to the invention as opposed to its non-patented elements; (14) the opinion testimony of qualified experts; and (15) the results of a hypothetical negotiation between the licensor and licensee. Id. 2009-1504 29 used in calculating the $200-$207 million damages estimate. Specifically, Wagner concluded that factors 3, 5, 6, 9, and 11 affected the baseline rate. Wagner opined that factor 3, which considers the license’s terms, lowered the royalty rate because his hypothetical license did not give Microsoft know-how, additional cooperation or trade secrets, just non-exclusive use in the United States. However, Wagner opined that factors 5, 6, 9, and 11 increased the royalty rate. For factor 5, which looks at the commercial relationship between the licensor and licensee, Wagner found that Microsoft was a direct competitor of i4i, which meant any license would destroy a “very large segment” of i4i’s market. For factor 6, which asks whether the patented technology promotes the sale of other products, Wagner concluded that the infringing custom XML editor was critical to Microsoft’s sales generally, as evidenced by internal Microsoft statements that a custom XML editor was “one of the most important ways” for encouraging users to purchase new Word products. Examining factor 9, which examines the infringer’s need for taking a license, Wagner opined that Microsoft had no commercially acceptable, non-infringing alternatives to using i4i’s patent. This opinion was based on internal Microsoft documents describing Microsoft’s interest in creating such a custom XML editor, and prolonged inability to do so. For factor 11, which looks at the use and value of the patented technology to Microsoft, Wagner concluded that the custom XML editor was a critical addition to Word. In support of this view, i4i presented statements by Microsoft employees that custom XML was not a “slight addition [but i]t’s more like 90 percent of the value,” was “where the future is, seriously,” and “the glue that holds the Office ecosystem together.” Based on all of 2009-1504 30 these Georgia-Pacific factors, Wagner increased the baseline royalty rate by $2, for a total of $98. On appeal, Microsoft ably points out various weaknesses in the damage calculations by i4i’s expert. At their heart, however, Microsoft’s disagreements are with Wagner’s conclusions, not his methodology. Daubert and Rule 702 are safeguards against unreliable or irrelevant opinions, not guarantees of correctness. We have consistently upheld experts’ use of a hypothetical negotiation and Georgia-Pacific factors for estimating a reasonable royalty. See, e.g., Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387, 1393 (Fed. Cir. 2003); Interactive Pictures Corp. v. Infinite Pictures, Inc., 274 F.3d 1371, 1384 (Fed. Cir. 2001). Wagner’s testimony about the acceptance of the hypothetical negotiation model among damage experts and economists, combined with his methodical explication of how he applied the model to the relevant facts, satisfied Rule 702 and Daubert. See Daubert, 509 U.S. at 593. Given Wagner’s testimony about his credentials, the district court did not abuse its discretion in finding Wagner qualified to apply the methodology. See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 249- 50 (5th Cir. 2002). Microsoft’s quarrel with the facts Wagner used go to the weight, not admissibility, of his opinion. We further hold that Wagner’s opinion was “based on sufficient facts or data.” Fed. R. Evid. 702. At trial, Microsoft disputed which facts were relevant for determining a reasonable royalty rate. In particular, Microsoft focused on the benchmark (XMetaL), the resulting baseline royalty rate, and i4i’s survey for estimating infringing use. Regarding the benchmark, Wagner explained that he chose XMetaL because it was the product Microsoft bought and used before developing its own custom XML 2009-1504 31 editor, it was the cheapest of the custom XML editors available on the market at the time, and it was one of three principal competitors Microsoft identified in the custom XML market. Microsoft contended that a better estimate of the custom XML editor’s value was $50, the difference in price between versions of Word with and without the editor. Microsoft also argued that because XMetaL has many additional features besides custom XML editing, the $499 retail price overestimated the value of the custom XML editor. In response, Wagner acknowledged that not all users of custom XML would have switched to a high-end product like XMetaL, but that those “who really needed that functionality” would have, requiring them to buy one of the commercially available products, even if it had many superfluous features. Wagner clarified that his damages estimate only considered users who “really needed” the custom XML editor, making it inappropriate to use the $50 price difference paid by all purchasers of Word, regardless of whether they infringed or not. As for using the baseline royalty rate ($96) as the starting point for the Georgia- Pacific analysis, Wagner opined that it was necessary because of Microsoft’s business strategy. According to Wagner, Microsoft’s primary goal is to make sales, not to maximize the price it charges for each additional feature. In making sales, Wagner explained that Microsoft’s biggest competitor is always itself: Microsoft has to convince consumers to purchase new versions of its products, even if they already have a “perfectly good” copy of an older version. To incentivize users to upgrade, Wagner testified that Microsoft included new features at no additional cost, making it difficult to value the new features. 2009-1504 32 As for the survey, i4i’s survey expert (Dr. Wecker) explained that it was limited to estimating infringing use by businesses; i4i did not even seek damages for infringing use by individual consumers. Wecker sent the survey to 988 large and small businesses randomly selected from a database of 13 million U.S. companies. Wecker explained that this large sample size was necessary to ensure he received sufficient responses (between 25 and 100) because many companies are “too busy” or have policies against responding to surveys. The survey consisted of screening and substantive questions. The screening questions helped identify the proper person to speak with about the company’s use of custom XML. Wecker received 46 responses to the survey, which consisted of approximately 40 substantive questions. For all of the questions, the responder had the option of saying they did not know. Any company that took the survey received $35, regardless of the answers they gave. Wecker explained that he used logical imputation, an accepted procedure for statisticians to resolve inconsistent survey responses, to make some of the answers consistent. Of those that responded to the survey, 19 companies reported using Word in an infringing manner. Wecker assumed that all the companies that did not respond (942) did not use Word in an infringing manner. Based on these assumptions, Wecker determined that 1.9% (19/988) of all copies of Word sold to businesses between 2003 and 2008 were used in an infringing manner. Wecker then multiplied this percentage (1.9%) by the number of copies of Word sold to businesses, for a total of 1.8 million infringing uses. 4 Based on sales of Word, Wagner then estimated the number of additional infringing uses that occurred between the end of the survey date and start of trial, to give a total of 2.1 million. 2009-1504 33 Wecker opined that this estimate was conservative, “really an underestimate” and “way low” because he assumed every company that did not respond was not infringing, which was highly unlikely and introduced a “serious downward bias.” Microsoft contested the accuracy of the survey, based on the low response rate, use of logical imputation to correct inconsistent answers, and questions requiring estimates of Word usage going back several years. In response, i4i’s experts opined that the survey’s conservative assumptions about the unresponsive companies mitigated (and perhaps even overcorrected) for those weaknesses. Microsoft is correct that i4i’s expert could have used other data in his calculations. The existence of other facts, however, does not mean that the facts used failed to meet the minimum standards of relevance or reliability. See Fed. R. Evid. 702 advisory committee’s note. Under Rule 702, the question is whether the expert relied on facts sufficiently related to the disputed issue. Here, that issue was a reasonable royalty for the ’449 patent. We conclude that Wagner based his calculations on facts meeting these minimum standards of relevance and reliability. Fed. R. Evid. 702. As i4i’s expert explained, the facts were drawn from internal Microsoft documents, publicly available information about other custom XML editing software, and a survey designed to estimate the amount of infringing use. Thus, these facts had a sufficient nexus to the relevant market, the parties, and the alleged infringement. While the data were certainly imperfect, and more (or different) data might have resulted in a “better” or more “accurate” estimate in the absolute sense, it is not the district court’s role under Daubert to evaluate the correctness of facts underlying an expert’s testimony. See Micro Chem., 317 F.3d at 1392. Questions about what facts are most 2009-1504 34 relevant or reliable to calculating a reasonable royalty are for the jury. The jury was entitled to hear the expert testimony and decide for itself what to accept or reject. See Pipitone, 288 F.3d at 249-50. As the Supreme Court explained in Daubert, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” 509 U.S. at 596. Microsoft had these opportunities, and ably availed itself of them. Microsoft presented expert testimony and attacked the benchmark, survey, and calculation’s reasonableness on cross-examination. Cf. Micro Chem., 317 F.3d at 1392. Based on this record, the district court did not abuse its discretion in admitting Wagner’s expert testimony on damages. 2. The Survey Microsoft also challenges the district court’s admission of the survey used to estimate the amount of infringing use. We do not agree with Microsoft that the danger of unfair prejudice substantially outweighed the survey’s probative value, so as to warrant exclusion under Rule 403. Both of i4i’s experts, Wagner and Wecker, opined that the survey dramatically underestimated the amount of infringing use. Given the survey’s conservative assumptions, the district court did not abuse its discretion in admitting the survey. Further, the survey was properly admitted over Microsoft’s hearsay objection under Federal Rule of Evidence 703, since the survey was used to estimate the amount of infringing use, a key number in i4i’s damage calculation. Given the survey’s importance, evidence about its methodology and findings could certainly 2009-1504 35 help the jury evaluate the expert testimony. See C. A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1054-55 (5th Cir. 1981). The testimony of Wecker, the expert who helped design the survey, sufficed to show that the survey was compiled in accordance with acceptable survey methods. For these reasons, the district court did not abuse its discretion in admitting the survey. B. Reasonableness of the Damages Award Microsoft urges us to follow this court’s recent decision in Lucent, 580 F.3d 1301, and hold that $200 million is not a reasonable royalty. We cannot, however, because the procedural posture of this case differs from Lucent, and that difference controls this case. Although Microsoft now objects to the size of the damages award, we cannot reach that question because Microsoft did not file a pre-verdict JMOL on damages. In Lucent, the accused infringer filed a pre-verdict JMOL motion challenging the sufficiency of the damages’ evidence. Id. at 1309. Though Microsoft could have similarly filed a pre-verdict JMOL, for whatever reason, it chose not to. See Fed. R. Civ. P. 50(a). On appeal, what that strategic decision means for Microsoft is that we cannot decide whether there was a sufficient evidentiary basis for the jury’s damages award. Cf. Lucent, 580 F.3d at 1332 (holding that “we see little evidentiary basis under Georgia-Pacific” for the damages award). Asking whether a damages award is “reasonable,” “grossly excessive or monstrous,” “based only on speculation or guesswork,” or “clearly not supported by the evidence,” are simply different ways of asking whether the jury’s award is supported by the evidence. Fuji Photo, 394 F.3d at 1378; Catalina Lighting, Inc. v. Lamps Plus, Inc., 295 F.3d 1277, 1290 (Fed. Cir. 2002). 2009-1504 36 Microsoft waived its ability to have us decide that question by failing to file a pre-verdict JMOL on damages. Fed. R. Civ. P. 50(a), (b). Had Microsoft filed a pre-verdict JMOL, it is true that the outcome might have been different. Given the opportunity to review the sufficiency of the evidence, we could have considered whether the $200 million damages award was “grossly excessive or monstrous” in light of Word’s retail price and the licensing fees Microsoft paid for other patents. Cf. Lucent, 580 F.3d at 1325-32. As this court did in Lucent, we could have analyzed the evidentiary basis for the Georgia-Pacific factors, and whether the benchmark (XMetaL) was sufficiently comparable. Id. However, we cannot. Instead of the more searching review permitted under Rule 50(b), we are constrained to review the verdict under the much narrower standard applied to denials of new trial motions. Duff, 489 F.3d at 730. This standard is highly deferential: we may set aside a damages award and remand for a new trial “only upon a clear showing of excessiveness.” Id. (emphasis added). To be excessive, the award must exceed the “maximum amount calculable from the evidence.” Carlton v. H. C. Price Co., 640 F.2d 573, 579 (5th Cir. 1981). We must affirm unless the appellant clearly shows there was no evidence to support the jury’s verdict. Duff, 489 F.3d at 730, 732; see also Industrias Magromer, 293 F.3d at 923. Under this highly deferential standard, we cannot say that Microsoft is entitled to a new trial on damages. The damages award, while high, was supported by the evidence presented at trial, including the expert testimony—which the jury apparently credited. See Unisplay, S.A. v. Am. Elec. Sign Co., 69 F.3d 512, 519 (Fed. Cir. 1995). On appeal, the question is not whether we would have awarded the same amount of 2009-1504 37 damages if we were the jury, but rather whether there is evidence to support what the jury decided. See Fuji Photo, 394 F.3d at 1378. Here, the jury’s award was supported by the testimony of Wagner, i4i’s damage expert, who opined that a reasonable royalty was between $200 and $207 million. The award was also supported by the testimony of Wecker, i4i’s survey expert, who explained that the survey’s conservative assumptions (i.e., that none of the companies who failed to respond infringed) meant the damages figure was “really an underestimate” and “way low.” As we have recognized previously, any reasonable royalty analysis necessarily involves an element of approximation, and uncertainty. See Lucent, 580 F.3d at 1325; Unisplay, 69 F.3d at 517. Given the intensely factual nature of a damages determination and our deferential standard of review, we are not in a position to second-guess or substitute our judgment for the jury’s. C. Enhanced Damages Microsoft has only appealed the district court’s decision to enhance damages under 35 U.S.C. § 284. Section 284 gives the district court discretion to “increase the damages up to three times the amount found or assessed” by the jury. A finding of willful infringement is a prerequisite to the award of enhanced damages. In re Seagate Technology, LLC., 497 F.3d 1360, 1368 (Fed. Cir. 2007) (en banc). In this case, the question of whether Microsoft willfully infringed the ’449 patent was submitted to the jury, which was instructed that i4i had to prove Microsoft (1) was aware of the ’449 patent; (2) acted despite an objectively high likelihood that its actions infringed a valid patent; where (3) this objectively high risk was either known or so obvious it should have been known to 2009-1504 38 Microsoft. The verdict form instructed the jury to answer “yes” or “no” to “Did i4i prove by clear and convincing evidence that Microsoft’s infringement was willful?” The jury answered “yes.” Based on the jury’s willfulness finding, i4i made a post-trial motion for enhanced damages. The district court then analyzed the factors set out in Read Corp. v. Portec, Inc., 970 F.2d 816, 826-27 (Fed. Cir. 1992), in deciding whether to enhance damages. The district court found that factors 2, 4, 6, 7, and 8 supported enhancement. Factors 1 and 9, combined with i4i’s delay in bringing suit, were found to weigh against enhancement. For factor 1, which considers whether the infringer deliberately copied the ideas or design of another, the district court found no evidence that Microsoft deliberately copied any of i4i’s products. For factor 2, which considers whether the infringer knew of the patent, investigated the patent’s scope and formed a good-faith belief of its invalidity or noninfringement, the district court found Microsoft was aware of i4i’s patent, never formed a good faith belief of noninfringement, and clearly intended to add a custom XML editor in Word with similar capabilities to i4i’s patented products. For factor 4, which considers the infringer’s size and financial condition, the district court found that the jury’s award, while “substantial,” was only a small fraction of Microsoft’s profits from the sale of Word products. The district court also noted that Microsoft was “undisputedly” the world leader in software for business and personal computing, with revenues of $60.42 billion in 2008 alone. As for factors 6, 7, and 8, the district court found that Microsoft had started using the infringing products more than five years ago (in 2002), failed to conduct an infringement analysis after being notified of the ’449 patent again in 2003, and implemented the infringing custom XML editor with the 2009-1504 39 purpose of rendering i4i’s products obsolete. Although statutorily authorized to increase the award to $600 million, the district court awarded only $40 million in enhanced damages. See 35 U.S.C. § 284. On this record, we cannot conclude that the district court abused its discretion in weighing the evidence or applying the Read factors. See Amsted Indus., Inc. v. Buckeye Steel Castings Co., 24 F.3d 178, 184 (Fed. Cir. 1994). The district court made detailed factual findings which, taken together, support its award of enhanced damages. See Jurgens v. CBK, Ltd., 80 F.3d 1566, 1570-71 (Fed. Cir. 1996). In deciding whether to enhance damages, the district court properly declined to reapply the test for willfulness set out in Seagate, 497 F.3d 1360. Although a finding of willfulness is a prerequisite for enhancing damages under § 284, the standard for deciding whether— and by how much—to enhance damages is set forth in Read, not Seagate. See 35 U.S.C. § 284; SRI Int’l, Inc. v. Advanced Tech. Labs., Inc., 127 F.3d 1462, 1468-69 (Fed. Cir. 1997); cf. Seagate, 497 F.3d at 1371. Here, the question of willfulness was submitted to the jury. Microsoft does not dispute that the jury instructions were proper under Seagate, 497 F.3d at 1371. The test for willfulness is distinct and separate from the factors guiding a district court’s discretion regarding enhanced damages. Compare id., with Read, 970 F.2d at 826-27. Under the Read factors, the district court properly considered Microsoft’s size and financial condition, as well as whether Microsoft investigated the scope of the patent. Id. at 827; see also Transclean Corp. v. Bridgewood Servs., Inc., 290 F.3d 1364, 1377-78 (Fed. Cir. 2002). Microsoft is correct that it would have been improper to enhance damages based solely on litigation misconduct, and that this is not the prototypical case of litigation 2009-1504 40 misconduct. 5 Typically, “litigation misconduct” refers to bringing vexatious or unjustified suits, discovery abuses, failure to obey orders of the court, or acts that unnecessarily prolong litigation. Jurgens, 80 F.3d at 1570-71 & n.3; see also Va. Panel Corp. v. MAC Panel Co., 133 F.3d 860, 866 (Fed. Cir. 1997). Here, the misconduct was improper statements by Microsoft’s counsel to the jury, in defiance of the court’s repeated admonitions. However, the district court considered Microsoft’s litigation misconduct only after finding that the other Read factors favored enhanced damages: “Finally, also favoring enhancement is Microsoft’s counsel’s litigation conduct . . . .” Considering all the Read factors and the district court’s statutory authority to treble damages under § 284, the actual award of $40 million was not an abuse of discretion. VI. Willfulness We do not read Microsoft’s opening brief as challenging the denial of Microsoft’s post-verdict JMOL on willfulness. Although Microsoft did mention willfulness when disputing the propriety of the enhanced damages award, in substance this argument focused on the district court’s rationale for awarding enhanced damages, not the jury’s willfulness verdict. Whether the district court abused its discretion in weighing the Read factors is not the same question as whether there was a legally sufficient evidentiary basis for the jury’s finding of willfulness. Fed. R. Civ. P. 50(a); compare Bryant v. Compass Group USA Inc., 413 F.3d 471, 475 (5th Cir. 2005), with Read, 970 F.2d at 821, 826-27. Whether Microsoft’s infringement was willful is a question of fact. Enhanced damages are certainly not the sole remedy for attorney misconduct. Other tools, which may be more appropriate in the mine-run of cases, include the award of attorney fees or sanctions. See 35 U.S.C. § 285; Fed. R. Civ. P. 11, 38; see also 28 U.S.C. § 1927. 2009-1504 41 Cohesive Techs., Inc. v. Waters Corp., 543 F.3d 1351, 1374 (Fed. Cir. 2008); see Braun Inc. v. Dynamics Corp. of Am., 975 F.2d 815, 822 (Fed. Cir. 1992). This question was submitted to the jury, which answered in the affirmative. Accordingly, appellate review is limited to asking whether that verdict is supported by substantial evidence. ACCO Brands, 501 F.3d at 1311-12. On appeal, Microsoft has never attacked the jury instructions or the basis for the jury’s willfulness verdict. In light of what Microsoft actually argued, we do not read Microsoft’s passing reference to its post-verdict JMOL on willfulness as raising the issue. Even if we were to read the solitary sentence, “Microsoft is entitled to judgment as a matter of law on the issue of willfulness,” as challenging the jury’s finding of willfulness, the result does not change. A reasonable jury could have concluded that Microsoft “willfully” infringed the ’449 patent based on the evidence presented at trial. Infringement is willful when the infringer was aware of the asserted patent, but nonetheless “acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.” Seagate, 497 F.3d at 1371. After satisfying this objective prong, the patentee must also show that the infringer knew or should have known of this objectively high risk. Id. In this case, i4i presented sufficient evidence at trial to prove each prong of the Seagate standard for willfulness. The jury heard that Microsoft employees attended demonstrations of i4i’s software, which practiced the ’449 patent. Further, the jury learned that Microsoft employees received i4i’s sales kit, which identified i4i’s software as “patented” technology and cited the ’449 patent. The jury then saw a series of emails between Microsoft employees discussing a marketing email sent by i4i. One of 2009-1504 42 those emails explained that the “heart” of i4i’s software was patented, again citing the ’449 patent. Based on this circumstantial evidence, the jury could have reasonably inferred that Microsoft knew about the ’449 patent. At trial, i4i also showed that Word’s custom XML editor was designed to and did perform the same methods as i4i’s software (which was known to practice the ’449 patent). Despite this highly similar functionality, there is no evidence Microsoft took any remedial action, even though Microsoft knew of the ’449 patent as early as April 2001, before any work had begun on Word’s custom XML editor. For example, Microsoft did not cease its infringing activity or attempt to design around; instead, Microsoft started marketing, selling, and instructing others in the use of Microsoft’s custom XML editor in 2002. Cf. DePuy Spine, Inc. v. Medtronic Sofamor Danek, 567 F.3d 1314, 1336-37 (Fed. Cir. 2009). Similarly, there is no evidence Microsoft ever made a good faith effort to avoid infringement; internal emails show Microsoft intended to render i4i’s product “obsolete” and assure “there won’t be a need for [i4i’s] product.” Based on this and other evidence presented at trial, it would have been reasonable for the jury to infer that Microsoft went ahead with producing, marketing, and promoting its custom XML editor despite an objectively high likelihood the editor infringed the ’449 patent. This same evidence supports the jury’s finding as to the subjective prong of Seagate. Given the information Microsoft had about i4i’s software and the ’449 patent, Microsoft knew or should have known that there was an objectively high risk of infringement. The fact that Microsoft presented several defenses at trial, including noninfringement and invalidity, does not mean the jury’s willfulness finding lacks a sufficient evidentiary basis. See Fed. R. Civ. P. 50(a). The jury heard all of Microsoft’s 2009-1504 43 defenses, which it expressly rejected in finding the ’449 patent infringed and not invalid. Cf. DePuy Spine, 567 F.3d at 1336-37 (noting that the question of equivalence was “a close one”). Based on its own assessment of the evidence and Microsoft’s defenses, the jury was free to decide for itself whether Microsoft reasonably believed there were any substantial defenses to a claim of infringement. Cf. Cohesive Techs., 543 F.3d at 1374. VII. Permanent Injunction We must decide whether the district court abused its discretion in granting a permanent injunction against Microsoft, or in tailoring that injunction under eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). The permanent injunction prohibits Microsoft from (1) selling, offering to sell, and/or importing into the United States any infringing Word products with the capability of opening XML files containing custom XML; (2) using Word to open an XML file containing custom XML; (3) instructing or encouraging anyone to use Word to open an XML containing custom XML; (4) providing support or assistance that describes how to use Word to open an XML file containing custom XML; and (5) testing, demonstrating, or marketing Word’s ability to open an XML file containing custom XML. The scope of this injunction is narrow, however. It applies only to users who purchase or license Word after the date the injunction takes effect. Users who purchase or license Word before the injunction’s effective date may continue using Word’s custom XML editor, and receiving technical support. We review the decision to grant an injunction, as well as the scope of that injunction, for abuse of discretion. Joy Techs., Inc. v. Flakt, Inc., 6 F.3d 770, 772 (Fed. 2009-1504 44 Cir. 1993). Factual findings made in support of the injunction are reviewed for clear error; the district court’s conclusion as to each eBay factor is reviewed for abuse of discretion. Acumed LLC v. Stryker Corp., 551 F.3d 1323, 1327-31 (Fed. Cir. 2008). Our review is guided by statute and well-established principles of equity. See 35 U.S.C. § 283. 6 The plaintiff has the burden of showing that (1) it has suffered an irreparable injury; (2) remedies available at law are inadequate to compensate for that injury; (3) considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) the public interest would not be “disserved” by a permanent injunction. eBay, 547 U.S. at 391. While we conclude that the injunction’s effective date should have been five months, rather than sixty days, from the date of its August 11, 2009 order, we affirm the district court’s issuance of a permanent injunction and otherwise affirm the injunction’s scope. Below, we address each factor in turn. A. Irreparable Injury The district court concluded that i4i was irreparably injured by Microsoft’s infringement, based on its factual findings that Microsoft and i4i were direct competitors in the custom XML market, and that i4i lost market share as a result of the infringing Word products. The district court further found that the infringing Word products rendered i4i’s software obsolete, as a result of which i4i changed its business model to make software that complemented Microsoft’s infringing products. The Patent Act provides that courts “may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.” 35 U.S.C. § 283. 2009-1504 45 It was proper for the district court to consider evidence of past harm to i4i. Past harm to a patentee’s market share, revenues, and brand recognition is relevant for determining whether the patentee “has suffered an irreparable injury.” Id. at 391 (emphasis added); see, e.g., Acumed, 551 F.3d at 1328-29 (considering the relevance of past licensing decisions in assessing irreparable injury); Voda v. Cordis Corp., 536 F.3d 1311, 1329 (Fed. Cir. 2008) (concluding that the patentee “had not identified any irreparable injury to himself”); Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363, 1379- 80 (Fed. Cir. 2008) (analyzing whether the patentee “had been irreparably harmed”). Although injunctions are tools for prospective relief designed to alleviate future harm, by its terms the first eBay factor looks, in part, at what has already occurred. Considering past harm to a patentee does not establish a “general rule” or rely on the sort of “broad classifications” rejected by the Supreme Court in eBay; not all patentees will be able to show injury, and even those who do must still satisfy the other three factors. Cf. eBay, 547 U.S. at 393-94. In this case, the district court properly considered strong circumstantial evidence that Microsoft’s infringement rendered i4i’s product obsolete for much of the custom XML market, causing i4i to lose market share and change its business strategy to survive. i4i was not required to prove that its specific customers stopped using i4i’s products because they switched to the infringing Word products. Based on the evidence presented at trial, it was not an abuse of discretion for the district court to find that Microsoft’s infringement irreparably injured i4i. B. Inadequate Remedies at Law 2009-1504 46 The district court concluded that there were inadequate remedies at law to compensate i4i for its injury. The district court found that before and after Microsoft began infringing, i4i produced and sold software that practiced the patented method. The district court found no evidence that i4i had previously licensed the patent, instead finding evidence that i4i sought to retain exclusive use of its invention. It was not an abuse of discretion for the district court to conclude that monetary damages would be inadequate. In this case, a small company was practicing its patent, only to suffer a loss of market share, brand recognition, and customer goodwill as the result of the defendant’s infringing acts. Such losses may frequently defy attempts at valuation, particularly when the infringing acts significantly change the relevant market, as occurred here. The district court found that Microsoft captured 80% of the custom XML market with its infringing Word products, forcing i4i to change its business strategy. The loss associated with these effects is particularly difficult to quantify. Difficulty in estimating monetary damages is evidence that remedies at law are inadequate. Broadcom Corp. v. Qualcomm Inc., 543 F.3d 683, 703-04 (Fed. Cir. 2008). C. Balance of Hardships Except on the limited issue of timing, the balance of hardships favors i4i. The district court found that i4i’s business is comprised “almost exclusively” of products based on the ’449 patent. In contrast, Microsoft’s infringing custom XML editor was found to be “merely one of thousands of features” within Word, used by only a small fraction of Microsoft’s customers. The district court further found that Microsoft’s infringement of the ’449 patent allowed Microsoft to “corner[] the XML market.” 2009-1504 47 Because the “balance of hardships” assesses the relative effect of granting or denying an injunction on the parties, the district court properly considered several factors in its analysis. eBay, 547 U.S. at 391. These factors included the parties’ sizes, products, and revenue sources. When measured by these factors, it is clear that the patented technology is central to i4i’s business. Because most of i4i’s products are based on the ’449 patent, i4i’s market share, revenues, and business strategy are similarly tied to the patented method. These same factors reveal that the infringing custom XML editor relates to only a small fraction of Microsoft’s sizeable business. The far greater importance of the patented method to i4i, combined with the demonstrated past effects of infringement on i4i, favors issuance of a permanent injunction. The district court’s analysis properly ignored the expenses Microsoft incurred in creating the infringing products. See Acumed, 551 F.3d at 1330. Similarly irrelevant are the consequences to Microsoft of its infringement, such as the cost of redesigning the infringing products. Id. As we explained in Broadcom, neither commercial success, nor sunk development costs, shield an infringer from injunctive relief. 543 F.3d at 704. Microsoft is not entitled to continue infringing simply because it successfully exploited its infringement. Id.; see also Windsurfing Int’l v. AMF, Inc., 782 F.2d 995, 1003 n.12 (Fed. Cir. 1986). D. Public Interest Except as to the injunction’s effective date, the district court did not abuse its discretion in finding that the narrow scope of the injunction and the public’s general interest in upholding patent rights favor injunctive relief. See Broadcom, 543 F.3d at 704 (quoting Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538, 1547 (Fed. Cir. 1995)). The 2009-1504 48 district court’s conclusion properly recognized that the touchstone of the public interest factor is whether an injunction, both in scope and effect, strikes a workable balance between protecting the patentee’s rights and protecting the public from the injunction’s adverse effects. Broadcom, 543 F.3d at 704. In particular, the injunction’s narrow scope substantially mitigates the negative effects on the public, practically and economically. By excluding users who purchased or licensed infringing Word products before the injunction’s effective date, the injunction greatly minimizes adverse effects on the public. Id. Here, the relevant “public” includes not only individual consumers, but also companies that license infringing Word products and manufacturers that are part of Microsoft’s distribution channels. Cf. id. (defining the “public” to include affected network carriers and manufacturers). By carving out users who purchased or licensed infringing Word products before the injunction’s effective date, the injunction’s tailoring minimizes disruptions to the market and the public. E. Injunction’s Effective Date On appeal, Microsoft challenges the date on which the injunction goes into effect. We review whether this aspect of the district court’s order is supported by the record. As to the limited question of the injunction’s effective date, we conclude that it is not. Accordingly, the injunction’s effective date is modified as described below. The district court ordered the injunction to go into effect sixty days after August 11, 2009, the date of its order issuing the injunction. Citing the declaration of a Microsoft employee (the “Tostevin declaration”), the district court found that “Microsoft ha[d] presented evidence that it may take five months to implement any injunction.” The district court also found, without any citation to the record, that “i4i ha[d] presented 2009-1504 49 evidence that it is possible to design a software patch that can remove a user’s ability to operate the infringing functionality.” Based on, among other things, “this competing evidence” and “the uncertainty surrounding what period of time would be ‘reasonable’ to expect Microsoft to comply with any injunction,” the district court ordered Microsoft to comply with the permanent injunction “within 60 days.” In light of the record evidence, we conclude that the district court erred by ordering Microsoft to comply with the injunction within sixty days. The only evidence about how long it would take Microsoft to comply with the injunction was the Tostevin declaration, which gave an estimate of “at least” five months. The district court cited no other evidence, and our review of the record reveals no “competing evidence.” Accordingly, we modify the injunction’s effective date from “60 days from the date of this order” to “5 months from the date of this order.” Cf. Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319, 1339 n.22 & 1344 (Fed. Cir. 2008) (modifying an injunction’s terms on appeal); Forest Labs., Inc. v. Ivax Pharms., Inc., 501 F.3d 1263, 1271-72 (Fed. Cir. 2007) (modifying an injunction’s terms on appeal). The injunction’s effective date is now January 11, 2010. CONCLUSION The district court’s claim construction is affirmed, as are the jury’s findings of infringement and validity. The district court did not abuse its discretion in admitting i4i’s evidence as to damages or in granting enhanced damages. Finally, we affirm the entry of the permanent injunction as modified herein. AFFIRMED 2009-1504 50

United States Court of Appeals for the Federal Circuit 2009-5084 HOOPA VALLEY TRIBE on its own behalf, and in its capacity as parens patriae on behalf of its members, OSCAR BILLINGS, BENJAMIN BRANHAM, JR., WILLIAM F. CARPENTER, JR., MARGARET MATTZ DICKSON, FREEDOM JACKSON, WILLIAM J. JARNAGHAN, SR., JOSEPH LEMIEUX, CLIFFORD LYLE MARSHALL, LEONARD MASTEN, JR., DANIELLE VIGIL-MASTEN, LILA CARPENTER and ELTON BALDY, Plaintiffs-Appellants, v. UNITED STATES, Defendant/Third Party Plaintiff- Appellee, v. YUROK TRIBE, Third Party Defendant-Appellee. Thomas P. Schlosser, Morisset, Schlosser & Jozwiak, of Seattle, Washington, argued for plaintiffs-appellants. With him on the brief was Thane D. Somerville. Mary Gabrielle Sprague, Attorney, Environment & Natural Resources, Appellate Section, United States Department of Justice, of Washington, DC, argued for defendant/third party plaintiff-appellee. With her on the brief was John C. Cruden, Acting Assistant Attorney General. Jonathan L. Abram, Hogan & Hartson LLP, of Washington, DC, argued for third party defendant-appellee. Appealed from: United States Court of Federal Claims Judge Thomas C. Wheeler United States Court of Appeals for the Federal Circuit 2009-5084 HOOPA VALLEY TRIBE on its own behalf, and in its capacity as parens patriae on behalf of its members, OSCAR BILLINGS, BENJAMIN BRANHAM, JR., WILLIAM F. CARPENTER, JR., MARGARET MATTZ DICKSON, FREEDOM JACKSON, WILLIAM J. JARNAGHAN, SR., JOSEPH LEMIEUX, CLIFFORD LYLE MARSHALL, LEONARD MASTEN, JR., DANIELLE VIGIL-MASTEN, LILA CARPENTER and ELTON BALDY, Plaintiffs-Appellants, v. UNITED STATES, Defendant/Third Party Plaintiff- Appellee, v. YUROK TRIBE, Third Party Defendant-Appellee. Appeal from the United States Court of Federal Claims in 08-CV-072, Judge Thomas C. Wheeler. ___________________________ DECIDED: March 9, 2010 ___________________________ Before LINN, FRIEDMAN, and MOORE, Circuit Judges. Opinion for the court filed by Circuit Judge MOORE. Dissenting opinion filed by Circuit Judge FRIEDMAN. MOORE, Circuit Judge. The Hoopa Valley Tribe, on its own behalf and acting as parens patriae, and twelve members of the Hoopa Valley Tribe (collectively, Hoopa Valley) appeal from a final decision of the United States Court of Federal Claims. See Hoopa Valley Tribe v. United States, 86 Fed. Cl. 430 (2009). The Court of Federal Claims held that Hoopa Valley lacks standing to challenge the distribution of trust funds to the Yurok Tribe, and the court entered judgment in favor of the government. For the reasons set forth below, we agree that Hoopa Valley lacks standing but vacate and remand with instructions to dismiss Hoopa Valley’s complaint without prejudice. BACKGROUND This case relates to the government’s distribution of revenue derived from an Indian reservation. In 1876, President Grant set aside a square tract of land in Northern California as the Hoopa Valley Indian Reservation, which was inhabited mostly by Hoopa Valley Indians. President Harrison extended this reservation in 1891 to include an additional tract of land that was inhabited mostly by Yurok Indians. Both tribes, as well as other individuals, shared this enlarged reservation (the Joint Reservation), which was rich in timber resources and produced substantial revenue. The United States, through the Department of the Interior (DOI), administered this revenue as trustee of the beneficiaries and began distributing the revenue by 1955. Importantly, DOI distributed the revenue only to enrolled members of the Hoopa Valley Tribe, which the Hoopa Valley Indians formed in 1950. DOI’s discriminatory distribution of revenue prompted what became known as the Short litigation. In 1963, individual Indians not sharing in the revenue, comprised mostly of Yurok Indians, sued the United States for breach of fiduciary duty. The United States Court of Claims ruled in favor of these Indians, holding that the Joint Reservation was “an enlarged, single reservation incorporating without distinction its added and original tracts upon which the Indians populating the newly-added lands should reside on an 2009-5084 2 equal footing with the Indians theretofore resident upon it.” Short v. United States, 486 F.2d 561, 567 (Ct. Cl. 1973) (Short I). After Short I, DOI—through its Bureau of Indian Affairs—distributed 30% of the unallotted revenue to enrolled Hoopa Valley Tribe members because these members comprised about 30% of all potential “Indians of the Reservation.” DOI retained the remaining 70% in an escrow fund. The Short litigation spanned several more years and resulted in numerous judicial opinions. For example, in 1981, the Court of Claims remanded for a determination of which plaintiffs constituted “Indians of the Reservation.” See Short v. United States, 661 F.2d 150, 159 (Ct. Cl. 1981) (Short II). In 1983, we upheld the trial court’s standards for making this determination, emphasizing that “all we are deciding are the standards to be applied in determining those plaintiffs who should share as individuals in the monies from the Hoopa Valley Reservation unlawfully withheld by the United States from them (from 1957 onward).” Short v. United States, 719 F.2d 1133, 1143 (Fed. Cir. 1983) (Short III). We also clarified that our decision “will obtain only for the years until final judgment, and for the years to come while the situation in the Reservation remains the same subject of course to births and deaths.” Id. The United States Claims Court subsequently concluded that qualified plaintiffs were entitled to “the share they would have received had the distributions been made in a non-discriminatory manner.” Short v. United States, 12 Cl. Ct. 36, 41 (1987) (Short IV). In 1988, in an effort to resolve the dispute relating to the ownership and management of the Joint Reservation, Congress passed the Hoopa-Yurok Settlement Act (the Act), Pub. L. No. 100-580, 102 Stat. 2924 (codified as amended at 25 U.S.C. § 1300i et seq. (2006)). The Act expressly preserved the entitlements established 2009-5084 3 under, and any final judgment rendered in, the Short cases. 25 U.S.C. § 1300i-2. But the Act also partitioned the Joint Reservation into the Hoopa Valley Reservation and the Yurok Reservation. Id. § 1300i-1. The Act conditioned this partition on the Hoopa Valley Tribe “adopt[ing], and transmit[ting] to the Secretary, a tribal resolution . . . waiving any claim such tribe may have against the United States arising out of the provisions of this subchapter.” Id. § 1300i-1(a)(2)(A). Hoopa Valley passed this resolution on November 28, 1988, and the partition was effected upon publication of the resolution in the Federal Register on December 7, 1988. Importantly, the Act established a fund (the Settlement Fund) that included all undistributed revenue from the Joint Reservation being held in escrow funds and “all accrued income thereon.” Id. § 1300i-3(a). For purposes of distributing money from the Settlement Fund, the Act instructed DOI to create a roll (the Settlement Roll) of all persons that were Indians of the Reservation and “(A) who were born on or prior to, and living upon, October 31, 1988; (B) who are citizens of the United States; and (C) who were not, on August 8, 1988, enrolled members of the Hoopa Valley Tribe.” 1 Id. § 1300i-4(a)(1). Under § 1300i-5, DOI gave notice to “each person eighteen years or older on such roll of their right to elect” enrollment in either the Hoopa Valley Tribe or the Yurok Tribe, subject to the satisfaction of certain criteria. Rather than elect membership in either tribe, individuals could also elect to receive a lump sum payment out of the Settlement Fund in the amount of $15,000. Id. § 1300i-5(d). All twelve individual members of the Hoopa Valley Tribe that are named plaintiffs in this case were enrolled members of the Hoopa Valley Tribe on August 8, 1988. 2009-5084 4 The Act expressly set forth other mechanisms for distributing money out of the Settlement Fund. With respect to the Hoopa Valley Tribe, the Act provided as follows: [T]he Secretary shall immediately pay out of the Settlement Fund into a trust account for the benefit of the Hoopa Valley Tribe a percentage of the Settlement Fund which shall be determined by dividing the number of enrolled members of the Hoopa Valley Tribe as of the date of the promulgation of the Settlement Roll, including any persons enrolled pursuant to section 1300i-5 of this title, by the sum of the number of such enrolled Hoopa Valley tribal members and the number of persons on the Settlement Roll. Id. § 1300i-3(c). The Act conditioned payment of the Tribe’s percentage of the Settlement Fund upon execution of the waiver discussed above. Id. §1300i-1(a)(2)(A) (requires “waiving any claim such tribe may have against the United States”). After Hoopa Valley passed the resolution waiving its right to bring suit against the United States with respect to provisions of the Act, DOI paid the Tribe its allotted amount from the Settlement Fund—about 40% of the Settlement Fund or about $34 million. The Act included a similar provision for the Yurok Tribe: the Secretary shall pay out of the Settlement Fund into a trust account for the benefit of the Yurok Tribe a percentage of the Settlement Fund which shall be determined by dividing the number of persons on the Settlement Roll electing the Yurok Tribal Membership Option pursuant to section 1300-5(c) of this title by the sum of the number of the enrolled Hoopa Valley tribal members established pursuant to subsection (c) of this section and the number of persons on the Settlement Roll, less any amount paid out of the Settlement Fund pursuant to section 1300i-5(c)(3) of this title. Id. § 1300i-3(d). Section 1300-5(c)(3) also provided for payment of either $5,000 or $7,500 out of the Settlement Fund to individuals electing membership in the Yurok Tribe, depending on the individual’s age. Lastly, under § 1300i-6(a), “[a]ny funds remaining in the Settlement Fund . . . shall be paid to the Yurok Tribe and shall be held by the Secretary in trust for such tribe.” 2009-5084 5 The Act conditioned “apportionment of funds to the Yurok Tribe as provided in sections 1300i-3 and 1300-i6” on the Yurok Tribe “adopt[ing] a resolution waiving any claim such tribe may have against the United States arising out of the provisions of this subchapter.” Id. § 1300i-1(c)(4). The Yurok Tribe adopted a resolution with a waiver that the United States deemed unsatisfactory, and the Yurok Tribe filed a takings claim against the United States. The Yurok Tribe ultimately lost its case, see Karuk Tribe of Cal. v. Ammon, 209 F.3d 1366 (Fed. Cir. 2000), and a substantial amount of money remained in the Settlement Fund. Hoopa Valley’s suit in this case concerns the remainder of the money in the Settlement Fund. In March 2002, DOI submitted a report and testified before the Senate Indian Affairs Committee regarding what to do with the remainder in the Settlement Fund. See 25 U.S.C. § 1300i-11(c). According to DOI, the Hoopa Valley Tribe “received their [sic] portion of the benefits as enumerated within the Act” and thus “is not entitled [to] any further portion of funds or benefits under the existing Act.” J.A. 246. DOI also concluded that “the Yurok Tribe did not meet the waiver conditions of the Act and is therefore not entitled to the benefits enumerated within the Act.” Id. at 247. Nevertheless, DOI recommended that the remainder should not revert to the general fund of the U.S. Treasury. Id. at 247, 282. Rather, DOI recognized that “substantial financial and economic needs currently exist within both Tribes and their respective reservations.” Id. at 282. Accordingly, DOI recommended that “the Settlement Fund should be administered for the mutual benefit of both Tribes and their respective reservations, taking into consideration prior distributions to each Tribe from the Fund,” and that “the monies remaining in the Settlement Fund should . . . be distributed to one 2009-5084 6 or both Tribes in some form.” Id. DOI sought further instruction and/or legislation from Congress on this issue, but no such legislation was enacted. In 2007, after reviewing the situation and hearing from both tribes, Ross O. Swimmer, Special Trustee for American Indians, informed both tribes that DOI would distribute the remainder in the Settlement Fund to the Yurok Tribe, provided that the Yurok Tribe submitted a new, satisfactory waiver. The Yurok Tribe complied and received the remainder in the Settlement Fund, which had grown from about $37 million to more than $80 million. Hoopa Valley subsequently sued the United States, alleging breach of fiduciary duty arising from the distribution of the remainder in the Settlement Fund only to the Yurok Tribe. According to Hoopa Valley, the Yurok Tribe’s waiver was invalid. Hoopa Valley moved for summary judgment; the government filed a motion to dismiss, or in the alternative for summary judgment. The government also filed a third-party complaint seeking judgment against the Yurok Tribe if the Court of Federal Claims concluded that the disbursement was improper. The Court of Federal Claims granted the government’s motion for summary judgment on the basis that Hoopa Valley lacks standing. Specifically, the court determined that Hoopa Valley cannot show that it suffered an injury in fact. The Court of Federal Claims entered judgment in favor of the government, and Hoopa Valley appeals. DISCUSSION We have jurisdiction under 28 U.S.C. § 1295(a)(3). We review the Court of Federal Claims’ grant of summary judgment de novo. Winstar Corp. v. United States, 64 F.3d 1531, 1539 (Fed. Cir. 1995). Also, “[w]hether a plaintiff has standing to bring 2009-5084 7 suit is likewise a question of law, reviewed de novo.” S. Cal. Fed. Sav. & Loan Ass’n v. United States, 422 F.3d 1319, 1328 (Fed. Cir. 2005). “Standing is a threshold jurisdictional issue that implicates Article III of the Constitution.” Id. According to the Supreme Court, “the irreducible constitutional minimum of standing contains three elements”: injury in fact, causation, and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). With respect to the first element, “the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560 (citations omitted) (internal quotation marks omitted). Hoopa Valley, the party invoking jurisdiction, bears the burden of establishing the elements of standing. Id. at 561. Hoopa Valley contends that it is a beneficiary of—i.e., had a legally protected interest in—the Settlement Fund and that it was injured by DOI’s distribution of the remainder in the Settlement Fund to the Yurok Tribe. According to Hoopa Valley, it is a direct beneficiary because the remainder was derived from timber resources taken from the Hoopa Valley Reservation. Furthermore, Hoopa Valley maintains that its claims “are mirror images of claims approved by this Court in the Short litigation” and that “[a]bsent valid distributions complying with the Settlement Act or other statute, the Secretary was bound to hold, invest, and administer the Settlement Fund as Indian trust funds for the benefit of all Indians of the Reservation, including the Hoopa Plaintiffs.” Appellants’ Br. 17–18. The government responds that the Hoopa Valley Tribe was no longer a beneficiary after it received its share of the Settlement Fund in 1991 and that individual Hoopa Valley Tribe members were never beneficiaries of the Settlement 2009-5084 8 Fund. These arguments by the government form the basis of the Court of Federal Claims’ decision. See Hoopa Valley, 86 Fed. Cl. at 435–36. We agree with the Court of Federal Claims that Hoopa Valley lacks standing because it cannot show an injury in fact. The Hoopa Valley Tribe waived any claim against the government arising from the Act, received its share of the Settlement Fund, and retained no entitlement to the remainder in the Settlement Fund. As such, at the time DOI distributed the remainder to the Yurok Tribe, the Hoopa Valley Tribe was not a beneficiary of, and had no legally protected interest in, the Settlement Fund. Moreover, Hoopa Valley’s reliance on the earlier Short litigation is inapposite because entitlement to the Settlement Fund is dictated by the provisions of the Act itself, and Hoopa Valley received all of the money to which it was entitled under the Act. Thus the Hoopa Valley Tribe cannot show an injury in fact based on DOI’s distribution. Likewise, individual members of the Hoopa Valley Tribe have no individual entitlement to the Settlement Fund. The Act recognized only two forms of direct distributions to individuals: (1) those individuals not electing membership in either the Hoopa Valley Tribe or the Yurok Tribe, see 25 U.S.C. § 1300i-5(d); and (2) individuals electing membership in the Yurok Tribe, see id. § 1300i-5(c)(3). Furthermore, the corresponding Senate Report explained that the Act “should not be considered in any fashion as a precedent for individualization of tribal communal assets” and should “in no way . . . be construed as any recognition of individual rights in and to the reservation or the funds in escrow.” S. Rep. No. 100-564, at 2, 15 (1988). The Court of Federal Claims’ summary is particularly apt: “Simply put, the Act provides no mechanism for individual Hoopa Valley Tribe members to receive payment directly from the United States.” Hoopa Valley, 86 Fed. Cl. at 436. Because 2009-5084 9 we conclude that Hoopa Valley lacks standing, we do not address the government’s alternative arguments, including specifically that even if the twelve members of the Hoopa Valley Tribe have standing, the Hoopa Valley Tribe lacks standing as parens patriae on behalf of its members. Although we agree with the court’s determination that Hoopa Valley lacks standing, we nevertheless believe that the Court of Federal Claims, which entered judgment in favor of the government, should have dismissed Hoopa Valley’s complaint without prejudice. Indeed, the government concedes that dismissal for lack of jurisdiction is appropriate and requests that we remand for this purpose. Accordingly, we vacate the Court of Federal Claims’ judgment in favor of the government and remand with instructions for the court to dismiss Hoopa Valley’s complaint without prejudice. VACATED and REMANDED COSTS No costs. 2009-5084 10 United States Court of Appeals for the Federal Circuit 2009-5084 HOOPA VALLEY TRIBE on its own behalf, and in its capacity as parens patriae on behalf of its members, OSCAR BILLINGS, BENJAMIN BRANHAM, JR., WILLIAM F. CARPENTER, JR., MARGARET MATTZ DICKSON, FREEDOM JACKSON, WILLIAM J. JARNAGHAN, SR., JOSEPH LEMIEUX, CLIFFORD LYLE MARSHALL, LEONARD MASTEN, JR., DANIELLE VIGIL-MASTEN, LILA CARPENTER and ELTON BALDY, Plaintiffs-Appellants, v. UNITED STATES, Defendant/Third Party Plaintiff- Appellee, v. YUROK TRIBE, Third Party Defendant-Appellee. Appeal from the United States Court of Federal Claims in 08-CV-072, Judge Thomas C. Wheeler. FRIEDMAN, Circuit Judge, dissenting. I would affirm the Court of Federal Claims’ grant of summary judgment for the United States, thereby dismissing the complaint, but not on the court’s ground that the appellants lack standing to bring their claims. I would affirm on the alternative ground, which the record supports, that the appellants have failed to state a claim on which relief can be granted. We may affirm the judgment of that court on any ground the record supports, whether or not that court relied upon that ground or whether the parties asserted that ground. See Granite Mgmt. v. United States, 416 F.3d 1373, 1378 (Fed. Cir. 2005). I The rationale of the Court of Federal Claims’ lack-of-standing ruling is that the appellants “have already received their full entitlement to the Fund and thus have no ‘injury in fact.’” That court stated: The Hoopa Valley Tribe ultimately received more than $34 million from the Fund, the amount determined to be Hoopa’s entitlement pursuant to the Act. Thus, Plaintiffs cannot show that an “invasion of a legally protected interest” occurred in this matter to establish an “injury in fact.” The Hoopa Valley Tribe already received its share of the Fund in 1991; only the Yurok were entitled to monies remaining in the Fund in 2007. In short, Plaintiffs already have received the amount of the Fund to which they are entitled, and could not be injured by distribution of monies to which they have no right. Hoopa Valley Tribe v. United States, 86 Fed. Cl. 430, 436 (2009) (app. citation omitted). The appellants, however, do not contend that the distribution to the Yurok Tribe violated the Hoopa Valley Tribe’s distribution rights under the Settlement Act. They contend that, under that Act and 25 U.S.C. § 407, the funds distributed to the Yurok Tribe were being held by the federal government as Indian trust funds, and that the distribution the Secretary of the Interior made was a breach of that trust because it violated the Settlement Act. Although the alleged breach of trust was based on an alleged violation of the Settlement Act, that does not make the present claim any the less one for breach of trust. As the appellants stated in their brief on the merits, “Hoopa Plaintiffs seek recovery of damages resulting from a breach of trust committed by the United States.” The fact that the Hoopa Valley Tribe may have received all it is entitled 2009-5084 2 to under the Settlement Act does not, automatically or necessarily, eliminate the present independent claim for additional money based on the government’s alleged breach of trust in distributing the funds to the Yurok Tribe. At oral argument, it was pointed out to government counsel that if the Hoopa Valley Tribe has no standing to assert its present breach of trust claim then, even if it has a valid claim, there could be no way to assert it. Government counsel replied that this point raises a separation of powers issue, and that if the Secretary had committed a breach of trust, it was for the President to take appropriate action against the Secretary. Although such presidential action might assuage the Hoopa Valley Tribe members’ emotional concerns, it would not satisfy their financial ones. It was the latter, not the former, that presumably led the Hoopa Valley Tribe to file the present suit seeking to recover damages from the United States for a breach of trust. II The Hoopa Valley Tribe’s breach of trust claim rests primarily on its interpretation of a provision of the Settlement Act that provides: (4) The— (A) apportionment of funds to the Yurok Tribe as provided [in this title] . . . shall not be effective unless and until the Interim Council of the Yurok Tribe has adopted a resolution waiving any claim such tribe may have against the United States arising out of the provisions of this [Act]. 25 U.S.C. §§ 1300i-1(c)(4)(A), -1(c)(4)(D). The Hoopa Valley Tribe contends that, under this provision, the Yurok Tribe’s right to receive its share of the fund was contingent upon the Yurok Tribe not filing suit against the United States based upon the Settlement Act, and that it forfeited that right when it filed its takings claim in 1992. The Hoopa Valley Tribe argues that the United 2009-5084 3 States committed a breach of trust by distributing the Yurok Tribe’s portion of the settlement fund to the Yurok Tribe in 2007 after the tribe had executed the waiver following the loss of its takings suit. The Hoopa Valley Tribe stresses that, for many years, the Interior Department had taken the position that, once the Yurok Tribe filed its takings claim, the provisions quoted above precluded the tribe from effecting a valid waiver; and that Interior made the distribution only after it had changed its position on this issue in 2007 and permitted the Yurok Tribe to execute the waiver and receive the funds. The Settlement Act contains a parallel provision dealing with waiver of claims by the Hoopa Valley Tribe, which states: (2)(A) The partition of the joint reservation as provided in this subsection, and the ratification and confirmation as provided by section 1300i-7 of this title, shall not become effective unless, within 60 days after October 31, 1988, the Hoopa Valley Tribe shall adopt, and transmit to the Secretary, a tribal resolution: (i) waiving any claim such tribe may have against the United States arising out of the provisions of this subchapter .... 25 U.S.C. § 1300i-1(a)(2)(A). There is a critical difference between the waiver provisions covering the two tribes. The Hoopa Valley Tribe is required to execute its waiver “within 60 days after the date of the enactment” of the Act. The Yurok waiver provision, however, contains no time limit but requires only that the waiver be adopted before there is any “apportionment of funds to the Yurok Tribe.” Both waiver provisions were designed to protect the government financially by insuring that, after it had made the Settlement Act distributions to the two tribes, it would 2009-5084 4 not thereafter be subjected to damages for making those payments. The method the Settlement Act used to accomplish that objective was to require each tribe to waive such claims before it could receive its payment. That is precisely what occurred here. The Hoopa Valley and Yurok tribes each received its share of the Settlement Act fund only after it had executed a waiver of any claims against the United States based on the Settlement Act. Under this analysis, it is irrelevant that, although the Hoopa Valley Tribe executed its waiver shortly after the Settlement Act was enacted, the Yurok Tribe did not do so until years later, after the latter had unsuccessfully asserted its takings claim against the United States. In both instances, the United States did not distribute the tribe’s share of the Settlement Fund until after the tribe had waived any claim it had against the United States based on the Settlement Act. The Hoopa Valley Tribe contends, however, that, under the Settlement Act, the government had no authority to make any distribution to the Yurok Tribe once the latter had filed its takings suit against the United States. Although the Interior Department had taken this same position over a considerable period—a fact the Hoopa Valley Tribe relies on heavily as supporting its statutory argument—Interior reexamined and changed its position in 2007. It ruled that it would distribute the Yurok Tribe’s portion of the Settlement Fund if the tribe executed a waiver, which the tribe promptly did. As Interior explained to the Chairmen of the two tribes: Neither the Act nor its legislative history specifies whether proceeding under one provision would preclude the Yurok Tribe from proceeding under the other, i.e., whether bringing a takings claim and providing a waiver, actions both authorized under the Act, were mutually exclusive. For a number of reasons, we conclude that the takings litigation in 2009-5084 5 Karuk Tribe did not result in the Yurok Tribe’s forfeiting the benefits established in the Act. For example, the Act does not specify a time limitation, like the limited period to bring a constitutional challenge, on the ability to provide a waiver. Moreover, the Act’s Yurok waiver provision is not limited solely to the constitutionally-based property claims authorized by the Act and litigated by the Yurok Tribe. The Act did not provide any contingent distribution arrangements if the Yurok Tribe chose to assert a takings claim. Fundamentally, nothing in the Act states that the Yurok Tribe’s choosing to litigate its takings claim would cause the Tribe to forfeit the benefits under the Act. Because Congress acted as a trustee in passing the Act and because the Hoopa Valley Tribe received already all of its benefits established by the Act, including its designated share of the Fund, we believe that any ambiguity in the Act should be read in favor of providing the other beneficiary, the Yurok Tribe, with its benefits established by the Act. Because the Act specifically authorized either Tribe to bring certain claims against the United States yet did not provide for an alternative distribution of benefits if a Tribe took such an action, we further believe that an interpretation of the Act that avoids penalizing a beneficiary for taking an authorized action and that avoids potentially troublesome constitutional issues to be necessary here. Thus, we believe that it would be unreasonable to read the Act to work a forfeiture of the Yurok’s right to receive the monies from the Fund, and we decline to do so. I see no reason to reject Interior’s conclusion. Cf. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). The Hoopa Valley Tribe contends that the Yurok Tribe’s waiver was invalid on the further ground it was given by the permanent Yurok Tribal Council, but that the Settlement Act authorized only the Yurok “Interim Council” to grant the waiver. This reference to the “Interim” Tribal Council, however, is an authorization, not a restriction or limitation. Since the organization of the Yurok Tribe was a complex activity that might take considerable time, and since the inchoate Yurok Tribe might wish to 2009-5084 6 expedite the waiver to obtain its share of the settlement fund, Congress authorized the tribe’s temporary governing body, the Interim Tribal Council, to execute the waiver. Once the Yurok Tribe was organized and its permanent Tribal Council established, however, the latter succeeded to the Interim Tribal Council’s authority, including the authority to grant the waiver. As Interior explained in rejecting this argument: The Act authorized the Yurok Interim Council, an entity that ceased to exist in 1993, to provide the requisite waiver under the Act. The Act did not preclude or otherwise divest power from the permanent Yurok Council also to waive claims. Through its breach of trust damages claim in this case, it appears that the Hoopa Valley Tribe is seeking to recover the approximately $90 million that the government paid to the Yurok Tribe as the latter’s share of the Settlement Fund. The Hoopa Valley Tribe does not question that that amount accurately reflected the share of the Settlement Fund to which the Yurok Tribe was entitled under the Settlement Act. Nor does the Hoopa Valley Tribe deny that the approximate $34 million it received after executing its waiver gave it all it was entitled to under the Settlement Act. In 1973, in the first decision in the Short litigation, the Court of Claims rejected the claim by the Hoopa Valley Tribe members that they, and they alone, were entitled to all the proceeds of the timber sales from the portion of the joint reservation they occupied. Short v. United States, 486 F.2d 561. The court held that the land that both tribes occupied constitutes a single reservation and that all the “Indians of the reservation” were entitled to share in the proceeds of the timber revenues from that land. Id. at 567–68. In subsequent decisions, both the Court of Claims and this court 2009-5084 7 reiterated those principles and standards. Short v. United States, 661 F.2d 1501 (Ct. Cl. 1981), 719 F.2d 1133 (Fed. Cir. 1983). The Hoopa Valley Tribe apparently now seeks to obtain, under a breach of trust claim, the proceeds of the timber sales. This appears to be a repackaging of the tribal members’ original claim—which the Court of Claims rejected more than thirty-five years ago—that they alone, and to the exclusion of the Yurok Tribe members, are entitled to the proceeds of the timber harvested on the portion of the joint reservation the Hoopa Valley Tribe occupied. In sum, Interior did not breach any trust obligation it had to the Hoopa Valley Tribe by paying to the Yurok Tribe, under a reasonable interpretation of the waiver provision of the Settlement Act, the amount the Yurok Tribe was entitled to receive under that Act. There are no possible facts that the Hoopa Valley Tribe could show that would enable the tribe to recover on its breach of trust claim. I would affirm the judgment of the Court of Federal Claims dismissing this suit. 2009-5084 8

United States Court of Appeals for the Federal Circuit 2009-1354 DAVID A. RICHARDSON, Plaintiff-Appellant, v. STANLEY WORKS, INC., Defendant-Appellee. Geoffrey S. Kercsmar, Kercsmar & Feltus, PLLC, of Scottsdale, Arizona, argued for plaintiff-appellant. Bryan P. Collins, Pillsbury Winthrop Shaw Pittman LLP, of McLean, Virginia, argued for defendant-appellee. With him on the brief were Robert M. Fuhrer, and Kathy Peng. Appealed from: United States District Court for the District of Arizona Judge Neil V. Wake United States Court of Appeals for the Federal Circuit 2009-1354 DAVID A. RICHARDSON, Plaintiff-Appellant, v. STANLEY WORKS, INC., Defendants-Appellee. Appeal from the United States District Court for the District of Arizona in Case No. 08-CV-1040, Judge Neil V. Wake. ____________________________ DECIDED: March 9, 2010 ____________________________ Before LOURIE and DYK, Circuit Judges, and KENDALL, District Judge. * LOURIE, Circuit Judge. David Richardson appeals from a final decision of the United States District Court for the District of Arizona. Richardson v. Stanley Works, Inc., 610 F. Supp. 2d 1046 (D. Ariz. 2009). After a bench trial, the district court found that Stanley Works, Inc. (“Stanley”) did not infringe U.S. Patent D507,167 (“the ’167 patent”). Because the court correctly construed the claim at issue and correctly determined that the patent was not infringed, we affirm. * Honorable Virginia M. Kendall, District Judge, United States District Court for the Northern District of Illinois, sitting by designation. BACKGROUND Richardson owns the ’167 patent, a design patent that claims the design for a multi-function carpentry tool that combines a conventional hammer with a stud climbing tool and a crowbar. The tool is known as the “Stepclaw.” The only claim of the ’167 patent claims the ornamental design of the tool as depicted in figures 1 and 2 of the patent: Stanley manufactures and sells construction tools. In 2005, Stanley introduced into the U.S. market a product line of tools by the series name “Fubar.” The Fubar is 2009-1354 2 sold in five different versions and is useful in carpentry, demolition, and construction work. Stanley successfully applied for and obtained U.S. Patent D562,101 (“the ’101 patent”) on the basic Fubar design. All five versions of the tool are built around that same basic Fubar design. Figures 1 and 5 of the ’101 patent are illustrative of the Fubar design: Figure 1 Figure 5 On June 3, 2008, Richardson filed a complaint against Stanley in the district court for the District of Arizona alleging that the Fubar tools infringed his ’167 patent. In addition, Richardson alleged that Stanley was unfairly competing with him in the U.S. market. In response to Richardson’s complaint, Stanley first filed a motion to dismiss on September 10, 2008 and later filed an answer to the complaint on September 22, 2008. 2009-1354 3 On October 22, 2008, Richardson filed his request for a jury trial, which Stanley moved to strike as untimely under Federal Rule of Civil Procedure 38(b). In response, Richardson requested that a jury trial be granted under Rule 39(b). The district court granted Stanley’s motion to strike and denied Richardson’s Rule 39(b) motion. Richardson v. Stanley Works, Inc., No. CV-08-1040-PHX-NVW, 2009 WL 383554 (D. Ariz. Feb. 13, 2009). The court also granted Stanley’s motion to dismiss Richardson’s unfair competition claim. Richardson v. Stanley Works, Inc., No. CV-08-1040-PHX- NVW, 2008 WL 4838708 (D. Ariz. Nov. 06, 2008). On April 2, 2009, the court conducted a bench trial on Richardson’s patent infringement claim and entered judgment of noninfringement in favor of Stanley. Richardson, 610 F. Supp. 2d at 1053. In its order, the court first distinguished, as part of its claim construction, the ornamental aspects from the functional aspects of Richardson’s design and then determined that an ordinary observer, after discounting the functional elements of Richardson’s design, would not be deceived into thinking that any of the Fubar tools were the same as Richardson’s Stepclaw. Id. at 1050–1052. The court therefore concluded that the overall visual effect of the Fubar was not substantially similar to that of the Stepclaw, and that the ’167 patent had not been infringed. Id. at 1053. Richardson timely appealed the court’s rulings. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION A. Claim Construction Richardson argues that the district court’s approach to evaluating infringement of a design patent was incorrect. Richardson primarily argues that the district court erred in its claim construction by separating the functional aspects of the design from the 2009-1354 4 ornamental ones, rather than considering the design as a whole. Richardson argues that our Egyptian Goddess decision requires that the patented design be compared in its entirety with the accused design, and that the comparison be made from the perspective of an ordinary observer. See Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc). A claim construction such as the one performed by the district court, Richardson argues, is necessary only for designs that contain “purely functional” elements. According to Richardson, a design element is purely functional only when the function encompassed by that element cannot be performed by any other design. Richardson contends that the overall design of the ’167 patent is not dictated by the useful elements found in the tool, and that the functional parts of its design remain relevant to the scope of the patented claim. We review claim construction de novo on appeal. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed. Cir. 1998) (en banc). We disagree with Richardson that the district court erred in its claim construction by separating the functional and ornamental aspects of the ’167 patent design. In OddzOn, we affirmed a district court’s claim construction wherein the court had carefully distinguished the ornamental features of the patented design from the overall “rocket-like” appearance of the design of a football-shaped foam ball with a tail and fin structure. OddzOn Prods., Inc. v. Just Toys, Inc., 122 F.3d 1396, 1405 (Fed. Cir. 1997). We held that “[w]here a design contains both functional and non-functional elements, the scope of the claim must be construed in order to identify the non-functional aspects of the design as shown in the patent.” Id. The issue before us is not very different from that in OddzOn, and we are not persuaded by Richardson’s argument that our holding in Egyptian Goddess mandates a 2009-1354 5 different result here. In Egyptian Goddess, we abandoned the point of novelty test for design patent infringement and held that the ordinary observer test should serve as the sole test for infringement. 543 F.3d at 679. Although we proposed that the preferable course ordinarily will be for a district court not to attempt to construe a design patent claim, id., we also emphasized that there are a number of claim scope issues on which a court’s guidance would be useful to the fact finder. Id. at 680. Among them, we specifically noted, is the distinction between the functional and ornamental aspects of a design. Id. (citing OddzOn, 122 F.3d at 1405). The district court here properly factored out the functional aspects of Richardson’s design as part of its claim construction. By definition, the patented design is for a multi-function tool that has several functional components, and we have made clear that a design patent, unlike a utility patent, limits protection to the ornamental design of the article. Lee v. Dayton-Hudson Corp., 838 F.2d 1186, 1188 (Fed. Cir. 1988) (citing 35 U.S.C. § 171). If the patented design is primarily functional rather than ornamental, the patent is invalid. Id. However, when the design also contains ornamental aspects, it is entitled to a design patent whose scope is limited to those aspects alone and does not extend to any functional elements of the claimed article. See L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1123 (Fed. Cir. 1993) (“The elements of the design may indeed serve a utilitarian purpose, but it is the ornamental aspect that is the basis of the design patent.”). Richardson’s multi-function tool comprises several elements that are driven purely by utility. As the district court noted, elements such as the handle, the hammer- head, the jaw, and the crowbar are dictated by their functional purpose. The jaw, for 2009-1354 6 example, has to be located on the opposite end of the hammer head such that the tool can be used as a step. The crowbar, by definition, needs to be on the end of the longer handle such that it can reach into narrow spaces. The handle has to be the longest arm of the tool to allow for maximum leverage. The hammer-head has to be flat on its end to effectively deliver force to the object being struck. As demonstrated by the prior art, those are purely functional elements whose utility has been known and used in the art for well over a century. Richardson’s argument that the court erred in separating out functional aspects of his design essentially is an argument for a claim scope that includes the utilitarian elements of his multi-function tool. We agree with the district court that it would indeed be improper to allow Richardson to do so. The ’167 patent specifically claims “the ornamental design” for the multi-function tool shown in the drawings. See ’167 patent, Cl. 1. A claim to a design containing numerous functional elements, such as here, necessarily mandates a narrow construction. Nothing in our en banc Egyptian Goddess opinion compels a different outcome. We also reject Richardson’s argument that the court did not include drawings from the patent in its claim construction. Richardson argues that it is the ordinary observer’s perception of those drawings that is the controlling consideration under the Supreme Court’s opinion in Gorham Manufacturing Company v. White, 81 U.S. 511 (1871). We agree with Richardson on the decisive importance of drawings in a design patent. We have recently stated that design patents are typically claimed according to their drawings, and claim construction must be adapted to a pictorial setting. Crocs, Inc. v. Int’l Trade Comm’n, No. 2008-1596, slip op. at 10 (Fed. Cir. Feb. 24, 2010). 2009-1354 7 However, we do not agree that the district court’s claim construction necessarily excluded drawings of the ’167 patent. The court’s entire construction was based on what was “shown and described in the ’167 patent.” Richardson, 610 F. Supp. 2d at 1050. The court concluded its discussion by noting that the purpose of the claim construction was simply to highlight the ornamental aspects of Richardson’s design. Id. Richardson fails to explain how a court could effectively construe design claims, where necessary, in a way other than by describing the features shown in the drawings. Richardson’s proposition that the claim construction should comprise nothing more than the drawings is simply another way of arguing that the court erred by identifying the functional elements of the patented article, and is therefore unavailing. We find no error in the court’s claim construction. B. Infringement Richardson argues that the district court failed to analyze infringement of the ’167 patent by Stanley’s tools under an ordinary observer test. According to Richardson, had the court conducted a three-way comparison between the prior art, the patented design and the accused products, it would have found the accused product design to be substantially the same as the patented one. Stanley responds that, having identified the ornamental aspects of Richardson’s patented design, the court properly found that the only similarities between the patented Stepclaw and the accused Fubar tools were those of unprotectable functional elements. Stanley argues that when those utilitarian aspects are ignored, none of the accused Fubar products looks even remotely like Richardson’s patented design. 2009-1354 8 We agree with the court’s finding of noninfringement. Design patent infringement is a question of fact, which a patentee must prove by a preponderance of the evidence. L.A. Gear, 988 F.2d at 1124. In Egyptian Goddess, we held that “the ‘ordinary observer’ test should be the sole test for determining whether a design patent has been infringed.” 543 F.3d at 678. The patentee must establish that an ordinary observer, familiar with the prior art designs, would be deceived into believing that the accused product is the same as the patented design. See id. at 681. In our recent Crocs decision, we set out in detail how an ordinary observer analysis could be conducted to determine infringement. See Crocs, slip op. at 11–15. In analyzing whether a design patent on footwear was infringed, noting the various differences that could be found between the two pieces of footwear in question, we compared their overall effect on the designs. Id. at 15. We looked to ornamental elements such as the curves in the design, the strap assembly, and the base portion of the footwear. Id. We concluded that both the claimed design and the accused designs contained those overall ornamental effects, thereby allowing for market confusion. Id. The ordinary observer test similarly applies in cases where the patented design incorporates numerous functional elements. See Amini Innovation Corp. v. Anthony Cal., Inc., 439 F.3d 1365, 1372 (Fed. Cir. 2006) (holding that while it is proper to factor out the functional aspects of various design elements, that discounting of functional elements must not convert the overall infringement test to an element-by-element comparison). In evaluating infringement, we determine whether “the deception that arises is a result of the similarities in the overall design, not of similarities in ornamental features in isolation.” Amini Innovation, 439 F.3d at 1371. 2009-1354 9 We do not agree with Richardson that the district court failed to apply the ordinary observer test in finding no infringement. The court specifically concluded that “[f]rom the perspective of an ordinary observer familiar with the prior art, the overall visual effect of the Fubar is significantly different from the Stepclaw.” Richardson, 610 F. Supp. 2d at 1052. It recited the significant differences between the ornamental features of the two designs but, in determining infringement, it mainly focused on whether an ordinary observer would be deceived into thinking that any of the Fubar designs were the same as Richardson’s patented design. Id. We therefore find no error in the district court’s approach. See Egyptian Goddess, 543 F.3d at 681 (“An ordinary observer, comparing the claimed and accused designs in light of the prior art, will attach importance to differences between the claimed design and the prior art depending on the overall effect of those differences on the design.”); see also Int’l Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233, 1243 (Fed. Cir. 2009) (“The mandated overall comparison is a comparison taking into account significant differences between the two designs, not minor or trivial differences that necessarily exist between any two designs that are not exact copies of one another.”). We also agree that, ignoring the functional elements of the tools, the two designs are indeed different. Each of the Fubar tools has a streamlined visual theme that runs throughout the design including elements such as a tapered hammer-head, a streamlined crow-bar, a triangular neck with rounded surfaces, and a smoothly contoured handled. In a side-by-side comparison with the ’167 patent design, the overall effect of this streamlined theme makes the Fubar tools significantly different from Richardson’s design. Overall, the accused products clearly have a more rounded 2009-1354 10 appearance and fewer blunt edges than the patented design. The court therefore was not clearly erroneous in concluding that the accused products embody an overall effect that cannot be found in the ’167 patent design and hence cannot cause market confusion. See Egyptian Goddess, 543 F.3d at 681 (infringement cannot be found unless the accused product creates an appearance deceptively similar to the claimed design). C. Jury Demand We lastly address Richardson’s argument that the district court improperly denied Richardson’s jury demand as untimely. The court found that at the time Richardson filed his jury demand, the pleadings were closed. Richardson, 2009 WL 383554, at *1. However, Richardson argues that at the time he filed his jury demand, a motion to dismiss was pending, and the Rule 38(b) clock did not start until the motion had been ruled upon by the court. Moreover, Richardson argues, the court had ample discretion to grant his jury demand under Rule 39(b), but refused to do so, improperly concluding that Richardson’s inadvertence foreclosed any further analysis of the merits of his motion. Richardson contends that, under Ninth Circuit law, failure to file a jury demand based on a pending motion to dismiss does not bar the court from employing its discretion to allow a jury trial. Stanley responds that its motion to dismiss was not a pleading and hence did not toll the 10-day deadline for Richardson to file a jury demand. Moreover, Stanley argues, the motion to dismiss was limited to state law claims and did not in any way affect Richardson’s deadline for filing a jury demand for the patent infringement claims. 2009-1354 11 We agree with Stanley that the district court permissibly denied Richardson’s motion for a jury trial. We apply regional circuit law to a trial court’s procedural decisions that relate to issues not unique to our exclusive jurisdiction, including motions for a jury trial. See Transmatic, Inc. v. Gulton Indus., Inc., 53 F.3d 1270, 1278 (Fed. Cir. 1995). Under Ninth Circuit law, a trial court’s determination of the timeliness of a demand for jury trial under Rule 38(b) is reviewed de novo. See Kulas v. Flores, 255 F.3d 780, 783 (9th Cir. 2001). In examining that question, we “indulge every reasonable presumption against waiver” of the jury trial right. Cal. Scents v. Surco Prods., Inc., 406 F.3d 1102, 1108 (9th Cir. 2005). Rule 38(b) states that “a party may demand a jury trial by . . . serving the other parties with a written demand – which may be included in a pleading – no later than 10 days after the last pleading directed to the issue is served.” Fed. R. Civ. P. 38(b). 1 The district court noted that Stanley’s answer was the last pleading directed to any issue triable of right by a jury in this case. Richardson, 2009 WL 383554, at *1. Accordingly, the court concluded that Richardson’s jury demand was untimely because he served it more than ten days after Stanley filed its answer. Id. The court held that the fact that a motion to dismiss was pending did not toll the time for Richardson to file a jury demand. Id. Rule 7(a) lists the types of pleadings permissible in federal cases. Fed. R. Civ. P. 7(a). A motion to dismiss is not one of them. It is not a pleading directed to issues of fact triable by the jury. United States v. Anderson, 584 F.2d 369, 372 n.4 (10th Cir. 1978) (stating that a motion to dismiss is not a pleading within the federal rules). Effective December 1, 2009, Rule 38(b) has been amended to provide the parties fourteen days to make a demand for a jury trial. 2009-1354 12 Richardson cites no authority suggesting that such a motion could be considered otherwise in the application of Rule 38. 2 Richardson’s proposed interpretation of the rule would indefinitely extend a party’s deadline to make a jury demand until the court rules on all such pending motions. We see nothing in the federal rules that allows such a reading. We agree with the district court that Richardson’s jury demand was untimely regardless of Stanley’s pending motion. The Ninth Circuit reviews a district court’s decision to deny relief under Rule 39(b) for an abuse of discretion. See Las Vegas Sun, Inc. v. Summa Corp., 610 F.2d 614, 621 (9th Cir. 1979). A district court’s discretion in granting an untimely demand for a jury trial under rule 39(b) is narrow, and does not permit a court to grant relief when the failure to make a timely demand results from oversight or inadvertence. See Pacific Fisheries Corp. v. HIH Cas. & General Ins., Ltd., 239 F.3d 1000, 1002 (9th Cir. 2001) (citing Lewis v. Time Inc., 710 F.2d 549, 556–57 (9th Cir. 1983)). The Ninth Circuit mandates denial of an untimely request for a jury trial unless some cause beyond mere inadvertence is shown. Id. Richardson argues that it presented more reason than mere inadvertence for its untimely motion. Once again, he contends that Stanley’s motion to dismiss and subsequently filed answer in response to his complaint put him in a difficult position of determining when his jury demand was due, and eventually miscalculating his deadline for making the demand. Richardson therefore appears to argue that his delay was not Richardson cites Anderson to support his proposition that where a motion attacking the pleadings is filed, the last pleading for the purposes of starting the Rule 38(b) clock is not deemed filed until after the motion attacking the pleadings is decided. Anderson, 584 F.2d 369. Anderson does not address the situation presented here, wherein the defendant first filed a motion to dismiss and then filed an answer. 2009-1354 13 due to mere inadvertence, but rather due to a good faith mistake in determining the deadline under the federal rules. We find Richardson’s argument unpersuasive. Even if Richardson’s failure to timely file a jury demand were considered to be a result of his good faith mistake as to the deadline in light of Stanley’s motion to dismiss, such a mistake establishes no more than inadvertence under Ninth Circuit law. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (“[G]ood faith mistake as to the deadline for demanding a jury trial establishes no more than inadvertence, which is not a sufficient basis to grant relief from an untimely jury demand.”). The district court properly refused to exercise its discretion in rejecting Richardson’s Rule 39(b) request. CONCLUSION We have considered Richardson’s remaining arguments and do not find them persuasive. Accordingly, the judgment of the district court is AFFIRMED 2009-1354 14

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2009-1382 SIEMENS AG, Plaintiff-Appellant, v. SEAGATE TECHNOLOGY, Defendant-Appellee. Robert M. Chiaviello, Jr., Fulbright & Jaworski, L.L.P., of Dallas, Texas, argued for plaintiff-appellant. With him on the brief were Kirby B. Drake; and Warren S. Huang, of Houston, Texas, and Mark Garrett, of Austin, Texas. Of counsel was Miriam Quinn, of Dallas, Texas. David J.F. Gross, Faegre & Benson LLP, of Minneapolis, Minnesota, argued for defendant-appellee. With him on the brief were Calvin L. Litsey, Aaron D. Van Oort, Timothy E. Grimsrud and Christopher J. Burrell. Appealed from: United States District Court for the Central District of California Judge James V. Selna NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2009-1382 SIEMENS AG, Plaintiff-Appellant, v. SEAGATE TECHNOLOGY, Defendant-Appellee. Appeal from the United States District Court for the Central District of California in case no. 06-CV-788, Judge James V. Selna. _______________________ DECIDED: March 9, 2010 _______________________ Before GAJARSA, ARCHER, and PROST, Circuit Judges. ARCHER, Circuit Judge. Siemens AG (“Siemens”) appeals the United States District Court for the Central District of California’s denial of its renewed motions for judgment as a matter of law, or alternatively, for a new trial on Seagate Technology’s (“Seagate”) anticipation and obviousness defenses. Because substantial evidence supports the jury’s obviousness verdict, we affirm. I Siemens filed suit against Seagate, alleging that Seagate willfully infringed Claims 1, 7, 14, 15, 19, and 20 of U.S. Pat. No. 5,686,838 (“the ‘838 patent”). In response, Seagate argued that all of the asserted claims were invalid as either anticipated or obvious. Following a five-week trial, the parties agreed to submit the case to the jury for a general verdict. The jury returned a verdict concluding that Seagate had proven, by clear and convincing evidence, that 1) all of the asserted claims of the ‘838 patent were invalid because they were anticipated by the invention of IBM employee(s) and 2) all of the asserted claims of the ‘838 patent were invalid because they were obvious to one of ordinary skill in the art as of December 21, 1992. Siemens filed renewed motions for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b), or alternatively, for a new trial pursuant to Federal Rule of Civil Procedure 59(a) on Seagate’s anticipation and obviousness defenses. The district court found that substantial evidence supported the jury’s verdict and, therefore, denied Siemens’ motions in their entirety. Siemens appeals, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). II “Because the jury returned a verdict in favor of [Seagate], we must presume that all factual disputes . . . were resolved in its favor.” SIBIA Neurosciences, Inc. v. Cadus Pharm. Corp., 225 F.3d 1349, 1356 (Fed. Cir. 2000). All factual questions, including those underlying an obviousness determination, will be reviewed for substantial evidence. Fresnius USA, Inc. v. Baxter Intern, Inc., 582 F.3d 1288, 1295 (Fed. Cir. 2009). The jury implicitly found that all asserted claims of the ‘838 patent were rendered obvious by known giant magnetoresistive (“GMR”) sensors combined with a coupling layer and magnetic layer from known artificial antiferromagnets (“AAF”). Siemens 2009-1382 2 asserts that there was no motivation to make this combination. However, Seagate’s expert, Dr. Wang, testified that AAF structures with a coupling layer and a magnetic layer were known to those of ordinary skill in the art in 1992 and were also found in prior art patents and publications. Dr. Wang further explained in detail that based on this common knowledge of AAFs and known problems with prior art GMR sensors (such as stray magnetic flux) and the design incentives for solving such problems, a person of ordinary skill in the art would have been motivated to solve these problems using an AAF. In light of Dr. Wang’s testimony, a reasonable jury could have found that it would have been obvious to one of ordinary skill in the art to combine known GMR sensors with the coupling and magnetic layers from known AAFs to make the claimed invention. We therefore agree with the district court that substantial evidence supports the jury’s obviousness determination. Accordingly, we do not need to reach the district court’s denial of Siemens’ renewed motion for judgment as a matter of law, or alternatively a new trial, on Seagate’s anticipation defense. 2009-1382 3

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2009-7125 LARRY C. DAWSON, Claimant-Appellant, v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee. William F. Fox, Purcell & Fox, LLP, of Washington, DC, argued for claimant-appellant. Of counsel on the brief was Robert W. Legg, Law Office of Robert W. Legg, of Arlington, Virginia. Meredyth Cohen Havasy, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Martin F. Hockey, Jr., Assistant Director, and L. Misha Preheim, Attorney. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Dana Raffaelli, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC. Appealed from: United States Court of Appeals for Veterans Claims Judge Bruce E. Kasold NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2009-7125 LARRY C. DAWSON, Claimant-Appellant, v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee. Judgment ON APPEAL from the United States Court of Appeals for Veterans Claims in CASE NO(S). 07-2752 This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: Per Curiam (GAJARSA, ARCHER and PROST, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT DATED March 8, 2010 /s/ Jan Horbaly Jan Horbaly, Clerk

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2009-1498 WNS HOLDINGS, LLC, Plaintiff-Appellant, and INTELLIGENT TECHNOLOGIES INTERNATIONAL, INC. and MARK ALAN EBERWINE, Plaintiffs, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee. Michael A. Caddell, Caddell & Chapman, of Houston, Texas, argued for plaintiff- appellant. With him on the brief were Cynthia B. Chapman and George Y. Niño. Patrick J. Flinn, Alston & Bird LLP, of Atlanta, Georgia, argued for defendant- appellee. With him on the brief were Robert L. Lee, Joseph J. Gleason and Holly S. Hawkins. Appealed from: United States District Court for the Western District of Wisconsin Chief Judge Barbara B. Crabb NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2009-1498 WNS HOLDINGS, LLC, Plaintiff-Appellant, and INTELLIGENT TECHNOLOGIES INTERNATIONAL, INC. and MARK ALAN EBERWINE, Plaintiffs, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee. Judgment ON APPEAL from the United States District Court for the Western District of Wisconsin in CASE NO(S). 08-CV-00275 This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: Per Curiam (GAJARSA, PLAGER and DYK, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT DATED March 8, 2010 /s/ Jan Horbaly Jan Horbaly, Clerk

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2009-7076 RUDY BULLOCK, Claimant-Appellant, v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee. Sean A. Ravin, of Washington, DC, argued for claimant-appellant. Dawn E. Goodman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Brian M. Simkin, Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Michael G. Daugherty, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC. Appealed from: United States Court of Appeals for Veterans Claims NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit 2009-7076 RUDY BULLOCK, Claimant-Appellant, v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee. Judgment ON APPEAL from the United States Court of Appeals for Veterans claims in CASE NO(S). 06-2004 This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: Per Curiam (LINN, PLAGER, and DYK, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT DATED March 8, 2010 /s/ Jan Horbaly Jan Horbaly, Clerk

United States Court of Appeals For the First Circuit No. 08-2575 UNITED STATES OF AMERICA, Appellee, v. NOEL DÁVILA-GONZÁLEZ, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. José Antonio Fusté, U.S. District Judge] Before Selya, Boudin and Howard, Circuit Judges. Joseph C. Laws, Jr., Federal Public Defender, and Vivianne M. Marrero, Assistant Federal Public Defender, on brief for appellant. Rosa Emilia Rodriguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, on brief for appellee. February 10, 2010 SELYA, Circuit Judge. On August 13, 2008, defendant- appellant Noel Dávila-González entered a straight plea of guilty to charges of (i) aiding and abetting the laundering of money derived from unlawful activities and (ii) conspiracy to commit money laundering. See 18 U.S.C. §§ 2, 1956(a)(1)(B), 1956(h). The district court sentenced him to serve a 78-month incarcerative term. The appellant now challenges his sentence, citing a number of supposed procedural errors. Discerning no merit in the appellant's claims, we affirm. When a sentencing appeal follows a guilty plea, "we glean the relevant facts from the change-of-plea colloquy, the unchallenged portions of the presentence investigation report (PSI Report), and the record of the disposition hearing." United States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009). In following this praxis, we rehearse only those facts that are needed to put the claims of error into context. On October 15, 2004, the appellant called a known member of a drug cartel to arrange for the delivery of "two bundles." Unfortunately for the appellant, the person to whom he reached out doubled in brass as a confidential informant for the Federal Bureau of Investigation (FBI). Over the course of several calls, most of which were recorded, the appellant and the informant agreed to meet and consummate the transaction. This meeting took place at a Burger King restaurant in Puerto Rico on October 18, 2004. At that time the appellant effected delivery of the "two bundles" to the informant. Subsequent analysis revealed that the "two bundles" contained $204,440 in United States currency. Rather than springing the trap then and there, the FBI continued its investigation for nearly three years. On May 3, 2007, a federal grand jury sitting in the District of Puerto Rico returned a six-count indictment against the appellant and others. The authorities arrested the appellant in Tampa, Florida, on May 9, 2008. Following his rendition to Puerto Rico, the appellant entered a plea of guilty to the three counts against him (one of which was dismissed at sentencing). The district court convened the disposition hearing on November 13, 2008. The court deemed applicable a six-level sentencing enhancement after finding that "the defendant knew or believed that any of the laundered funds were the proceeds of, or were intended to promote . . . an offense involving the manufacture, importation, or distribution of a controlled substance or a listed chemical." USSG §2S1.1(b)(1)(B)(i). It also ruled that, for sentencing purposes, it would hold the appellant responsible for only the cash contained in the two bundles ($204,440), even though the conspiracy as a whole had laundered a much greater sum (approximately $1,839,208). The court then proceeded to deny the appellant's request for a downward role-in-the-offense adjustment. See USSG §3B1.2(b) (authorizing a two-level downward adjustment if the defendant played a minor role in the offense). Making a series of other calculations, the court settled upon a total offense level of 25 and a criminal history category of III. In this venue, the appellant does not challenge any of these rulings but, rather, accepts the district court's calculation of the guideline sentencing range (GSR): 70-87 months. During the sentencing proceedings, defense counsel briefly mentioned that the appellant was a former heroin addict who, since committing the offense of conviction, had rehabilitated himself. This information led to the following exchange: The Court: So what are you suggesting? Defense Counsel: I'm suggesting that the Court depart downward because this . . . The Court: Absolutely not. On the basis of what? To this question, defense counsel explicated, in some detail, that during the years intervening between the offense conduct and the arrest, the appellant had checked himself into a rehabilitation facility, moved to Florida, forsook his criminal ways, and obtained gainful employment. Counsel argued that these developments suggested that a below-the-range sentence would be an appropriate outcome. The district court disagreed, stating: I'm going to deny the role request that you're making. I am going to deny the departure request you're going to make, and I'm going to deny any other sentence than the advisory guideline proposed here. There is nothing on this record under 3553(a) that moves me, moves me to consider any other sentence than the sentence proposed as advisory by the guidelines for cases like this. In the end, the court imposed a mid-range sentence of 78 months in prison. At the conclusion of the hearing, it asked whether either side had "[a]nything else?" The only rejoinder was from defense counsel, who requested that the sentence be served in "the Tampa area." In this appeal, the appellant argues that the sentencing court committed reversible error by (i) presuming the reasonableness of the GSR; (ii) neglecting sufficiently to explain the sentence imposed; and (iii) failing to consider mitigating factors favoring a below-the-range sentence. We approach these claims of error mindful that, in the wake of the Supreme Court's landmark decision in United States v. Booker, 543 U.S. 220, 245 (2005), we have encouraged the district courts to follow a specifically delineated roadmap when sentencing under the now- advisory federal sentencing guidelines: [A] sentencing court ordinarily should begin by calculating the applicable guideline sentencing range; then determine whether or not any departures are in order; then mull the factors delineated in 18 U.S.C. § 3553(a) as well as any other relevant considerations; and, finally, determine what sentence, whether within, above, or below the guideline sentencing range, appears appropriate. United States v. Pelletier, 469 F.3d 194, 203 (1st Cir. 2006) (citing United States v. Jiménez-Beltre, 440 F.3d 514, 518-19 (1st Cir. 2006) (en banc)). The court below did not follow this roadmap. That omission complicates appellate review, but in this instance it does not frustrate that review. After all, we have treated this roadmap as helpful, but not obligatory. Thus, a sentencing court may leave the roadmap to one side and proceed in some other sequence as long as the findings are made and all the requisite factors are addressed. See, e.g., United States v. Pacheco, 489 F.3d 40, 44 (1st Cir. 2007) (explaining that district court may combine steps or vary the order). This is such a case. In reviewing a sentence, we seek to ensure that it is both procedurally sound and substantively reasonable. United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). Here, substantive reasonableness is not in issue; the appellant assigns only procedural error. That taxonomy includes "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." United States v. Stone, 575 F.3d 83, 89 (1st Cir. 2009) (quoting United States v. Innarelli, 524 F.3d 286, 292 (1st Cir. 2008)). The appellant's claims of error, like all claims of procedural unreasonableness in sentencing, are reviewed, generally, for abuse of discretion. United States v. Carrasco-De-Jesús, 589 F.3d 22, 26-27 (1st Cir. 2009); Martin, 520 F.3d at 92. Yet, when a defendant fails to preserve an objection below, the plain error standard supplants the customary standard of review. See, e.g., United States v. Almenas, 553 F.3d 27, 36 (1st Cir. 2009); United States v. Mangual-Garcia, 505 F.3d 1, 15 (1st Cir. 2007). In the case at hand, the appellant did not interpose an objection as to any of the procedures that he now seeks to challenge. This default is particularly glaring in view of the district court's specific inquiry at the conclusion of the disposition hearing. Consequently, plain error review obtains. "Review for plain error entails four showings: (1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Against this backdrop we proceed to address the appellant's claims of error one by one. The first issue deals with the weight that the district court attached to the GSR. The touchstone for our analysis is the decision in Gall v. United States, 552 U.S. 38 (2007). There, the Supreme Court admonished that even though the federal sentencing guidelines "should be the starting point and the initial benchmark" for constructing a sentence, the sentencing court "may not presume that the Guidelines range is reasonable." Id. at 49-50. Citing the Court's follow-on decision in Nelson v. United States, 129 S. Ct. 890 (2009) (per curiam), the appellant labors to convince us that the court below transgressed this tenet. In particular, he assails the court's statement that it was "going to deny any other sentence than the advisory guideline proposed" and its summary rejection of his entreaty to depart downward. In the appellant's view, these actions demonstrate the sentencing court's embrace of the very presumption of reasonableness that Gall forbids. We find this argument unpersuasive. To begin, Nelson does not assist the appellant's cause. There, the district court unequivocally declared at sentencing that "the Guidelines are considered presumptively reasonable." Id. at 891. That was a patent violation of the tenet articulated in Gall. The case at bar is at a considerable remove. Here, the sentencing court made no such declaration. Although it declined to accept the appellant's proposal for a non-guideline sentence (24 months), it made that ruling only after hearing lengthy arguments as to whether and why the GSR should hold sway. The court concluded that there was "nothing on th[e] record" that prompted it "to consider any other sentence than the sentence proposed as advisory by the guidelines." There is a world of difference between according a presumption of reasonableness to the GSR — a practice that Gall forbids — and finding that the GSR, in a particular case, represents an appropriate sentencing range. This is a case of the latter stripe. Read as a whole, the sentencing transcript makes manifest not only the court's awareness that the GSR was merely an initial benchmark, but also its conclusion that the circumstances of the case made it appropriate to hew to that benchmark in fashioning the appellant's sentence. That was not error. See, e.g., United States v. Smith, 531 F.3d 109, 112 (1st Cir. 2008) (finding no presumption of reasonableness where the district court "did not feel bound to impose a sentence within the GSR"). The appellant's next contention is that the district court failed adequately to explain its rationale for the sentence it imposed. In this regard, the appellant invokes a statute providing that, in a federal criminal case, a sentencing court must "state in open court the reasons for its imposition of the particular sentence." 18 U.S.C. § 3553(c). We have recognized, however, that this directive must be read in a practical, common-sense way. The statutory directive "does not mean that the sentencing court's explanation need be precise to the point of pedantry." United States v. Turbides- Leonardo, 468 F.3d 34, 40 (1st Cir. 2006). In all events, "with respect to a sentencing court's duty of explanation, brevity is not to be confused with inattention." Id. at 41-42. This is especially true where, as here, a court prescribes a sentence that falls within the GSR. See id. at 41; see also Rita v. United States, 551 U.S. 338, 356-57 (2007) ("[W]hen a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation."). Where, as here, the GSR has been correctly calculated and spans less than 24 months from bottom to top, a district court "arguably is not required to cite any reasons for imposing a within-the-range sentence." Turbides-Leonardo, 468 F.3d at 41 (emphasis in original). These principles are dispositive here. Although it is true that the district court did not explicitly address each of the appellant's arguments for a below-the-range sentence, the court was not required to offer that level of elucidation. See id. at 40-41. A sentencing court's process of ratiocination "can often be inferred by comparing what was argued by the parties or contained in the pre-sentence report with what the judge did." Jiménez- Beltre, 440 F.3d at 519; see also Rita, 551 U.S. at 358 (holding that where the sentencing court imposed a within-the-range sentence and the record indicates that the court heard the defendant's arguments and considered the supporting evidence, it may be inferred that "[t]he judge simply found the[] circumstances insufficient to warrant a sentence lower than the Guidelines range"). So it is here: we may infer from the protracted arguments and colloquy preceding the imposition of sentence that the court below considered all the arguments and evidence before settling upon an appropriate sentence. The court's clear pronouncement that there was nothing in the record that warranted unusually favorable treatment bolsters this inference. As a subset of this argument, the appellant suggests that 18 U.S.C. § 3553(c)(1) required more specificity. That suggestion, however, is grounded in a misreading of the statute.1 This provision applies only when the span of the GSR, measured from the low end to the high end, is greater than 24 months. See United States v. Arango, 508 F.3d 34, 44 (1st Cir. 2007); United States v. Cirilo-Muñoz, 504 F.3d 106, 131 (1st Cir. 2007) (per curiam). Here, the sentencing range begins at 70 months and tops off at 87 months. Simple arithmetic demonstrates that the spread between the 18 U.S.C. § 3553(c) provides in pertinent part that if the GSR "exceeds 24 months," the court "shall state in open court . . . the reason for imposing a sentence at a particular point within the range." low and high ends is too modest to trigger the statutory requirement. The appellant's final claim of error is that the district court failed to consider mitigating factors favoring a below-the- range sentence.2 Specifically, he complains that he was less culpable than his confederates, and that he undertook rehabilitative efforts of his own volition. These plaints lack force. Merely raising potentially mitigating factors does not guarantee a lesser sentence. "A criminal defendant is entitled to a weighing of the section 3553(a) factors that are relevant to [his] case, not to a particular result." Carrasco-De-Jesús, 589 F.3d at 29. Here, the sentencing court heard about a myriad of circumstances, including the appellant's relative culpability and efforts at rehabilitation. The court determined that those circumstances did not warrant the degree of leniency that the appellant sought. Although the court did not specifically reference the factors that the appellant now highlights, the sentencing transcript, read as a whole, evinces a sufficient weighing of the section 3553(a) factors. See United States v. The government urges us to deem this claim of error waived by reason of the cursory treatment given to it in the appellant's brief. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Because the claim is easily dispatched on the merits, we bypass the waiver question. Quiñones-Medina, 553 F.3d 19, 26-27 (1st Cir. 2009); see also Turbides-Leonardo, 468 F.3d at 41-42. And the fact that the court stated that it had considered all the section 3553(a) factors is entitled to some weight. See United States v. Morales-Machuca, 546 F.3d 13, 26 (1st Cir. 2008). Pointing to one of his codefendants, the appellant makes a related claim of sentencing disparity.3 That claim is hopeless. A district court's consideration of sentencing disparity "aims primarily at the minimization of disparities among defendants nationally." Martin, 520 F.3d at 94; see also United States v. Rodríguez-Lozada, 558 F.3d 29, 45 (1st Cir. 2009). While avoidance of disparities among codefendants may be considered, a party "is not entitled to a lighter sentence merely because his co-defendants received lighter sentences." United States v. Wallace, 573 F.3d 82, 97 (1st Cir. 2009) (quoting United States v. Marceau, 554 F.3d 24, 33 (1st Cir. 2009)). The sockdolager is that the record contains no evidence that the appellant and any codefendant were fair congeners. Among other things, the codefendant pleaded guilty in accordance with a negotiated plea agreement and, therefore, was not in that respect situated similarly to the appellant. See Rodríguez-Lozada, 558 F.3d at 45. Codefendant Oneil Concepción-Zapata was sentenced on June 16, 2008, pursuant to a negotiated plea agreement, to 46 months in prison. We need go no further. For the reasons elucidated above, we conclude that the sentencing in this case was free from error, plain or otherwise. Affirmed.

United States Court of Appeals For the First Circuit No. 09-1260 UNITED STATES OF AMERICA, Appellee, v. MARCUS MITCHELL, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. George A. O'Toole, U.S. District Judge] Before Torruella, Circuit Judge, Souter,* Associate Justice, and Stahl, Circuit Judge. James H. Budreau, on brief for appellant. Theodore B. Heinrich, Assistant United States Attorney, and Michael K. Loucks, Acting United States Attorney, on brief for appellee. February 22, 2010 * The Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. TORRUELLA, Circuit Judge. Defendant-appellant Marcus Mitchell was convicted after a jury trial for conspiring to distribute cocaine. He now appeals his conviction on two grounds. First, he contends that the district court improperly admitted out- of-court co-conspirator statements despite insufficient evidence to corroborate Mitchell's participation in the conspiracy. See United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977). Second, he contends that the district court erred by failing to give a "buyer- seller" instruction sua sponte, which would have asked the jury to consider whether Mitchell's relationship with the conspiracy was that of an active member or merely a purchaser of narcotics for personal use. We conclude that the government offered more than sufficient extrinsic evidence to support the admission of the co- conspirator statements and that the need for a buyer-seller instruction was not supported by the record. We affirm. I. Background1 A. The Conspiracy From January to October 2004, Manuel Pinales ran a wholesale drug operation that supplied large quantities of cocaine to customers in the Boston area. Luis Clas, José Rodríguez, and Richard Pena were also major players. Their customers typically purchased kilograms of cocaine at a time, often on consignment, for "We review the facts of a criminal case on appeal from a conviction in the light most favorable to the verdict." United States v. Candelaria-Silva, 162 F.3d 698, 700 (1st Cir. 1998). approximately $24,000 per kilogram. One of their customers, who purchased wholesale quantities of cocaine, was known variously as "Prieto"2 or "Marko."3 In January 2004, Clas asked Rodríguez to take over the organization's distribution activities while he was away in the Dominican Republic. Before he left, Clas introduced Rodríguez to many of the organization's customers, one of whom was "Prieto." At this initial meeting, Rodríguez sold "Prieto" and another man a kilogram of cocaine. While Clas was away, Rodríguez was the principal contact for Clas's customers. From January through October 2004, Rodríguez delivered, on five occasions, large quantities of cocaine to "Prieto," totaling approximately fifteen kilograms. "Prieto" generally purchased one or two kilograms at a time, although he purchased three kilograms on one occasion and five on another. "Prieto" often purchased on consignment and, at one point, was in debt to Rodríguez to the tune of $120,000. B. The Wiretap Investigation From July through October 2004, the Drug Enforcement Administration (DEA), which had been investigating Pinales's role in the conspiracy, began a wiretap investigation on phones The Spanish term "Prieto" translates to "the dark one." Mitchell is African-American. As we have mentioned, Mitchell's first name is Marcus; "Marko" is a Spanish equivalent. belonging to Pinales, Pena, Rodríguez, and Clas. Over eight hundred phone calls were intercepted. Twenty-six are relevant to this appeal. There were thirteen calls involving other buyers, not Mitchell. All of these calls were in code and involved conspiracy members other than Mitchell discussing the purchase and sale of drugs. Drugs were referred to as concert tickets, vehicles, or car parts. For instance, during one recorded call, Clas arranged to meet a customer to exchange "twenty three" for "a tire." Subsequent surveillance of Clas showed him distributing a kilogram of cocaine to that customer. Seven calls (the "Mitchell calls") were made to, or originated from, Mitchell's listed number. In these calls, Mitchell spoke directly to Clas or Rodríguez in code about drugs and drug proceeds. For instance, in one conversation, Rodríguez said to Mitchell, "my boy told me about something but it wasn't um . . . In the price range, what I was looking for . . . he set it high . . . if worst comes to worst, I'll just, you know, I'll just tell him to . . . give me that car . . . so I can um . . . I can have stuff to . . . transportation." In another exchange, Clas asked Mitchell, "[C]an I see you tomorrow please." Mitchell replied, "[I]t's kind of early, man," but agreed to see him. At trial, these calls were offered as admissions of the defendant. Mitchell did not object to their admission, nor does he challenge them on appeal. Six calls (the "Prieto calls") involved conversations among conspiracy members in which they discussed "Prieto." Two of the Mitchell calls overlapped with the Prieto calls and provided strong circumstantial evidence that Mitchell was "Prieto." For example, during one recording, Mitchell called Rodríguez at 9:57 a.m. looking to speak to Clas. At 9:58 a.m., Rodríguez called Pinales and asked him to tell Clas to call "Prieto." Pinales said that he would. At 9:59 a.m., Clas called Mitchell. The remaining calls demonstrated "Prieto's" role in the conspiracy. For example, during one exchange, Rodríguez told Pinales that he was going to collect a debt from "Prieto." The next day, he told Pinales that "Prieto" only brought "nineteen pesos," short of the full payment amount. In another call, Rodríguez asked Pinales if he could give "Prieto" five "tickets" in advance since "Prieto" could only afford three. The Prieto calls were offered at trial as co-conspirator statements, which Mitchell now challenges in this appeal.4 C. The Jig is Up In October 2004, government agents seized fifty-three kilograms of cocaine from Clas's residence along with drug ledgers from Pinales's store. The ledgers showed numerous entries for The government does not dispute that the challenged statements were being offered for the truth of the matters asserted. We assume that they were. "Marko"/"Prieto," revealing that he generally received three to five kilograms at a time, often delivered on consignment, and that he owed up to $ 120,000 in the summer of 2004. Around this time, Rodríguez began to cooperate with the government pursuant to a plea agreement. On February 23, 2005, government agents showed Rodríguez an array of several photographs and asked him to identify anyone that he knew. Rodríguez pointed to a photo of Mitchell and said, "That's Prieto," although he did not know Mitchell's actual name. Later, Mitchell was arrested and, in July 2005, indicted by a grand jury. He was charged, along with thirteen co-defendants, with conspiracy to possess with intent to distribute, and distribution of, more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. At Mitchell's jury trial, Rodríguez testified, among other things, that Pinales, Pena, Clas, and Rodríguez only referred to one customer as "Prieto"/"Marko." Rodríguez identified that person as Mitchell. The government also introduced the wiretapped calls, including the Prieto calls now challenged on appeal. Mitchell made a timely objection to the admission of the Prieto calls under Petrozziello, 548 F.2d 20, asserting that there was insufficient evidence, independent of the co-conspirator statements themselves, to establish that he was "Prieto" and therefore a member of the conspiracy.5 The district court disagreed and admitted the statements. Mitchell was convicted after a four-day trial and now appeals. II. Discussion A. Admission of Co-conspirator Statements Mitchell's heartland claim on appeal is that he was convicted on the basis of out-of-court statements that were improperly admitted under the co-conspirator exception to the hearsay rule. See Fed. R. Evid. 801(d)(2)(E). He challenges the admission of those statements, and asks us to vacate his conviction and remand for a new trial.6 Federal Rule of Evidence 801(d)(2)(E) permits the admission of statements made "by a co-conspirator of a party during the course and in furtherance of the conspiracy." See, e.g., United States v. Portela, 167 F.3d 687, 702 (1st Cir. 1999). To introduce statements under this co-conspirator exception, "[t]he proponent of the statement bears the burden of establishing, by a Under Petrozziello, the party against whom a statement is being offered must object to its admission at the time it is offered, and, if the statement is admitted, renew the objection at the close of all the evidence. United States v. Sepúlveda, 15 F.3d 1161, 1180 (1st Cir. 1993)(citations omitted). The court will then make its final Petrozziello determination "out of the hearing of the jury." United States v. Portela, 167 F.3d 687, 703 (1st Cir. 1999) (citing United States v. Ciampaglia, 628 F.2d 632, 638 (1st Cir. 1980)). Mitchell limits his appeal to whether sufficient evidence was presented to establish his participation in the conspiracy. He does not contest the existence of a conspiracy to distribute drugs. preponderance of the evidence, 'that a conspiracy embracing both the declarant and the defendant existed, and that the declarant uttered the statement during and in furtherance of the conspiracy.'" United States v. Bradshaw, 281 F.3d 278, 283 (1st Cir. 2002)(quoting Sepúlveda, 15 F.3d at 1180); see Fed. R. Evid. 801(d)(2)(E). A court's determination as to whether this burden has been met is known in this circuit as a Petrozziello ruling. See United States v. Famania-Roche, 537 F.3d 71, 75 (1st Cir. 2008)(citing United States v. Newton, 326 F.3d 253, 257 (1st Cir. 2003)). "[A] co-conspirator's statement, standing alone, is insufficient to meet the preponderance standard of Rule 801(d)(2)(E)." Sepúlveda, 15 F.3d at 1182. The proponent of the statement must introduce some "extrinsic evidence . . . sufficient to delineate the conspiracy and corroborate the declarant's and the defendant's roles in it." United States v. Piper, 298 F.3d 47, 52 (1st Cir. 2002). Thus, "[w]hile a trial court may consider the contents of the statement at issue as evidence of the elements of a Petrozziello determination, the determination must rest at least in part on corroborating evidence beyond that contained in the statements at issue." Portela, 167 F.3d at 703. We will uphold the trial court's admission of co-conspirator statements unless it was clearly erroneous. United States v. Thompson, 449 F.3d 267, 273 (1st Cir. 2006). Mitchell's principal contention is that the admission of the co-conspirator statements was in error because the "uncorroborated" testimony of Rodríguez laid an insufficient evidentiary foundation to support the conclusion that Mitchell was, more likely than not, "Prieto," a member of the conspiracy. This argument is a nonstarter. The testimony of Rodríguez, a cooperating witness, was extrinsic evidence that was probative of the existence of the conspiracy to distribute cocaine and Mitchell's membership in that conspiracy. At trial, Rodríguez identified Mitchell as "Prieto," one of his co-conspirators. See, e.g., Portela, 167 F.3d at 703, 704 (co-conspirator's in-court identification of defendant as conspiracy member supports admission of co-conspirator statements). Rodríguez testified that Mitchell regularly purchased, on consignment, multi-kilogram quantities of cocaine from conspiracy members for tens of thousands of dollars at a time. See, e.g., United States v. Moran, 984 F.2d 1299, 1303 (1st Cir. 1993) (pattern of drug sales between individuals for redistribution supports conclusion that individuals were involved in drug conspiracy). We have never held that the testimony of a cooperating witness cannot be used to satisfy the government's burden under Petrozziello. Indeed, our cases are to the contrary. See Piper, 298 F.3d at 52 (testimony of cooperating co-conspirator supports admission of statements under Rule 801(d)(2)(E)); accord Portela, 167 F.3d at 703-04.7 In any event, the government offered substantial evidence, in addition to Rodríguez's testimony, to establish that Mitchell was an active conspiracy member. The government offered recordings of phone calls, which came into evidence as the defendant's own admissions, in which Mitchell discussed drug- related matters in code with other conspiracy members. See United States v. Morales-Madera, 352 F.3d 1, 12-13 (1st Cir. 2003) (defendant's use of drug code probative of membership in conspiracy). Phone records showed calls from Mitchell's listed phone number to Clas and Rodríguez, and, as discussed, call patterns and conversations among co-conspirators provided strong circumstantial proof that Mitchell was indeed "Prieto."8 See United States v. Campbell, 268 F.3d 1, 6 n.4 (1st Cir. 2001)(phone records and call patterns probative of conspiracy membership); see A defendant's conviction for participation in a narcotics distribution conspiracy may be upheld under a reasonable doubt standard on the basis of the "uncorroborated" testimony of a cooperating witness alone. See United States v. Gómez-Pabón, 911 F.2d 847, 853 (1st Cir. 1990) (rejecting defendant's argument that cooperating witness's testimony was insufficient to establish participation in conspiracy); see also United States v. Martínez- Medina, 279 F.3d 105, 115 (1st Cir. 2002) (quoting United States v. Andújar, 49 F.3d 16, 21 (1st Cir. 1995)) (same). Plainly, then, the testimony of a cooperating witness may be used to satisfy the lower evidentiary burden required by Petrozziello. 548 F.2d at 22, 23. Mitchell does not dispute that Clas and Rodríguez were members of a conspiracy to distribute cocaine. also Portela, 167 F.3d at 703 (phone records may corroborate participation in conspiracy for purposes of Rule 801(d)(2)(E)). The government also put into evidence a phone book seized from Clas's apartment containing Mitchell's phone number with "El Negro" written beside it.9 See Portela, 167 F.3d at 703 (co- conspirator phone book containing defendant's phone number probative of conspiracy involvement). Drug records seized from Clas's residence and presented at trial showed that "Prieto" /"Marko" made multiple purchases of multi-kilogram quantities of cocaine from the conspiracy on consignment. See United States v. Tejada, 886 F.2d 483, 487 (1st Cir. 1989)(drug ledger, containing nicknames of defendant and other conspiracy members, is direct evidence of membership in conspiracy); see also Martínez-Medina, 279 F.3d at 127 (drug ledgers may corroborate defendant's participation in drug conspiracy). We need not gild this lily any further. The government introduced more than sufficient extrinsic evidence to establish that Mitchell was, more likely than not, a member of the charged conspiracy to distribute cocaine, and that the challenged statements were in furtherance of the conspiracy's objectives. The district court properly admitted the statements under Rule 801(d)(2)(E). "El Negro" and "Prieto," when translated, both roughly mean "the dark one." B. Buyer-Seller Instruction Next, Mitchell argues that, though he himself did not request one, the district court should have given a buyer-seller instruction sua sponte because the evidence presented at trial supported the theory that he was a mere buyer and not a co- conspirator. See Moran, 984 F.2d at 1302. A buyer-seller instruction is appropriate only if the record, when viewed in the light most favorable to the defendant's theory of the case, reasonably supports the conclusion that the defendant was a mere purchaser of drugs for personal use and not an active participant in the conspiracy. See United States v. Rodríguez, 858 F.2d 809, 812 (1st Cir. 1988). A "classic" buyer-seller relationship is a single sale, for personal use, without prearrangement. Moran, 984 F.2d at 1304; United States v. Innamorati, 996 F.2d 456, 484 (1st Cir. 1993)(buyer-seller instruction restricted to cases "in which the evidence showed only a single or a very limited number of sales for personal use"). We review the district court's failure to issue the instruction sua sponte for plain error, United States v. Varoudakis, 233 F.3d 113, 125 n.12 (1st Cir. 2000), bearing in mind that "the plain error exception is cold comfort to most defendants pursuing claims of instructional error." United States v. Gómez, 255 F.3d 31, 37 (1st Cir. 2001). To succeed, the defendant must show "(1) that an error occurred, (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). We hold that the district court did not plainly err in failing to give a buyer-seller instruction because the record does not support the theory that Mitchell was a mere buyer for personal use. At the outset, Mitchell never argued to the jury that he was a mere buyer; his principal defense was that he was not "Prieto." See United States v. Askew, 403 F.3d 496, 504 (7th Cir. 2005) (defendant's "choice not to adopt a buyer-seller defense cuts in favor of finding no error in the district judge's decision not to give the instruction"); see also United States v. Johnson, 437 F.3d 665, 677 (7th Cir. 2006)(similar). In any event, the evidence at trial showed that Mitchell was involved in multiple transactions, for large, kilogram- quantities of cocaine, for large sums of money. See Martínez- Medina, 279 F.3d at 120 (no buyer-seller relationship where defendant made repeated purchases of large quantities of drugs for resale); see also United States v. Gómes, 376 F.3d 42, 45 (1st Cir. 2004)(even one sale between two parties can prove existence of conspiracy when coupled with supporting contextual details). The evidence established that he often received drugs on consignment. United States v. Humphrey, 287 F.3d 422, 435 (6th Cir. 2002) (delayed credit plan evidences trust and supports a conspiracy link between parties). He also made pre-arranged purchases from other conspiracy members. United States v. Hawkins, 547 F.3d 66, 72 (2d Cir. 2008)(pre-arrangement to deal in wholesale quantities of drugs creates presumption of knowing conspiracy involvement). Moreover, he was familiar with the conspiracy's drug code. Morales-Madera, 352 F.3d at 12-13 (defendant's use of drug code probative of his role in conspiracy). Under these circumstances, a buyer-seller instruction was not called for. There was no error -- let alone plain error -- when the district court did not so instruct the jury. Affirmed.

United States Court of Appeals For the First Circuit No. 09-1574 CIANBRO CORPORATION; HORNBECK OFFSHORE SERVICES, LLC; and HORNBECK OFFSHORE TRANSPORTATION, LLC, Plaintiffs, Appellees, v. GEORGE H. DEAN, INC., d/b/a DEAN STEEL, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge] Before Torruella, Circuit Judge, Souter,* Associate Justice, and Stahl, Circuit Judge. Stephen P. Griffin, with whom Griffin Law LLC, was on brief for appellant. John R. Bass, II, with whom Bradford R. Bowman and Thompson, Bull, Furey, Bass & MacColl, LLC, P.A., were on brief for appellee Cianbro Corporation. Leonard W. Langer, with whom Marshall J. Tinkle and Tompkins, Clough, Hirshon & Langer, P.C., were on brief for appellees Hornbeck Offshore Services, LLC and Hornbeck Offshore Transportation, LLC. * The Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. February 22, 2010 - 2 - TORRUELLA, Circuit Judge. We are called upon to determine whether an in rem maritime lien should be allowed against the vessels BENNO C. SCHMIDT and ENERGY SERVICE 9001 ("the Vessels") in favor of Defendant-Appellant George H. Dean, Inc., d/b/a Dean Steel ("Dean Steel"). This claim is challenged by Plaintiff-Appellee Cianbro Corporation ("Cianbro"), and Plaintiff- Intervenors Hornbeck Offshore Services and Hornbeck Offshore Transportation, LLC, ("the Hornbeck entities"). The Hornbeck entities are the owners of the Vessels and had entered into a contract for the repair and conversion of the Vessels with Cianbro as general contractor for this work. Because of the admiralty and maritime nature of this dispute,1 and because we are required to interpret the Maritime Lien Act2 to resolve the issues presented,3 this controversy is deemed properly before us. The district court granted a motion for summary judgment4 in favor of Cianbro and thereafter issued a declaratory judgment to See 28 U.S.C. § 1333. We have jurisdiction under 46 U.S.C. § 31343 ("The district courts of the United States shall have jurisdiction over a civil action in Admiralty to declare that a vessel is not subject to a lien claimed under [the Maritime Lien Act], or that the vessel is not subject to the notice of claim of lien, or both, regardless of the amount in controversy or the citizenship of the parties."). See 46 U.S.C. §§ 31301-31343. See 28 U.S.C. § 1331. The district court adopted and affirmed the recommendations of the magistrate judge. - 3 - the effect that the Vessels were not subject to a maritime lien in favor of Dean Steel. Dean Steel filed a timely appeal to this decision. Upon due consideration of the record and the arguments of all parties, we affirm the decision of the district court in all respects. I. Background A. Facts not in issue In 2006 the Hornbeck entities5 entered into a Vessel Conversion Contract ("the Contract") with Cianbro for the conversion of the Vessels from sulfur tankers into multi-purpose supply vessels. Section 6.1 of the Contract provided that: All portions of the Work that [Cianbro] does not perform shall be performed under subcontracts or by other appropriate agreement between [Cianbro] and the entity performing the work. Nothing contained in the Contract . . . shall create any contractual relationship between [the Hornbeck entities] and any subcontractor of [Cianbro]. Notwithstanding the foregoing, for informational purposes only, [Cianbro] shall furnish to [the Hornbeck entities] at its request a copy of each Subcontract it enters into in connection with the Work. At the request of [the Hornbeck entities], [they] shall be included in all negotiations with the subcontractor and/or shall be provided pertaining thereto [sic]. Upon [the Hornbeck entities'] request, [Cianbro] will provide [the Hornbeck entities] with copies of all work papers and correspondence relating or pertaining to a subcontractor. Whose place of business is Louisiana. - 4 - In Section 6.2 of the Contract it is further established that: [The Hornbeck entities] may designate specific persons or entities from whom [Cianbro] shall obtain bids. [Cianbro] shall obtain bids from prospective Subcontractors and from suppliers of Materials or equipment fabricated especially for the Work and shall deliver such bids to [the Hornbeck entities] prior to the award in sufficient time for [the Hornbeck entities] to evaluate the bids without compromising the Project Schedule. [The Hornbeck entities] shall then determine, with the advice of [Cianbro,] which bids will be accepted. [Cianbro] will not be required to contract with anyone to whom [Cianbro] has reasonable objection. In the following section, 6.3, the parties stipulated that "any subcontracts of any tier with affiliates of [Cianbro] or entities owned in whole or in part by shareholders of [Cianbro] . . . are to be awarded only with the written approval of [the Hornbeck entities]." The Contract further provided that Cianbro warranted to the Hornbeck entities that it would complete the work free and clear of any liens, a provision which fueled Cianbro's filing of the present action seeking a declaration that such liens had not been established, and an action in which the Hornbeck entities have intervened as interested parties.6 See Fed. R. Civ. P. 24(a). - 5 - Thereafter, on or about November 1, 2006, Cianbro, as general contractor,7 by means of a purchase order so dated contracted with Hub Technologies, Inc. ("Hub"),8 a business entity engaged in the manufacture, design, engineering and fabrication of structures used in various industrial applications, to fabricate for Cianbro certain steel components to be used in the conversion work of the Vessels. As required by Section 6.2 of the Contract, prior to awarding the bid to Hub, Cianbro identified the bid to the Hornbeck entities and delivered Hub's bid to them. There is no evidence in the record that the Hornbeck entities had any other involvement in this relationship or in the performance by Hub of its contract with Cianbro. Cianbro agreed that it would supply some of the necessary steel to Hub from its stores since it was aware that Hub itself did not supply or warehouse structural steel, and that Hub would need to acquire the steel from other suppliers. Cianbro never informed Hub that Hub was not authorized to incur liens on the Vessels or to extend credit on the Vessels to its subcontractors. Nor did Cianbro instruct Hub to inform its subcontractors that the subcontractors would not be allowed to place liens on the Vessels or to rely on the credit of the Vessels. Whose principal place of business is Pittsfield, Maine, and who also has a place of business in Portland, Maine. Whose principle place of business is Middleboro, Massachusetts. - 6 - In December of 2006, Dean Steel9 became involved in the project as a subcontractor to Hub. Dean was to perform some of the initial cutting work on the steel as part of Hub's project to fabricate the steel into components for the Vessels. Both Hub and Dean Steel were provided with the plans, drawings, and specifications for the conversion project ("the specifications") by Cianbro, so that the finished components to be delivered to Cianbro by Hub would meet the specifications. In the meantime, Cianbro shipped approximately 230,000 pounds of raw structural steel directly to Dean Steel at Hub's request, and as a result, together with the steel supplied by Dean Steel itself, between November, 2006 and October, 2007 Dean Steel supplied Hub with substantial quantities of structural steel which had been cut in accordance with the specifications. Thereafter, Hub used the steel delivered by Dean Steel to Hub's facilities to fabricate the components that Hub had contracted for with Cianbro for installation in the Whose principal place of business is Warwick, Rhode Island. - 7 - Vessels.10 Most importantly, it is undisputed that Dean Steel never delivered any components directly to Cianbro nor to the Vessels. These components were later installed in the Vessels by Cianbro, which paid Hub in full for the work and materials that it had provided in manufacturing these components. Unfortunately, Hub had failed to pay Dean Steel for all of the work and materials that Dean Steel had invested in the steel used in these components. When Hub filed for bankruptcy in November 6, 2007, Hub owed Dean Steel the sum of $249,910.52 for the materials and labor that Dean Steel had provided to Hub. Nevertheless, Dean Steel proceeded to file notices of maritime liens against the Vessels for said amount, claiming that it had provided necessaries to the Vessels between November 15, 2006 and September 18, 2007 but had not been paid for the same. In response, Cianbro filed an action for declaratory judgment under 46 U.S.C. § 31343(c)(2). The Hornbeck entities intervened as a plaintiff, and Cianbro and the Hornbeck entities moved for summary judgment on their claim. Cianbro and the Hornbeck entities claim that, aside from the communications necessary to facilitate the transfer of steel, there was no communication between Cianbro and Dean Steel, and that there was never any communication between the Hornbeck entities and Dean Steel. Cianbro further claims that its management had no knowledge that Dean Steel was part of the project until September of 2007. However, Dean Steel claims that by virtue of Cianbro's agreement to ship steel to Dean Steel, the management at Cianbro knew that Dean Steel was a part of the project. Dean Steel also introduced into evidence a statement from Harley Waite, Jr., the president of Hub, who claimed that in December 2006, Cianbro, Hub, and Dean Steel engaged in "extensive communications concerning the raw structural steel which Cianbro was supplying Hub for the Conversion Project." - 8 - B. The decision of the District Court In adopting the Recommended Decision of the Magistrate Judge, the district court granted summary judgment against Dean Steel on two alternate grounds which succinctly encapsulate the medulla of the question to be decided by us: first the district court concluded that Dean Steel failed to raise a genuine issue that it acted at the direction of the Vessels' owners or the Vessels' designee; and second that Dean Steel failed to raise a genuine issue of material fact regarding whether it provided necessaries to the Vessels. II. Discussion A. Rules of engagement We review a district court's grant of summary judgment de novo. Bukuras v. Muller Group, LLC, Nos. 08-2160, 08-2161, 2010 U.S. App. LEXIS 1169, at *13 (1st Cir. Jan. 20, 2010). Summary judgment is appropriate if, viewing all factual disputes in the light most favorable to the non-moving party, there is no genuine issue of material fact that would prevent judgment for the moving party as a matter of law. Meuser v. Federal Express Corp., 564 F.3d 507, 515 (1st Cir. 2009). A fact is material if its resolution would "affect the outcome of the suit under the governing law," and the issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). - 9 - B. The law and the conclusions that follow To establish a maritime lien on a vessel, the lien claimant must prove, inter alia, that it provided necessaries to the vessel "on the order of the owner or a person authorized by the owner." 46 U.S.C. § 31342(a); Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1249 (11th Cir. 2005). Under 46 U.S.C. § 31341, there are certain persons who are presumed to have authority to procure "necessaries" to a vessel. These include the owner, the master, "a person entrusted with the management of the vessel at the port of supply," or an officer or agent appointed by the owner or "a charterer" of the vessel. 46 U.S.C. § 31341. At the very outset, Dean Steel is faced with the well- established precept that the requirements for the allowance of a maritime lien are strictly construed, Tramp Oil & Marine, Ltd. v. M/V "Mermaid I", 805 F.2d 42, 46 (1st Cir. 1986). Because a maritime lien is deemed to "encumber commerce," People's Ferry Co. v. Beers, 61 U.S. 393, 402 (1857), it is "disfavored in the law," and its requisites are construed stricti juris by the courts. Sweet Pea Marine, Ltd., 411 F.3d at 1252; Container Application Int'l, Inc. v. Lykes Bros. S.S. Co., 223 F.3d 1361, 1366 (11th Cir. 2000). Dean Steel has failed to overcome this burden on at least two grounds. - 10 - C. Dean Steel failed to make the factual showing that it provided necessaries to the Vessels as is required by 46 U.S.C. § 31342(a) 46 U.S.C. § 31342(a) states that "a person providing necessaries to a vessel on the order of the owner or a person authorized by the owner . . . has a maritime lien on the vessel . . . ." (emphasis added). It has long been the law that an essential element of establishing a maritime lien is that the necessaries be either (1) physically delivered to the vessel, or (2) constructively dispatched to the vessel by the handing over of the supplies to the owner or the owner's authorized agent for use on a designated vessel. See Piedmont & George's Creek Coal Co. v. Seaboard Fisheries Co., 254 U.S. 1, 6-7 (1920) ("No coal was delivered by the Coal Company directly to any vessel; and it had no dealings of any kind concerning the coal directly with the officers of the vessel. All the coal was billed by the Coal Company to the Oil Corporation and there was no reference on any invoice, or on its books, either to the fleet or any vessel."). As the facts established show, the steel fabricated by Hub was provided by either Cianbro or Dean Steel, and delivered by Dean Steel to Hub in Hub's Massachusetts facilities. Hub then proceeded to use that steel to fabricate components which were then delivered to Cianbro's facilities in Portland, Maine for installation in the Vessels. Dean Steel has provided no evidence that it had dealings with the Vessels or their owners. Dean Steel dealt only with Hub and provided the steel to Hub. What happened - 11 - to the steel after Hub took possession of it from Dean Steel broke the chain of events leading to the establishment of a maritime lien as far as the Vessels are concerned. There are at least four barriers insulating the Vessels from the establishment of a maritime lien by Dean Steel: the first barrier is raised by reason of the facts establishing the relationship between Dean Steel and Hub. Dean Steel was a supplier of steel to Hub, not to either Cianbro or the Vessels. The Vessels played no role in this relationship. Although Dean Steel might have been able to claim a mechanic's lien against Hub for the steel and labor invested while the steel remained in Hub's possession, Dean Steel made no attempt to exercise such right.11 The second barrier arises because Hub was the entity which received the steel from Dean Steel and fabricated it into components to be installed on the Vessels. At this point no claim of any nature could be made by Dean Steel against the Vessels, certainly not one involving a maritime lien, as it had not delivered any necessaries to the Vessels or anyone with authority to manage the Vessels. The third barrier arises from the fact that Hub then transferred the fabricated component to Cianbro, an entity with which Dean Steel had no relationship other than that it shaped some of the raw steel provided by Cianbro (in addition to Dean Steel's Cf. Mass. Gen. Laws ch. 254, §§ 1 et seq. - 12 - own), which was to be manufactured in accordance with the specifications that Cianbro had provided. Again, however, there are no facts involving the Vessels or anyone authorized to manage the Vessels that would provide the basis for the establishment of a maritime lien against the Vessels. Finally, we have the fourth barrier, which is the installation of the fabricated steel sections onto the Vessels by Cianbro, the only party in this matter with whom representatives of the Vessels had any dealings. It is only Cianbro that supplied "necessaries" (i.e., the components) to the Vessels and thus it is only Cianbro that might have legal standing to assert a maritime lien on its own behalf.12 Dean Steel is apparently under the mistaken apprehension that a maritime lien is the functional equivalent of a materialman's lien in land-related jurisprudence, a misconception which was clarified by the Supreme Court some time ago. See Piedmont & George's Creek Coal Co., 254 U.S. 1. In that case the Court stated that: [T]he principle upon which maritime liens rest . . . [is a] very different principle [from that] which underlies mechanics' and materialmans' liens on houses and other structures. The former had its origin in [the] desire to protect the ship; the latter mainly in the desire to protect those who However, since Cianbro's contract with Hornbeck explicitly states that it did not have the authority to create a maritime lien against the Vessels, that would not be the case here. - 13 - furnish work and materials. The maritime lien developed as a necessary incident of the operation of vessels . . . . Because the ship's need was the source of the maritime lien it could arise only if the repairs were necessary; if the pledge of her credit was necessary to obtaining them; if they were actually obtained, and if they were furnished upon her credit. The mechanic's and materialmans' lien, on the other, attaches ordinarily although the labor and material cannot be said to be necessary, although at the time they were furnished there was no thought of obtaining security upon the building; and although the credit of the owner or others had in fact been relied upon. The principle upon which the mechanic's lien rests is, in a sense, that of unjust enrichment. Id. at 8-9. There is no evidence in the record that would support a conclusion that Dean Steel relied on the Vessels' credit in supplying its steel and labor to Hub. Furthermore, as established beyond any doubt, the necessaries (the fabricated steel components) were provided to the Vessels by Cianbro, not Dean Steel. Thus, Dean Steel lacks standing to claim the establishment of a maritime lien upon the Vessels. It did not supply necessaries to the Vessels. D. Dean Steel has also failed to make a factual showing that in providing material and labor to Hub, it acted "on order of the [Vessels'] owner or a person authorized by the owner," as required by 46 U.S.C. § 31342(a)(1) As the Maritime Lien Act unequivocally states, to establish a maritime lien the claimant must have provided the necessaries to the vessel "on order of the owner or a person - 14 - authorized by the owner." 46 U.S.C. § 31342(a)(1). There are no facts in the record that would support a conclusion that the owner of the Vessels, the Hornbeck entities, had any dealings or communications with Dean Steel of any nature whatsoever, much less that they authorized Dean Steel to provide material and labor to anyone. In fact, Cianbro, the general contractor with whom the Hornbeck entities entered into the contract for the conversion of the Vessels, had no contract with Dean Steel to provide any services or materials, and Dean Steel was not even mentioned in Cianbro's subcontract with Hub for the fabrication of the components eventually installed in the Vessels. There is nothing in the record to support a finding that the Hornbeck entities authorized or approved Cianbro's actions in subcontracting its fabrication work to Hub, or of Hub's relationship and actions with respect to Dean Steel. None of these actions by Cianbro, Hub, and/or Dean Steel have been shown by Dean Steel to have been taken at the direction or order of the Hornbeck entities. See Crescent City Marine, Inc. v. M/V NUKI, 20 F.3d 665, 669 (5th Cir. 1994). As the district court concluded, "(1) Dean Steel has no contractual ties to . . . Cianbro, (2) there is no evidence that [Dean Steel's] selection as a supplier to H[ub] was required or even reviewed by Hornbeck or Cianbro, and (3) [Dean Steel's] performance was not subject to . . . [Cianbro's] or [the Hornbeck entities'] oversight or approval." - 15 - Because of this dearth of evidence as to any express authorization by the Vessels' owners or their authorized representative,13 Dean Steel attempts an end run by claiming that Cianbro was "a person entrusted with the management of the vessel at the port of supply" pursuant to 46 U.S.C. § 31341(a)(3), and that therefore it had implied authority to bind the Vessels' owners with Dean Steel. Leaving aside the fact that Dean Steel neither delivered the necessaries to the Vessels, as previously discussed, nor had substantive dealings with Cianbro, also as previously discussed, Dean Steel's interpretation of what is meant by "management of the vessel" is wrong as a matter of law. Dean Steel again runs directly into Supreme Court precedent in the form of the unpronounceable case of a ship named "Dampskibsselskabet," in which the Court held that management of a vessel means "direction and control for the purposes for which the vessel is used." Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co. of Cal., 310 U.S. 268, 279 (1940) (emphasis added). In that case, the Court held that a charterer who has authority to determine where the vessel sailed to, and what cargo it would carry, had management authority sufficient to bind the vessel and to submit it to a maritime lien. A similar outcome was had in Atlantic & Gulf Stevedores, Inc. v. M/V GRAND LOYALTY, 608 F.2d 197, 200 (5th Cir. In fact, as we have mentioned, Section 6.1 of the Contract specifically states that the Hornbeck entities disavow any contractual relationship with Cianbro's subcontractors. - 16 - 1979) (holding that the chief officer of a vessel was deemed to have sufficient management authority to request additional services from stevedores and thus bind the vessel). See also The Eastern, 257 F. 874 (D.C. Mass. 1919) (holding that the chief engineer of a vessel had sufficient management authority with respect to the placement of an order for coal supply). It would strain the language and purpose of the Maritime Lien Act to hold that while Cianbro had in its possession the Vessels for purposes of their reconstruction and conversion, it was also directing their operation for the purpose for which they were used. See Farwest Steel Corp v. Barge Sea-Span 241, 828 F.2d 522, 525-26 (9th Cir. 1987) ("[I]t cannot be said that acceptance of responsibility for repair approximates a delegation of authority over the movements of a vessel."); see also Integral Control Sys. Corp. v. Consol. Edison Co., 990 F. Supp. 295, 299 (S.D.N.Y. 1998) ("[T]here is a considerable body of law supporting the proposition that a subcontractor cannot assert a maritime lien against a vessel."). Nor does the so-called "principal/agent or middleman" line of cases, which creates a minimal exception to these rules, provide a safe haven for Dean Steel's claims. See Lake Charles Stevedores, Inc. v. Professor Vladimir Popov M/V, 199 F.3d 220, 228-29 (5th Cir. 1999); Marine Fuel Supply & Towing v. M/V KEN LUCKY, 869 F.2d 473 (9th Cir. 1988). In Lake Charles Stevedores, - 17 - the Fifth Circuit held that although a general contractor could assert a maritime lien for services provided to a vessel by both the general contractor and its subcontractors, subcontractors could not assert a lien on their own behalf, "unless it can be shown that an entity authorized to bind the ship controlled the selection of the subcontractor and/or its performance." 199 F.3d at 229. As has been abundantly established herein, no such link existed between the Hornbeck entities and any of the subcontractors, including Dean Steel specifically. Even if the Hornbeck entities were aware that subcontractors were performing work on necessaries that eventually would be attached to the Vessels, because the record establishes that they did not have any participation in the subcontracting of this work or control over its performance, this awareness is irrelevant to the establishment of a maritime lien by the subcontractors. Id. at 232; Galehead, Inc. v. M/V ANGLIA, 183 F.3d 1242, 1246 (11th Cir. 1999) (a subcontractor is not entitled to a maritime lien "where the degree of involvement with the owner is minimal or nonexistent"); see also Tramp Oil & Marine, Ltd., 805 F.2d at 45. There is nothing on the record that would support the conclusion that the Vessels' owners or their authorized representative agreed to, or even knew, that necessaries for the - 18 - Vessels would be provided by Dean Steel.14 The factual basis for establishment of a maritime lien is thus lacking. Last, Dean Steel's contention to the effect that the 1971 amendments to the Maritime Lien Act granted Dean Steel additional support for its claim to a maritime lien against the Vessels is, under these facts, also mistaken. The purpose of the 1971 Amendments was "to protect terminal operators, ship chandlers, ship repairers, stevedores, and other suppliers who in good faith furnish necessaries to a vessel." H.R. Rep. No. 92-340, at B63 (1971) reprinted in 1971 U.S.C.C.A.N. 1363, 1365-66 (emphasis added). As stated in House Report No. 92-340, accompanying H.R. 92-340:15 Your Committee wishes to emphasize that [the 1971 Amendments] make[] no change in maritime lien law, the priority of maritime liens, or in the accepted definition of necessaries. The practical effect of the bill is to negate the operation of a "no lien provision" in a charter to which the American materialism [sic] was not a party and of which he has no knowledge so that he will not be precluded from acquiring a lien for his services to which he would otherwise be entitled. Enactment of the bill should have no adverse effect on responsible vessel charterers and should prove of great assistance to American Cianbro could not have been an authorized representative of the Hornbeck entities by virtue of the Contract between them. Reprinted at 1971 U.S. Code Cong., & Ad. News, 92nd Cong., 1st Sess., 1363. 1971 U.S.C.C.A.N. 1363. - 19 - materialmen in collecting amounts owed on necessaries furnished a vessel. (emphasis added). As previously explained, Dean Steel did not furnish necessaries to the Vessels. Rather, Dean Steel supplied materials to Hub, which then fabricated these materials, which were in turn delivered to Cianbro, which was the one that furnished these necessaries to the Vessels. The grant of summary judgment in favor of Plaintiffs- Appellees is hereby affirmed. Costs are assessed against Appellant. - 20 -

United States Court of Appeals For the First Circuit No. 08-1534 THOMAS WALDEN, et al., Plaintiffs, Appellees, Cross-Appellants, v. CITY OF PROVIDENCE, RHODE ISLAND, by and through its Treasurer, STEPHEN NAPOLITANO; DAVID CICILLINE, in his official capacity as Mayor and Acting Public Safety Commissioner for the City of Providence; COLONEL DEAN ESSERMAN, in his official capacity as the Chief of Police for the City of Providence, Defendants, Appellants, Cross-Appellees. No. 08-1535 THOMAS WALDEN, et al., Plaintiffs, Appellees, Cross-Appellants, v. MARY LENNON, individually and in her former official capacity as the Chief of Operations of the Communications Department, Defendant, Appellant, Cross-Appellee. No. 08-1536 THOMAS WALDEN, et al., Plaintiffs, Appellees, Cross-Appellants, v. MANUEL VIEIRA, individually and in his former official capacity as the Communications Director, Defendant, Appellant, Cross-Appellee. No. 08-2417 THOMAS WALDEN, et al., Plaintiffs, Appellees, Cross-Appellants, v. CITY OF PROVIDENCE, et al., Defendants, Appellants, Cross-Appellees. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Lincoln D. Almond, U.S. Magistrate Judge] Before Lynch, Chief Judge, Boudin, Circuit Judge, and Saylor,* District Judge. Carolyn A. Mannis with whom Mark A. Fay was on brief for the appellees/cross-appellants. Kevin F. McHugh, Senior Assistant City Solicitor, with whom Joseph M. Fernandez City Solicitor, and Michael A. Calise, Assistant City Solicitor, were on brief for the appellants/cross- appellees City of Providence, David N. Cicilline, and Dean Esserman. Peter J. Comerford with whom Coia & Lepore, Ltd. was on brief for the appellant/cross-appellee Manuel Vieira. Dean G. Robinson for the appellant/cross-appellee Mary Lennon. February 23, 2010 * Of the District of Massachusetts, sitting by designation. LYNCH, Chief Judge. In July 2004, two groups of current and former employees of the Police and Fire Departments of the City of Providence, Rhode Island, and their families, sued the City and several City employees in their personal capacities. An automatic recording system at the City's new Public Safety Complex ("Complex"), which housed the Police and Fire Departments, recorded all telephone calls into and out of the Complex from the time the telephone system began operating in May 2002 until February 2003. Plaintiffs claimed these defendants were responsible for putting the recording system in place and that the recording of the calls violated their rights. Specifically, plaintiffs claimed the recordings violated their Fourth Amendment rights under the United States Constitution and Rhode Island's equivalent constitutional provision, Article I, Section 6; the federal wiretap statute, 18 U.S.C. § 2511 et seq.; Rhode Island's wiretap laws, R.I. Gen. Laws §§ 11-35-21, 12-5.1-13; and the state's privacy act, id. § 9-1-28.1. None of the defendants ever listened to any of the plaintiffs' calls, nor do plaintiffs claim otherwise. The first group of plaintiffs, the "Walden plaintiffs," consists of 116 current and former employees of the Providence Fire Department who worked in the Complex and their family members. The second group, the "Chmura plaintiffs," consists of nineteen current and former civilian and sworn police officer employees of the Providence Police Department who worked in the Complex. The two plaintiff groups brought suit together and were represented by the same counsel. The individual defendants were Manuel Vieira, Director of the City's Department of Communications until February 2003, and Mary Lennon, Chief of Operations in the Department of Communications until February 2003. Urbano Prignano, who was Chief of Police in Providence until his retirement on January 31, 2001, was dismissed from the case following the presentation of plaintiffs' evidence.1 Following a twenty-six-day trial in February and March 2008, a jury found defendants liable, and plaintiffs were awarded over $1 million in damages and attorney's fees. The City, Vieira, and Lennon now appeal, challenging, inter alia, the district court's denial of their Fed. R. Civ. P. 50 motions for judgment as a matter of law on qualified immunity and municipal liability, as well as errors in the jury instructions and verdict forms.2 We find defendants are entitled to qualified immunity on some claims, vacate the jury verdicts, and direct entry of an order Also sued in their official capacities were the Mayor of Providence, David Cicilline, and the City's Chief of Police, Colonel Dean Esserman. We refer to them with the City of Providence collectively as "the City." Plaintiffs also cross-appeal, raising claims about the district court's denial of prejudgment interest for the state wiretap damages and its failure to require both the City and Vieira each to pay the full damages amount, instead of treating the damages as joint-and-several, under the state wiretap act. of dismissal with prejudice of all federal claims. As to the pendent state claims, the state wiretap act claims against the City are dismissed with prejudice. We dismiss without prejudice the verdict under the state wiretap and privacy act against Vieira and do the same as to the verdict under the privacy act against Lennon and the City. I. To the extent relevant to the issues on review, we review the facts of this case in the light most favorable to the jury's verdict. Cruz-Vargas v. R.J. Reynolds Tobacco Co., 348 F.3d 271, 275 (1st Cir. 2003). This case concerns the recording of calls at the City's new Public Safety Complex, which opened in 2002 to house parts of the City's Department of Public Safety. That department is run by a City Commissioner and contains the Police Department, headed by the Chief of Police; the Fire Department, headed by the Fire Chief; and the Department of Communications, headed by a Director. See City of Providence, Home Rule Charter ("Charter"), art. X, § 1001, available at http://library8.municode.com/default-test/home.htm? infobase=14446&doc_action=whatsnew. The Complex was built to provide office space for the Commissioner, the Chief of Police, and the Fire Chief, and their staffs, as well as to contain a police station and a fire station. A. Policies and Practices as to Recording Calls before the Complex Opened Before the Complex opened, the City already recorded calls made by public safety employees at the Emergency Operations Center ("EOC") as a matter of policy. The EOC served both the Police and Fire Departments but was physically separate from the police and fire stations around the City; it would route emergency calls to the relevant facility when required. Emergency calls and responses, calls about information from the National Crime Information Center and vehicle registry checks, and the talk-around channel on the police radio frequency were all recorded through a Dictaphone system at the EOC, covering fifteen to twenty lines in all. EOC employees were informed when they began their jobs that their conversations would be recorded and potentially reviewed.3 The EOC was not relocated to the new Complex. Before the summer 2002 move to the Complex, the central Police and Fire Departments were located at two separate facilities within the City's old Public Safety Center. The telephone calls at both of these facilities were not recorded. The old telephone system for the police operated differently than did the new system at the Complex. There was a There was also a written policy that governed when recorded calls could be listened to. This policy required parties to fill out a written request to review a tape. This request then had to be approved by both the Internal Affairs unit of the Police Department and by Vieira: only then would employees of the Department of Communications provide the requested recording. central station area where a desk sergeant sat and where clerks answered telephone calls to the station. Some calls were routed from the City's EOC; others were emergency and nonemergency calls that came directly to the station. Some employees used the phone for law enforcement and administrative work and had their own telephone lines. Others used shared lines. Police Department employees also regularly used the phones for personal calls. The setup at the firefighters' old facility was different. This facility contained telephones that could only be used to make calls between the different fire stations. Emergency calls were not routed to the station through the telephones but rather through an intercom system that broadcast to everyone at the station. There was also a separately installed telephone that the firefighters themselves arranged with the telephone company and paid for so that they could make personal calls while on duty at the station. B. The New Public Safety Complex Construction and planning for the new Complex began more than a year and a half before it opened. Among the intended features of the Complex was a state-of-the-art telephone system, with a number of functions, including call recording. The specifications for this new telephone system, including plans for a recording system, were discussed during planning meetings. Members of the Police Department command staff attended these planning meetings, as did the Police Chief on occasion,4 representatives from the Fire Department, the Finance Department in City Hall, the Planning Committee, architects and engineers, and defendant Vieira, who had been Director of Communications since 1993. The meetings were held in the office of the Commissioner of Public Safety, John Partington, who sometimes attended as well. It was decided at these meetings that the new Complex should include a telephone system capable of recording calls to and from the Police and Fire Departments. Attendees Vieira and Major Dennis Simoneau, the commander of all uniformed police officers, testified to several reasons for this decision. First, planners wanted a system that could record emergency calls that came in on lines other than 911 lines.5 Second, a recording system was needed to enable monitoring of how public safety employees were handling calls from the public, including on nonemergency lines, so that citizen complaints about public safety officials' behavior on these lines could be investigated. Third, the telephone system needed a cost-accounting feature to reduce costs and prevent employees from abusing their phones. Under the old system, public safety employees' personal long distance calls and calls to sex lines cost Prignano was Police Chief when planning for the Complex began and attended some of the initial meetings. For purposes of this opinion we use the word "line" and the word "extension" interchangeably. the City $5,000 to $6,000 a month. Fourth, the experience of New York City's public safety officers following the terrorist attacks on September 11, 2001, had underscored the desirability of a redundant system that could, in the event that a component of the communications system failed, maintain direct communication among police, fire, hospital, and emergency response agencies, including internal calls between lines on the system. This would include backup for the recorded EOC system, necessitating recording at the Complex. With these parameters in mind, members of the City's Department of Communications developed a request for proposals ("RFP") for the telephone system at the Complex so that the Board of Contract and Supply could start the usual open process of selecting a vendor through public bidding. Providence's Board of Contract and Supply, chaired by the City's Mayor, is in charge of awarding contracts for any City purchases above $5,000. Charter, art. X, § 1007. Vieira approved the RFP and sent it to Alan Sepe, Acting Director of the City's Department of Public Property. In that capacity, Sepe was both a member of the Board of Contract and Supply and the head of the department that shepherded the RFP process for the City. The Board of Contract and Supply voted to approve the RFP and publicly advertised it in August 2001. The RFP stated that "[t]he Board of Contract and Supply will make the award to the lowest responsible bidder who submits [the] bid" and that the Board also "reserves the right to reject any and all bid(s)." Because the Department of Communications forgot to include the request for a recording system in the RFP, Vieira, at Sepe's behest, later requested in writing that the specifications for the recording system also be put out to bid. A supplemental RFP for the recording system was released on October 29, 2001, without further involvement from Vieira, and was again made public. On November 5, 2001, the Board of Contract and Supply received six bids from various vendors, which the board initially reviewed and made public. The bids were then forwarded to Vieira, who consulted with his staff and discussed the bids with his superior, the Commissioner of Public Safety, before making recommendations. On January 8, 2002, Vieira recommended to Sepe that the City accept the proposal submitted by a company called Expanets, because it "was the only vendor who met the requirements of the RFP," namely the desired redundant backup and recording features. The proposed recording system, Expanets' Total Recall system, was capable of digitally recording and storing all inbound and outbound calls on the telephone system. Expanets' bid also specified that it and not the City would be responsible for implementing the proposed system. The total cost of the bid, including both the telephone system and the recording system, was $971,664. Sepe immediately forwarded Expanets' proposal to the Mayor with his own cover letter recommending that it be accepted. After the Board of Contract and Supply, including Sepe and the Mayor, publicly voted on the bid, Expanets was awarded the contract. Sepe testified that he voted to award the contract to Expanets because "they were the lowest responsible bidder that met the specifications and could perform the services of the RFP."6 Vieira was not a member of the Board and could not vote to award Expanets the contract. The Expanets telephone system was installed at the Complex by Expanets technicians and began operating on May 23, 2002. It also included the Total Recall system, which started recording all phone lines that day, well before anyone had moved into the building or begun using the phone lines. The cost-accounting feature also began operating on that date. Vieira testified that the Total Recall system was required not only to record calls but also for the desired cost-accounting feature to function, a fact plaintiffs disputed. The cost-accounting and Total Recall systems were separate functions, and the databases that stored the cost-accounting data and the recordings were separate as well. Plaintiffs' theory was that the competitive bidding process was a sham and was designed to give the contract to Expanets. These functions had all been active for some time when the occupants moved into the Complex in July and August 2002. Specifically, the Total Recall system had been recording approximately 690 lines, located throughout the Complex and configured for the Police and Fire Department and their associated staffs. The phone lines recorded at the Police Department had a range of configurations and uses. There was a central station area with several shared lines, where a desk sergeant sat and several clerks received emergency and nonemergency calls from the public. Some police officers and administrative officials had their own offices with individual phone lines, which they used to make calls on both law enforcement and administrative matters. Finally, there were also shared lines in shared office spaces used by Police Department employees for police business. All of the testifying Chmura plaintiffs said they also used these lines to make personal calls. On July 22, 2002, shortly after the Police Department moved to the Complex, Major Simoneau e-mailed all sworn police officers and civilian employees of the Police Department. He informed recipients "that all lines in the new station" would be recorded and employees should "speak professionally at all times." He also asked desk sergeants to "alert all of [their] clerks of this fact," in case they did not receive the e-mail.7 Unlike the Police Department, the Fire Department did not alert staff about the recording system. The recorded phone lines at the Fire Department also had multiple configurations and uses. There were individual lines for members of the departmental leadership housed in the Complex. Several internal extensions were installed to call other fire stations but did not permit external calls. After relocating to the Complex in August 2002, plaintiff Thomas Walden had the telephone company move to the new facility the firefighters' personal telephone line, which they paid for and used to speak with their families. Unlike in the old building, where the telephone company had physically installed the separate line, the personal line was routed through the Complex's telephone system and into the telephones in the firefighters' space. When the telephone company did this, the line was automatically recorded by the Total Recall system.8 Soon after the move, Lennon and several technicians who she supervised attended training sessions on the Total Recall A copy of the e-mail was put into evidence, and defendants provided three witnesses who testified they received it. The Police Department plaintiffs testified they did not receive the e-mail. Defendants disputed whether this line was recorded. Plaintiffs' expert testified it was recorded and we take that to be true. It was also disputed whether defendants intended that the personal line be recorded. system and were given system passwords along with a list of lines recorded. In late July 2002, Vieira requested that his employees remove ten telephone extensions from the recording system, and Lennon received an e-mail informing her when the task was completed. This was not done pursuant to a written policy; indeed there was no written policy governing which lines were recorded or removed from the system.9 Instructions to remove lines came initially only from Vieira or his deputy. Among the twenty extensions removed from the system during the system's operation were lines to Vieira's own office and residence, the lines to his deputy and to his administrative assistant, and the line to the residence of the Police Chief.10 In January 2003, The Providence Journal asked the Fire Department for recordings of 911 and interdepartment calls regarding a drowning. Fire Department Chief Guy Lanzi consulted with Senior Assistant City Solicitor John T. D'Amico about the request, at which point D'Amico learned of the recordings for the Although persons wishing to listen to recorded conversations were required to fill out written requests, as had been the practice with the Dictaphone system, Lennon, who was responsible for retrieving the recorded conversations, testified that she was not aware of a written policy governing when calls captured by the Total Recall system could be listened to and did not know if the written requests were reviewed by Internal Affairs. Vieira's office was not physically located in the Complex. However, the telephone system at the Complex was set up so that employees could reach phones at these locations, among others, by an internal extension, rather than getting an outside line. first time. In a January 22, 2003 letter to Chief Lanzi, D'Amico recommended an inquiry into which phone lines were being recorded and warned that "[d]epending on circumstances (e.g., which telephone is being recorded), the recording may be unlawful" and "depending on the circumstances, if appropriate, [recording on those lines] should be discontinued or the users notified."11 During these consultations, Fire Chief Lanzi learned that his telephone line and other Fire Department leadership lines were recorded. Lanzi directly contacted Anthony Desmarais, a technician in the Department of Communications to request the lines be removed. Soon thereafter, Desmarais removed the Fire Department leadership's extensions from the recording system at the instruction of Vieira. In February 2003, the City's new Police Chief, Dean Esserman, learned of the recordings, and on February 10, 2003, at Esserman's order, the Total Recall System was completely Vieira testified that, until this investigation, he was unaware that the Total Recall system was recording any telephone calls at the Complex beyond those into the central station. He testified that his earlier instructions to employees were only to remove lines from the cost-accounting system. These assertions were expressly contradicted at trial by Department of Communications employees, including Vieira's administrative assistant and a technician responsible for removing lines from the recording system. We accept plaintiffs' version but note that none of this affects the City officials' assertion that they did not intend to record the firefighters' personal line or know that the line was being recorded. deactivated and stopped recording all lines at the Complex. On the same day, Vieira and Lennon left their employment with the City. A state investigation followed. The state Attorney General's Office concluded that there was no evidence that any of the calls recorded were listened to "without the consent of a call participant or for a criminal, malicious, or non-business-related reason." The Attorney General's Office further concluded that the use of the Total Recall System fell within the "ordinary course of business" exception to the state and federal wiretap statutes.12 Between May 2002 and February 2003, the Total Recall system created and archived approximately 750,000 audio files of recorded telephone conversations. Of these recordings, only three were ever listened to and those calls are not at issue in this case.13 Although the investigation and Esserman's order were not permitted into evidence before the jury at trial, pursuant to a motion in limine by defendants, these facts were raised and considered on the defendants' motions for summary judgment, which claimed qualified immunity and that there was no municipal liability. The district court was also aware of them when making its later rulings. In one instance, the Fire Chief listened to a call to determine how the Fire Department handled a potential drowning in response to a complaint. Major Simoneau also listened to a call about the towing of a car, this time in response to a complaint about how the officer in charge of the towing had spoken to the car owner on the phone. Finally, a City Councilman listened to a call he had with a city employee to determine whether he had been threatened by the employee. II. Plaintiffs filed a six-count complaint in the federal district court in Rhode Island on July 20, 2004. Both the Walden firefighter plaintiffs and the Chmura police plaintiffs alleged, under 42 U.S.C. § 1983, that defendants violated their Fourth Amendment rights under the United States Constitution and that defendants violated their rights Rhode Island's equivalent constitutional provision, Article I, Section 6. Plaintiffs also claimed defendants violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("federal wiretap act"), 18 U.S.C. § 2511. Finally, plaintiffs alleged the defendants violated two state wiretap provisions, R.I. Gen. Laws §§ 11-35-21, 12-5.1-13, and the state's privacy act, id. § 9-1-28.1. Plaintiffs sought attorney's fees for all counts. After extensive discovery, defendants filed motions for summary judgment on September 14, 2006, claiming that they had not violated plaintiffs' rights, that individual defendants were entitled to qualified immunity, that municipal defendants could not be liable under Monell v. Department of Social Services, 436 U.S. 658 (1978), and that any recording that did take place was not illegal under federal and state statutes. On July 6, 2007, the district court denied defendants' motions for summary judgment. It held that there were genuine issues of material fact as to whether the individual defendants were liable for Fourth Amendment violations and denied individual defendants' claims of qualified immunity. Walden v. City of Providence, 495 F. Supp. 2d 245, 255-58, 267-70 (D.R.I. 2007). Specifically, the court found there was a clearly established general right of privacy in phone conversations, and that no reasonable government official could have concluded at the time that their actions were permissible. Id. at 267-70. It also held that the City could face municipal liability because Chief of Police Prignano was a final policymaker whose actions could be attributed to the City and a genuine question existed as to his liability. Id. at 267-70. For similar reasons, the district court concluded that there were genuine issues with regard to the claim under the federal wiretap act14 and rejected the City's argument that municipalities could not be liable under the act. Id. at 261- 62, 265-66. Finally, the court concluded that plaintiffs could proceed on their pendent state law claims. Id. at 270-71.15 The jury trial started on February 13, 2008. Plaintiffs presented evidence for twenty-one days, with the Walden firefighter The district court held that whether defendants fell under the "ordinary course of law enforcement" exception to the act, 18 U.S.C. § 2510(5)(a)(ii), could only be determined based on facts developed at trial. Id. at 263. On January 3, 2008, the parties consented to proceed under the jurisdiction of a magistrate judge, pursuant to 28 U.S.C. § 636(c). The case was accordingly reassigned. plaintiffs going first and the Chmura police plaintiffs second. Nearly all plaintiffs in both groups testified. Plaintiffs' case, as presented, was that defendants were responsible for illegally recording all calls that the Walden and Chmura plaintiffs had made and received from the Complex. Plaintiffs' counsel underscored in his opening argument that all of plaintiffs' claims centered on defendants' recording of all their calls, not on the theory that anyone ever listened to the recordings. Plaintiffs asserted in their individual testimony that they had an expectation of privacy as to all calls that they made, whether they were emergency calls, calls involving other police or firefighter business, or personal calls. Counsel's closing again cited the recording of all of plaintiffs' calls as defendants' unlawful conduct. Plaintiffs also framed their specific legal claims around this proposition. Plaintiffs' Fourth Amendment, Rhode Island Constitution, and state privacy act claims all turned on the theory that plaintiffs had a general right of privacy in all phone conversations at the Complex. They did not differentiate between the police and firefighter groups or make particularized arguments about individual expectations of privacy within those groups. Their state wiretap act claims similarly asserted that defendants could not legally record any of plaintiffs' calls, regardless of whether the calls involved emergency calls, law enforcement matters, or personal calls. Likewise, the court's initial statements to the jury referred to the claim that the recording of all calls violated various laws. The court made no distinctions between emergency calls, calls from the public regarding police business that the City might wish to monitor in order to respond to complaints, or personal calls. Nor did it otherwise distinguish between types of calls or callers. At the close of plaintiffs' case, all three defendants made motions for judgment as a matter of law under Fed. R. Civ. P. 50(a). The individual defendants argued that they were entitled to qualified immunity, that they fell within the exceptions to the wiretap statutes, and that plaintiffs' evidence failed to meet their burden of proof. Additionally, the City argued that plaintiffs could not establish municipal liability because the decision to install and implement the recording system was not taken by a final policymaker and the wiretap statutes did not apply to municipalities. The court reserved ruling until later in the trial on Vieira's, Lennon's, and the City's motions. It dismissed the claims against Police Chief Prignano. It nonetheless concluded that this did not require it to grant the City's Rule 50 motion, even though the court had previously identified Prignano as a final policymaker whose decisions could be attributed to the City. Instead, the court held as a matter of law that now Vieira was the City's final policymaker for the decision to install and implement the Total Recall recording system and that the City was responsible for his actions. Defendants then presented their case. Their basic theory was that the Total Recall system, along with the rest of the telephone system, was installed to address legitimate law enforcement and cost-accounting needs. Defendants argued that they never intended to record all calls at the Complex. They emphasized that at least the police plaintiffs had been notified of the recordings and that defendants did not intend to record the firefighters' personal line, which they said had been installed at the Complex without the defendants' knowledge or involvement. Defendants also pointed to plaintiffs' failure to provide evidence as to any specific calls that were recorded. They said that plaintiffs' assertion that their rights were violated simply because they used the telephone system was insufficient and that plaintiffs needed to introduce evidence about specific calls. Defendants also criticized plaintiffs' failure to make a particularized case as to plaintiffs' expectations of privacy, since each plaintiff made calls under different circumstances and their expectations of privacy would have varied. Following their presentation of evidence, defendants renewed their Rule 50 motions. On the same day, the court required plaintiffs to elect whether to proceed to a jury verdict on the state or federal wiretap claims.16 Plaintiffs, relying on previous rulings that damages were mandatory under the state statute but discretionary under the federal one, elected to proceed under state law. Before the jury was charged on March 24, 2008, defendants objected to the jury instructions and the proposed verdict form. The court overruled their objections. The court's instructions to the jury again referred to defendants' recording of all of plaintiffs' calls in and out of the Complex. The instructions made no effort to exclude or distinguish emergency calls or calls from the public regarding police business that the City might wish to monitor. Nor did the instructions distinguish among different types of calls when describing potential defenses. The instructions also did not indicate to the jury whether it could treat the firefighters' personal line separately. The court did so pursuant to a November 2007 order on the defendants' motions in limine on damages, in which the district court had held that because the federal and state wiretap claims were parallel and would lead to duplicative damages, plaintiffs were required at the close of trial to elect whether to seek damages afforded by 18 U.S.C. § 2520 or those afforded by R.I. Gen. Laws § 12-5.1-13. Walden v. City of Providence (Walden I), Nos. 04-304A, 04-553A, slip op. at 3 (D.R.I. Nov. 30, 2007). The jury received separate verdict forms for the Walden firefighter plaintiffs and the Chmura police plaintiffs. Both forms also presented plaintiffs' claims broadly and did not permit the jury to differentiate between the types of calls each plaintiff made or received.17 On March 26, 2008, the jury found against Vieira and the City on all counts, and against Lennon on the constitutional and privacy act claims. Each plaintiff in both plaintiff groups was awarded $1 in nominal damages for the constitutional claims, as well as $1 for the privacy act claim and $1 for one of the state wiretap claims, R.I. Gen. Laws § 11-35-21. One dollar in punitive damages was also awarded to each plaintiff for the constitutional violations, to be paid only by Vieira and Lennon. Vieira and the City were also ordered, jointly and severally, to pay statutory damages of $100 to each plaintiff for every day on which the plaintiff made telephone calls that were recorded, pursuant to one of the state wiretap act claims, id. § 12-5.1-13(a). The jury found that all of the Chmura police Specifically, on the constitutional and privacy act claims, the forms simply asked the jury whether each defendant had violated all plaintiffs' rights within that group. On the wiretap act claims, the forms required the jury to find for all plaintiffs and against each defendant if the defendant had intercepted "any of [p]laintiffs' telephone calls." The same was true of the jury forms' presentation of the defendants' defense that the calls were in the course of law enforcement work, which only allowed the jury to find for all plaintiffs or all defendants. We describe these forms in greater detail below. plaintiffs and some of the Walden firefighter plaintiffs had their calls intercepted, but also concluded that seventy-one of the Walden plaintiffs, including all of the firefighters' family members, could not establish their calls were recorded on any day. Statutory damages under this count amounted to $526,700. As the prevailing party under 18 U.S.C. § 1988, plaintiffs were also awarded attorney's fees and costs, totaling $539,452.37.18 Walden v. City of Providence (Walden III), Nos. 04-304A, 04-553A, slip op. at 1 (D.R.I. Oct. 15, 2008). Defendants timely renewed their Rule 50 motions after the verdict, pursuant to Fed. R. Civ. P. 50(b). On May 15, 2008, the court denied defendants' Rule 50 motions. It declined to reconsider its finding that Vieira was a final policymaker for purposes of the City's municipal liability. Walden v. City of Providence (Walden II), Nos. 04-304A, 04-553A, slip op. at 14-17 (D.R.I. May 15, 2008). It also denied qualified immunity to Lennon and Vieira, ruling that "no reasonable official" could have concluded that the recordings were permissible. Id. at 18-19. Defendants now appeal the denial of their summary judgment and Rule 50 motions on qualified immunity, municipal Plaintiffs sought attorney's fees and costs under federal law, 18 U.S.C. § 1988, Fed. R. Civ. P. 54(d), D.R.I. Local Rule 54.1, and the state wiretap and privacy acts, R.I. Gen. Laws §§ 12- 5.1-13, 9-1-28. Although the district court only analyzed the claim under federal law, plaintiffs claimed at oral arguments they were also entitled to fees on state law grounds. liability, and the applicability of the wiretap statute to the City as a municipality and to all three defendants. They also claim error in several of the district court's evidentiary rulings, its jury instructions and verdict forms, and rulings on attorney's fees. Defendant Lennon further claims that the verdict was inconsistent and that the evidence was insufficient to find her liable. III. A. Appeals from Verdicts for Plaintiffs on U.S. Constitution Fourth Amendment Claims 1. Qualified Immunity for Defendants Vieira and Lennon We first consider whether Vieira and Lennon were entitled to qualified immunity. The defendants have preserved their objections to the district court's denial of immunity. Plaintiffs do not seriously contend otherwise.19 Our review of the denial of qualified immunity is de novo. Guillemard-Ginorio v. Contreras-Gómez, 585 F.3d 508, 525 (1st Cir. 2009). To the extent it is relevant, we review the evidence in the light most favorable to the jury's verdict. Id. We conclude the court erred in denying the individual defendants qualified immunity. Plaintiffs argue that the individual defendants abandoned any claim to qualified immunity when they failed to take an interlocutory appeal from the denial of the summary judgment motion. That is plainly incorrect. See Wilson v. City of Boston, 421 F.3d 45 (1st Cir. 2005); Iacobucci v. Boulter, 193 F. 3d 14, 23 (1st Cir. 1999). Officials are entitled to qualified immunity unless (1) "the facts that a plaintiff has alleged or shown make out a violation of a constitutional right" and (2) "the right at issue was 'clearly established' at the time of [their] alleged misconduct." Pearson v. Callahan, 129 S. Ct. 808, 816 (2009). The Supreme Court has given this second prong two aspects. The first is whether, based on the "clarity of the law at the time of the alleged civil rights violation," "'[t]he contours of the right . . . [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The second aspect is whether, based on the "facts of the particular case," a "reasonable defendant would have understood that his conduct violated the plaintiffs' constitutional rights." Id. Qualified immunity generally protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Courts need not address these questions in order. Pearson, 129 S. Ct. at 818; Maldonado, 568 F.3d at 269-70. We turn to the second part of the test and specifically whether the right in question was so clearly established as to give notice to defendants that their actions were unconstitutional in 2002.20 This is a question of pure law. This question must be resolved based on the state of the law at the time of the alleged violation. See Brousseau v. Haugen, 543 U.S. 194, 198 (2004). Further, "this inquiry 'must be undertaken in light of the specific context of the case, not as a broad general proposition,'" id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)), and "[t]he relevant, dispositive inquiry . . . is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 201 (emphasis added). Thus, the relevant question in this case is not whether in 2002 the Fourth Amendment generally prohibited the recording of telephone calls. The question is whether, in 2002, public safety employees, like plaintiffs, had a clearly established right under the Fourth Amendment not to have calls made at work recorded. We hold there was no such clearly established law. There were no Supreme Court cases, no "cases of controlling authority in [plaintiffs'] jurisdiction at the time of the incident," and no "consensus of cases of persuasive authority" showing that plaintiffs' asserted Fourth Amendment rights were clearly Since plaintiffs elected not to pursue their remedies under the federal wiretap act, 18 U.S.C. § 2510 et seq., we need not reach the question of whether the qualified immunity doctrine may be used in defense to a claim under that statute. established in 2002. Wilson v. Layne, 526 U.S. 603, 617 (1999) (holding that where none of these sources had relevant supporting precedent, the asserted right was not "clearly established"); see also Brady v. Dill, 187 F.3d 104, 116 (1st Cir. 1999). In 2002, there was no Supreme Court precedent that addressed whether defendants' particular conduct violated the Fourth Amendment. Plaintiffs rely heavily on Katz v. United States, 389 U.S. 347 (1967), which held that the Fourth Amendment generally requires the government to obtain prior judicial sanction before recording calls from a public telephone booth. Id. at 355-59. They likewise cite O'Connor v. Ortega, 480 U.S. 709 (1987), which merely held that an employee had a reasonable expectation of privacy in his office desk and file cabinets that he did not share with other employees. Id. at 718. Neither of these cases address public safety employees' expectations of privacy at work, and neither can be construed to show that defendants' particular conduct was unlawful. This is precisely the kind of "high level of generality" that the Court has held insufficient, Brousseau, 543 U.S. at 200, particularly given the Court's recognition that an individual's expectation of privacy varies within different parts of the workplace and depending upon the nature of his or her work. See O'Connor, 480 U.S. at 716-17. Nor had any First Circuit case held as of 2002 that the Fourth Amendment was violated if police and fire public safety employers recorded all calls to and from their employees' offices. There was also no clear consensus among other circuit courts. Indeed, this lack of consensus was explicitly recognized by the one court of appeals to squarely address a factual situation similar to the case at hand. In that case, Blake v. Wright, 179 F.3d 1003 (6th Cir. 1999), the Sixth Circuit held that a police chief was entitled to qualified immunity for his implementation of a system that recorded almost all personal, emergency, and administrative calls at a police station without the police employees' knowledge. It so held because the unconstitutionality of these recordings was not clearly established as a matter of law. Id. at 1010-11.21 This certainly would not have informed the There was one circuit opinion, Abbott v. Village of Winthrop Harbor, 205 F.3d 976 (7th Cir. 2002), in which a jury found under § 1983 against a police chief and village that recorded police officers' calls. Id. at 977. However, in that case, plaintiffs argued only that the recording of their personal line, and not the emergency and office lines at the station, violated their Fourth Amendment rights. Id. Moreover, plaintiffs' claim of a reasonable expectation of privacy on their personal line in that case was based upon the police chief's initial exclusion of the personal line from the recording system, his explicit announcement to all officers that the personal line would not be recorded, and his subsequent, secret decision to begin recording the personal line for personal reasons unrelated to police work. Id. at 978-99. Because the police chief did not appeal, the court did not discuss qualified immunity at all, let alone whether plaintiffs' rights in this context were clearly established. In October 2002, another circuit court upheld a jury verdict that a police officer's Fourth Amendment rights had been violated when a specific call he made to his wife was recorded and listened individual defendants that their specific conduct violated the Fourth Amendment. Moreover, other circuits' precedents in a line of cases under Title III of the federal wiretap act would have led reasonable officials to conclude that recording all calls into and out of a police station was neither illegal nor unconstitutional. If under Title III law the defendants could have concluded their actions were not illegal, then they could reasonably have concluded it was not clearly established that the same actions would violate the Constitution. Congress enacted Title III in response to Katz, see Bartnicki v. Vopper, 532 U.S. 514, 523 (2001), and in doing so attempted to provide at least as much protection as the Constitution affords. See Mitchell v. Forsyth, 472 U.S. 511, 531-32 (1985); Dalia v. United States, 441 U.S. 238, 256 n.18 (1979). Further, Title III statutory requirements are relevant to the question of what public safety employees' reasonable expectations of privacy were.22 to. Zaffuto v. City of Hammond, 308 F.3d 485, 488-89 (5th Cir. 2002). There, the violation was not recording lines as a general matter, but instead that his particular call was accessed and reviewed. Id. The court also made no finding as to qualified immunity. Id. To the extent that the district court relied on disputes over the degree of notice of the recordings that defendants gave to plaintiffs to deny immunity, it erred. There was no clearly established law that explicit notice to employees of recording was required in police offices and some law pointed the other way. Amati v. City of Woodstock, 176 F.3d 952, 955 (7th Cir. 1999). The lead Title III case that defendants relied on for their immunity claims is Amati v. City of Woodstock, 176 F.3d 952 (7th Cir. 1999). There, the court upheld a jury finding that a police department's practice of recording all calls on a line used by employees for both personal and business calls was not a violation of Title III. Id. at 955-56. The court held that the calls fell within the exception for recording "by an investigative or law enforcement officer in the ordinary course of his duties." Id. at 954-55. The court found "[i]t is routine, standard, hence 'ordinary' for all calls to and from the police to be recorded," because the "calls may constitute vital evidence" and can be used to "evaluate[] the speed and adequacy of the response of the police to tips, complaints, and calls for emergency assistance." Id. at 954. The Amati court further explained it was "irrelevant" whether personal calls on a police department's lines were recorded, holding that "if all the lines are taped, as is the ordinary practice of police departments, then the recording of personal as well as of official calls is within the ordinary course." Id. at 956. Other courts had also taken the view before 2002 that "the routine and almost universal recording of phone lines by police departments . . . as well as other law enforcement institutions is exempt from the [federal wiretap statute]" and the practice of "routinely and indiscriminately record[ing] all phone activity in and out of the police department" is "well known in the industry and in the general public." Adams v. City of Battle Creek, 250 F.3d 980, 984 (6th Cir. 2001); see also Abraham v. County of Greenville, 237 F.3d 386, 391 (4th Cir. 2001) (recognizing "the County's need to monitor for law enforcement purposes calls relating to Detention Center inmates and employees"); First v. Stark County Bd. of Comm'rs, No. 99-3547, 2000 WL 1478389, at *4 (6th Cir. 2000) (holding the routine recording of all conversations in a sheriff's office dispatchers' department was protected by Title III's law enforcement provisions and dismissing plaintiffs' constitutional claims). We need not address the jury's verdict. This is an issue of law on which the district court erred. The individual defendants are entitled to judgment on the basis of qualified immunity. 2. Municipal Liability for the Fourth Amendment Claims Against City of Providence This leaves the City's Rule 50 motion on the Fourth Amendment claims against it.23 The City says there is no municipal liability for the recordings because plaintiffs' calls were not recorded pursuant to any official policy or custom. This issue was Unlike individual defendants, municipalities are not entitled to qualified immunity. Our finding that Vieira and Lennon are entitled to such immunity does not dispose of the issue of municipal liability. Owen v. City of Independence, 445 U.S. 622, 638 (1980). preserved. We review de novo. Valentin-Almeyda v. Mun. of Aguadilla, 447 F.3d 85, 95-96 (1st Cir. 2006). We hold, contrary to the district court, that the City was entitled to judgment as a matter of law. Municipal defendants may be held liable under § 1983 for actions taken pursuant to an official policy or an official custom that violated the Constitution. Monell, 436 U.S. at 694; Young v. City of Providence, 404 F.3d 4, 26 (1st Cir. 2005). "A plaintiff can establish the existence of an official policy by," inter alia, "showing that the alleged constitutional injury was caused . . . by a person with final policymaking authority." Welch v. Ciampa, 542 F.3d 927, 941 (1st Cir. 2008) (internal citations omitted). Whether an official is a final policymaker is also a question of law for the trial judge to decide.24 Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). This determination requires a showing that "a deliberate choice to follow a course of action [was] made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) (plurality opinion); see also Wilson, 421 F.3d at 59-60 (applying this test). The district court's instructions to the jury make clear that the finding of municipal liability rested on the court's ruling that Vieira was a final policymaker. Plaintiffs did not argue that there was some other policymaker. Whether an official has this requisite level of specific policymaking authority is a matter of state law. Jett, 491 U.S. at 737. Courts must look to state law, including "valid local ordinances and regulations," for descriptions of the duties and obligations of putative policymakers in the relevant area at issue. City of St. Louis v. Praprotnik, 485 U.S. 112, 125 (1988) (plurality opinion). This does not mean that we look simply to state law labels to determine whether an official is a final policymaker, "[b]ut our understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official's functions under relevant state law." McMillian v. Monroe County, 520 U.S. 781, 786 (1997). This, too, is a question of law for the judge to decide. Plaintiffs argue, and the district court agreed, that Vieira was a final policymaker with respect to the decisions to procure and implement the Total Recall system. They say that Vieira was responsible for the RFP and the actual decision to award Expanets the bid. They also say that he had final authority with regards to how the system was implemented. We reject these arguments and hold that Vieira was not a final policymaker in this case. Both as a matter of state law and in practice, Vieira did not have final policymaking authority over the decision to procure the recording system and award Expanets the bid. The City Charter clearly states that the Board of Contract and Supply, not the Department of Public Safety or its officials, is the department with "responsibility . . . [t]o make all contracts for purchase of materials, supplies, services, equipment and property on behalf of the city, the price or consideration of which shall exceed five thousand dollars."25 Charter, art. X, § 1007(c)(1). Moreover, the Board controls key aspects of the bidding process, since bids are "to be submitted, opened and considered in accordance with rules and regulations approved by the board." Id. The Board also has total discretion "[t]o reject any or all bids submitted to it for a specific purpose" if, in its judgment, "the public interest will be best served thereby." Id. § 1007(c)(3). Although the Commissioner of Public Safety has, through the Director of Communications, responsibility for the "procurement, installation, and proper operation" of "all municipal radio, television, teletype and other associated equipment," id. at § 1001(c), this procurement function is constrained by the Board of Contract's control over the bidding process. The Department of Public Safety can, through the Director of Communications, While the Board's members include the Commissioner of Public Safety, its total membership also includes the Mayor and ten other departmental heads and senior city officials. It does not include the Director of Communications. Charter, art. X, § 1007. Moreover, the Mayor has general authority "[t]o supervise, direct and control the activities of all departments and agencies of city government." Id. art. III, § 302(a). influence the general substantive parameters of an RFP in these areas, but it cannot, by law, control which vendor ultimately receives the award. The Board of Contract and Supply, not Vieira, was also responsible in practice for all of the relevant decisions involved in awarding Expanets the bid to install its telephone system, including Total Recall, in the Complex. Uncontested testimony at trial showed that Vieira was one voice among many during the planning meetings and did not single-handedly set the desired parameters for the Complex phone system himself. Although Vieira used those parameters to create the RFP he sent to Alan Sepe, the Acting Director of the Department of Public Property, Vieira did not have final policymaking authority over the RFP. It was only adopted after the Board of Contract and Supply reviewed it and voted on it, and Vieira was not a member of that body. Nor did Vieira have final policymaking authority over the decision to award Expanets the bid. The RFP itself clearly stated that the Board of Contract and Supply had decisionmaking authority and that the ordinary practice was to award the bid to the "lowest responsible bidder" who met the RFP's specifications. Expanets only received the bid after the Board of Contract and Supply, pursuant to the City Charter, voted to do so. Plaintiffs claim, and the district court held, that Vieira was nonetheless the final policymaker because he recommended to the Commissioner of Public Safety and Sepe that Expanets' bid be accepted and both of them deferentially reviewed his recommendation. That conclusion is contrary to the relevant law. "Simply going along with discretionary decisions made by one's subordinates . . . is not a delegation to them of the authority to make policy." Praprotnik, 485 U.S. at 130. It also ignores the fact that the Board of Contract and Supply ultimately voted to award the bid, and there is no argument that the board did not independently review the merits of Expanets' proposal. As a matter of state law and in practice, Vieira also lacked final policymaking authority over the implementation of the Total Recall system. The Charter makes clear that the Director of Communications's authority is subsidiary to the Commissioner of Public Safety, who heads the Department of Communications and is ultimately "responsible, through the [D]irector of [C]ommunications, for the complete operation of the department . . . and for the design, procurement, installation and proper operation of all the equipment under its jurisdiction." Charter, art. X, § 1001(c)(2). "[W]hen a subordinate's decision is subject to review by the municipality's authorized policymakers, [the policymakers] have retained the authority to measure the official's conduct for conformance with their polices." Praprotnik, 485 U.S. at 127. Vieira also did not have final policymaking authority over the implementation of the Total Recall system in practice. All indications suggest the Total Recall system was activated by Expanets technicians in May 2002 immediately after its installation and pursuant to Expanets' contract with the City. Vieira was also not a final policymaker with respect to the decision to shut the system down. Rather, Police Chief Esserman, when he learned of the system, unilaterally ordered it shut down, apparently without having to consult with Vieira. There was also no custom or practice for which the City could be held liable, and to the extent the jury's finding of liability rested on that theory, a reasonable person could not have reached that conclusion. Visible Sys. Corp. v. Unisys Corp., 551 F.3d 65, 71 (1st Cir. 2009). To find municipal liability, we have required that the custom or practice "be so well-settled and widespread that the policy making officials of the municipality can be said to have either actual or constructive knowledge of it yet did nothing to end it." Bisbal-Ramos v. City of Mayagüez, 467 F.3d 16, 24 (1st Cir. 2006) (quoting Silva v. Worden, 130 F.3d 26, 31 (1st Cir. 1997)) (internal quotation marks omitted). The recordings in this case were neither so widespread nor so well-settled as to be a custom or practice. They occurred at a single building and for a period of eight months. This was different from the City's otherwise-established practice of not recording calls except pursuant to the policy at the EOC. Nor did plaintiffs show the City's policymaking officials had constructive knowledge of it and yet did nothing to end it. Indeed, when Fire Chief Lanzi learned of it, he had his own telephone lines removed, while Police Chief Esserman, on learning of the recordings, had the Total Recall system shut down. Plaintiffs presented no evidence any other officials knew of the recordings. Nor on appeal do plaintiffs point to any evidence presented that showed a policy or custom was established. The City is entitled to judgment on the Fourth Amendment claims. B. State Constitutional Claims The district court treated the defendants' liability under the state constitutional claims as identical to their liability under the federal constitutional claims. The plaintiffs did not object at trial and do not challenge this approach on appeal. We hold they have waived any objection to disposing of their state law claims based on the disposition of their federal constitutional claims, and judgment must be entered for all defendants26 on the state constitutional claims as well. Because we have granted qualified immunity under § 1983, there is no reason to believe the defendants are not also entitled to qualified immunity on state constitutional claims. Rhode Island law recognizes qualified immunity. Ensey v. Culhane, 727 A.2d 687, 690-91 (R.I. 1999); see also Hatch v. Town of Middletown, 311 F.3d 83, 90 (1st Cir. 2003). C. Pendent State Statutory Claims Plaintiffs also prevailed at trial on their state law claims for violation of the state wiretap and privacy acts. Defendants appeal. We start with the City's claim of error of law, that it cannot be sued under the state wiretap act because it is not a "person" within the meaning of the act. As a result, the City argues, the state wiretap claims against the City should have been dismissed and no damages could be awarded against it. 1. The City Is Not a "Person" Who May Be Sued Under the Rhode Island Wiretap Act The district court rejected on summary judgment the claim that the City was not within the scope of the federal wiretap act, Walden, 495 F. Supp. 2d at 265-67, but did not address the City's separate claim that it was not a defendant within the state wiretap act, id. at 271. The City properly preserved the claim.27 This is a pure issue of law, which we review de novo. Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38, 45 (1st Cir. 2009). We hold that the City is not a proper defendant within the scope of the state wiretap act. Plaintiffs argue that the City did not preserve the claim at the summary judgment stage or later. Our own review of the City's summary judgment motion shows that the City plainly presented the argument that the state wiretap law did not allow suit against a municipality because of a difference in wording in the state and federal acts. Further, the City did raise on its Rule 50 motion the argument that it was entitled to judgment on both of the federal claims and all of the state claims. The City argues that while the Rhode Island wiretap statute generally mirrors the federal statute, the federal act applies to a broader range of possible defendants than state law does. The federal statute makes any "person" who violates it civilly liable and was amended by the Electronic Communications Privacy Act of 1986 ("ECPA"), Pub. L. No. 99-508 § 103 (1986), to also make any "entity" liable. 18 U.S.C. § 2520(a). The Rhode Island statute instead permits suit only against a "person" and does not include the term "entity." R.I. Gen. Laws §§ 11-35-21(a), 12-5.1-13(a). The City argues that it cannot be sued under the state law because it is not a "person" under the Rhode Island wiretap act. We apply Rhode Island's rules of statutory construction to interpret this statute. Under these rules, unambiguous language is given its "plain and ordinary meaning," Castelli v. Carcieri, 961 A.2d 277, 284 (R.I. 2008), and for ambiguous text, we look at the "statute in its entirety to determine the intent and purpose of the legislature," Harvard Pilgrim Health Care of New England, Inc. v. Rossi, 847 A.2d 286, 290 (R.I. 2004). Rhode Island's law also dictates that we interpret the state wiretap act by analogy to interpretations of the federal wiretap act, both before and after the 1986 amendment that added the term "entity." See State v. Oster, 922 A.2d 151, 162 (R.I. 2007) (citing federal court interpretations the federal wiretap act to interpret parallel language in the state provision); State v. O'Brien, 774 A.2d 89, 94-95 (R.I. 2001) (same). The Rhode Island wiretap act by its terms only provides for suits against "any person who intercepts, discloses, or uses the communications" at issue. R.I. Gen. Laws § 12-5.1-13(a). Further, recovery is "from that person." Id.28 The statute in turn defines a "person" as any "individual, partnership, association, joint stock company, trust, or corporation, whether or not any of the foregoing is an officer, agent, or employee of the United States, a state, or a political subdivision of a state." R.I. Gen. Laws § 12-5.1-1(11). This language makes clear that only "officer[s], agent[s], or employee[s]" of municipal governments are "persons" who may be sued, not municipalities themselves. Id. Further, the wiretap act's unique definition of the term "person" shows the state legislature did not intend the act to provide for suit against municipalities. Unlike the wiretap act definition, Rhode Island's general definition of "person" for purposes of statutory construction "extends to and includes co-partnerships and bodies corporate and politic," Id. § 43-3-6, which does include the City of Providence, see Charter, Art. I, § The other section plaintiffs sued under is a criminal provision that incorporates a requirement that the recordings be willful and also applies only to "persons." R.I. Gen. Laws § 11-35-21(a). Rhode Island courts use the definitions in § 12- 5.1-1 when interpreting § 11-35-21. See O'Brien, 774 A.2d at 94. 102. Had Rhode Island's legislature wished the act to cover municipalities, it could have ensured it did so specifically by including the phrase "bodies corporate and politic," or using the State's general definition of the word "person." Our conclusion that municipalities are not "persons" under the state act is reinforced by the material differences in language between the state and federal wiretap acts regarding who can be held liable. The equivalent provision in the federal wiretap statute, 18 U.S.C. § 2520(a), was amended by the ECPA to add to the statutory definition of those who could be held liable the term "or entity." Pub. L. No. 99-508 § 103 (1986). This amendment, courts agree, is the only possible basis for holding municipalities liable under the federal act and even so, federal courts disagree as to whether even the term "entity" includes a municipality. Compare Adams, 250 F.3d at 985; Williams v. City of Tulsa, 393 F. Supp. 2d 1124, 1132 (N.D. Okla. 2005), with Abbott, 205 F.3d at 980; Anderson v. City of Columbus, 374 F. Supp. 2d 1240, 1244-45 (M.D. Ga. 2005). And it is clear that Congress did not intend to define the term "person" to include municipalities in the federal statute.29 Abbott, 205 F.3d at 980; cf. Adams, 250 F.3d The federal statute defines a "person" as "any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation." 18 U.S.C. § 2510(6). Although this language varies slightly from that of § 12-5.1-1(11), we conclude that both clearly exclude municipalities from the definition of persons. at 985. This again indicates that the Rhode Island statute does not permit a cause of action against the City. The City of Providence is entitled to dismissal of the claims against it under the state wiretap law. Because plaintiffs elected to pursue remedies under the state law to the exclusion of federal law, all claims under the state wiretap act against the City must be dismissed. 2. Trial Error from the Jury Verdict Forms Affecting All Remaining Claims This leaves the jury verdict finding Vieira alone liable on the state wiretap claims. Plaintiffs were awarded $526,700 in statutory damages under § 12-5.1-13 and $1 each in nominal damages under § 11-35-21. Also remaining is the verdict against all three defendants, for which each plaintiff received $1 in nominal damages. How we resolve these issues on appeal affects the award of attorney's fees against the defendants. Defendants argue that the two jury verdict forms were improper because they did not require the jury to make separate findings as to each plaintiff against each defendant for the state wiretap act and the state privacy act claims.30 Defendants preserved this issue with timely objections at trial. Although the same critique applies to the verdict forms for the constitutional claims, our earlier findings on qualified immunity and municipal liability make it unnecessary for us to reach that issue. "A verdict form must be 'reasonably capable of an interpretation that would allow the jury to address all factual issues essential to judgment.'" Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121, 134 (1st Cir. 2004) (quoting Sheek v. Asia Badger, Inc., 235 F.3d 687, 699 (1st Cir. 2000)). We examine the verdict forms, along with the court's jury instructions, "to determine whether the issues were fairly presented to the jury." Id.; Sheek, 235 F.3d at 699. Our review is de novo. Sanchez-Lopez, 375 F.3d at 134-35. Plaintiffs' claims under the state wiretap and privacy acts, as instructed to the jury, required individual findings with respect to each plaintiff against each defendant. The jury verdict forms repeatedly failed to differentiate between the plaintiffs on various counts, forcing the jury to choose between finding for all or none of the plaintiffs and relieving individual plaintiffs of the burden of proving their own cases. We hold that this prevented the wiretap and privacy claims from being fairly presented to the jury. a. Plaintiffs' Claims Had to be Proved Individually We assume arguendo that the instructions, as worded, adequately presented the law and instead focus on what those instructions required plaintiffs to prove. Under the state wiretap act claims, plaintiffs had to show that their telephone calls had been intercepted, R.I. Gen. Laws §§ 11-35-21, 12-5.1-13, and that defendants had done so intentionally.31 Thus, the defendants could not be liable to any plaintiff whose calls they did not intentionally record. Cf. Reynolds v. Spears, 93 F.3d 428, 432 (8th Cir. 1996) (affirming summary judgment for defendants on a similar provision of the federal wiretap act, 18 U.S.C. § 2520(a), when plaintiffs relied solely on a jury finding for a co-plaintiff to show their calls were intercepted and provided no evidence of their own). Defendants also had defenses that the jury had to consider. The first, which the court only allowed for one of the two wiretap claims, under § 12-5.1-13, was a law enforcement defense. Under the wiretap act, defendants had a defense for intercepted calls on "[a]ny telephone . . . being used by . . . an investigative or law enforcement officer in the ordinary course of his or her duties." R.I. Gen. Laws § 12-5.1-1(7)(i). As instructed by the court, this required a finding as to whether defendants were law enforcement officers and whether or not the calls were recorded in the ordinary course of duties.32 If nothing Plaintiffs raised state wiretap claims based on two different statutory provisions. Count Four was under R.I. Gen. Laws § 11-35-21, and Count Six was under R.I. Gen. Laws § 12-5.1-13. The court instructed the jury separately on these claims, but it provided the jury with forms that did not distinguish between the two claims and addressed them simultaneously. Although we do not ultimately decide defendant Vieira's argument that the court incorrectly applied the law enforcement exception to the state wiretap act, we question the court's else, the jury would have had to determine whether each defendant was a law enforcement officer and whether the individual plaintiffs' telephone calls were recorded in the ordinary course of law enforcement duties. Cf. Amati, 176 F.3d at 955 (considering whether recordings on a specific police department private line fell within the equivalent federal law enforcement exception).33 Finally, for the wiretap claim under R.I. Gen. Laws § 12- 5.1-13, plaintiffs had to individually show the number of days that their calls had actually been recorded for purposes of calculating statutory damages. See id. § 12-5.1-13(a)(1). On the privacy act claim, each plaintiff had to establish both that he or she had an objectively reasonable expectation of, or entitlement to, his or her calls being private, id. § 9-1- 28.1(1)(i), and that defendants's recording of calls actually violated that expectation, id. § 9-1-28.1(b). Especially because the evidence at trial was that plaintiffs used their phones for varying purposes and under varying circumstances, both of these recitation of the law, which could exclude government employees responsible for operating otherwise legal recording equipment simply because they are not police officers. Cf. United States v. Lewis, 406 F.3d 11, 16-18 (1st Cir. 2005) (finding a state telephone system administrator at a prison to be a law enforcement officer). The second defense presented to the jury was that defendants could not be liable for the recording of calls by any plaintiffs who consented to the recordings. This defense required the jury to decide whether any of the individual plaintiffs had consented. The court required the jury to make individual findings on this defense and so we do not address it further. elements required individualized findings. Cf. O'Connor, 480 U.S. at 718 (holding under the analogous Fourth Amendment right to privacy that "whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis"); Vega-Rodriguez v. P.R. Tel. Co., 110 F.3d 174, 179 (1st Cir. 1997). b. Lack of Individuation in the Verdict Forms Prevented the Jury from Making Essential Findings The jurors were given two verdict forms, one for the 116 Walden firefighter plaintiffs and one for the nineteen Chmura police plaintiffs. The forms addressed the state wiretap and privacy act claims similarly. For the state wiretap act claims the verdict forms asked the jury whether each defendant--Vieira, Lennon, and the City-- "sought to intercept or procured another to intercept any of Plaintiffs' telephone calls made or received at the Providence Public Safety Complex." (Emphasis added). The forms allowed the jury to find for each defendant or for all plaintiffs against each defendant. The verdict forms then presented the defenses. For the law enforcement defense, the forms only gave the jury the choice of finding for all plaintiffs or for all defendants and made no distinction as to types of calls. The forms next instructed the jury, if it found for plaintiffs on the previous questions, to determine how many days between May 23, 2002, and February 10, 2003, each plaintiff had established by a preponderance of the evidence that he or she had telephone calls to or from the Complex that were recorded. Each verdict form then listed plaintiffs' names with a space to provide a number of days. The verdict forms for the privacy act count only asked the jury to find either individually for each defendant or for all plaintiffs against each defendant. These verdict forms did not fairly present the issues to the jury because they deprived the jury of the ability to differentiate between plaintiffs on nearly every element. Instead, the forms assumed that the only meaningful distinction among the plaintiffs was whether they were part of the Walden firefighter or Chmura police groups, requiring the jury to find for all members of the groups, or for none of them. While findings for all plaintiffs might be permitted in a class action, this case was not a class action and there were no findings as to commonality of claims. See Fed. R. Civ. P. 23(b)(3) (allowing plaintiffs to proceed as a class "if the court finds that the questions of law or fact common to class members predominate"). Under the wiretap act, the forms required the jury to find for all plaintiffs in each group if "any" of them had their calls intentionally recorded, even if the jury found that only some of the plaintiffs met their burden of showing their calls were intentionally recorded. Thus, the jury found the defendants liable to all 116 Walden plaintiffs despite the jury's apparently inconsistent factual finding that seventy-one of them had failed to prove that their calls were recorded on any days.34 Further, the forms prevented the jury from making essential findings on defendants' law enforcement defense, even though defendants played different roles in the recordings and plaintiffs' testimony made clear that their use of the telephone system varied.35 The jury could very well have found that some lines or calls were being recorded in the ordinary course of law enforcement but that others were not. The all-or-nothing structure of the verdict forms made it impossible for the jury to make this distinction. On the privacy act, the lack of differentiation in the forms prevented the claim from being fairly presented to the jury because the forms forced the jury to treat plaintiffs in each group as having the same expectation of privacy. The evidence at trial showed that plaintiffs in each group used their phones to make The forms similarly required the jury to make a finding of the number of days on which calls were recorded for plaintiffs even if plaintiffs failed to prove that the recording of their calls was intentional, as may well have been the case among firefighters who made calls on the personal line. Among the Chmura plaintiffs were police officers who used their telephones for police work, civilian Police Department employees who answered calls from complainants, and employees who only made calls on administrative matters. Among the Walden plaintiffs, there were internal calls between fire stations that directly implicated the functioning of the Department and calls on the firefighters' personal line. widely differing types of calls under differing circumstances, and the jury could have found that their expectations of privacy differed accordingly.36 Further, the jury's inability to make individual findings, as under the wiretap claims, forced the jury to find for all plaintiffs even if not all of them proved their calls were recorded, as was the case with seventy-one of the Walden plaintiffs. The errors were not harmless.37 The error with the forms affects both the awards against Vieira under the state wiretap act and the award against all three defendants under the privacy act; it requires a remand for a new trial on both.38 The Chmura plaintiffs made and received calls on a number of lines for a number of purposes, including as part of investigations, answering questions from family members of suspects, addressing human resources concerns, or simply making personal calls. The Walden plaintiffs had similar differences. We realize there were 135 individual plaintiffs and that construction of an appropriate form would take some effort. But plaintiffs' claim such a form would take 1,000 pages is simply untrue. Lennon argues that the jury finding in Count Five, that she violated the privacy act, R.I. Gen. Laws § 9-1-28.1, was inconsistent with the verdict that she was not liable under Counts Four and Six, under the state wiretap act. Even assuming Lennon preserved the claim, the remedy for inconsistent civil verdicts that cannot be reconciled is a new trial, see Davignon v. Hodgson, 524 F.3d 91, 109 (1st Cir. 2008), and she is entitled to a new trial on other grounds. We do not reach Lennon's claim on the sufficiency of the evidence. D. Further Proceedings There are other claims that we need not address, including defendants' claims of error in the court's jury instructions and evidentiary rulings. Our disposition moots the plaintiffs' appeal. Because plaintiffs are no longer prevailing parties, the award of attorney's fees is vacated. The defendants' appeal from the amount of the award is moot. On remand the district court should dismiss all federal claims,39 the state constitutional claims, and the state wiretap claims against the City with prejudice. The court should dismiss without prejudice the state wiretap claims against Vieira, and the privacy act claim against the two individuals and the City, so the claims can be brought in state court, which is the preferred forum for any interpretation of state law issues remaining. Accordingly we vacate the jury verdicts and direct entry of judgment of dismissal with prejudice of all federal claims and of the state wiretap claim against Lennon. We direct entry of dismissal without prejudice to proceedings in the state courts on the state wiretap claims against Vieira and the state privacy act The dismissal of the federal wiretap act claims was based on an election of remedies. The parties have not briefed the issue of whether the federal wiretap claim can be reinstated on remand given the basis for the dismissal was the election of remedies. However, the election of remedies chosen by the plaintiffs was to their advantage, and there is no reason to think even if the law gave them a choice, that they would choose otherwise. claims against all three defendants. The award of attorney's fees is vacated. No costs are awarded on appeal. So ordered.

United States Court of Appeals For the First Circuit No. 08-2068 ERICK CARRERAS, Plaintiff, Appellant, v. SAJO, GARCÍA & PARTNERS, Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Salvador E. Casellas, U.S. District Judge] Before Lynch, Chief Judge, and Gajarsa* and Lipez, Circuit Judges. Victor P. Miranda-Corrada for appellant. María Teresa Juan Urrutia for appellee. February 23, 2010 * Of the Federal Circuit, sitting by designation. LIPEZ, Circuit Judge. In this workplace discrimination and retaliation suit, the district court ruled that plaintiff, Erick Carreras, failed to comply with Puerto Rico's anti-ferret rule, D.P.R.R. 56(c). On this basis, it deemed as admitted portions of defendant Sajo, García & Partners' ("SGP") statement of uncontested facts and granted summary judgment to defendant. Carreras argues on appeal that the district court improperly invoked Local Rule 56 and erred in rejecting his claims under the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 ("ADA"), and various Puerto Rico anti-discrimination laws. We disagree and affirm. I. We begin with a recitation of the basic facts underlying the dispute, derived from the facts explicitly admitted by Carreras. SGP, a marketing agency, hired Carreras as an Art Director in December 2003. Carreras' responsibilities included preparing the creative art for products being marketed by SGP. In August 2004, Carreras and Sajo Ruíz, an SGP partner, exchanged heated emails about Carreras' alleged failure to complete work on time.1 Carreras has type II diabetes, which he controls by taking insulin every morning and evening. At the commencement of his Although Carreras characterizes Ruíz's email as a tantrum, he does not deny that it was sent and that he replied. employment with SGP, Carreras filled out a form on which he indicated that he had diabetes and was dependent on insulin. On October 21, 2004, Carreras emailed Ruíz informing him that he had worked late that evening and had been prevented from taking his insulin shot. Ruíz replied the next morning asking Carreras to clarify what had prevented him from taking his medicine and stating that there should be no obstacle to Carreras taking his treatment. In response, Carreras stated that he was prevented from administering his medicine because he had to stay late at the office.2 SGP terminated Carreras' employment on October 25, 2004. Carreras filed suit against SGP alleging that he had experienced discrimination based on his disability and retaliation for requesting a reasonable accommodation in violation of the ADA. 42 U.S.C. §§ 12101-12213. After discovery was complete, SGP moved for summary judgment and filed a separate Statement of Uncontested Facts in support of its motion. In response, Carreras submitted a document styled as "Plaintiff's Response and Objections to Defendant's Proposed Statement of Uncontested Facts." The district court found that statement to be defective under Puerto Rico Local Rule 56 because it failed to admit, qualify or deny certain facts SGP's personnel manual listed working hours as 9 a.m. to 6 p.m., but expressly stated that working hours are irregular in the advertising industry and that all employees must be available when necessary during and/or after normal hours. The only storage requirement for Carreras' insulin was refrigeration. SGP had a refrigerator available to employees at its offices. proposed by SGP, it did not contain a separate section for the new facts it sought to introduce, and it did not contain appropriate citation to the record to support denied facts. In accordance with the anti-ferret rule, the district court disregarded those portions of Carreras' opposition it found defective and deemed as admitted many of SGP's properly supported facts. See D.P.R.R. 56(e). With its recitation of the facts in its written opinion, the district court made clear the facts it deemed admitted. The court focused primarily on those facts pertaining to the effect, or lack thereof, of Carreras' diabetes on his work and daily life. In a footnote, the court explained that "the reason for [Carreras'] dismissal is in dispute. However, because it is immaterial for the resolution of this case, we will eschew any discussion in this regard." Hence, the court's recitation of "Uncontested Facts" in its opinion, where it sets forth the effect of its deeming analysis on the summary judgment record, does not focus on the retaliation claim. After making its deeming determination, the district court granted summary judgment to SGP based on Carreras' failure to create a genuine issue of material fact as to whether he is disabled within the meaning of the ADA. The court noted, however, that even if Carreras qualified as disabled, his arguments that SGP failed to accommodate his disability must fail because Carreras had neither requested nor been denied accommodation. For the same reason, the district court rejected Carreras' claim that he was retaliated against for making a request for reasonable accommodation. Carreras appeals, contending that his statement complied with the local rule and that the district court erred in granting summary judgment based on its deeming order. II. Carreras argues that the district court improperly applied Local Rule 56(c), the District of Puerto Rico's anti-ferret rule. The rule states, in relevant part: A party opposing a motion for summary judgment shall submit with its opposition a separate, short, and concise statement of material facts. The opposing statement shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation as required by this rule. The opposing statement may contain in a separate section additional facts, set forth in separate numbered paragraphs and supported by a record citation as required by subsection (e) of this rule. D.P.R.R. 56(c). Subsection (e) of the rule states that citations must be "to the specific page or paragraph of identified record material supporting the assertion." D.P.R.R. 56(e). Failure to comply with the anti-ferret rule permits the court to "disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment." D.P.R.R. 56(e). We review the district court's application of a local rule for abuse of discretion. See Sánchez-Figueroa v. Banco Popular de Puerto Rico, 527 F.3d 209, 213 (1st Cir. 2008). While a district court may choose not to invoke the rule in response to every violation, we have consistently upheld the enforcement of the rule, and we treat the district court's decision to apply it with deference. See CMI Capital Market Inv. v. González-Toro, 520 F.3d 58, 62-63 (1st Cir. 2008); Mariani-Colón v. Dep't of Homeland Sec., 511 F.3d 216, 219 (1st Cir. 2007); Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007). The rule is intended "to relieve the district court of any responsibility to ferret through the record to discern whether any material fact is genuinely in dispute." CMI Capital Market, 520 F.3d at 62. It prevents parties from "improperly shift[ing] the burden of organizing the evidence presented in a given case to the district court." Mariani-Colón, 511 F.3d at 219. As such, the rule is important to the functioning of the district court. Here, Carreras did submit a response to SGP's Statement of Uncontested Facts. Although he argues that his response properly accepted or denied every fact with appropriate citation, Carreras properly denied only certain of SGP's facts. Accordingly, the district court stated that it would "partially disregard" Carreras' opposing statement of unconstested facts.3 The record Carreras argues that, despite its assertion to the contrary, the district court rejected his entire response to SGP's Statement of Uncontested Facts. We disagree. In its recitation of the facts, shows that in many instances Carreras' response manifestly ignores the express requirements of the anti-ferret rule. Most blatantly, in at least two instances, Carreras' opposition fails to "accept, qualify or deny" the fact listed by his opponent. Instead, it explains discursively why Carreras believes the fact to be irrelevant. Furthermore, Carreras' opposition frequently fails to support denied facts with appropriate citation to the record. Finally, Carreras' response includes argumentation asserting numerous additional facts. Those facts are often unsupported by record citations, they are not numbered, and they are not "contain[ed] in a separate section." Carreras' argument that the rule does not require additional facts to be adduced in a separate section is unavailing. The plain language of the rule specifically requires that additional facts be put forward in a "separate section." D.P.R.R. 56(c). In light of these substantial failings, the district court acted well within its discretion when it deemed as admitted a portion of SGP's properly supported facts. set forth in a portion of the opinion entitled "Uncontested Facts," the district court made clear which facts it considered to be uncontested with citations to the record signifying that certain of those facts were derived from SGP's Statement of Uncontested Facts. As noted, the court's focus in this recitation was on Carreras' workplace discrimination claim, not his retaliation claim. The district court was under no obligation to go beyond the relevant facts, as it saw them, in order to catalogue the sufficiency of Carreras' opposition to every one of SGP's proposed facts. III. To survive summary judgment on his discrimination and retaliation claims, Carreras must establish a genuine issue of material fact as to whether he experienced disability discrimination or was retaliated-against within the meaning of the ADA. Fed. R. Civ. P. 56(c).4 Our review of the district court's grant of summary judgment is de novo. Cabán-Hernández, 486 F.3d at 8. We "draw all reasonable inferences in the light most favorable to the nonmovant." Id. We will not, however, "draw unreasonable inferences or credit bald assertions, empty conclusions, [or] rank conjecture." Id. (emphasis in original). A. Disability Discrimination under the ADA The district court found that Carreras failed to establish a prima facie case of discrimination under the ADA because he could not establish that he is disabled within the meaning of the statute. Under the ADA, a disability is defined as: (a) a physical or mental impairment which substantially limits one or more of an individual's major life activities; (b) a record of such impairment; or (c) being regarded as having such an impairment. 42 U.S.C. § 12102(1).5 We have employed a three-part "A 'genuine' issue is one that could be resolved in favor of either party, and a 'material fact' is one that has the potential of affecting the outcome of the case." Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004). Although Carreras states on appeal that he was regarded as having an impairment, he did not assert this argument below and we deem it test to determine whether an individual qualifies as disabled under the first definition, which is at issue here. First, does the plaintiff suffer a mental or physical impairment? Second, does the life activity limited by the impairment qualify as "major"? And finally, does the impairment, in fact, substantially limit that major life activity? See Calero-Cerezo, 355 F.3d at 20. The burden is on the plaintiff to establish these three elements. Id. Carreras contends that he is disabled because his diabetes is a physical impairment that substantially limits his ability to eat and see, two major life activities. We must determine the existence of a disability "on a case-by-case basis." Albertson's, Inc., v. Kirkingburg, 527 U.S. 555, 566 (1999). Thus, we must assess the effect of Carreras' alleged impairment on his life, rather than relying on his diagnoses alone, in order to determine whether he is disabled within the meaning of the ADA. Id. We agree with Carreras that insulin-dependant diabetes is a physical impairment. See, e.g., Rohr v. Salt River Project Agric. Improvements and Power Dist., 555 F.3d 850, 858 (9th Cir. 2009) ("Diabetes is a 'physical impairment' because it affects the digestive, hemic and endocrine systems. . . to be waived. Even if Carreras had not waived this argument below, it would fail here because his brief contains no support for the claim. As we have explained on many occasions, "'[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.'" United States v. Rivera Calderon, 578 F.3d 78, 94 n.4 (1st Cir. 2009) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). ."). It is similarly beyond dispute that eating and seeing qualify as "major life activities." See, e.g., Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 21 (1st Cir. 2002) (major life activities include "functions such as caring for oneself, . . . seeing"); Calero-Cerezo, 355 F.3d at 21 (recognizing eating as a major life activity for purposes of the ADA). We cannot agree, however, that on the record before us there is any genuine issue of material fact as to whether Carreras' diabetes "substantially limited" his ability to eat or to see. "The ADA does not define 'substantially limits,' but 'substantially' suggests 'considerable' or 'specified to a large degree.'" Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999), superseded by statute on other grounds, ADA Amendments Act of 2008, Pub. L. No. 110-325, 172 Stat. 3553 (2008). To be substantially limiting, an impairment must cause a person to be "unable to perform a major life activity that an average person in the general population can perform," or to be significantly restricted in the performance of a particular major life activity as compared to an average person in the general population. 29 C.F.R. § 1630.2(j)(1); see also Carroll v. Xerox Corp., 294 F.3d 231, 239 (1st Cir. 2002).6 In assessing in this case the degree of In considering whether a litigant's physical impairment is substantially limiting for purposes of the ADA, the inquiry is not confined to limitations that might occur in the workplace. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 200-01 (2002), superseded by statute on other grounds, ADA Amendments Act limitation occasioned by a physical impairment, we also take into consideration "the effectiveness, side effects and burdens of a plaintiff's mitigating measures," in this case Carreras' twice- daily insulin shots. Rohr, 555 F.3d at 859 (citing Sutton, 482 U.S. at 482-84).7 Our inquiry is "fact-intensive and individualized." Sepulveda v. Glickman, 167 F. Supp. 2d 186, 191 (D.P.R. 2001); Sutton, 527 U.S. at 483. 1. Carreras' claim that his diabetes substantially limits his vision The facts of record fail to create a genuine issue of material fact as to whether Carreras' vision is substantially limited by his diabetes. Carreras asserts that high blood sugar levels cause his vision to blur, constituting a substantial limitation under the ADA. He does not contest, however, that his of 2008, Pub. L. No. 110-325, 172 Stat. 3553 (2008). Rather, courts must focus on whether a major life activity is substantially impaired in the course of a litigant's daily life. Id. at 200-02. Carreras has made no argument about the effect of the ADA Amendments Act of 2008 on his claim. See Pub. L. No. 110-325, § 2(a)(4)-(6), 122 Stat. 3553 (2008). Regardless, that law is not retroactive where, as here, the disputed activity occurred before its passage and Congress expressed no clear intent to make the statute retroactive. We have recently suggested as much, see Thornton v. United Parcel Serv., Inc., 587 F.3d 27, 34 n.3 (1st Cir. 2009), and all circuits to consider the issue to date have so held. See Becerril v. Pima County Assessor's Office, 587 F.3d 1162, 1164 (9th Cir. 2009) (per curiam); Fredericksen v. United Parcel Serv., 581 F.3d 516, 521 n.1 (7th Cir. 2009); Lytes v. DC Water & Sewer Auth., 572 F.3d 936, 940 (D.C. Cir. 2009); Milholland v. Summer County Bd. of Educ., 569 F.3d 562 (6th Cir. 2009); E.E.O.C. v. Agro Distribution, LLC, 555 F.3d 462, 469 n.8 (5th Cir. 2009). latest blurred vision episode occurred a year before he was deposed in this case. Nor does he set forth facts that would explain how such infrequent episodes of blurred vision cause him to be significantly restricted in his ability to see. "To qualify as disabling, a limitation . . . must be permanent or long term, and considerable compared to the [seeing] most people do in their daily lives." Fredricksen v. United Parcel Serv., Co., 581 F.3d 516, 522 (7th Cir. 2009) (citation and quotation marks omitted). The facts show that Carreras' ability to see does not differ in a significant way from the ability to see of the general population. Cf. Albertson's, Inc., v. Kirkingburg, 527 U.S. 555, 565-67 (1999) (finding that monocular individuals must "prove a disability by offering evidence that the extent of the limitation in terms of their own experience, as in loss of depth perception and visual field, is substantial"); Kelly v. Drexel Univ., 94 F.3d 102, 106, 108 (3d Cir. 1996) (finding plaintiff's limp and inability to walk more than a mile or jog did not "substantially limit him in the relevant major life activity, walking"). It is undisputed that Carreras drives his son to school and himself to work every morning, drives home again in the evening, reads as part of his current employment, and performs other routine daily activities that presumably would not be possible if his vision were substantially impaired. See Scheerer v. Potter, 443 F.3d 916, 920 (7th Cir. 2006) (finding diabetic with "intermittent episodes of significant neuropathy" not substantially limited in his ability to walk because "he nonetheless was generally able to walk and stand during the pertinent time period"). As described in the record, Carreras' diabetes does not limit his sight to a degree that would differentiate him from the rest of the population. 2. Carreras' claim that his diabetes substantially limits his eating Carreras has also failed to raise a genuine issue of material fact as to whether his diabetes substantially limits his life activity of eating. It is undisputed that Carreras' diabetes requires certain adjustments to his diet. He avoids refined flours, drinks juice that is not artificially sweetened, and eats six meals a day. Proof that a medical condition "requires medication, a fixed meal schedule, [and] timely snack breaks," without more, does not amount to a "substantial limitation" under the ADA. Sepulveda, 167 F. Supp. 2d at 191 (quotation marks omitted). The analysis of when and under what conditions diabetes is considered a disability for ADA purposes "is a matter of degree." Id. at 190. We recognize that living with diabetes may result in a complex calculus balancing food intake, activity level, and the amount of insulin administered. An individual living with diabetes may or may not experience a substantial limitation in his or her ability to eat as contrasted with the rest of the population. See, e.g., Lawson v. CSX Transp., Inc., 245 F.3d 916, 924 (7th Cir. 2001) (describing substantial limitation on eating entailed by "perpetual, multi-faceted and demanding treatment regime" for plaintiff's diabetes (quotation marks omitted)); Rohr, 555 F.3d at 859 (finding genuine issue of material fact as to whether plaintiff had a substantial impairment in eating where he described controlling his disease through a combination of diet and insulin as "being on a chemical rollercoaster" (quotation marks omitted)). Many diabetics follow a "severely restrictive, and highly demanding" regimen to control their disease from which any deviation could result in a trip to the emergency room. See Fraser v. Goodale, 342 F.3d 1032, 1041 (9th Cir. 2003). The record indicates, however, that Carreras is at the far end of the spectrum from those plaintiffs who "cannot put a morsel of food" into their mouths "without carefully assessing whether it will tip [their] blood sugar[]" levels. Id.8 He does not dispute that his twice daily insulin shots successfully control his diabetes. Cf. Lawson, 245 F.3d at 924 (finding jury question as to whether diabetic could meet the substantial limitation threshold because "even when taking insulin, [plaintiff's] 'ability to regulate his blood sugar and metabolize food is difficult, erratic, and substantially limited'"). Indeed, the facts are that, by taking two insulin shots each day and eating fairly often, Carreras' complaint states that failure to take his insulin causes headaches and an undefined "loss of control of his condition." Carreras succeeds in preventing his diabetes from substantially limiting any of his major life activities. Compare Sutton, 527 U.S. at 488-89 (the wearing of corrective lenses to neutralize the effects of myopia negated substantial impairment of vision caused by plaintiff's disability) with Lawson, 245 F.3d at 925-26 (the need to coordinate "multifaceted factors" and to maintain "constant vigilance" over plaintiff's insulin regimen, coupled with the grave effects of noncompliance, distinguished plaintiff's case from Sutton). 3. Summary In summary, Carreras adduces no evidence that his diabetes causes more than minor limitations on his eating and seeing. See Rohr, 555 F.3d at 860 ("If daily insulin injections alone more or less stabilized [plaintiff's] blood sugar levels, such that any limitation imposed on his diet would be minor, then [his] major life activity of eating might not be substantially limited."). We therefore agree with the district court that Carreras has not raised a genuine issue of material fact as to whether he is disabled under the ADA. B. Retaliation under the ADA9 The retaliation provision in the ADA states that "[n]o person shall discriminate against any individual because such We note that the district court did not circumscribe the summary judgment record with a deeming order that applies to the retaliation claim. individual has opposed any act or practice made unlawful by this chapter." 42 U.S.C. § 12203(a). In order to establish a claim of retaliation under the ADA, a plaintiff must show (1) that he engaged in protected conduct, (2) that he suffered an adverse employment action, and (3) that there was a causal connection between the protected conduct and the adverse employment action. Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997).10 It is well established that "requesting an accommodation, without filing a formal charge or engaging in other specific behaviors listed in § 12203(a), is nonetheless behavior protected from an employer's retaliation." Wright v. CompUSA, Inc., 352 F.3d 472, 477-78 (1st Cir. 2003). Even if he fails to bring a successful disability claim under the ADA, a plaintiff may nonetheless assert a claim for retaliation. Soileau, 105 F.3d at 16. Once a plaintiff makes out a prima facie case of retaliation, "the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment decision." Wright, 352 F.3d at 478 (citation and quotation marks omitted); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) (establishing burden-shifting framework for Title VII cases). The In Soileau, we explained that because of the relatedness of the two statutes, “guidance on the proper analysis of [an] ADA retaliation claim is found in Title VII cases.” 105 F.3d at 16. We therefore refer to cases interpreting Title VII’s retaliation provision as well as those specifically addressing the ADA in conducting our analysis of Carreras’ retaliation claim. employer's burden is "one of production, not persuasion." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). If the employer produces a legitimate reason for its decision, "the burden under McDonnell Douglas shifts back to the plaintiff to show that the motive was discriminatory [or retaliatory]." Sabinson v. Trs. of Dartmouth Coll., 542 F.3d 1, 4 (1st Cir. 2008) (citing Reeves, 530 U.S. at 142-43); see also Kersey v. Wash. Metro. Area Transit Auth., 586 F.3d 13, 17 (D.C. Cir. 2009). Thus, the plaintiff bears the ultimate burden to create a plausible inference that the employer had a retaliatory motive. Benoit v. Technical Mfg. Corp., 331 F.3d 166, 174 (1st Cir. 2003). Carreras argues that his email to Ruíz and three other SGP supervisors sent on October 21, 2004, in which he informed them that he had to work late and had been prevented from taking his insulin shot, constituted a request for a reasonable accommodation under the ADA.11 He contends that his firing on October 25, 2004 was a direct result of that request for accommodation. He asserts that he is entitled to an inference of causal connection between the two events because his termination occurred in such close temporal proximity to his engaging in protected conduct. Carreras attempts to argue, in the alternative, that his email somehow constituted opposition to his employer's "interfer[ence] with the treatment for his diabetes," and that such opposition is protected conduct under the ADA. This claim is undeveloped and therefore waived. Even if it were not, our analysis of the retaliation claim would be the same. The district court found that Carreras had not requested an accommodation within the meaning of the ADA and granted summary judgment for SGP on the claim of retaliation. We affirm that judgment, albeit on different grounds. See Estades-Negroni v. Assocs. Corp. of North Am., 377 F.3d 58, 62 (1st Cir. 2004) ("We may affirm . . . on any grounds supported by the record."). For convenience we assume, without deciding, that Carreras has made his prima facie case. As noted, once an employee has made a prima facie showing of retaliation, the burden shifts to the employer to produce evidence that there was a legitimate, non- retaliatory motive for the adverse employment action. Wright, 352 F.3d at 478. SGP has met its burden. SGP claims that Carreras' deficient performance and insubordination prompted the SGP partners to terminate his employment. In support of its claim, SGP introduced the email from Ruíz to Carreras. That email, written in all capital letters and dated August 25, 2004, reads, in relevant part: IT IS VERY FRUSTRATING TO NOT BE ABLE TO COUNT ON YOUR PRESENCE WHEN I MOST NEED YOU. I CERTAINLY UNDERSTAND THE UNEXPECTED, BUT IT ALWAYS HAPPENS THAT WHEN I HAVE A MEETING WITH A CLIENT, I AM MISSING THE UNFINISHED MATERIAL; AND THE RESPONSIBLE PERSON HAS A PERSONAL ISSUE TO SOLVE.12 . . . From Carreras' response to this email, which is also in the record, we deduce that the "personal issue" to which Ruíz refers was Carreras' failure to come to work on time because he did not have his glasses. IN THE FUTURE, CALL ME DIRECTLY AT THE CELL PHONE OR AT MY HOME, AND I'LL COME AND FINISH THE ART EVEN IF I HAVE TO WORK ALL NIGHT. This documentary evidence showing Ruíz's dissatisfaction with Carreras meets SGP's burden of producing evidence that demonstrates its legitimate, non-retaliatory reason for firing Carreras. In the face of such evidence, Carreras bears the ultimate burden of establishing that SGP's stated reason for his dismissal is a pretext for retaliation. Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000). Carreras attempts to meet this burden by pointing to what he characterizes as inconsistencies in statements given by SGP managers about the reason he was fired, when the decision to fire him was made, and why there was a delay between the making of that decision and the firing. Specifically, Carreras cites deposition testimony showing that two of three members of SGP's management recalled that the decision to terminate Carreras was made in early-to-mid October, while another thought it was made at the end of September. Further, Carreras cites deposition testimony showing that one of those managers thought there was some delay between the decision and Carreras' firing because Carreras might improve his performance in that time, a second thought it was in order to hire a replacement, and a third thought the delay involved the need to complete legal paperwork. Finally, in its Joint Initial Scheduling Conference Memorandum, SGP said the reason for Carreras' firing was that his "output was not timely and up to the quality standards that defendant requested for him." By contrast, Carreras argues, Ruíz stated in his deposition that Carreras did good work, but that he was fired because of "coworker complaints and because he was not getting his job done in time."13 An employee can establish pretext "by showing weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons such that a factfinder could infer that the employer did not act for the asserted non-discriminatory reasons." Id. at 56 (quotation marks and citation omitted) (emphasis added). The minor inconsistencies cited by Carreras, however, do not undermine SGP's contention that his work performance was unsatisfactory. The slight differences in SGP's accounts of the timing of the decision or the reason for the short delay before its implementation do not permit a reasonable factfinder to infer that SGP did not fire Carreras because of his poor work performance. The evidence was consistent on the essential point, i.e., that Carreras' work was untimely and therefore unsatisfactory. Our laws are designed to ensure against discrimination and retaliation, not "inaccuracy by an employer." Rivas Rosado v. Radio Shack, Inc., 312 F.3d 532, 535 (1st Cir. 2002). Moreover, the dissatisfaction with Carreras was expressed Carreras also cites the lack of "written evidence" of any deficiencies in his performance during the months preceding his firing. In making this argument, Carreras overlooks the August 2004 email from Ruíz. in writing two months before he complained about having to work late and was fired. This is not a case in which the employer's "nondiscriminatory reasons were after-the-fact justifications, provided subsequent to the beginning of legal action." Santiago- Ramos, 217 F.3d at 56. In the final analysis, the only evidence in the summary judgment record supporting Carreras' retaliation claim is the temporal proximity between his October 21, 2004 email to Ruíz and his firing on October 25, 2004. Such temporal proximity may suffice for a prima facie case of retaliation. It does not satisfy Carreras' ultimate burden to establish that the true explanation for his firing was retaliation for engaging in protected conduct rather than poor performance. See Holloway, 275 F. App'x at 27 (suspicions raised by temporal proximity "can be authoritatively dispelled . . . by an employer's convincing account of the legitimate reasons for the firing"); see also Soileau, 105 F.3d at 16-17 (rejecting claim of retaliation based solely on temporal proximity). We affirm the entry of summary judgment for SGP on Carreras' retaliation claim under the ADA.14 Affirmed. We also affirm the district court's dismissal without prejudice of Carreras' claims arising under Puerto Rico law. See Penobscot Indian Nation v. Key Bank of Maine, 112 F.3d 538, 564 (1st Cir. 1997) ("[T]he decision to retain or disclaim jurisdiction over the remaining state law claims at issue in this case lies in the broad discretion of the district court.")

United States Court of Appeals For the First Circuit No. 09-1717 MURRAY GINTIS, ET. AL, Plaintiffs, Appellants, v. BOUCHARD TRANSPORTATION COMPANY, INC., ET. AL, Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Joseph L. Tauro, U.S. District Judge] Before Lynch, Chief Judge, Souter, Associate Justice,* and Selya, Circuit Judge. Jason B. Adkins, with whom John Peter Zavez, Noah Rosmarin, and Adkins, Kelston & Zavez, P.C. were on brief, for appellants. Ronald W. Zdrojeski, with whom Linda L. Morkan, Peter R. Knight, Robinson & Cole, LLP, Austin P. Olney, Robert G. Goulet, Christopher DeMayo, and Dewey & LeBoeuf, LLP were on brief, for appellees. February 23, 2010 * The Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. SOUTER, Associate Justice. A fuel barge owned and operated by defendants discharged a substantial amount of oil into the waters of Buzzards Bay in southeastern Massachusetts. Plaintiffs are owners of residential waterfront property on the bay who brought suit as individuals and as members of a proposed class. The district court denied class certification, but because the court did not subject the parties’ contentions to the plenary analysis that precedent requires, we vacate the judgment and remand. I Defendants (collectively, Bouchard) owned and operated both the tugboat Evening Tide and the fuel barge Bouchard No. 120 in tow across Buzzards Bay on April 27, 2003. The vessels strayed off course, and the barge struck a reef west of the clearly marked shipping channel, spilling as much as 98,000 barrels of fuel oil, and contaminating about 90 miles of the shore. The cleanup efforts were directed initially by a “Unified Command,” drawn from the United States Coast Guard, the Massachusetts Department of Environmental Protection and Bouchard, and later by a “Licensed Site Professional” (LSP) acting on behalf of Bouchard but under the supervision of the Commonwealth. The Command divided the shoreline into 149 segments, which Shoreline Cleanup Assessment Teams inspected and categorized according to the degree of oiling observed (clean, very light, light, moderate, heavy), the final tally being that 120 of the 149 segments were contaminated. The observations were collected along with information from other sources and used to produce maps identifying both the location of oil and the degree of oiling along the water’s edge. The LSP then used the same segment and degree-of-oiling references to evaluate the effectiveness of the cleanup efforts, which the LSP declared complete as to any segment that posed no significant risk to human health, safety, public welfare, or the environment. Those segments subject to very light or light oiling, and those including stretches of sandy beach subject to moderate oiling, were certified to pose no such risk in May 2004. The segments remaining (subject to moderate and heavy oiling) were, with two apparent exceptions, certified in August 2006,1 and the Commonwealth approved the LSP’s comprehensive assessment in October 2006. Plaintiffs sued in April 2006, raising three claims, one under Massachusetts General Law ch. 21E, § 5 (imposing strict liability for damage to real property on the owner of a vessel from which oil has spilled), a second for violation of Massachusetts General Law ch. 91, § 59A (providing double damages for the negligent discharge of petroleum), and a third for common law nuisance. Plaintiffs moved the district court to certify a class Despite the late date of certification, it appears that there were no documented closures of recreational areas following the spill. consisting of all persons having an interest in property damaged by the spill, save for shorefront residents of the town of Mattapoisett, who had been certified as their own class in a state court action against the defendants. The district court denied the motion for class certification upon making a finding under Federal Rule of Civil Procedure 23(b)(3) that common issues of law and fact do not predominate throughout the many potential claims of those who own, or own interests in, the bay shoreline. The judge noted that Bouchard has not conceded liability to any individual plaintiffs, that on the public nuisance claim plaintiffs must show both unreasonable interference and special injury to each claimant, and that plaintiffs must establish compensatory damages specific to each piece of property. The court relied heavily on the denial of class certification in Church v. General Electric Co., 138 F. Supp. 2d 169 (D. Mass. 2001), which had stressed that recovery for contamination of land downstream from a point of toxic discharge into a river would require parcel-by-parcel determinations as to injury and damages. II Decisions on class certification must rest on rigorous analysis, Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982); Smilow v. Sw Bell Mobile Sys., 323 F.3d 32, 38 (1st Cir. 2003), a standard that we think is not met by the district court’s opinion, which listed the elements to be proven by evidence that ultimately must speak to individual claims, and cited one precedent example among cases going different ways. Although the district court’s fact finding was too sparse to provide a prudent basis for us to say that a class should have been certified, we can say that plaintiffs presented substantial evidence of predominating common issues that called for a searching evaluation. To begin with, Church does not support a general rule that pollution torts charged against a single defendant escape class treatment on the ground that the requirements to show injury, cause and compensatory amount must be sustainable as to specific plaintiffs. If that were the law, the point of the Rule 23(b)(3) provision for class treatment would be blunted beyond utility, as every plaintiff must show specific entitlement to recovery, and still Rule 23 has to be read to authorize class actions in some set of cases where seriatim litigation would promise such modest recoveries as to be economically impracticable. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997); Smilow, 323 F.3d at 41. Thus the Supreme Court has said, “[e]ven mass tort cases arising from a common cause or disaster may, depending on the circumstances, satisfy the predominance requirement.” Amchem, 521 U.S. at 625. Although Church is one example of a single tortfeasor-multiple victim case in which certification was denied, others in the same genre go the other way. See, e.g., In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 241 F.R.D. 435, 447 & nn. 98-104 (S.D.N.Y. 2007) (collecting cases involving a single incident or cause of harm where certification was granted); see also Mejdrech v. Met-Coil Sys. Corp., 319 F.3d 910, 910-11 (7th Cir. 2003) (noting that case law on “the appropriateness of class action treatment in pollution cases” is divided and collecting cases). Whether Church’s reasoning survives Smilow is a question we need not address; here, it is enough to note such counter examples on the books, and the need for a trial court to come to grips with the actual alternatives of common versus individual litigation in the specific circumstances. When that is done on remand, the focus will be on the plaintiffs’ claim that common evidence will suffice to prove injury, causation and compensatory damages for at least a very substantial proportion of the claims that can be brought by putative class members. The proffer of common evidence goes beyond Bouchard’s admission of negligence in causing the spill, and includes the contamination and clean-up records that will be offered to show harm to individual ownership parcels. Bouchard, to be sure, says not so fast, for it denies that records of the spill and its aftermath are exact enough to serve as proof keyed to very many specific parcels, and the briefs before us contend strenuously over the evidentiary adequacy of the documentation in question. But Bouchard’s very opposition to the use of the arguably helpful records seems to promise that most or all cases, if individually litigated, would require repetitious resolution of an objection by Bouchard that is common to each one of them. Bouchard’s position, in other words, apparently guarantees a crucial common issue of great importance in the event of individual litigation. Bouchard has also made it abundantly clear that appraisal methodology will be another highly significant common issue. Plaintiffs have offered affidavits of their expert economist in support of a class-wide methodology for appraising damages depending on severity and duration of contamination. Bouchard’s effort to discredit this approach apparently portends a fight over admissibility and weight that would be identical in at least a high proportion of cases if tried individually. It is enough to say here that Bouchard’s arguments in this appeal appear to show that substantial and serious common issues would arise over and over in potential individual cases. Indeed, the only apparent mitigation of this prospect of duplicative litigation lies in the possibility that not many individual actions would be brought if separate actions were the only course, and this implicates the second condition for certification under paragraph (3), that class litigation be superior to a string of individual plaintiffs going alone. While superiority is a separate base to be touched, it is addressed by many of the considerations that inform a trial court’s judgment call about how clearly predominant the common issues must be. See Smilow, 323 F.3d at 41-42. Here there is evidence that may well go to the very reason for Rule 23(b)(3), mentioned before (i.e., to make room for claims that plaintiffs could never afford to press one by one), since the record contains one estimate that potential individual recoveries are probably in the $12 to $39 thousand range. Given the elements of injury, causation and compensation on which Bouchard intends to join issue, there is a real question whether the putative class members could sensibly litigate on their own for these amounts of damages, especially with the prospect of expert testimony required. Like predominance, the issue of superiority is thus a serious one in these circumstances and should be addressed thoroughly. We repeat that the district court’s spare treatment of the contending factual claims makes it inadvisable for us to decide here whether denying class certification (on damages alone or on all issues, see Fed. Rule Civ. Proc. 23(c)(4); Smilow, 323 F.3d at 40-41) would be an abuse of discretion. But ruling on certification without grappling in detail with the parties’ contending proffers and arguments stopped short of exercising informed discretion, and for that reason we vacate and remand for plenary consideration.2 Each party shall bear its own costs. Bouchard argues for affirmance on grounds of issue preclusion, invoking the judgment of the Massachusetts state court certifying a class limited to owners of property in Mattapoisett, So ordered. instead of the baywide class originally requested by the named plaintiffs. But that judgment has no preclusive effect against these plaintiffs, who were neither parties to the state action nor in privity with those who were. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984) (preclusive effect in federal court of state-court judgment is determined by state law); Sena v. Commonwealth, 629 N.E. 2d 986, 992 (Mass. 1994); Mass. Prop. Ins. Underwriting Ass’n v. Norrington, 481 N.E.2d 1364, 1366- 67 (Mass. 1985) (“A nonparty to a prior adjudication can be bound by it only where the nonparty’s interest was represented by a party to the prior litigation.” (internal quotation marks omitted)).

United States Court of Appeals For the First Circuit No. 08-1399 FRANCISCO ANTONIO CASTRO-SOTO, Petitioner, v. ERIC H. HOLDER, JR.*, Attorney General, Respondent. ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Boudin, John R. Gibson,** and Howard, Circuit Judges. Ramon M. Gonzalez, for petitioner. Gregory G. Katsas, Assistant Attorney General, Civil Division, John S. Hogan, Senior Litigation Counsel and Regan Hildebrand, Attorney, Office of Immigration Litigation, United States Department of Justice, for respondent. February 24, 2010 * Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for former Attorney General Michael B. Mukasey as the respondent herein. ** Of the Eighth Circuit, sitting by designation. HOWARD, Circuit Judge. Francisco Antonio Castro-Soto, a citizen and national of the Dominican Republic, petitions for review of the denial of his application for adjustment of status. The Board of Immigration Appeals ("BIA") determined that Castro- Soto was ineligible for adjustment of status because he entered the United States illegally and could not be "grandfathered" under Section 245(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255(i). After review, we agree and deny his petition. I. In 2005, Castro-Soto entered the United States illegally. He was subsequently detained and charged with removability. At his removal proceeding, Castro-Soto sought adjustment of status, "a process whereby certain aliens physically present in the United States may obtain permanent resident status . . . . without leaving the United States." De Acosta v. Holder, 556 F.3d 16, 18 (1st Cir. 2009). In requesting adjustment, Castro-Soto relied in part on an I-130 visa petition that his spouse had filed on his behalf in December 2004. Despite a statutory bar against adjustment by those who have entered the country illegally, Castro-Soto asserted that the visa petition could support adjustment of his status, because he was "grandfathered" based on a previous visa petition that had been filed on his behalf several years earlier. This was not the first time that Castro-Soto had attempted to adjust his status based on his marriage to a United States citizen. He first entered the United States in 1988.1 At some point thereafter, he married his first wife, a United States citizen. In March 1992, she filed an I-130 petition on his behalf, seeking to qualify him as an immediate relative-spouse. See 8 U.S.C. § 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1); 8 C.F.R. § 204.2(a). Based on his then-spouse's immediate relative visa petition, Castro-Soto filed an I-485 application for adjustment of status to that of lawful permanent resident. See 8 U.S.C. § 1255; 8 C.F.R. § 245.1(a). The immediate relative visa petition received final approval in June 1992, and in December 1992 Castro-Soto's application for adjustment of status was also approved. The approval of the application for adjustment of status contained conditions, however. Under the INA, when an alien who has been married to a United States citizen for less than two years receives permanent resident status by virtue of that marriage, the grant of permanent resident status is conditional. 8 U.S.C. § 1186a. The alien and his spouse must submit a second petition requesting the removal of conditions, at which point the government may terminate the alien's permanent status if it finds that the The record is clear that Castro-Soto obtained conditional lawful permanent residence in December 1992. The government says that he first entered the United States in 1988, citing a transcript of a hearing that was held below. This date appears accurate, as the I- 130 form filed by Castro-Soto's first wife on his behalf indicates that he arrived in December of 1988. We thus identify 1988 as his arrival year, although this fact is immaterial to our analysis. marriage is not bona fide. 8 U.S.C. § 1186a(c), (d). If the alien fails to have the conditions to lawful permanent residence removed, his permanent resident status is terminated as of the date of that determination. 8 U.S.C. § 1186a(c)(3)(C). Castro-Soto and his spouse did later petition for removal of the conditions, but their petition was denied. An Immigration Judge ("IJ") subsequently found that the petition to remove conditions had been denied because the "[g]overnment questioned the bona fides of the marriage and the intent of the marriage." Castro-Soto and his first wife divorced in 2001. He then sought relief from the consequences of the previous denial of the joint petition for removal of conditions, through an application for a waiver based on a good faith marriage ending in divorce. In June 2002, the Department of Homeland Security ("DHS") denied the waiver application and placed Castro-Soto in removal proceedings. See 8 U.S.C. § 1227(a)(1)(D)(i) (classifying as "deportable" aliens whose conditional permanent resident status has been terminated). During removal proceedings, Castro-Soto again sought a waiver for a good faith marriage ending in divorce, and alternatively requested cancellation of removal and voluntary departure. In September 2003, the IJ, though granting Castro-Soto voluntary departure, denied his requests for cancellation of removal and for a waiver. Castro-Soto appealed the IJ's decision to the BIA, which affirmed the IJ's decision in December 2004. Also in 2004, Castro-Soto remarried. In January 2005, he left the country pursuant to the voluntary departure order, but not before filing a motion to reopen his case so that he could apply for adjustment of status based on his second wife's petition to categorize him as an immediate relative.2 He reentered the United States illegally eight days later and was subsequently placed in removal proceedings. Before the IJ, Castro-Soto again sought unsuccessfully to adjust his status, claiming that he was permitted to rely on the more recent visa petition because of a grandfathering mechanism triggered by the 1992 visa petition. The BIA affirmed the IJ's order pretermitting Castro-Soto's application for adjustment. II. Before us, Castro-Soto continues to argue that he is entitled to rely on the earlier I-130 petition filed in 1992 to adjust his status now. Typically, aliens who enter the United States without inspection or parole are prohibited from applying for adjustment of status. Echevarria v. Keisler, 505 F.3d 16, 19 (1st Cir. 2007); see also 8 U.S.C. § 1255(a), (c). An exception to this general rule exists for beneficiaries of visa petitions that The BIA denied this motion to reopen in January 2005. It concluded that Castro-Soto could not adjust status based on his second-wife's 2004 visa petition because he failed to produce clear and convincing evidence that his second marriage was bona fide. Castro-Soto did not petition for review of this decision, although he did file a motion to reconsider, which the BIA denied in March 2005. Castro-Soto did not appeal that ruling. were filed before April 30, 2001. See 8 C.F.R. § 245.10(a)(1)(i)(A), (B); Echevarria, 505 F.3d at 19. Castro-Soto claims that because he is the beneficiary of his first wife's 1992 visa petition, he qualifies under this grandfathering provision to file again for adjustment. An alien may qualify for grandfathering if he is physically present and the "beneficiary" of a visa petition. § 245.10(a)(1)(i). The visa petition relied upon by the alien must have been (1) filed before April 30, 2001, (2) "properly filed," and (3) "approvable when filed". Id. at (a)(1)(i)(A); (a)(2)(i); (a)(3).3 If the visa petition has met these three requirements, it may be used for grandfathering purposes even if it "was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing". Id. at (a)(3); see also, Echevarria, 505 F.3d at 19. The applicant bears the burden of proving his eligibility for adjustment of status. 8 C.F.R. § 1240.8(d). The BIA did not question whether the 1992 visa petition upon which Castro-Soto is relying for grandfathering purposes satisfied 245.10's three requirements. Rather, it concluded that Castro-Soto could not rely on the 1992 petition because the government had granted it, and Castro-Soto had relied upon the petition to gain conditional lawful permanent residence. The Board To be "approvable when filed," a visa petition must have been: "properly filed, meritorious in fact, and non-frivolous." Id. at (a)(3). further stressed that Castro-Soto had not only adjusted his status using his ex-wife's visa petition, but also "later failed to obtain removal of the conditions on his permanent residence." Our review of the BIA's decision is circumscribed. When Congress has entrusted rulemaking and administrative authority to an agency, as it has done with the INA, "courts normally accord the agency particular deference in respect to the interpretation of regulations promulgated under that authority." S. Shore Hosp. Inc. v. Thompson, 308 F.3d 91, 97 (1st Cir. Mass. 2002). We defer to the agency's interpretations of regulations of its own creation unless the agency's position is "plainly erroneous or inconsistent with the regulation." Massachusetts v. United States, 522 F.3d 115, 127 (1st Cir. 2008). We conclude that it was not plainly erroneous or inconsistent with the regulation for the BIA to find that Castro-Soto had obtained all of the benefit due to him based on the 1992 petition, and that the petition was therefore extinguished and cannot now provide grandfathered status.4 The government takes the position that, once Castro-Soto initially obtained the benefit of conditional permanent residence, the petition was no longer available to be used for grandfathering. The government's position may be correct, but we are not certain that the BIA's ruling is quite that broad, and we need not adopt the broader reading in order to reject the petitioner's argument. We are not here faced with a situation in which, for example, the petitioner obtained conditional resident status and then, prior to the deadline for petitioning to remove the conditions, sought to rely on the grandfathered petition to adjust status on a different basis. Congress has generally allowed only lawfully present aliens to adjust their status while in the United States, in order "to discourage intending immigrants from moving to the United States before becoming fully eligible for permanent residence and to encourage them to follow the orderly consular process for the issuance of immigrant visas." Lee v. U.S. Citizenship & Immigration Servs., No. 08-1659, 2010 U.S. App. LEXIS 1569, at *4 (4th Cir. Jan. 25, 2010). In 1994, however, Congress temporarily lifted restrictions on certain illegal aliens who sought adjustment of status. Id. The grandfather clause, instituted after the expiration of this 1994 Act, "aimed to protect those who had legitimate visa applications on file before the more restrictive amendment came into force excluding applications on behalf of those who entered illegally." Echevarria, 505 F.3d at 19. We have observed that it was not these applicants' fault "that it might take time to process applications that had been filed before the law changed." Id. It is not an illogical corollary that an applicant's grandfathered status should expire once he has obtained all of the benefits available through a visa petition. The DHS reached this very conclusion in a 2005 policy memorandum in considering the potential for multiple filings for adjustment of status under Section 245(i): A grandfathered alien is eligible to file an application to adjust status under section 245(i) as long as the alien meets the requirements of 8 C.F.R. 245.10 and has not adjusted status under section 245(i). USCIS no longer considers an alien "grandfathered" once the alien is granted adjustment of status under section 245(i), because the alien has acquired the only intended benefit of grandfathering: [Lawful Permanent Resident] status. Interoffice Memorandum from William R. Yates, Associate Director for Operations, U.S. Citizenship and Immigration Services, Department of Homeland Security, Clarification of Certain Eligibility Requirements Pertaining to an Application to Adjust Status under Section 245(i) of the Immigration and Nationality Act, HQOPRD 70/23.1 at 6 (March 9, 2005). This guidance memorandum is entitled to our respect to the extent that it is persuasive. See Christensen v. Harris County, 529 U.S. 576, 587 (2000).5 The quoted language is consistent with the regulations themselves, which provide that certain visa petitions approvable when filed but later "withdrawn, denied or revoked due to circumstances that have arisen after the time of filing" can still be used to establish an alien's grandfathered status. 8 C.F.R. § 1245.10(a)(3). Castro- Soto's spouse's 1992 petition was approved, and it was never revoked. Indeed, although the regulations provide for automatic revocation under certain circumstances -- for example, divorce -- this provision is only triggered when the circumstance occurs before the government's final decision on the beneficiary's adjustment application. 8 C.F.R. § 1205.1 (a)(3). Castro-Soto's adjustment of status was granted in December, 1992. He and his first wife did not divorce until 2001. Nowhere do the regulations state that an approved petition, as opposed to one that is pending, withdrawn, denied or revoked, can be used to preserve the alien's grandfathered status. The BIA could reasonably conclude from this silence that this exclusion was Castro-Soto argues that his 1992 visa petition was never extinguished because he never acquired lawful permanent resident status without conditions. DHS's 2005 memorandum, he observes, explains that the government "no longer considers an alien 'grandfathered' once the alien is granted adjustment of status under Section 245(i) because the alien has acquired . . . [Lawful Permanent Resident] status" (emphasis added). Castro-Soto urges us to hold that because he only acquired conditional lawful permanent resident status, his 1992 visa petition is still available for purposes of grandfathering. No persuasive authority is cited to support this interpretation, and in any event there is a significant problem with it. Were we to adopt Castro-Soto's view, all grandfathered aliens who, because of their own lack of proof, failed to remove conditions attached to their lawful permanent resident status could simply fling infinite subsequent petitions or applications for adjustment until one happened to stick. Congress could not have intended such a result. Cf. Echevarria, 505 F.3d at 19–20 ("There is no reason to think that the grandfathering provision was meant to give a second bite at the apple to one who earlier had a full and fair opportunity to prove the marriage was bona fide."). intentional. See Lohnes v. Level 3 Commc'ns, Inc., 272 F.3d 49, 61 (1st Cir. 2001) ("[T]he maxim expressio unius est exclusio alterius instructs that, 'when parties list specific items in a document, any item not so listed is typically thought to be excluded.'")(citation omitted). Indeed, this reading would undermine the government's ability to use conditional resident status as a tool to root out unlawful immigration based on sham marriages. See Choin v. Mukasey, 537 F.3d 1116, 1120 (9th Cir. 2008) ("Congress . . . created the conditional permanent resident status to enable the government to gather two years of evidence about a marriage before granting full permanent resident status.") Because Castro-Soto married his first wife less than two years before she filed her I-130 petition on his behalf, this petition provided him a basis to obtain only conditional lawful permanent resident status and, at most, the later opportunity as well as the obligation to seek the removal of those conditions. See 8 U.S.C. § 1186a(c), (d). Castro-Soto fully exercised his right to petition to have his conditions removed. As mentioned, he and his first wife filed a joint petition to have the conditions on his lawful permanent resident status removed, but the agency questioned the bona fides of the marriage and denied that petition. After he and his first wife divorced, Castro-Soto filed a waiver application for a good faith marriage ending in divorce which, if granted, would have removed the conditions on his lawful permanent resident status. The BIA affirmed the denial of that waiver application, however, and Castro-Soto never petitioned for review of that decision. III. We affirm the BIA's determination that the 1992 petition was extinguished for grandfathering purposes, at the latest, by the time Castro-Soto's conditional lawful permanent residency expired and he became removable. Petition denied.

United States Court of Appeals For the First Circuit No. 08-2444 INDIGO AMERICA, INC., Plaintiff, Appellee, v. BIG IMPRESSIONS, LLC., Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge] Before Lynch, Chief Judge, Stahl and Howard, Circuit Judges. Seth H. Salinger for appellant. Thomas W. Evans, with whom Zelle McDonough & Cohen LLP, was on brief, for appellee. February 24, 2010 HOWARD, Circuit Judge. This case comes to us following the entry of default judgment against the defendant-appellant, Big Impressions, LLC. On appeal, Big Impressions challenges, inter alia, the district court's denial of its motion to set aside an entry of default. For the reasons that follow, we vacate the decision of the district court and remand for further proceedings. I. The seeds of this dispute were sown in 2005. That year, Big Impressions, a printing company incorporated in Arkansas, purchased an Indigo printing press ("Indigo Press") from the plaintiff-appellee, Indigo America, Inc. ("Indigo"). In connection with this purchase, Big Impressions entered into two contracts with Indigo. One of these contracts, titled the "Purchase and Sale Agreement," required Big Impressions to trade in two of its commercial presses as part of the purchase price. In June 2007, Indigo filed a breach of contract action against Big Impressions in federal district court in Massachusetts. Indigo claimed that Big Impressions violated the contracts at issue by, among other things, not making two of its commercial presses available for pick up. In due course, process was served in Arkansas on Scott Wallace, the manager and sole member of Big Impressions. Wallace, in August 2007, filed an answer to the complaint, purportedly on behalf of the corporation. This filing, however, contravened the long-standing rule barring persons who are not licensed to practice law from representing corporations in judicial proceedings. In re Las Colinas Dev. Corp., 585 F.2d 7, 13 (1st Cir. 1978). Although Wallace did not purport to be a member of the bar, the court nevertheless accepted and docketed the answer, and the case proceeded unhindered. Over the course of the next eight months, Big Impressions and Indigo engaged in settlement negotiations under the aegis of the district court's settlement program. Ultimately, however, these negotiations failed to bear fruit and, in May 2008, Indigo requested that the court default Big Impressions. The basis of its request was simple: a licensed attorney had yet to appear on behalf of Big Impressions. On that basis, the clerk of court entered default against Big Impressions. Cross-motions ensued. Indigo filed a motion for default judgment, and Big Impressions, after securing local counsel, filed a motion to set aside the entry of default. In support of its motion, Big Impressions provided a memorandum of law, a restated answer, and an affidavit from Wallace. Through these materials, Big Impressions asserted various defenses to Indigo's breach of contract claims. Unswayed by Big Impressions' showing, the district court denied its motion and granted Indigo's request for a default judgment. The district court did not issue a memorandum of opinion explaining its rulings. Big Impressions appealed. II. Big Impressions challenges both the court's denial of its motion to set aside the entry of default and the entry of a default judgment. Different standards exist for setting aside an entry of default and for setting aside a default judgment. Venegas- Hernandez v. Sonolux Records, 370 F.3d 183, 187 (1st Cir. 2004). We need address only the standard for entry of default to decide this case. See Coon v. Grenier, 867 F.2d 73, 75 n.5 (1st Cir. 1989) ("We deal only with the failure to set aside the entry of default, for it constituted the error in this case. Plaintiff's remonstrances anent the ensuing default judgment, and the manner in which it was wrought, need not be addressed."). Rule 55(c) provides that a court may set aside an entry of default for "good cause." Fed. R. Civ. P. 55(c). There is no mechanical formula for determining whether good cause exists and courts may consider a host of relevant factors. See KPS & Assocs. v. Designs by FMC, Inc., 318 F.3d 1, 12 (1st Cir. 2003). The three typically considered are (1) whether the default was willful; (2) whether setting it aside would prejudice the adversary; and (3) whether a meritorious defense is presented. Id.; Coon, 867 F.2d at 77 (noting that these three factors "comprise the indicia employed by most courts"). But that is not an exclusive list and courts may consider other relevant factors, including "'(4) the nature of the defendant's explanation for the default; (5) the good faith of the parties; (6) the amount of money involved; (7) the timing of the motion [to set aside the entry of default].'" KPS & Assocs., 318 F.3d at 12 (quoting McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 503 (1st Cir. 1996)). Ultimately, the burden of demonstrating good cause lies with the party seeking to set aside the default. Id. Our review of a district court's good cause ruling is deferential. We review the court's factual findings, if there are any, for clear error, Venegas-Hernandez, 370 F.3d at 187, and its balancing of the relevant factors for an abuse of discretion. See Conetta v. Nat'l Hair Care Ctrs., Inc., 236 F.3d 67, 75 (1st Cir. 2001); Coon, 867 F.2d at 78. Here, however, we are presented with little to review. The district court did not explain its decision or, from all that appears, make any factual findings. Without the benefit of the court's views, we proceed to examine the relevant factors ourselves. See Coon, 867 F.2d at 76-78 (analyzing the factors where there was a paucity of findings to review). There seems to be no dispute that two of the factors cut in favor of Big Impressions. When the clerk entered default against it, Big Impressions promptly filed a motion to set aside the default. And Big Impressions argues, without objection from Indigo, that the amount of money at stake -- approximately $173,000 -- is a significant sum given its economic situation. A third factor, the good faith of the parties, appears to be in equipoise, as neither party alleges that the other acted in bad faith. Turning to the other four factors often used, they are the subject of controversy here, and we examine them in turn. Big Impressions claims that its default was not willful. It asserts that its principal, Wallace, believed that he had acted appropriately when he filed an answer on behalf of Big Impressions. According to Big Impressions, Wallace was simply unaware of the rule barring a person who is not licensed to practice law from representing a corporation in court. This claim finds support in the record. Wallace attested to his ignorance of the relevant rule in an affidavit. For its part, Indigo argues that Wallace's claim of ignorance lacks credibility. Citing to Wallace's affidavit, Indigo contends that Wallace "admit[ted] that he received extensive legal advice about this matter from his Arkansas counsel." The affidavit does not support Indigo's argument, however. It addresses an entirely unrelated matter -- meetings Wallace and his attorney had with Indigo representatives in 2005 concerning the purchase of the Indigo Press. Turning to the prejudice factor, we conclude that it too cuts in favor of Big Impressions. Simply put, we fail to see how Indigo will be prejudiced if the default is set aside. To be sure, Indigo claims that it will be prejudiced, noting that setting aside the default would further postpone a judgment in its favor. But, as we have noted in the past, "in the context of a Rule 55(c) motion, delay in and of itself does not constitute prejudice." KPS & Assocs., 318 F.3d at 15; see also FDIC v. Francisco Inv. Corp., 873 F.2d 474, 479 (1st Cir. 1989) (explaining that "[t]he issue is not mere delay, but rather its accompanying dangers: loss of evidence, increased difficulties of discovery, or an enhanced opportunity for fraud or collusion."). At the risk of lingering too long on this point, we note further that Indigo's delay-based prejudice argument falls particularly flat here because it easily could have prevented the delay. Indigo could have moved to strike the answer or for a default judgment twenty days after Wallace was served with process, as the answer he filed, though docketed, was impermissible. See Fed. R. Civ. P. 12 (providing that a defendant must serve an answer within 20 days after being served with the summons or complaint). Instead, Indigo waited over eight months before requesting that the court default Big Impressions, even engaging Big Impressions in settlement negotiations during this time span. Although no bad faith is suggested in Indigo's delay in seeking an entry of default here, finding prejudice under these circumstances could have the unfortunate consequence of incentivizing parties to ambush opponents on the basis of self-induced prejudice. The next factor to be considered -- the existence (or lack thereof) of a meritorious defense -- has obvious significance in the analysis. Where no meritorious defense exists, it makes little sense to set aside the entry of default, as doing so would merely delay the inevitable. Here, Big Impressions argues that Indigo's victory in the breach of contract action is by no means foreordained and says that it asserted several meritorious defenses below, including the defenses of "prior breach of contract" and "failure of consideration." It also contends that Wallace's affidavit, submitted in support of its motion to set aside the default, sets forth allegations that could support other defenses including "fraud in the inducement." Establishing the existence of a meritorious defense is not a particularly arduous task. "[A] party's averments need only plausibly suggest the existence of facts which, if proven at trial, would constitute a cognizable defense." Coon, 867 F.2d at 77; see also Conetta, 236 F.3d at 75 (noting, in discussing the meritorious defense requirement, that the defendant had an "arguable defense on some aspects of the claims against it"). Here, Big Impressions has met its burden. In support of its "prior breach" and "failure of consideration" claims, Big Impressions submitted an affidavit in which Wallace attested that the Indigo Press did not perform as warranted. Although Indigo characterizes Wallace's testimony as lacking "evidentiary support," it is sufficient given that the litigation is in a pre-discovery stage.1 Moreover, Big Impressions' fraud in the inducement2 claim appears to be at least colorable. Wallace attested that throughout the negotiation process, Indigo employees (1) represented to him that he was only required to trade in one of his company's two presses in connection with his purchase of the Indigo Press and (2) presented him with drafts of the Purchase and Sale Agreement that reflected these representations. According to Wallace, Indigo then presented him with a Purchase and Sale Agreement that required him to trade in both presses and hurried him into signing it. While Indigo asserts that the parol evidence rule bars consideration of Wallace's various dealings with Indigo, it is well-established in Massachusetts that "'[t]he parol evidence rule does not apply when Indigo also says that Wallace's claim that the Indigo Press did not perform as warranted is "belated" because he failed to make this specific claim in the answer that he filed. Wallace's answer, however, denied the allegations of breach set forth in Indigo's complaint. No more was needed at the pleading stage. See Fed. R. Civ. P. 8(b)(1)(B)(providing that a party must "admit or deny the allegations asserted against it by an opposing party"); see also 5 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 1268 (3d. ed. 1998) (noting, in discussing "argumentative denials," that "practitioners would be wise to limit themselves to simple denials, rather than adding additional facts by responding indirectly rather than directly"). To establish fraud in the inducement at trial, Big Impressions would need to prove "the elements of common law deceit which include 'misrepresentation of a material fact, made to induce action, and reasonable reliance on the false statement to the detriment of the person relying.'" Commerce Bank & Trust Co. v. Hayeck, 709 N.E.2d 1122, 1127 (Mass. App. Ct. 1999) (quoting Hogan v. Riemer, 619 N.E.2d 984, 988 (Mass. App. Ct. 1993) (internal citation omitted))). the complaining party alleges fraud in the inducement.'" Id. (quoting McEvoy Travel Bureau, Inc. v. Norton Co., 563 N.E.2d 188, 193 n.5 (Mass. 1990)). The final factor to be considered is the nature of the defendant's explanation for the default. We again note that for several months neither Indigo nor the district court gave any indication that something was amiss; the answer had been docketed and the case was steered to the settlement program. Nevertheless, Wallace set the default in motion when he failed to apprise himself of the rule at issue. His explanation is plausible but not strong. See United States v. $23,000 in U.S. Currency, 356 F.3d 157, 164 (1st Cir. 2004) (recognizing, in the default judgment context, that "ignorance of the rules . . . do[es] not usually constitute excusable neglect") (internal quotation marks omitted)). Moreover, we also note that Arkansas, the state where Wallace's company is incorporated, permits only licensed attorneys to represent corporations in court. McAdams v. Pulaski County Circuit Court, 956 S.W.2d 869, 870 (Ark. 1997). Having considered the relevant factors, we are left with the question of whether the district court abused its discretion in refusing to set aside the default. Because district courts are better positioned to evaluate many of the relevant factors, we are ordinarily reluctant to disturb their good cause rulings on appeal. Payne v. Brake, 439 F.3d 198, 205 (4th Cir. 2006) ("The disposition of motions made under Rule[]55(c) . . . is a matter which lies largely within the discretion of the trial judge and his action is not lightly to be disturbed by an appellate court.") (citation omitted); see also KPS & Assocs., 318 F.3d at 12-13. Here, however, there is little reason to defer to the district court's ruling. The district court did not explain why it denied Big Impressions' motion to set aside the default, making it difficult to tell what motivated the court's decision. Although this lack of an explanation may have been inconsequential had the court's ruling been amply supported by the record, that simply is not the case here. Under circumstances such as these, and given our preference for resolving disputes on the merits, Conetta, 236 F.3d at 75, we conclude that this case should proceed further. III. Conclusion For the reasons provided above, the case is remanded with directions to vacate the default judgment, remove the default, and permit the action to proceed in the normal course. Vacated and remanded. No costs on appeal.

United States Court of Appeals For the First Circuit No. 09-1721 MONSERRATE GARCÍA-PÉREZ, ET AL., Plaintiffs, Appellants, v. HOSPITAL METROPOLITANO, ET AL., Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge] Before Lynch, Chief Judge, Lipez and Howard, Circuit Judges. Humberto R. Vázquez-Sandoval on brief for appellants. Gloria M. De Corral and De Corral & De Mier on brief for appellee, Hospital Metropolitano. Juan M. Masini-Soler on brief for appellees, Rafael Ramírez- Pepen, Conjugal Partnership Ramírez-Doe. February 24, 2010 Per Curiam. On the scheduled trial date, which had been set only six days earlier, the district court, acting sua sponte, dismissed this case with prejudice "for lack of prosecution based on the plaintiffs' non-compliance with discovery deadlines," particularly their failure to produce a medical expert report. Without condoning the plaintiffs' lengthy and unjustified delay in producing their expert's report, we reluctantly vacate the dismissal because, in short, the absence of a clearly communicated deadline for providing expert reports or notice that failing to do so more promptly could result in dismissal rendered that drastic sanction an abuse of discretion. We explain. We review dismissals under Rule 41(b) for abuse of discretion. Malot v. Dorado Beach Cottage Assocs., 478 F.3d 40, 43 (1st Cir. 2007). Although "[c]laims that a court has abused its discretion in dismissing a case for failure to adhere to discovery orders or for failure to prosecute have 'not received a sympathetic ear,'" id. (quoting Damiani v. R.I. Hosp., 704 F.2d 12, 17 (1st Cir. 1983)), we "must fairly balance the court's venerable authority over case management with the larger concerns of justice, including the strong presumption in favor of deciding cases on the merits," id., and "procedural aspects such as notice," Benitez-Garcia v. Gonzalez- Vega, 468 F.3d 1, 5 (1st Cir. 2006). This is the rare case where the latter concerns outweigh the former. The plaintiffs' three-year delay in producing their expert's report was sufficiently "extreme" to warrant the harsh sanction of dismissal,1 see Malot, 478 F.3d at 44 (describing this court's tendency "to reserve dismissal with prejudice for delays measured in years"); and they offered no legitimate excuse for that lengthy delay,2 see Benitez-Garcia, 468 F.3d at 5. Nevertheless, other relevant factors weigh heavily against imposing that drastic sanction here. First of all, without condoning the lethargic pace that this litigation took, the responsibility for that pace was shared, in large part, by the district court,3 which failed to exercise its Although the district court also premised its dismissal order, more generally, on the plaintiffs' "non-compliance with discovery orders," it identified no such orders and none are pointed out by the appellees or apparent in the record. Cf. Ortiz- Lopez v. Sociedad Espanola De Auxilio Mutuo y Beneficiencia, 248 F.3d 29, 36 (1st Cir. 2001) (affirming dismissal with prejudice where district court made "explicit and lengthy findings of egregious discovery abuses"). The plaintiffs did delay in filing their second amended complaint, but their failure to do so more promptly was related to their delay in obtaining expert advice, not to any other discovery violations. Other than the absence of a deadline, the plaintiffs' only excuse was that their original expert took longer than expected to produce his report and they were therefore forced to retain a new one. But the plaintiffs apparently gave their original expert no deadline for producing his report and were not aggressive in seeking it more promptly. And even after they retained a new expert, another year went by without production of an expert report. As in Ortiz-Anglada v. Ortiz-Perez, 183 F.3d 65, 67 n.4 (1st Cir. 1999), and Malot, 478 F.3d at 45, the defendants here also share this responsibility. One of the defendants failed to answer the first amended complaint until more than two months after the already extended deadline without seeking a further extension; "abiding responsibility" under federal and local rules to "take an active role in case management," Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st Cir. 2002), by "issu[ing] orders 'as soon as practicable' fixing deadlines for the completion of discovery" and other pretrial events. Torres v. Puerto Rico, 485 F.3d 5, 10 (1st Cir. 2007) (quoting Fed. R. Civ. P. 16(b)); see also Ortiz-Anglada, 183 F.3d at 66-67 (vacating a dismissal with prejudice where the district court failed to impose deadlines through a scheduling order). Contrary to federal Rule 16(b), the district court never issued an initial scheduling order; and, contrary to the corresponding local rule, it never scheduled or held a pretrial conference and did not set a trial date until six days before trial. Although the court did set a deadline for the plaintiffs' production of their expert's report, once that deadline expired without compliance, the court never set a new one even after the defendants eventually asked the court to do so. The court further contributed to delay by taking months to rule on the parties' motions, which, if promptly decided, would have moved the case along more expeditiously. For example, the another defendant never answered the first amended complaint at all; and the principal defendant had not filed an answer to the second amended complaint, or sought more time to do so, by the time the case was dismissed in March 2009, five months after that complaint had been filed. Nor did the defendants bring to the court's attention the plaintiffs' failure to produce their expert report by the original deadline of January 30, 2007, or ask the court to impose another deadline until November 26, 2008, almost two years later. court never ruled on the plaintiffs' April 2007 request for more time to finalize their expert's report; took six months to rule on the defendants' motion for a more definite statement; took seven months to rule on the defendants' motion to dismiss; and never ruled on the defendants' November 2008 motion to set a deadline for the plaintiffs to produce their expert's report. The court's failure to set deadlines not only contributed to the case's slow pace but also rendered its ultimate dismissal order unfair in two respects. First, there was no "clearly communicated" deadline for producing the plaintiffs' expert report. See Velázquez Linares v. United States, 546 F.3d 710, 711-12 (1st Cir. 2008) (acknowledging "'litigants' unflagging duty to comply with clearly communicated case-management orders'" (quoting Rosario- Díaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir. 1998)) but vacating dismissal order based on "uncertainty" of the missed deadline). Once the original deadline passed and the court failed to set a new deadline at both sides' requests, the only operative deadline was the default deadline contained in Rule 26(a)(2)(C)(i), under which the plaintiffs' expert report was due "at least 90 days before the date set for trial or for the case to be ready for trial." But since no trial date was set until six days before trial, it was impossible for the plaintiffs to comply with that 90-day deadline. Nor did the plaintiffs have any other way of knowing that trial was imminent. Despite the relatively long time that had passed since the filing of the original complaint, the principal defendant had not yet answered the second amended complaint. Nor had pretrial memoranda been filed or a pretrial conference scheduled or held. Second, the plaintiffs were given no express notice of the consequences of failure to produce their expert report more promptly. Although the court included boilerplate language in two orders stating that "[f]ailure to comply will result in the imposition of severe sanctions and/or dismissal of the complaint with prejudice for lack of prosecution pursuant to Fed. R. Civ. P. 41(b)," neither of those orders set a deadline for the production of the plaintiffs' expert report.4 Therefore, those warnings did not give the plaintiffs "realistic notice" that they faced the harsh sanction of dismissal with prejudice for failure to produce their expert report before February 17, 2009, the date when the dismissal order issued. Malot, 478 F.3d at 45 (so concluding in similar circumstances). Although prior notice of the consequences is not always required, Pomales v. Celulares Telefónica, Inc., 342 F.3d 44, 50 n.5 (1st Cir. 2003), "in the absence of such a warning, the propriety of dismissal 'turns to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct.'" Id. (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 632 (1962)). As discussed above, Rather, one of them set a deadline for complying with an order to show cause, which the plaintiffs did on time; and the other set a deadline for filing the second amended complaint, which the plaintiffs did, albeit one day after the extended deadline. given the lack of notice of the imminence of trial, the plaintiffs cannot reasonably be deemed to have had notice that their delay in producing their expert's report would lead to dismissal. A further consideration weighing against the propriety of dismissal with prejudice is the absence of evidence--or even any contention--that the defendants were prejudiced by the delay. Benitez-Garcia, 468 F.3d at 5. Given that the principal defendant had not yet answered the second amended complaint and that no pretrial memoranda had been filed or pretrial conference conducted, it is doubtful that the defendants (or the court) were any more ready for trial than the plaintiffs or that, even if the plaintiffs had produced their expert report more promptly, the trial would have gone forward on the precipitously announced date. A final relevant factor is the absence of evidence that the district court considered the adequacy of lesser sanctions, id. at 6, such as continuing the trial to a date certain and imposing monetary sanctions to compensate the defendants for any harm caused by the continuance, Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 80 (1st Cir. 2009), and then setting short deadlines for production of the expert's report and any other remaining pretrial events and strictly enforcing them, Velázquez Linares, 546 F.3d at 711-12. In sum, although the district court was justifiably unhappy with the plaintiffs' lengthy and unjustified delay in producing their expert's report, the court's failure to set a clear deadline for doing so, to warn the plaintiffs of the consequences of noncompliance with that deadline, to make findings concerning the nature of the plaintiffs' conduct and the prejudice to the defendants, and to consider the adequacy of lesser sanctions renders the sanction of dismissal with prejudice an abuse of its broad discretion to manage its caseload. Accordingly, we vacate the dismissal and remand for further proceedings. Each party shall bear its own costs.

United States Court of Appeals For the First Circuit No. 07-2813 UNITED STATES OF AMERICA, Appellee, v. EDUARDO RODRÍGUEZ-VÉLEZ, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District Judge] Before Lynch, Chief Judge, Souter,* Associate Justice, and Selya, Circuit Judge. Stephen J. Weymouth and Law Offices of Stephen J. Weymouth on brief for appellant. Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney (Appellate Chief), and Luke Cass, Assistant United States Attorney, on brief for appellee. March 1, 2010 * Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. SELYA, Circuit Judge. On May 4, 2005, a federal grand jury sitting in the District of Puerto Rico charged defendant- appellant Eduardo Rodríguez-Vélez and seven codefendants with, inter alia, conspiracy to possess with intent to distribute 50 grams or more of cocaine base (crack) and a detectable amount of marijuana. See 21 U.S.C. §§ 841(a)(1), 846. All of the other defendants admitted their guilt and, in October of 2006, the appellant stood trial alone. The jury found him guilty on the conspiracy count, and the district court, relying in part on an information filed by the government in pursuance of 21 U.S.C. § 851(a), sentenced him to life imprisonment. Before us, the appellant claims that the district court committed a litany of errors in (i) denying his motion for judgment of acquittal; (ii) making erroneous evidentiary rulings; (iii) denying his motion for a mistrial based on the appellant's outburst at trial; (iv) denying his motion for a mistrial based on prosecutorial misconduct; and (v) improperly enhancing his sentence. We reject this entire asseverational array and, accordingly, affirm the judgment below. I. BACKGROUND The government presented its case through four witnesses. The appellant neither testified nor proffered any evidence. We rehearse the facts elicited at trial to the extent necessary to place this appeal into a workable perspective. The government's first witness was José Luís Vélez (Vélez), a confidential informant for the federal Drug Enforcement Administration (DEA) and a former retail drug customer. Vélez testified that Callejón de Los Locos was an "active" drug point in Cabo Rojo, Puerto Rico. Members of the Graniela-Lugo (Graniela) family operated the drug point and, from at least as early as 1996, sold marijuana, cocaine, and crack to "selected people." Vélez was one of these people; he bought marijuana two to three times per week from roughly 1997 to 2003. He also made occasional purchases of cocaine from the drug point. Vélez began working with the DEA in 2003 and made two recorded purchases of crack from the drug point.1 The first purchase involved four bags; the second involved ten bags. With the ten-bag purchase, Vélez received a free bonus bag of crack — a fringe benefit that, he testified, was consistent with customary practice at the drug point. David Ulises Martínez-Camacho (Martínez), a confidential informant and a former retail drug customer, testified that he visited the drug point nearly every day from 1996 to 2000. His last visit took place in 2004. He purchased marijuana and, starting in 2000 or 2001, crack. Martínez dated one of the Graniela sisters. That romantic entanglement allowed him to enter the Granielas' residence These recordings had both audio and video components. on an average of twice a week. At times, the Granielas pressed him into service; he "cooked" crack (i.e., manufactured crack from cocaine) for them at the drug point on two or three occasions. Martínez outlined the logistics of marketing at the drug point, which was open year-round. Its hours of operation were from noon to midnight on Saturday to Thursday, and noon to 1 a.m. on Friday. Patrons had the option of purchasing drugs on foot or by drive-through. To avail himself of the latter option, a customer would drive up to a seller, place his order, drive down a dirt road, turn around, and park next to a fence. At that locus, the drugs were exchanged for cash. Retail sales often involved an encoded language, couched in terms more commonly associated with haberdasheries than with criminal enterprises. In this argot, "shoe" meant crack, "shirt" meant cocaine, and "pants" meant marijuana. Martínez vouchsafed that he knew the appellant by the sobriquet "El Barbero" and knew him to be a brother-in-law of the Granielas. Martínez added that on an occasion when the quality of crack available at the drug point seemed sub par, one of the Granielas told him that, if he waited, the appellant would bring a new supply of cocaine to be manufactured into crack. On other occasions, a Graniela brother, Iván, told Martínez that when the appellant arrived, the drug point would have "new material." On still other occasions when the supply of drugs was running low, either Iván Graniela or his brother Papotin would make a telephone call to order more drugs and mention the appellant's name. Once, Martínez saw Iván Graniela give the appellant a wad of bills three to four inches thick. José Luna, a DEA agent who worked undercover and surveilled the drug point over one hundred times between 1995 and 2005, was the government's next witness. He described the overall nature of the government's investigation. From his personal observations, sales of approximately 840-1000 grams of crack each week were made at the drug point. The DEA made five separate undercover purchases of crack at the drug point (including the two made by Vélez) from 2003 to 2005. One of these was videotaped from a lamp-post video camera, and Luna described the activity taking place at the drug point as shown in the videotape. The government's final witness was Francisco Vega Montalvo (Vega), who served as a confidential informant for the DEA since approximately 2003. Vega testified that he lived in Cabo Rojo for about six years and was "very close" to the appellant. The two men sold drugs together from 1998 to 2001. They participated jointly in at least seven deals aimed at procuring cocaine or marijuana for the drug point. We sketch Vega's accounts of these seven incidents. The first incident occurred in September of 1998. The appellant expressed concern that the drug point had exhausted its supply of crack and enlisted Vega's help. Vega arranged for the purchase of one kilogram of cocaine and ten pounds of marijuana. Vega, the appellant, and Jorman (whom Vega identified as the appellant's "runner") then proceeded to an apartment complex and bought the drugs for $28,000. The appellant directed Jorman to deliver the goods to the drug point. The second incident occurred in May of 1999. The appellant, Jorman, and another man went to Vega's store and paid $18,000 to a man named Chaka for a kilogram of cocaine. Vega saw not only the cocaine but also a cash-filled briefcase. After the transaction was consummated, the appellant instructed Jorman to take the cocaine to the drug point and inform "the guys" that he (the appellant) would tell them the price later. The third incident took place in September of 2000. It involved a purchase of ten pounds of marijuana. Vega, the appellant, Jorman, and a man named Freddie Camacho were in attendance. Camacho went into an apartment and returned with the drugs. The appellant gave one pound to Vega, priced the remainder at $1,900 per pound, and directed Jorman to take it to the drug point. The fourth incident occurred in October of 2000. Vega met with the appellant at the home of the appellant's mother to discuss replenishing the drug point. There, two hangers-on, Chapi and Amarillo, mentioned a fisherman who had found twenty kilograms of cocaine and was willing to sell it for $10,000 per kilogram. The appellant stated that twenty kilograms would be enough to supply the drug point for two weeks and hatched a plot to steal the drugs. Vega declined to take part in the plot and never learned what happened next. The fifth incident occurred in November of 2000. Vega, Jorman, Camacho, and the appellant went to a car wash to buy one kilogram of cocaine for $20,000. The appellant emphasized that he wanted cocaine of the "BMW" brand because that was the best brand for processing into crack. After the transaction was completed, Vega and Jorman used the appellant's car to drive to a street near the drug point. There, a runner met them. Jorman told the runner that "this is going to the Callejón and tell those nuts to square off the money that I'm owed." The sixth incident occurred in December of 2000. Vega, the appellant, Jorman, and another man purchased one kilogram of BMW brand cocaine from a man in a truck. After completing the transaction, the appellant ordered Jorman to deliver the cocaine for "Cabo Rojo" and to inform "the guys" that he would tell them the price later. The final incident occurred in early 2001. Vega and the appellant purchased one kilogram of cocaine at a bakery in exchange for some heroin. The appellant directed Jorman to take the cocaine to the drug point. Vega stopped dealing drugs in 2001 and agreed to cooperate with the DEA roughly two years later. He succeeded in recording five conversations with the appellant. We summarize the material aspects of two such conversations: 1. On May 10, 2004, the appellant told Vega that the drug point was "too hot" and that everyone there was going to get arrested. 2. On June 15, 2004, the appellant stated that he had stopped doing business with the Granielas on credit. He added that he made his livelihood from the Granielas and that he was being more cautious because of how "hot" the drug point had become. He also claimed to have started the drug point. II. ANALYSIS We address the appellant's five claims of error sequentially. A. Sufficiency of the Evidence. We begin with the appellant's claim that his motion for judgment of acquittal, Fed. R. Crim. P. 29, should have been granted for lack of evidence. We review this sufficiency of the evidence claim de novo, appraising the proof in the light most favorable to the verdict. United States v. Stierhoff, 549 F.3d 19, 26 (1st Cir. 2008). This appraisal must take into account both direct and circumstantial evidence. Id. The verdict must stand unless the evidence is so scant that a rational factfinder could not conclude that the government proved all the essential elements of the charged crime beyond a reasonable doubt. United States v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994). The essential elements of the crime of conspiracy are "the existence of a conspiracy, the defendant's knowledge of the conspiracy, and the defendant's voluntary participation in the conspiracy." United States v. Bristol-Mártir, 570 F.3d 29, 39 (1st Cir. 2009). To establish a defendant's willing participation, the government must show "two kinds of intent: intent to agree and intent to commit the substantive offense." Id. (citations and internal quotation marks omitted). But the government need not offer proof of an express agreement; criminal conspiracies are by their very nature clandestine, and a tacit agreement inferred from the surrounding circumstances can — and often does — suffice to ground a finding of willing participation. United States v. Boylan, 898 F.2d 230, 243 (1st Cir. 1990). In this instance, we need not tarry. The government adduced compelling evidence of each element of the charged conspiracy, and a rational jury easily could find beyond a reasonable doubt — as this jury did — that the appellant was guilty of conspiracy to possess with intent to distribute 50 grams or more of crack and a detectable amount of marijuana. To begin, the existence of a conspiracy was plainly inferable from the testimony recounted above. Vélez vouchsafed that the drug point sold crack, marijuana, and other drugs from 1996 to 2003. This was consistent with the testimony of Martínez, who also described the drug point's hours and methods of operation. Luna conservatively estimated that at least fifteen drug sales (ten of crack) were consummated hourly, totaling about 840-1000 grams of crack per week. Vega related that the appellant had on several occasions ordered Jorman to deliver cocaine (much of which was slated to be used for the manufacture of crack) and marijuana to the drug point. This testimony adequately evinced the existence of a highly organized drug-trafficking enterprise that required the efforts of multiple participants. Surely, then, a rational juror could conclude that a conspiracy of the type and kind charged operated at the drug point for many years. The appellant's knowledge of the conspiracy hardly can be doubted. That knowledge was vividly illustrated by his conversations with Vega. For example, he discussed how he started the drug point, how its notoriety had spread, and how the drug point had become "too hot." He also remarked that he earned his livelihood from the Granielas. These self-incriminating statements were corroborated by Vega's and Martínez's testimony that the appellant supplied the drug point with both cocaine (much of which was slated to be used for the manufacture of crack) and marijuana. Finally, there was ample evidence from which a rational juror could find that the appellant willingly participated in the conspiracy. Vega testified to the appellant's role in no fewer than five drug deals, each involving the purchase of at least one kilogram of cocaine. Similarly, he testified about the appellant's part in two deals involving the purchase of marijuana. Vega likewise testified that, after the consummation of each transaction, the appellant gave instructions to a subordinate to bring the contraband to the drug point. In one instance, the appellant specifically asked for a particular brand of cocaine because of its superiority as a raw material for manufacturing crack. This testimony fits hand in glove with Martínez's testimony that, on multiple occasions, the Graniela brothers told him that the appellant was bringing new inventory to the drug point. In an effort to blunt the force of this copious evidence, the appellant suggests that much of it should be disregarded as self-serving and not believable. This may have been a suitable argument for the jury, but it is not an appropriate argument here. On a motion for judgment of acquittal, we must resolve all credibility issues in favor of the verdict. See United States v. Taylor, 54 F.3d 967, 974 (1st Cir. 1995). The appellant also argues that the evidence, even if credited, shows him to be a free- lance entrepreneur rather than a coconspirator.2 But where, as here, the evidence can be viewed in different ways, we must honor the jury's evaluative choice among plausible, albeit competing, inferences. See United States v. Olbres, 61 F.3d 978, 974-75 (1st Cir. 1995). To say more on this claim would be to paint the lily. The evidence, taken as a whole, strongly supports a conclusion that the appellant entered into a tacit accord to supply the drug point with drugs and that he intended by his actions to further the conspiracy's overarching drug-distribution goal. Accordingly, the district court did not err in denying the appellant's motion for judgment of acquittal. B. Evidentiary Rulings. When an appropriate objection has been made, we review a district court's ruling admitting or excluding trial evidence for abuse of discretion. United States v. Nguyen, 542 F.3d 275, 279 (1st Cir. 2008); United States v. DeCologero, 530 F.3d 36, 58 (1st Cir. 2008). Here, the appellant challenges two such rulings. One was made during Martínez's direct examination and the other during his cross-examination. We elaborate below. In particular, the appellant emphasizes Martínez's testimony that he purchased ten bags of crack from the appellant at some time between 2001 and 2005. When Martínez inquired about a bonus bag, the appellant replied that he did not give bonus bags because of the superior quality of his merchandise. This testimony, the appellant says, indicates that he was an independent contractor. 1. Direct Examination. The appellant assails the admission of Martínez's testimony that certain statements were made to him by either Iván Graniela or Iván's brother to the effect that the appellant would be delivering new material to the drug point. Relatedly, the appellant challenges Martínez's testimony that, when supplies ran low at the drug point, either Iván or Papotin Graniela would in his presence make a telephone call to order more drugs and mention the appellant's name. Finally, he challenges Martínez's testimony that the appellant and two of his cohorts "had the strongest say" about staffing the surveillance tower at the drug point. These challenges are meritless. The Granielas' statements were not inadmissible as hearsay. After all, a statement is not hearsay if it is made by a coconspirator during the course and in furtherance of the conspiracy. Fed. R. Evid. 801(d)(2)(E). The Granielas' statements invited Martínez, who was a regular customer, to wait until the appellant got to the drug point and replenished its drug supply. These statements were, therefore, made during and in furtherance of the charged conspiracy. See, e.g., United States v. Rodríguez, 525 F.3d 85, 101 (1st Cir. 2008). So, too, were the statements made by the Granielas while calling to order more inventory. These statements were made in the course of ensuring that the drug point remained up and running. Consequently, they came under the protective shield of Rule 801(d)(2)(E). This leaves the comment about staffing the surveillance tower. In that regard, the government established on Martínez's direct examination that the tower was an integral part of the Granielas' operation and that Martínez had personal knowledge about who called the shots concerning its staffing. Thus, Martínez's comment as to who "had the strongest say" was lay opinion, based on the observations of a percipient witness. It follows that the trial court did not err in allowing him to testify anent the staffing decisions. See United States v. Muñoz-Franco, 487 F.3d 25, 35 (1st Cir. 2007); see also Fed. R. Evid. 701. 2. Cross-Examination. The appellant argues that the trial court unduly limited the scope of Martínez's cross- examination. We briefly recount the relevant background. The appellant was married to one of the Granielas' sisters. During Martínez's cross-examination, defense counsel inquired whether Martínez was aware that the appellant had been unfaithful to his wife. The government objected. At sidebar, the district court asked defense counsel the purpose of the question. Counsel responded: [Defense Counsel]: It is highly relevant. If you allow me, this witness just asked that the Granielas family trust him with his life. . . . [Defense Counsel]: If he knows them that well, Your Honor, he must know the particularities of each member of the family. [Prosecutor]: That is not true, and it is irrelevant. [Defense Counsel]: It goes to the credibility of the Defendant — the credibility of the witness. The district court sustained the objection. In this venue, the appellant advances two supposed justifications as to why the inquiry into his infidelity should have been allowed. We examine these justifications separately. First, the appellant claims that the question was relevant to impeach Martínez's testimony as to how well he knew the appellant. This argument was made to and rejected by the district court. Therefore, we review the court's ruling for abuse of discretion. Although the right to cross-examine an adverse witness in a criminal case is constitutionally guaranteed, see Davis v. Alaska, 415 U.S. 308, 315 (1974), that right is not unfettered. See Boylan, 898 F.2d at 254. On the contrary, the trial judge retains wide latitude to impose reasonable limits on cross-examination so as to prevent, among other things, questioning on peripheral matters. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Here, whether Martínez knew that the appellant was unfaithful to his wife raised an extraneous (and potentially inflammatory) issue and was at most marginally relevant to Martínez's credibility. Thus, it was not an abuse of discretion for the lower court to curtail this line of inquiry. See Boylan, 898 F.2d at 255. That ruling helped to keep the jury focused on the issues that mattered. The second justification on which this claim of error rests is the notion that the inquiry into infidelity should have been permitted to impeach the Granielas (whose statements Martínez had quoted). Because the Granielas were the appellant's brothers- in-law, this thesis runs, his infidelity would give them a motive to attribute criminal conduct to him. This argument has several obvious flaws. First, the question posed did not go to what the Granielas knew but, rather, to what Martínez knew. What Martínez knew (or did not know) about the putative infidelity would have no necessary bearing on what the Granielas knew. Second, the "motive to vilify" argument does not hold water. There is no evidence that the Granielas suspected they were operating in the presence of one who would subsequently become a government informant, and what they said about the appellant tended to glorify him — that is, to exalt his role in the criminal enterprise — not to vilify him. To cinch matters, a searching review of the record reveals that the appellant neither presented this argument to the district court nor made an offer of proof as to the existence of facts that would have allowed the court to conclude that his infidelity might be relevant to the Granielas' motivation. There was, for example, no evidence that any infidelity occurred prior to the making of the statements or that, if it did, the Granielas were aware of it. Thus, the appellant's challenge fails. See Fed. R. Evid. 103(a)(2) (requiring offer of proof to preserve objection to ruling excluding evidence); see also United States v. Jadusingh, 12 F.3d 1162, 1166 (1st Cir. 1994) ("When challenging an exclusionary ruling . . . the aggrieved party must show . . . that the 'substance of the evidence [sought to be introduced] was made known to the court by offer or was apparent from the context within which questions were asked.'" (citation omitted)).3 C. Disruption of Trial. We turn next to the appellant's plaint that the district court abused its discretion in denying his mid-trial motion for a mistrial premised on his own disruption of the proceedings. Before exploring this plaint, we sketch the events that form the backdrop for it. After the jury entered the courtroom on the fourth day of trial, the appellant rose and began shouting in Spanish. The district court immediately ordered a marshal to "shut him up" and "sit him down." The court then excused the jury for the remainder of the day. Before doing so, it instructed the jurors that they In some cases, there may still be room for plain-error review. See Fed. R. Evid. 103(d); Jadusingh, 12 F.3d at 1166. Here, however, the reasons alluded to above make it pellucid that sustaining this objection was not on any level an abuse of discretion. were not to consider the incident or any statement made by the appellant during his outburst.4 It also instructed the jurors to keep their minds open about the merits of the case. The next day, the court repeated these instructions and conducted a voir dire in which it asked each juror whether he or she was able to remain impartial notwithstanding the outburst. All of the jurors responded affirmatively. The appellant moved for a mistrial, but the court denied the motion. The appellant did not request any further or different jury instructions. Against this backdrop, we review the district court's denial of the mistrial motion for abuse of discretion. See DeCologero, 530 F.3d at 52; United States v. Bradshaw, 281 F.3d 278, 284 (1st Cir. 2002). This deferential standard of review does not permit second-guessing for the sake of second-guessing. Only in rare instances will we, from the vantage point of a cold appellate record, substitute our judgment for the trial court's first-hand determination that the interests of justice could be served without aborting a trial already in progress. United States v. Pierro, 32 F.3d 611, 617 (1st Cir. 1994). Although the appellant's vociferations were not entered into the record, the court's subsequent comments (made out of the jurors' earshot) enlighten us as to their substance: it appears that It is common ground that jurors in the District of Puerto Rico normally are fluent in Spanish, and there is no question but that the jurors both saw and heard the appellant's outburst. the appellant accused a government witness, Martínez, of prevaricating; accused the government of fabricating the case against him; and expressed dissatisfaction with the performance of his trial counsel. Thus, the comments themselves did not impart information prejudicial to the defense. For present purposes, then, the appellant's plaint centers on the bad impression that his loss of control may have created. Withal, the appellant is in a perilously poor position to complain about that bad impression. When a defendant has willfully disrupted the proceedings, a trial court ordinarily acts within its discretion in refusing to grant a mistrial by reason of that disruption. See, e.g., United States v. McCormac, 309 F.3d 623, 626 (9th Cir. 2002); United States v. Harris, 2 F.3d 1452, 1456 (7th Cir. 1993); United States v. Trevino-Rodriguez, 994 F.2d 533, 535 (8th Cir. 1993); United States v. Bamberger, 456 F.2d 1119, 1128 (3d Cir. 1974). Were the rule otherwise, a defendant could, in effect, ensure a mistrial by the simple expedient of disrupting the proceedings. This would reward bad behavior and, thus, create perverse incentives. See Harris, 2 F.3d at 1456 ("[T]o allow a defendant by his own misconduct to terminate his trial even temporarily would be to allow him to profit for his own wrong." (quoting United States v. Chaussee, 536 F.2d 637, 641 (7th Cir. 1976))). Even so, such unruliness cannot simply be ignored. A trial court confronted by such an outburst should take proper steps to neutralize any untoward effects that the outburst might have on the jury. See, e.g., McCormac, 309 F.3d at 626. Here, the district court's timely and repeated instructions to the jury, coupled with its thorough vetting of the jurors to ensure that their impartiality had not been compromised, sufficed to safeguard the appellant's right to a fair trial. Thus, we find no abuse in the district court's refusal to declare a mistrial because of the outburst. D. Prosecutorial Misconduct. The appellant again moved for a mistrial toward the end of the trial. This second motion followed the prosecutor's thrice- repeated reference, in summation, to the prosecution's evidence as "unchallenged." The relevant portions of the summation follow. And I would add that the testimony you heard from Task Force Agent Luna, aside from the objections from the defense, went unchallenged, unchallenged. . . . Now, I state this again, you may not like Francisco Vega or what Francisco Vega did in the past, but his testimony was unchallenged. His testimony was unchallenged. . . . Ladies and gentlemen of the jury, that evidence [audio recordings of the defendant conversing with Vega], presented to you yesterday, went unchallenged. That's the defendant's voice. The appellant did not interpose a contemporaneous objection to the first of these statements. He did, however, interpose contemporaneous objections to the second and third statements. The district court initially overruled these objections. But after a sidebar conference and a recess that followed the first round of the government's closing argument,5 the court concluded that the prosecutor's comments were improper and vowed to give a curative instruction. At that juncture, the appellant unsuccessfully sought a mistrial, the court gave the promised instruction, the closing arguments continued without any reiteration of the challenged characterization, and the judge repeated the curative instruction in his charge to the jury. The question of whether the prosecutor's comments abridged the appellant's Fifth Amendment rights is a question of law and, thus, engenders de novo review. See United States v. Glantz, 810 F.2d 316, 321 n.2 (1st Cir. 1987). The Fifth Amendment invests a criminal defendant with a right to remain silent and, as a corollary of that right, prohibits the government from commenting on the defendant's silence. Griffin v. California, 380 U.S. 609, 615 (1965). A comment on the defendant's failure to testify need not be direct in order to cross the constitutional line: the government infringes the defendant's Fifth Amendment rights whenever "the language used [by the prosecutor is] manifestly intended or [is] of such character that the jury would naturally and necessarily take The district court used a familiar three-part format in which the prosecutor initiates the closing arguments, defense counsel responds, and the prosecutor then rebuts. it to be a comment on the failure of the accused to testify." Glantz, 810 F.2d at 322. The appellant asseverates that the prosecutor's comments, quoted above, come within the Glantz proscription. But this is far from a foregone conclusion. While the remarks can be interpreted as comments on the appellant's failure to testify, they also can be interpreted as a means of drawing attention to defense counsel's decision not to cross-examine either Luna or Vega. The fact that the prosecutor referred to the evidence as "unchallenged" only in connection with evidence involving these witnesses makes the latter interpretation plausible. This is a potentially important distinction: although it is not proper for a prosecutor to comment on a defendant's failure to testify, it is permissible (though dangerous) for a prosecutor to comment on the defense's failure to cross-examine a witness. See, e.g., United States v. Hooker, 541 F.2d 300, 307 (1st Cir. 1976); Goitia v. United States, 409 F.2d 524, 528 (1st Cir. 1969). Despite the fact that the resolution of this ambiguity ordinarily might make a dispositive difference, the circumstances here are such that we need not grapple with that question. Assuming, without deciding, that the prosecutor's comments were beyond the pale, no mistrial was required. We explain briefly. With respect to Fifth Amendment violations of this genre, harmless error doctrine applies. United States v. Hasting, 461 U.S. 499, 507-09 (1983). Consequently, such a violation is not automatically a basis for setting aside a conviction. If examination shows that the violation is harmless beyond a reasonable doubt, the conviction may stand. To this end, we must make an inquiry into whether it is clear beyond a reasonable doubt that the jury would have returned the same verdict absent the prosecutor's comment. Id. at 510-11. We have sometimes used a four-part analytic modality to guide the inquiry into the harmlessness of such a violation. The factors to be evaluated are the severity of the misconduct, the context in which the misconduct occurred, the deployment and likely impact of any curative instructions, and the strength of the evidence against the accused. See, e.g., United States v. Rodríguez, 215 F.3d 110, 122-23 (1st Cir. 2000); Taylor, 54 F.3d at 978-80; United States v. Hardy, 37 F.3d 753, 758-59 (1st Cir. 1994). This evaluation should be made in the first instance by the trial court; if that court, confronted with a comment that infringes the defendant's Fifth Amendment rights, finds the comment harmless and denies a motion for a mistrial, we review that decision for abuse of discretion. Glantz, 810 F.2d at 321 n.2. In this case, the district court's refusal to order a mistrial is inexpugnable. None of the four factors cuts the appellant's way. The violation (assuming that one occurred) was not severe, and the context does not favor jettisoning the verdict. After all, the comments were made in the opening portion of the prosecutor's summation, see supra note 5, so that defense counsel could tailor his argument accordingly. The third factor likewise counsels against disturbing the verdict. The district court gave timely, thorough, and repeated curative instructions. The court specifically identified the challenged comments, explained why they could be viewed as improper, told the jury to disregard them, and emphasized the appellant's right not to testify or present evidence. These instructions were sufficient to neutralize any prejudice that might have attended the challenged comments. See United States v. Mooney, 315 F.3d 54, 60 (1st Cir. 2002) (noting that instructions are "sometimes enough to neutralize any prejudice from improper remarks"); see also United States v. Smith, 145 F.3d 458, 462 (1st Cir. 1998) (explaining that "courts must presume that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case"). Last — but far from least — this was not a close case. The able district judge characterized the proof against the appellant as "enormous." That characterization seems apt: the government offered overwhelming evidence on each and every element of the charged conspiracy. On this claim of error, all of the signposts point in the same direction. Accordingly, we hold that, even if the prosecutor's comments were improper — a matter on which we take no view — the misconduct was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967). It follows inexorably that the district court did not abuse its discretion in denying this motion for a mistrial. E. Increased Punishment. The appellant's last argument implicates his sentence. In the course of the proceedings, the government filed an information pursuant to 21 U.S.C. § 851(a), proffering two prior felony drug convictions as a stepping stone for increased punishment should the appellant be found guilty. After the jury verdict, the district court, in reliance on this filing, deemed the appellant subject to increased punishment. See id. § 851(d). The court thereupon imposed a life sentence, which included the increase. See id. § 841(b)(1)(A). The appellant contends that these rulings were erroneous in various respects. Specifically, he contends that section 851(e) — which forecloses a defendant from challenging the validity of prior convictions entered more than five years before the date of the government's section 851(a) filing — offends the Due Process and Equal Protection Clauses of the federal Constitution and should not have been enforced. He adds that the statute also transgresses the rule of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Finally he contends that the filing of a section 851(a) information in this case constituted impermissible prosecutorial vindictiveness. Here, however, there is a rub. The appellant acknowledges that, in these respects, the district court acted in strict conformity with circuit precedent. See Appellant's Br. at 34-36. By like token, he acknowledges that the contentions that he mounts can prevail only if we overrule a number of this court's precedents. See, e.g., United States v. Jenkins, 537 F.3d 1, 5 (1st Cir. 2008); United States v. Henderson, 320 F.3d 92, 104-10 (1st Cir. 2003). This proposition that we can overrule our own precedents at will is untenable. With only narrow exceptions, none of which pertain here,6 an argument panel is bound by prior panel decisions of the court. See United States v. Rodríguez, 527 F.3d 221, 224-25 (1st Cir. 2008) ("As a general rule, newly constituted panels in a multi-panel circuit are bound by prior panel decisions closely on point."); United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991) (same). Because we lack authority to overrule the precedents that the appellant targets, we reject this claim of error without inquiry into its merits. These exceptions center on situations involving supervening authority, such as "when the holding of a previous panel is contradicted by controlling authority, subsequently announced (say, a decision of the authoring court en banc, a Supreme Court opinion directly on point, or a legislative overruling)." Muskat v. United States, 554 F.3d 188, 189 (1st Cir. 2009). III. CONCLUSION We need go no further. After thorough perscrutation of the record, we conclude that the appellant was fairly tried, justly convicted, and appropriately sentenced. Affirmed.

United States Court of Appeals For the First Circuit No. 08-1086 WILFREDO MARTÍNEZ-RODRÍGUEZ, Plaintiff, Appellant, v. ROGELIO E. GUEVARA, Chief of Operations, Drug Enforcement Administration; JEROME HARRIS, Special Agent in Charge, Caribbean Field Division; ENRIQUE NIEVES, Group Supervisor; ARAMIS QUIÑONES, Special Agent; NELSON GONZÁLEZ, Special Agent; FRANCISCO J. ÁLVAREZ, Special Agent; JOHN F. KANIG, Special Agent, Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge] Before Torruella, Lipez, and Howard, Circuit Judges. Luis Rafael Rivera,* for appellant. Ginette L. Milanés, Assistant United States Attorney, with whom Rosa E. Rodríguez-Vélez, United States Attorney, Nelson Pérez- * Attorney Rafael Rivera failed to appear at oral argument without previously apprising the court of his inability to appear. In the absence of appellant's counsel, the court heard arguments from appellees' counsel pursuant to Fed. R. App. P. 34(e). In response to an order of the court, Rivera explained that he was unable to appear at oral argument due to a calendar conflict. We express our discontent with Rivera's failure to appear before the court for oral argument. An attorney "who fails to appear for oral argument and is not excused therefrom is violating an important duty to the client and an important obligation to the court." Dickens v. State of Mo., 887 F.2d 895, 896, n.2 (8th Cir. 1989). Sosa, Assistant United States Attorney, Chief, Appellate Division, and Germán A. Rieckehoff, Assistant United States Attorney, were on brief for appellees. March 1, 2010 TORRUELLA, Circuit Judge. Plaintiff-Appellant Wilfredo Martínez-Rodríguez appeals the district court's entry of summary judgment dismissing, on qualified immunity grounds, his claim that several Drug Enforcement Administration ("DEA") agents violated his Fourth Amendment right to be free from arrest and prosecution without probable cause. Martínez-Rodríguez claims that several DEA agents provided false and misleading statements to the grand jury and throughout his criminal prosecution with knowledge of their falsity or in reckless disregard for the truth in order to manufacture probable cause against him. After a careful review of the record, we find that Martínez-Rodríguez has not made a showing that defendants intentionally or recklessly provided false or misleading statements to support his indictment and arrest on drug- related charges. We therefore affirm the district court's judgment. I. Background1 A. Underlying Drug Trafficking Investigation The facts that underlie this appeal arise from a DEA investigation into alleged drug trafficking activities conducted by several police officers assigned to the Caguas Tactical Operations The facts are drawn from the parties' statements of material uncontested facts and the exhibits submitted by the parties at the summary judgment stage. Because this is an appeal from a grant of summary judgment, we recite the facts in the light most favorable to plaintiff-appellant, Martínez-Rodríguez. Burke v. Town of Walpole, 405 F.3d 66, 71 (1st Cir. 2005). Unit of the Puerto Rico Police Department ("PRPD"). On the basis of information provided by a confidential source around December 2000, DEA agents John F. Kanig and Aramis Quiñones ("Quiñones") learned that PRPD officer Roberto Martínez-Hernández ("Hernández") was dealing large quantities of drugs. The investigation also revealed that another police officer, Alexis López-López ("López-López"), was supplying heroin to Hernández. From January to March 2001 and at the behest of the DEA agents, the confidential source conducted two separate heroin purchases from Hernández. The DEA agents also established direct contact with Hernández through an undercover agent, Nelson González ("González"), who posed as a drug trafficker from Texas. González and Hernández also discussed future purchases of heroin. Although the DEA investigation centered on Hernández's and López-López's drug trafficking activities, its efforts also yielded information that Martínez-Rodríguez, another PRPD officer, had been in contact with both López-López and Hernández. For example, two subpoenas of López-López's cell phone records revealed that López-López and Martínez-Rodríguez had at least twelve telephone communications between February 27, 2001 and March 26, 2001, and that between April 1, 2001 and April 24, 2001, López-López called Martínez-Rodríguez thirteen times, while Martínez-Rodríguez called López-López five times. Finally, a telephone toll/subscriber analysis of a telephone subscribed to José R. Martínez-Hernández revealed three prior telephone communications between Hernández and Martínez-Rodríguez. B. The May 14th Meeting The crucial events for the purposes of the present appeal transpired on May 14, 2001, when López-López and Hernández met with undercover agent González at the Oyster Bar Restaurant in Isla Verde, Puerto Rico. Martínez-Rodríguez accompanied López-López to the Oyster Bar that day. Hernández served as an intermediary between López-López and undercover agent González as he introduced López-López to González and instructed them to discuss potential drug deals. After this introduction, Hernández, López-López, and González discussed future drug transactions which included the possibility of buying heroin to distribute in the United States. The three men discussed how the heroin would be delivered and distributed, its purchase price, and payment methods. During the meeting, Hernández, López-López, and González were seated at the same table. But at least throughout part of the drug-related meeting, Martínez-Rodríguez was seated at a nearby table. When the meeting ended after approximately two and a half hours, the four men left the restaurant at the same time. C. Martínez-Rodríguez's Indictment and Filing of His Civil Rights Suit In the course of a grand jury investigation special agent Quiñones testified as to the details of the drug trafficking operation and stated that Martínez-Rodríguez acted as López-López's bodyguard during the May 14th meeting. Martínez-Rodríguez was subsequently indicted and arrested on drug trafficking charges. On August 2, 2002, Martínez-Rodríguez was acquitted following a jury trial. He subsequently filed a civil rights action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against several DEA officials and agents. Martínez-Rodríguez named two group of defendants in his complaint. In the first group of defendants he included DEA officials Rogelio E. Guevara, Chief of Operations of the DEA; Jerome Harris, Special Agent in Charge of the Caribbean Field Division of the DEA; and Enrique Nieves, Group Supervisor and Acting Investigator of the DEA. The second group of defendants included the DEA agents who participated in the drug trafficking investigation, namely, DEA special agents Aramis Quiñones, Nelson González, Francisco J. Álvarez, and John F. Kanig (collectively, "Defendants"). In his complaint, Martínez-Rodríguez claimed that DEA special agent Quiñones knowingly gave false or misleading testimony before the grand jury in order to establish probable cause for his indictment and arrest. According to Martínez-Rodríguez, the other DEA officials and agents listed as defendants had constructive knowledge of Quiñones's false testimony to the grand jury, and they failed to reveal that Martínez-Rodríguez did not participate in the drug-related conversation at the Oyster Bar, resulting in his illegal arrest, without probable cause, in violation of his Fourth, Fifth and Fourteenth Amendment rights. Following a few procedural incidents concerning service of process and personal jurisdiction, Defendants filed a Motion to Dismiss arguing, inter alia, that the complaint failed to state a claim under Bivens for which relief could be granted and that in the alternative they were entitled to qualified immunity. Adopting a Report and Recommendation issued by a magistrate judge, the district court dismissed Martínez-Rodríguez's Fifth and Fourteenth Amendment claims. Defendants subsequently filed a Motion for Summary Judgment requesting dismissal of Martínez-Rodríguez's Fourth Amendment claim on qualified immunity grounds. The district court granted Defendant's motion and dismissed the case, holding that Defendants' actions were objectively reasonable under clearly established law. Martínez-Rodríguez timely appeals the district court's dismissal of his Fourth Amendment claim. II. Discussion As a threshold matter we clarify the scope of the arguments raised by the parties in this appeal. Throughout the different stages of this litigation and in their briefs, the parties have rested on two basic assumptions. First, they assume that Defendants are protected by qualified immunity rather than absolute immunity. Second, they assume that the constitutional claim at issue should be treated as a Fourth Amendment violation akin to that discussed in Franks v. Delaware, 438 U.S. 154 (1978). We adopt the parties' assumptions for purposes of this appeal but do not decide whether they are warranted. A. Summary Judgment Our review of the district court's entry of summary judgment on qualified immunity grounds is de novo. Bergeron v. Cabral, 560 F.3d 1, 7 (1st Cir. 2009). Summary judgment should be granted if the record "show[s] that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A genuine issue exists where the evidence is sufficient for a reasonable trier of fact to return a verdict in favor of the nonmoving party. Taylor v. Am. Chemistry Council, 576 F.3d 16, 24 (1st Cir. 2009). Similarly, "[a] fact is material if it has the potential of determining the outcome of the litigation." Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In order to overcome a motion for summary judgment, the non-moving party must put forth specific facts to support the conclusion that a triable issue subsists. Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006). With respect to each issue on which the nonmoving party has the burden of proof at trial, that party must "present definite, competent evidence to rebut the motion." Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008)(quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)). However, "summary judgment cannot be defeated by relying on improbable inferences, conclusory allegations, or rank speculation." Ingram v. Brink's, Inc., 414 F.3d 222, 229 (1st Cir. 2005). B. Qualified Immunity Qualified immunity seeks to accommodate the public interest in deterring unlawful conduct with the need to provide a forum for individuals to pursue redress for constitutional wrongs suffered in the hands of public officials. See Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). The qualified immunity doctrine protects federal and state officials from civil liability in the performance of "discretionary functions . . . insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818. The qualified immunity test is identical for claims pursued under § 1983 and for Bivens-type suits. Wilson v. Layne, 526 U.S. 603, 609 (1999). Because the parties briefed the qualified immunity issue under the three-part test employed by this court prior to the Supreme Court's decision in Pearson v. Callahan, 129 S. Ct. 808 (2009), we will review the district court's grant of qualified immunity in this case under the pre-Pearson tripartite test.2 Under this three-pronged mode of analysis, we must determine "(i) whether the plaintiff's proffered version of the facts, if true, makes out a violation of a constitutionally protected right; (ii) . . . whether that right was clearly established at the time of the putative violation; and (iii) . . . whether a reasonable public official, situated similarly to the defendant, should have understood the challenged act or omission to violate the discerned right." Bergeron, 560 F.3d at 7 (quoting Morelli v. Webster, 552 F.3d 12, 18 (1st Cir. 2009). After Pearson, we are not required to take these inquiries in strict sequence. Id. But because the district court in this case chose to address these steps in sequence, and the parties briefed the issue on that basis, we choose to employ the same sequential analysis. Pursuant to the Supreme Court's decision in Pearson, we now collapse the three-step qualified immunity analysis into a two-part test which requires courts to determine: "(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was 'clearly established' at the time of the defendant's alleged violation." Maldonado v. Fontánes, 568 F.3d 263, 269 (1st Cir. 2009). We would reach the same result in the present case if we were to review the district court's grant of qualified immunity under the newly- adopted two-part test. See Bergeron, 560 F.3d at 7 n.2 (explaining that "[t]he three-step approach is functionally equivalent to the two-step approach" and holding that the resolution of the case would be the same "regardless of [the] methodology . . . employed"). Martínez-Rodríguez grounds his Fourth Amendment claim on an allegation that Defendants procured his arrest and indictment on the basis of false testimony and material misrepresentations given intentionally or with reckless disregard for the truth. Martínez- Rodríguez claims that Quiñones falsely testified before the grand jury that Martínez-Rodríguez acted as López-López's bodyguard during the May 14th meeting and that he participated in the drug- related conversation. Martínez-Rodríguez also claims that the other Defendants had constructive knowledge of Quiñones's false testimony but intentionally or recklessly failed to reveal to the grand jury or the court that Martínez-Rodríguez had not participated in the drug conspiracy. It is clearly established law that the Fourth Amendment requires that arrests be based upon probable cause. See Beck v. Ohio, 379 U.S. 89, 91 (1964); Abreu-Guzmán v. Ford, 241 F.3d 69, 73 (1st Cir. 2001). It is also beyond peradventure that arrests procured on the basis of material false statements or testimony given in reckless disregard for the truth violate the Fourth Amendment. See Burke, 405 F.3d at 81 (stating that officers violate the Fourth Amendment if they "act[] in reckless disregard, with a high degree of awareness of [the] probable falsity of statements made in support of an arrest warrant" (internal quotation marks omitted)); Aponte-Matos v. Toledo-Dávila, 135 F.3d 182, 187 (1st Cir. 1998) ("An officer who obtains a warrant through material false statements which result in an unconstitutional search may be held personally liable for his actions under § 1983."); see also Franks, 438 U.S. at 155-56 (holding that the use of false statements to obtain a warrant violates the Fourth Amendment provided that the false statements were material to the finding of probable cause). There is also no question that these constitutional protections extend to the grand jury context. Thus, there is a clearly established Fourth Amendment right not to be indicted and arrested on the basis of false or misleading statements given before a grand jury. Cf. Limone v. Condon, 372 F.3d 39, 45 (1st Cir. 2004) ("[T]hose charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit."). In a diffuse fashion, Martínez-Rodríguez contends there are genuine issues of material facts regarding the veracity of Quiñones's testimony and conclusion that Martínez-Rodríguez acted as López-López's bodyguard and was able to hear the drug-related conversation. He also claims there is a factual dispute regarding the reasonableness of Defendants' belief that he was part of the drug-trafficking conspiracy. In support of this claimed factual dispute Martínez-Rodríguez relies on the transcript of Quiñones's grand jury testimony. However, a review of the record reveals that Martínez-Rodríguez never attached Quiñones's grand jury transcript to his opposition to Defendant's motion for summary judgment.3 Given that Martínez-Rodríguez's contention is based on evidence not supported on the record, we conclude that Martínez-Rodríguez has failed to shoulder the burden of proving that a material factual dispute exists that would preclude the court from addressing Defendants' qualified immunity claim. Nieves v. Univ. of P.R., 7 F.3d 270, 280 (1st Cir. 1993)("Factual assertions by counsel in motion papers, memoranda, or briefs are generally not sufficient to generate a trialworthy issue."). Moreover, the undisputed facts establish that: (1) Martínez-Rodríguez attended the May 14th meeting with López-López, an individual who was under investigation for drug trafficking; (2) the purpose of the meeting was to discuss future drug transactions; (3) prior to the May 14th meeting, Martínez-Rodríguez had established telephone contacts with López-López and Hernández, two of the individuals who were under investigation for drug trafficking and who attended the meeting; (4) during the meeting, The district court indicated that Martínez-Rodríguez never filed the transcript of Quiñones's grand jury testimony. Martínez- Rodríguez v. Guevara, 551 F. Supp. 2d 142, 148 (D.P.R. 2007). At oral argument, Defendants' counsel stated that she had not seen or received copy of Quiñones's grand jury testimony during the lower court proceedings and that Martínez-Rodríguez included said transcripts for the first time on appeal. Because Martínez- Rodríguez's counsel failed to appear at oral argument, we lack the benefit of his explanation regarding the grand jury transcript. In his brief, Martínez-Rodríguez claimed "the grand jury transcripts were attached as exhibit 7 to Defendant's Statement of Facts in support of Motion for Summary Judgment." Appellant's Br. at 14. A review of the record, however, contradicts this assertion. undercover agent González engaged in a drug-related conversation with López-López and Hernández that lasted approximately two and a half hours; and (5) at least during some part of the two and a half hours in which Hernández, López-López, and González discussed future drug transactions, Martínez-Rodríguez was seated at a table in close proximity to where the three men were seated. Additionally, Martínez-Rodríguez interacted with González, López- López, and Hernández during their meeting when he brought them drinks to their table. On the basis of these facts, we find that a reasonable officer, faced with the events that transpired during the May 14th meeting and given the background of the drug investigation, could have concluded that Martínez-Rodríguez was involved in the conspiracy and that he was there as a bodyguard. As we stated, Defendants knew that Martínez-Rodríguez had been in contact via telephone with López-López and Hernández since February 2001. On May 14, 2001, Martínez-Rodríguez accompanied López-López to a meeting in which drug transactions were undisputably discussed. At least during part of the two and a half hours of conversation Martínez-Rodríguez was at close proximity to where the others discussed future purchases of heroin; at some point he interacted with Hernández, López-López, and González; and he left the meeting with the three men. From this, a reasonable officer could have concluded that Martínez-Rodríguez's role was more than that of an unwitting bystander or that he was innocently escorting López- López. Cf. United States v. Batista-Polanco, 927 F.2d 14, 18 (1st Cir. 1991) ("[I]t runs counter to human experience to suppose that criminal conspirators would welcome innocent nonparticipants as witnesses to their crimes."). "Reasonable police investigators must be secure in the knowledge that they can present evidence of a crime to the proper charging officials without worry of suit, so long as they do not fabricate evidence or submit evidence with certain knowledge of its falsity." Williams v. City of Albany, 936 F.2d 1256, 1260 (11th Cir. 1991). Viewing the evidence in the light most favorable to Martínez-Rodríguez, and based on the facts he has presented to us, we cannot conclude that Quiñones intentionally or recklessly provided material false testimony to the grand jury, or that the other Defendants had knowledge of such falsity and intentionally or recklessly provided false statements or made material misrepresentations before the grand jury investigation and throughout Martínez-Rodríguez's prosecution. Martínez-Rodríguez claims that he did not participate in the drug-related conversation and he denies that he acted as López- López's bodyguard. Martínez-Rodríguez relies on his testimony during the criminal trial held against him. The district court concluded that Martínez-Rodríguez failed to raise a genuine issue of material facts regarding his inability to participate in the drug conversation because he had failed to include evidence in support of the allegations that he was talking on the phone with friends and relatives. Our review of the record reveals that Martínez-Rodríguez attached a copy of his sworn testimony during the criminal trial held against him. The transcript shows that Martínez-Rodríguez denied having heard the drug conversation and testified that he received several phone calls while he was at the restaurant and that on various occasions he left the restaurant to answer the calls. However, even if we accept that Martínez-Rodríguez spoke on his cell phone at some point during the two and a half hours in which López-López, Martínez-Hernández, and González discussed drug transactions, this would not alter our conclusion that Martínez-Rodríguez has failed to show that Quiñones made false or misleading statements before the grand jury regarding Martínez-Rodríguez's role and participation in the May 14th meeting. In fact, the testimony of undercover agent González at Martínez-Rodríguez's criminal trial is consistent with Quiñones's conclusion that Martínez-Rodríguez was providing protection during the meeting and that although Martínez-Rodríguez was not actively involved in the drug-related conversation, he appeared to be involved in the conspiracy. The qualified immunity framework shields from liability "all but the plainly incompetent [and] those who knowingly violate the law." Morelli, 552 F.3d at 18 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Even if Quiñones erred in concluding that Martínez-Rodríguez was part of the conspiracy, or harbored a mistaken belief that Martínez-Rodríguez acted as López-López's bodyguard, there is no evidence to show that he knew these statements were false or that Quiñones "in fact entertained serious doubts as to the truth" of his statements or that the "circumstances evinc[ed] obvious reasons to doubt the[ir] veracity." Burke, 405 F.3d at 81 (first alteration in original). Likewise, there is no indication that the other Defendants either conspired with Quiñones to provide false statements to the grand jury or that they failed to reveal the falsity of Quiñones testimony. Martínez-Rodríguez has therefore failed to put forth sufficient facts for a rational jury to conclude that Defendants violated his Fourth Amendment rights. Absent evidence to support the claim that no reasonable officer in Defendants' position would have believed that Martínez- Rodríguez acted as a bodyguard and was involved in the drug conspiracy, we affirm the district court's conclusion that Defendants are entitled to qualified immunity as a matter of law. Affirmed.

United States Court of Appeals For the First Circuit No. 08-1855 UNITED STATES OF AMERICA, Appellee, v. DARRYL DOWDELL, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nathaniel M. Gorton, U.S. District Judge] Before Torruella, Selya and Howard, Circuit Judges. Charles W. Rankin, with whom Michelle Menken and Rankin & Sultan, were on brief, for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Michael K. Loucks, Acting United States Attorney, was on brief, for appellee. February 12, 2010 HOWARD, Circuit Judge. Following a three-day jury trial, Defendant Darryl Dowdell was convicted of distribution of cocaine base and sentenced as a career offender to 198 months' imprisonment. Dowdell appeals the conviction, alleging three defects: that the delay between his indictment by state authorities and his ultimate trial in federal court violated his Sixth Amendment speedy trial rights as well as the Interstate Agreement on Detainers; that the district court's amendment of the indictment from "cocaine" to "cocaine base" violated the presentment clause of the Fifth Amendment; and that the trial court abused its discretion on various evidentiary rulings. He also challenges the sentence imposed, arguing that the government's recommended sentence of 262 months violated a promise not to seek a term of imprisonment longer than 20 years. For the reasons that follow, we affirm both the conviction and the sentence. I. Background and Travel While the facts surrounding the underlying offense are not complicated, the pre-trial procedural history of this case presents a maze of overlapping federal and state activity, a flurry of continuances, and a revolving door of withdrawn and newly appointed defense counsel. A. The Subject Offense The following facts were elicited at Dowdell's federal trial. In the summer of 2001, several Massachusetts authorities launched a coordinated effort with the federal Drug Enforcement Administration (DEA) to investigate drug trafficking in the area of a housing project in Roxbury. The investigation involved a task force of undercover officers who made controlled purchases of cocaine and crack cocaine from dealers operating in the project. One of these officers was Boston Housing Authority investigator Joao Monteiro. Posing as a construction worker, Monteiro drove an unmarked car with a concealed audio transmitter and a video camera that focused on the automobile's interior passenger compartment. On July 6, 2001, Monteiro observed Dowdell standing on the sidewalk with a man named Robert White, whom Monteiro recognized from previous encounters. Dowdell was wearing dark pants and a black shirt. He and White were counting cash. Monteiro signaled to White that he wished to purchase crack cocaine, and White went to talk to Dowdell. White then approached Monteiro's car and got into the passenger seat. White told Monteiro that Dowdell, at this point identified only as "the dark- skinned brother" in the dark shirt, was a trustworthy dealer. After purchasing 1.1 grams of crack cocaine for $230, Monteiro asked White whether "the dude in black" was the person to see for future purchases if White were unavailable. White replied affirmatively and informed Monteiro that Dowdell went by the name "Smoke." Monteiro departed, after informing White that he would be returning in a short while to make another purchase. Some 45 minutes later, Monteiro returned to the project and saw Dowdell on a bicycle. Monteiro approached Dowdell, who asked Monteiro if he wanted anything. Monteiro responded that he was looking for White, and Dowdell then biked over to the spot where White was standing. White came over to Monteiro's car and, for the second time that night, sat down beside Monteiro in the passenger seat. Monteiro told White that he wished to purchase more drugs, as well as baggies for repackaging. White agreed and, after directing Monteiro to a parking area close to the spot of the first transaction, sold him 1.2 grams of crack cocaine and baggies for $210. Monteiro returned for a third buy on July 16, ten days after the first two. When he arrived, he saw Dowdell standing in a small group, wearing blue jeans and a blue checkered shirt. Monteiro again asked for White, who was unavailable. Monteiro asked for directions and drove away, making it appear that he was going off to search for White. After waiting long enough to give the impression that the search was unsuccessful, he returned to the project looking for Dowdell. He found Dowdell on the sidewalk, still wearing a blue checkered shirt. Monteiro called out "Yo, Smoke, can I holler at you." Dowdell approached Monteiro's car, and the two of them proceeded to have a conversation through the passenger-side window. Continuing to address Dowdell as "Smoke," Monteiro asked for about $200 worth of crack cocaine. Dowdell left briefly to meet with another individual and then returned with six bags of crack cocaine, worth approximately $100. Seven more bags would eventually follow. The total weight of the thirteen bags was approximately 2.3 grams. During this whole encounter, Dowdell was only partially visible on the video that Monteiro's surveillance camera recorded. Driving away, Monteiro narrated a description of Dowdell for the surveillance recording. He stated, "Smoke is the same kid as the last time.. [sic] he's got on a checkered shirt blue...blue checkered shirt umm and he was riding a bicycle." Later that day, Dowdell was arrested on an outstanding warrant unrelated to his transactions with Monteiro. He was brought to a Boston police station where a booking photo was taken. In the photo, Dowdell was wearing a blue checkered shirt, as Monteiro had described earlier in the day. Later, around four hours after completing the buy from Dowdell, Monteiro was shown the photograph and identified the depicted individual as "Smoke." Monteiro reported that the individual in the photograph was the same person from whom he had purchased drugs that day and whom he had seen standing on the corner with White ten days beforehand. B. Pre-Trial Procedural History Because the timing of particular pre-trial events is important to our legal analysis, we must delve into some detail in retracing the path on which this case traveled before it reached the jury. On March 25, 2002, eight months after the July 2001 encounters at the housing project, a Suffolk County grand jury indicted Dowdell, based on those events, for distributing a controlled substance in the vicinity of school property. At his arraignment, he pled not guilty and was released on bail, which was subsequently revoked in October 2003 due to a charge on an unrelated crime. On April 12, 2004, Dowdell's appointed counsel withdrew his representation and was replaced. That replacement would in turn withdraw in August of that year, and the court appointed a third attorney. On November 17, 2004, the federal government filed a criminal complaint against Dowdell based on the July 2001 events, charging him with distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1). At that time, Dowdell was already serving a 27-month sentence in the Suffolk County House of Correction after a conviction on the unrelated charge that had triggered his bail revocation. One month later, in December 2004, the Commonwealth entered a nolle prosequi on the March 25, 2002 indictment for distributing a controlled substance in the vicinity of school property, effectively terminating its prosecution. Dowdell remained in state custody as he continued to serve his ongoing sentence on the unrelated charge, but from this point onward he faced only the federal distribution charge. On February 4, 2005, then unrepresented by counsel, Dowdell wrote a letter to a clerk for the magistrate judge overseeing the pre-trial proceedings in his federal case. The letter invoked his speedy trial rights under 18 U.S.C. § 3161. Nearly three weeks later, Dowdell followed this letter with a formal request under the Interstate Agreement on Detainers (IAD), 18 U.S.C. App. 2, § 2, that he be transferred from state to federal custody as he awaited the resolution of the federal charge. On March 14, 2005, the federal government petitioned for a writ of habeas corpus ad prosequendum, and on March 22, 2005, Dowdell was brought into federal district court for his initial appearance, at which point he was assigned new representation. During the initial appearance, the prosecutor acknowledged that Dowdell's transfer into federal custody was pursuant to a writ "based on the defendant's request under the interstate agreement on detainers." He proceeded to explain that Dowdell had no intention of waiving his IAD rights, which Dowdell's counsel confirmed. By preserving his rights under the IAD, Dowdell was to remain in federal custody and receive credit toward the fulfillment of his term of incarceration for the unrelated charge in the state-court system, but receive no credit toward any eventual federal sentence for the distribution offense until the state-court sentence had fully elapsed. The next day, March 23, a federal grand jury indicted Dowdell, charging him with one count of "knowingly and intentionally possess[ing] with intent to distribute and distribut[ing] a quantity of cocaine" in violation of § 841(a)(1). Dowdell was arraigned on this charge on March 29, 2005. As in the state court proceedings, he entered a plea of not guilty. The court held an initial status conference on May 11, 2005, during which it set a deadline of June 23 for all dispositive motions. At Dowdell's request, that deadline was later extended to July 8. Dowdell filed a motion to dismiss the indictment at the new July 8 deadline, claiming a violation of the Speedy Trial Act, 18 U.S.C. § 3161, as well as violation of the Sixth Amendment.1 Specifically, Dowdell posited that prejudice had resulted from the pre-indictment delay in federal court.2 In an unsworn declaration, Dowdell contended that the Commonwealth had vindictively choreographed the delay and the eventual transfer to federal jurisdiction in retribution for his declining to testify before a The Speedy Trial Act claim is not before us on appeal. The constitutional provision that applies to pre-indictment delay is, in fact, the Fifth, rather than the Sixth, Amendment. See United States v. Marler, 756 F.2d 206, 209–10 (1st Cir. 1985). Dowdell's counsel appears to have corrected this point in a supplemental filing. state grand jury in a shooting case in which he had apparently been the victim. The declaration claimed that the district attorney was upset at Dowdell's alleged inability to see the face of the shooter and had stated "if you blow my case I am gonna get your drug case sent back to the feds." This alleged state-federal collusion, Dowdell argued, meant that the starting point for measuring any speedy trial violations ought to be the date of his state indictment, that is, March 25, 2002, rather than the federal indictment on March 23, 2005. The docket then lay dormant for four months. Although the government was required by rule to file its opposition to the motion to dismiss within two weeks, see D. Mass. R. 7.1(b)(2), it was not until November 7, 2005 that the government sought leave to file a late opposition. Apparently, the government had actually prepared the memorandum of law in July and assumed that it had been timely submitted. The motion for leave to file explained the delay as a simple error in performing the electronic submission. The district court granted this request, finding no evidence of bad faith on the part of the government. The next day, the government filed its opposition. On December 17, 2005, before the court had taken any action on the pending motion to dismiss, Dowdell moved to withdraw his appointed counsel -- as he had done twice before in state court -- claiming a breakdown in communication. The court held an ex parte hearing on February 14, 2006. It explained to Dowdell that appointing new counsel would further delay his case. Dowdell expressed that he would ideally like to resolve the case as soon as possible with his current counsel, but "we seem to not be seeing eye to eye with each other, so I thought I had no choice but to do that. . . . I don't want to put it off anymore. I've told him that. But I just felt that my life is on the line here, and I just felt that I need a new attorney." The court granted Dowdell's request and allowed his attorney to withdraw. Dowdell and the government agreed that any time that elapsed between the withdrawal and an eventual ruling on the motion to dismiss would be excluded from the speedy trial calculation. On March 2, 2006, the court appointed new counsel, Victoria Bonilla. On June 16, 2006, after Bonilla had time to acquaint herself with the case, Dowdell moved to supplement the motion to dismiss. The court held a non-evidentiary hearing on the matter and, after setting a trial date of July 31, 2006, granted the motion to supplement. On June 30, Dowdell filed the supplemental memorandum, alleging, inter alia, infringement of Dowdell's due process rights.3 Neither the original motion nor the supplemental memorandum mentioned the IAD. The government filed its response on July 11, 2006. The response erroneously asserted that Dowdell had in fact waived his The due process claim is not before us on appeal. IAD rights at his initial appearance, "rendering it inapplicable for purposes of the motion to dismiss." Regardless, the government claimed, no IAD violation had occurred. The court held a hearing on the motion on July 14, 2006. Bonilla, who had not been involved in the case when Dowdell first appeared, did not mention the IAD or contest the alleged waiver. As indicated in the following colloquy between Bonilla and the court, Dowdell's sole grounds for dismissal concerned the period prior to the federal indictment, rather than any post-indictment developments: THE COURT: Okay. All right. Now, turning more directly to your motion, the supplemental motion for -- to dismiss, do I understand, Ms. Bonilla, that the defendant is not contesting the time between the indictment, the federal indictment, in March of 2005, and today's date but that what you are concentrating on is the time between the November or December notice, December of 2004, and the indictment in March of 2005, as exceeding 30 days in violation of the statute? Is that -- MS. BONILLA: That's fair to say, your Honor. THE COURT: That's fair to say. So we're not concerned with anything that happened between March and the -- March of 2005 and the filing of the original motion to dismiss in July of 2005, and the snafu of the government in not responding to that motion until November of 2005, is that correct? MS. BONILLA: Yes, your Honor. My motion focuses on what happens before. The court ultimately denied the motion in its entirety, including Dowdell's constitutional speedy trial argument, and prepared to move onward to the July 31 trial date. Dowdell, however, once again requested a continuance, this time because of the possibility that a prior state conviction might be expunged from his record in the interim (an occurrence that could affect plea negotiations). Michael Bourbeau, one of Bonilla's partners who was also representing Dowdell at the hearing, explained that "we've talked about Mr. Dowdell's Speedy Trial rights. But the ramifications of this, I think, this prior [state conviction] -- the determination that can be made on that prior is, I think, very significant as to whether this case needs to go forward to trial." The government agreed with this representation. At that point, the court took pains to ensure that Dowdell understood the ramifications of any postponement: THE COURT: The Court's schedule is such that it couldn't be for probably three months. MR. BOURBEAU: We understand the Court's concern. We've had discussion with Mr. Dowdell. THE COURT: Yeah, I mean, this is the oldest case, I think, on my docket, maybe not in the docket number but with respect to the date of the alleged crime. It needs to be resolved. Your request, of course, is made on behalf of the defendant now who needs to have his rights -- MR. BOURBEAU: Yes. THE COURT: -- pursued and resolved. ... THE COURT: All right. The Court will allow the defendant's motion to continue the trial until September 18th on the extraordinary circumstance that we all find ourselves in this case. It is something that is very much of concern to the Court that this matter be resolved sooner rather than later, but I understand the import of what Mr. Bourbeau is suggesting and that it may well inure to the benefit of not only counsel but of the Court in terms of judicial economy or economy of the Court's expenditure of time. So I'm going to allow that motion for continuance. Thus, at Dowdell's own behest, the trial was pushed back an additional month and a half. The September 18th trial date met the same fate as the preceding July 31st date -- postponement. For the second time since his federal indictment, and for the fourth time overall, Dowdell's attorney moved to withdraw representation. In a motion dated August 8, 2006, Bonilla informed the court that Dowdell believed there to have been an irreparable breakdown in communications. The court held an ex parte hearing on August 16, 2006, after which it denied the motion. But on September 8, Dowdell sent the court a pro se, handwritten motion to reconsider its denial. On September 18, 2006, the court held another ex parte hearing, after which it determined that the best course was indeed to allow Bonilla to withdraw. The trial date was once again pushed back to December 11, 2006, and a new attorney, Mark Shea, was appointed on October 31, 2006. As with his predecessors, Shea's tenure as Dowdell's counsel would terminate prematurely, though this time not at Dowdell's request. On November 28, 2006, Shea informed the court that he had a conflict of interest that compelled withdrawal. The court allowed another change in representation. The trial date was rescheduled for February 27, 2007. Dowdell's new attorney (now his fourth since the federal indictment and seventh overall) was granted a requested continuance on December 18, 2006 in order to acquaint himself better with the case. Trial was set for April 9, 2007. On March 15, 2007, Dowdell's attorney once again requested a continuance, this time both in order to ensure effective assistance and because of a personal conflict. The court granted this final continuance. The trial commenced on May 29, 2007 -- nearly six years from the date of the offense. C. Modifying the Indictment We briefly depart from our chronological march through the events and take several steps back to August 2006, when the trial was still scheduled for the following month. On August 30, the government filed a motion to advise the court of a potential variance between the text of the indictment and the proof to be adduced at trial. The indictment did not refer to "cocaine base" or "crack cocaine," as had the federal complaint and accompanying affidavit, the petition for habeas corpus ad prosequendum, the testimony before the grand jury, the magistrate judge's colloquy with Dowdell at his initial appearance, and various discovery documents that Dowdell had previously been provided. Instead, it simply read "cocaine," potentially suggesting the powder form of the substance. Arguing that modifying the text from "cocaine" to "cocaine base" would not constitute a material change requiring a superseding indictment, the government asked the court to declare the original indictment suitable for trial. The government professed an inability to explain why the indictment did not specifically allege distribution of cocaine base, but sought to clarify the matter prior to trial and avoid unnecessary jury confusion over the controlled substance allegedly distributed. Recognizing that a variance, by definition, can only be determined after the presentation of evidence, the court chose to treat the government's pre-trial motion as one to amend the indictment.4 It then analyzed whether the proposed correction would rise to the level of a constitutional violation. The court granted the government's motion, reasoning that Dowdell had been well apprised all along of the fact that he was charged with We have explained the difference between a variance and an amendment as follows: "A constructive amendment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecution or court after the grand jury has last passed upon them. A variance occurs when the charging terms remain unchanged but when the facts proved at trial are different from those alleged in the indictment." United States v. Fisher, 3 F.3d 456, 462–63 (1st Cir. 1993) (citations and internal quotation marks omitted); see also Gaither v. United States, 413 F.2d 1061, 1071 (D.C. Cir. 1969) (offering similar distinction). distribution of cocaine base and not cocaine powder. It further noted that the particular drug type alleged (whether cocaine base or cocaine powder) was not actually an element under § 841(a)(1) and did not have any effect on the evidence the government intended to proffer at trial. Therefore, the court concluded, the amendment was akin to a permissible typographical correction. See United States v. Dowdell, 464 F. Supp. 2d 64, 68 (D. Mass. 2006). D. Evidence Presented at Trial At trial, Dowdell's primary argument was misidentification. He claimed that he was not the "Smoke" referred to in surveillance recordings and that the video footage was inconclusive as to whether a man with a blue checkered shirt was actually involved. In order to corroborate Monteiro's identification of Dowdell as Smoke, the government introduced, inter alia, two items that Dowdell had unsuccessfully attempted to exclude through pre-trial motions in limine: the booking sheet from the July 16 arrest and several of White's July 6 statements captured on videotape. 1. The Booking Sheet The booking sheet contained both the photograph of Dowdell in the blue checkered shirt on which Monteiro had based his identification, as well as a textual description of Dowdell's clothing as including a "blue plaid shirt." Dowdell argued that the document was inadmissible because a provision of Federal Rule of Evidence 803(8), the so-called "law-enforcement exception," forbids the introduction of police reports against criminal defendants. The government countered that a booking sheet should not run afoul of the exception because it contained merely "rote, routine administrative information." The district court concluded that the document was admissible pursuant to both Fed.R.Evid. 801(d)(1) (because the document formed the basis of a witness's identification) and Fed.R.Evid. 803(8) (because the document reflects routine procedures based upon information from the defendant himself and not observations, conclusions or opinions of police officers which are normally contained in police reports). In sum, the document possesses the requisite indicia of trustworthiness to be admissible under more than one of the Federal Rules of Evidence. At trial, the government proffered an edited version of the booking sheet. All information relating to the charges against Dowdell was redacted, while the sections describing clothing and appearance remained. In addition, the government introduced the photograph separately, unaccompanied by the booking sheet. It was on the basis of this photograph, rather than the booking sheet, that Monteiro would testify he had made his identification of Dowdell as Smoke. 2. Video Evidence Dowdell had also objected in limine to the introduction of White's videotaped statements from the two transactions on July 6, 2001. There were two tapes at issue, one from each transaction. The first showed White telling Monteiro who "Smoke" was and confirming that he was reliable. The second showed Monteiro approaching Dowdell and asking him to summon White, which Dowdell then did. Dowdell challenged the admissibility of the statements on two distinct grounds. First, he argued that the statements constituted proof of prior bad acts that would be barred by Rule 404(b). The government responded that the statements were not offered as prior bad acts so much as intrinsic evidence of the specific crime alleged. It posited that the jury would not be able to understand fully the July 16th transaction without knowing what had occurred on July 6th. Dowdell's second argument was that there was insufficient evidence to treat White as a co-conspirator under Rule 802(d)(2)(E), and hence White's statements should be deemed inadmissible hearsay. The government not only contested Dowdell's insufficiency claim, but also argued that the statements would be independently admissible as relating to the basis for Monteiro's identification. Under this alternative theory, White's statements could at least be introduced for the impact that they had on Monteiro and his subsequent identification of Dowdell as "Smoke," if not for the truth of the matter asserted. The district court rejected both of Dowdell's objections during the final pre-trial conference. With respect to the Rule 404(b) claim, it found that "the transaction with Robert White is directly and instrinsically relevant to the charge against Mr. Dowdell in this case." As for the hearsay claim, the district court adopted both of the government's theories of admissibility. During the course of the pre-trial conference, Dowdell argued that even if a transcript of the statements would be admissible, the videotape itself would be unfairly prejudicial. The government insisted that it was entitled to use the video to prove its case, as only the video showed what sort of opportunity Monteiro had to actually see Dowdell from the car. Again, the district court rejected Dowdell's argument, finding that the videotape was the best evidence. Though ordering two minor edits to the video and the corresponding transcript,5 the court ruled that the videotaped statements were otherwise admissible in their original form. E. Sentencing On May 31, 2007, after three days of trial, the jury returned a guilty verdict. Under § 841(b)(1)(c), Dowdell would normally have faced a maximum sentence of 20 years. Mention of this 20-year maximum had arisen earlier in the pre-trial proceedings, when Dowdell had challenged the government's attempt to amend the indictment. Dowdell had initially claimed that the change in drug type was The two edits were (1) changing the Defendant's name in the transcript from "Dowdell" to "Smoke" and (2) deleting a statement by White that Dowdell was his "cousin." material because it might increase the sentence length to which he would be exposed. The government had responded that because drug type was not an element in this case, the maximum would remain at 20 years regardless. In making this point, the government had stated in writing that it was "not seeking (and cannot seek) a sentence in excess of 20 years." The district court cited this language in allowing the amendment. Nevertheless, in April 2007, the government filed an information to establish a prior conviction under 21 U.S.C. § 851, which increased the statutory maximum from 20 to 30 years (and the guideline range from 210–262 months to 262–327 months). At sentencing, the government recommended a 262-month sentence, at the bottom end of the guideline range but well over the original 20- year statutory maximum. The court ultimately sentenced Dowdell to 198 months, followed by six years' supervised release. Dowdell did not object to the sentence. II. Discussion A. Speedy Trial Rights Dowdell first contends that the district court erred in denying his motion to dismiss on constitutional speedy trial grounds. The district court noted, but never resolved, whether the appropriate starting point for the speedy trial clock was the federal or the state indictment. Because it determined that "Dowdell ha[d] failed to demonstrate prejudice which rises to the level of a constitutional violation," the court did not reach the issue of the precise length of the delay. We review the speedy trial ruling for abuse of discretion. United States v. Munoz- Franco, 487 F.3d 25, 58 (1st Cir. 2007). The Sixth Amendment provides that all criminal defendants "shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. If the government violates this constitutional right, the criminal charges must be dismissed. Strunk v. United States, 412 U.S. 434, 439–40 (1973). To determine whether a violation has occurred, we use the four-part balancing test established in Barker v. Wingo, 407 U.S. 514 (1972), which requires a weighing of: (1) the length of the delay, (2) the reasons for the delay, (3) the defendant's assertion of his right, and (4) prejudice to the defendant resulting from the delay. Id. at 530. The threshold inquiry concerns the first of these four, as the sheer brevity of pre-trial delay may obviate the need for further analysis. See id. ("Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance."). Should there be a lengthier delay, however, we must engage in the "difficult and sensitive balancing process" of placing each of the other factors on the scale. Id. at 533. Thus, "the length of the delay is both the trigger for analysis and one of the factors to be considered." United States v. Colombo, 852 F.2d 19, 24 (1st Cir. 1988); see also Doggett v. United States, 505 U.S. 647, 651 (1992) (referring to the length-of-delay factor as a "double enquiry"). Once it is determined that balancing is necessary, none of the four factors has any talismanic power. Rather, "we must still weigh all of the factors collectively before deciding whether a defendant's right to a speedy trial has been violated." Colombo, 852 F.2d at 23. It is not clear to us whether the district court may have glossed over this multi-part analysis by disposing of the issue on the question of prejudice alone. In any event, a violation of the Speedy Trial Clause may occur even absent any affirmative demonstration of prejudice to the accused. Moore v. Arizona, 414 U.S. 25, 26 (1973) (per curiam) (holding that because Barker "expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial," the state court was "in fundamental error" for requiring a showing of prejudice to the defense at trial). If indeed a lengthy delay is present, a single factor in isolation cannot dispose of an issue as "amorphous, slippery, and necessarily relative" as the right to a speedy trial. Vermont v. Brillon, 129 S. Ct. 1283, 1290 (2009) (internal quotation marks omitted).6 Disposition of a constitutional speedy trial claim on prejudice alone is thus an error of law that itself constitutes an abuse of discretion. Nevertheless, even if such an error occurred here, it was harmless. Our analysis will instead begin, as the King admonished the White Rabbit, at the beginning: the length of the delay. There is no bright-line time limit dividing the lengths that trigger further Barker inquiry from those that do not. Whether a particular delay will warrant further speedy trial scrutiny "is necessarily dependent upon the peculiar circumstances of the case." Barker, 407 U.S. at 530–31. Nevertheless, the Supreme Court has observed that "[d]epending on the nature of the charges, the lower courts have generally found postaccusation delay 'presumptively prejudicial' at least as it approaches one year." Doggett, 505 U.S. at 652 n.1. Our cases comport with this observation. See, e.g., United States v. Munoz-Amado, 182 F.3d 57, 61 (1st Cir. 1999) (nineteen months); United States v. Santiago-Becerril, 130 F.3d 11, 21 (1st Cir. 1997) (fifteen months). The difficulty in this case is determining just when the speedy trial clock ought to start running. The Sixth Amendment right to a speedy trial attaches upon formal accusation. United States v. MacDonald, 456 U.S. 1, 6–7 (1982). In the typical case, this means either arrest or indictment, whichever comes first. United States v. Casas, 425 F.3d 23, 33 (1st Cir. 2005). For Dowdell, who did not face any pre-indictment detention on his federal charge, the starting point would ordinarily be the date of his federal indictment, March 23, 2005. Dowdell, however, does not challenge any length of time that elapsed after this date.7 Instead, he focuses on the time frame preceding it, arguing that his speedy trial rights in fact accrued with his state indictment on March 25, 2002. Were that the case, it would yield a presumptively prejudicial delay of nearly three years before the federal indictment was returned. Addressing this argument requires us to consider the speedy trial implications of the dual sovereignty doctrine. Under this doctrine, "the federal government is not bound by the actions of state authorities and . . . successive state and federal prosecutions are constitutionally permissible." United States v. Mejias, 552 F.2d 435, 441–42 (2d Cir. 1977). Though perhaps most recognizable from the double jeopardy context, see, e.g., Abbate v. United States, 359 U.S. 187 (1959), dual sovereignty considerations animate our constitutional speedy trial jurisprudence, as well. In MacDonald, the Supreme Court briefly noted that "an arrest or indictment by one sovereign would not cause the speedy trial guarantees to become engaged as to possible subsequent indictments by another sovereign." 456 U.S. at 10 n.11. Following MacDonald's lead, we observed in United States v. Marler, 756 F.2d 206 (1st Cir. 1985), that "a ruling that a defendant's right to a speedy He would, of course, have been entirely free to do so, as his speedy trial rights remained in effect up until his trial date, United States v. Jenkins-Watts, 574 F.3d 950, 966 (8th Cir. 2009), which was not until May 2007. Nevertheless, because Dowdell waived the claim with respect to this period, we do not address it. federal trial attaches upon his state indictment would implicate the very concerns that led the Court to formulate the dual sovereignty doctrine in the double jeopardy area." Id. at 211. We further elaborated the policy arguments that bolster the case for a robust dual sovereignty doctrine in the speedy trial context: Were we to hold that Marler's state court indictment triggered his speedy trial right, we would in effect be requiring the federal government to keep continually abreast of all state criminal investigations that may present the possibility of federal prosecution and to pursue their own investigations, arrests, indictments, and trials so as to conform with state-dictated timing. This is obviously counter to the dual sovereignty doctrine as well as to effective, responsible law enforcement. . . . Thus, whatever the weaknesses in our dual system of justice, these could only be exacerbated by the proposed expansion of the sixth amendment speedy trial right. Id. Dowdell does not contest the truth of any of this as a general matter, but he nevertheless insists that his case falls within a recognized exception. He principally relies on United States v. Cabral, 475 F.2d 715 (1st Cir. 1973). In Cabral, state police officers investigating the defendant for sale of stolen property arrested him for possessing a sawed-off shotgun. The state turned the weapon over to federal authorities three days after the arrest. Cabral was indicted in state court for the stolen property offense and then, fifteen months later, in federal court for the weapons offense. In considering Cabral's speedy trial claim, we held that his constitutional right "crystallized at the time of his initial [state] arrest" because it was for the same offense as his ultimate federal indictment, and "[t]he [federal] government's prosecution of this charge was initiated only three days later when . . . state authorities turned over this weapon to a federal officer." Id. at 718. Thus, Dowdell argues, Cabral instructs us to attribute a state-court indictment to the federal government where a subsequent federal indictment was essentially a continuation of the state proceedings. Because his state charges arose out of a federal investigation, were for the same offense as his federal charges, and were allegedly dismissed following a coordinated effort with the federal government, Dowdell would have us apply this Cabral exception in our speedy trial analysis here. Cabral, however, predates the Supreme Court's development of the dual sovereignty doctrine in MacDonald. For this reason, the Marler court questioned, although it did not decide, whether Cabral remained good law. 756 F.2d at 212. Other courts have not been so hesitant. See, e.g., United States v. Garner, 32 F.3d 1305, 1309 (8th Cir. 1994) (rejecting Cabral's rationale and finding it "in conflict with subsequent statements made by the Supreme Court"); United States v. Collamore, 751 F. Supp. 1012, 1025 n.13 (D. Me. 1990) (recognizing that Marler had left the Cabral exception "an open question" and then definitively holding that "there is no such exception"). Dowdell labors to convince us of Cabral's continued vitality, pointing to some courts' careful efforts to distinguish it on the facts rather than reject it outright. But if Cabral has managed to survive until this point, it has only been through the force of its own obsolescence. Dowdell has not identified a single post-MacDonald case from this or any other jurisdiction to have relied on the exception he urges us to rely on here. A quarter-century of consistent authority impels us to answer Marler's question and hold that Supreme Court precedent has abrogated Cabral.8 The speed of a federal trial is measured from the federal accusation on which it is based; one sovereign's enforcement of its own criminal laws is not attributable to another sovereign merely because of the presence of investigatory assistance, prosecutorial collaboration, or overlap among charges. In his reply brief, Dowdell relatedly argues that this case falls within an exception to the dual sovereignty doctrine, established in Bartkus v. Illinois, 359 U.S. 121, 123–24 (1959), for situations in which the state prosecution is "merely a tool of the federal authorities." Dowdell has waived this argument by Following the procedure described in cases such as Crowe v. Bolduc, 365 F.3d 86, 89 n.1 (1st Cir. 2004) and Carpenters Local Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 138 n.1 (1st Cir. 2000), the proposed panel opinion in this case was circulated to all active judges of the court, a majority of whom posed no objection to our handling of Cabral. The use of this informal procedure does not convert this opinion into an opinion en banc, nor does it preclude a suggestion of rehearing en banc on any issue in the case, whether or not related to the panel's treatment of Cabral. neglecting to include it in his initial brief. See United States v. Hall, 557 F.3d 15, 20 n.3 (1st Cir. 2009). Moreover, the argument lacks merit. The Bartkus exception is "narrow[ly]. . . . limited to situations in which one sovereign so thoroughly dominates or manipulates the prosecutorial machinery of another that the latter retains little or no volition in its own proceedings." United States v. Guzman, 85 F.3d 823, 827 (1st Cir. 1996). To establish a prima facie case, Dowdell would need to show that "one sovereign was a pawn of the other, with the result that notion of two supposedly independent prosecutions is merely a sham." Id. He has not done so. That the DEA was heavily involved in Dowdell's investigation establishes little more than routine intergovernmental assistance. "Cooperative law enforcement efforts between independent sovereigns are commendable, and, without more, such efforts will not furnish a legally adequate basis for invoking the Bartkus exception to the dual sovereign rule." Id. at 828. Dowdell's putative smoking gun, that an assistant district attorney exclaimed "if you blow my case I am gonna get your drug case sent back to the feds," shows, at worst, a threat. It does not establish coordinated manipulation, much less that the federal government was acting as a pawn of Suffolk County officials such that it retained little or no volition in its own proceedings. We discern no evidence of improper collusion. Although the Bartkus exception may apply to some speedy trial cases, this is not one of them. Consequently, we conclude that Dowdell's speedy trial right attached on the date of his federal indictment. There was no presumptively prejudicial delay, and analysis of the other Barker factors is therefore unnecessary. B. Interstate Agreement on Detainers Even if the pre-trial delay does not offend the Sixth Amendment, it may still violate the IAD, 18 U.S.C. App. 2, § 2. The IAD is a congressionally sanctioned interstate compact designed to "encourage the expeditious and orderly disposition of [outstanding] charges and determination of the proper status of any and all detainers based on untried indictments, informations, and complaints." Id. art. I. To meet this goal, the IAD prescribes procedures by which a member state may obtain for trial a prisoner incarcerated in another member jurisdiction, and by which the prisoner may demand the speedy disposition of certain charges pending against him in another jurisdiction.9 See United States v. Mauro, 436 U.S. 340, 343–44, 349–53 (1978) (providing background on the IAD). The IAD's provisions come into play whenever the prosecuting authority ("the receiving state") files a detainer on The federal government is considered a member state for purposes of the IAD. United States v. Henson, 945 F.2d 430, 434 (1st Cir. 1991). a prisoner serving a sentence in another jurisdiction ("the sending state").10 At issue here are the speedy trial provisions that the IAD imposes on the receiving state. If the receiving state initiates the transfer through a written request for temporary custody, it must bring the prisoner to trial within 120 days of his arrival in that jurisdiction. 18 U.S.C. App. 2, § 2, art. IV(c). If, on the other hand, the prisoner initiates the transfer through a request for final disposition, that window is 180 days from the sending state's receipt of the request. Id. art. III(a). If the receiving state fails to observe these strictures, it must dismiss the indictment. Id. art. V(c); United States v. Bozeman, 533 U.S. 146, 153 (2001). Dowdell avers for the first time on appeal that dismissal is necessary because the IAD clock had expired before he was ever brought to trial.11 At no point before filing his appellate brief The IAD only applies to prisoners against whom detainers have been filed. Neither party has confirmed or denied whether a detainer was ever actually filed against Dowdell in this case, and we can find no indication in the record one way or the other. Because the issue has not been contested, and because we ultimately find no reversible error, we proceed on the assumption that a detainer was filed. We stress, however, that parties litigating IAD claims ought not to take the existence of a detainer for granted. See Mauro, 436 U.S. at 364 n.29 (noting that "during a typical year federal courts issue approximately 5,000 ad prosequendum writs and that about 3,000 of those are in cases in which a detainer has previously been lodged against the prisoner"). Both parties leave unresolved whether Dowdell initiated the transfer through his pro se letter, triggering the 120-day clock, or whether the government did through its habeas petition, did Dowdell so much as mention the speedy trial provisions of the IAD, despite ample opportunities. Had he done so, we have little doubt that the trial judge, who consistently demonstrated a conscientious concern for Dowdell's speedy trial rights, would have made an effort to comply. We do not look favorably on IAD arguments that are not raised until the trial judge is no longer in a position to avoid a violation. Addressing a similar scenario arising on habeas review, the Supreme Court endorsed the lower court's observation that "[i]t would not have been difficult for the judge to advance the date of the trial or make a finding on the record of good cause, either of which would have satisfied Art. IV(c). Because the subject never came up, however, the trial judge overlooked the problem." Reed v. Farley, 512 U.S. 339, 351 (1994) (quoting Reed v. Clark, 984 F.2d 209, 213 (7th Cir. 1993)). The Court concluded that "[w]hen a defendant obscures Article IV(c)'s time prescription and avoids clear objection until the clock has run, cause for collateral review scarcely exists." Id. at 349. The same is true on direct review. A defendant who does not timely raise his IAD rights in district court forfeits those rights on appeal. United States v. Neal, 36 F.3d 1190, 1209 (1st Cir. 1994); United States v. Oldaker, triggering the 180-day clock. The government argues that even the stricter 120-day clock did not expire, while Dowdell argues that even the more lenient 180-day clock did. Because of our ultimate disposition, we need not resolve the issue. 823 F.2d 778, 781 (4th Cir. 1987); United States v. Eaddy, 595 F.2d 341, 346 (6th Cir. 1979). Dowdell now claims that his general invocation of the IAD at his initial appearance should have put the court on notice that the speedy trial provisions were in force. Yet an abstract reference to the compact does not suffice to preserve all potential challenges that might arise under it. One can forfeit a claim under one section of the IAD while preserving a different claim under another. See, e.g., Neal, 36 F.3d at 1209-10; Oldaker, 823 F.2d at 781; Eaddy, 595 F.2d at 346. At his initial appearance, Dowdell referred only to his right to remain in federal custody, not the applicability of the statute's speedy trial deadline. This would be the last time that Dowdell referred to the IAD before the district court.12 If he intended to rely on the statutory speedy trial provisions, he could have brought them to the trial judge's attention. He did not do so. Undaunted, Dowdell argues that he did not need to spell out the letters of the IAD for the district court because his motion to dismiss for violation of the Sixth Amendment and the Speedy Trial Act effectively accomplished the same thing. He Dowdell places much of the blame for this silence on the government, which erroneously informed the court that Dowdell had waived his IAD rights at his initial appearance. While we do not condone the government's mistake, we note that it did not occur until July 11, 2006, well after Dowdell filed his motions to dismiss -- and well after the date when Dowdell now claims the IAD clock should have expired. The error, lamentable as it may be, cannot excuse Dowdell's forfeiture retroactively. relies on Mauro, in which the Supreme Court ruled that the defendant's failure to invoke the IAD "in specific terms" in his speedy trial motions did not result in the waiver of an Article IV(c) claim. 436 U.S. at 364. In Mauro, the defendant had "persistently requested" a speedy trial and had "sought the dismissal of his indictment on the ground that the delay in bringing him to trial while the detainer remained lodged against him was causing him to be denied certain privileges at the state prison." Id. at 364-65. On those bases, the Court found his actions "sufficient to put the Government and the District Court on notice of the substance of his claim." Id.; accord Eaddy, 595 F.2d at 346 (finding a speedy trial motion sufficient to give notice of an IAD challenge even though it "was not framed in the precise language of the Agreement"). This case is distinguishable from Mauro in two critical respects. First and foremost, Dowdell did not have a colorable IAD claim at the time he filed the speedy trial motion. Even assuming the most defendant-favorable set of circumstances, the earliest trial deadline under the IAD would have been July 20, 2005.13 Yet The parties dispute several matters that would affect our calculation of the actual deadline: (1) whether Dowdell initiated the transfer through his pro se letter, triggering the 120-day clock, or whether the government did through its habeas petition, triggering the 180-day clock; (2) whether 78 days of excludable time under the Speedy Trial Act were automatically excludable under the IAD; and (3) whether any portion of the government's four-month lapse in responding to Dowdell's original motion to dismiss should be excludable. Giving Dowdell the benefit of the doubt on each, the clock would have run uninterrupted beginning with his initial Dowdell filed his motion to dismiss nearly two weeks earlier, on July 8. Thus, Dowdell is in substance arguing that the district court ought to have dismissed the indictment based on a ground that not only was absent from the motion to dismiss, but that did not even exist at the time the motion was filed. The fallacy in this position should be clear enough. To have the issue preserved, Dowdell would not need us to infer it from his motion to dismiss so much as to generate it ex nihilo at some later point. This we cannot do. Second, neither Dowdell's motion nor any subsequent communication said anything about the negative effects that the outstanding detainer might be having on his rehabilitation. We think that element critical to the Court's holding in Mauro because, as the Court stressed, it was the attempt to ameliorate precisely those effects that prompted the IAD's passage. See 436 U.S. at 359–60. We do not read Mauro to mean that every speedy trial claim filed by a detainee necessarily contains an embedded IAD claim. The Court was not propounding free association as an interpretive canon. It was, rather, placing weight on the precise identity between the defendant's alleged prejudice and the prejudice that the IAD targets. Because Dowdell's motion never represented that the requested relief would redound to the success of his rehabilitation, we do not consider it "sufficient to put the appearance on March 22, 2005, yielding a latest acceptable trial date of July 20, 2005. Government and the District Court on notice of the substance of his [IAD] claim" under Mauro. We therefore conclude that Dowdell at least forfeited any IAD claim by failing to raise it in the district court. He may very well have waived it altogether by requesting continuance after continuance that pushed the trial date to May 2007. See New York v. Hill, 528 U.S. 110 (2000) (holding that defense counsel's agreement to a trial date outside the IAD period bars the defendant from then seeking dismissal on the ground that the trial did not occur within that period). Even if the claim is not waived, our review is for plain error only. Neal, 36 F.3d at 1210. Under that standard, we would reverse only if Dowdell could prove “(1) that an error occurred; (2) that the error was clear or obvious; (3) that the error affected his substantial rights; and (4) that the error also seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Gonzalez, 570 F.3d 16, 21 (1st Cir. 2009). Here, if there was any error to begin with, it was not clear or obvious. The clock could not have run out before the motion to dismiss was filed, and we have never before found circumstances where the IAD clock would continue to run during the pendency of a defendant's motion. On the contrary, the clock presumptively stops for the entirety of the pendency, no matter how lengthy. See United States v. Walker, 924 F.2d 1, 5 (1st Cir. 1991); cf. United States v. Staula, 80 F.3d 596, 601 (1st Cir. 1996) (holding in the Speedy Trial Act context that courts may exclude the time between the filing of the motion and the hearing on that motion, even if the delay is overlong, inexplicable, or unreasonable). Although Dowdell does not address any period of time after the court decided his motion in July 2006, we note that the ensuing ten months of delay were entirely due to his requests for continuances and change of counsel. As a result, Dowdell's IAD claim fails. C. Amendment of the Indictment Dowdell next challenges the district court's modification of the indictment to reflect distribution of "cocaine base" rather than "cocaine." According to Dowdell, this change constituted a material amendment that deprived him of his right to presentment of charges to a grand jury. As we have explained above, the district court treated the proposed change as a ministerial correction to a clerical error. Our review of this issue is de novo. United States v. Hernandez, 490 F.3d 81, 83 (1st Cir. 2007). Before we undertake that review, however, a bit of terminological housecleaning is in order. The district court appears to have viewed its task as explaining why the proposed change was not a "constructive amendment." This approach treats the word 'constructive' as a term of art for 'impermissible.' That synonymic treatment may not be quite right, however. A constructive amendment, as the name suggests, is constructive, that is, having effect in law though not necessarily in fact. Amendments to an indictment can of course be direct rather than merely constructive, and they, too, are subject to the same strict constitutional standards. See, e.g., United States v. Daraio, 445 F.3d 253, 260–61 & n.8 (3d Cir. 2006) (contrasting an alleged constructive amendment with a "formal amendment," and noting that there was no claim of "actual amendment of the indictment by a literal change of its terms"); United States v. Ford, 872 F.2d 1231, 1235–36 (6th Cir. 1989) (describing first the separate categories of amendments and variances, and then constructive amendments as a form of amendment); 1 Charles Alan Wright, et al., Fed. Prac. & Proc. Crim. § 128 (4th ed. 2008) ("Allowing the case against the accused to shift in this [constructive] manner after the indictment is returned raises the same concerns about undermining the grand jury's role as a direct amendment."). Here, the district court's amendment was anything but constructive, as it literally altered the words of the indictment's text. There may have been doubt as to whether the change was permissible, but there can be no doubt that it was actual. In any event, the district court appears to have, understandably, enlisted the nomenclature that we ourselves have used. The common meaning of constructive amendment in our cases, which can be traced back to United States v. Dunn, 758 F.2d 30 (1st Cir. 1985), is "'when the charging terms of the indictment are altered, either literally or in effect, by prosecution or court after the grand jury has last passed upon them.'" Id. at 35 (quoting Gaither v. United States, 413 F.2d 1061, 1071–72 (D.C. Cir. 1969)) (emphasis added). The use of the word "literally" suggests that the term encompasses changes that are factually true just as much as those that are legally imputed. Yet the Gaither case quoted in Dunn was not defining "constructive amendment" in particular, but rather all amendments. Returning to the original source yields perhaps a more sensible definition: amendments in general may be literal or in effect (and, of these, it is specifically the latter that we refer to as constructive amendments). In any case, ever since Dunn, we have adhered to our definition of constructive amendments, most likely because they are the amendments that we most often come across. See 1 Wright, et al. § 128 (noting that "direct attempts to amend an indictment in any substantive way are rare" and that "[i]nstead, the most common challenge in this area is a claim of 'constructive amendment'"). On the rare occasion that we do confront a direct amendment to an indictment, such as here, referring to it as constructive may obfuscate the issue. We will therefore eschew any reference to "constructive" amendment here, where there was an express amending of the indictment. Returning to our de novo review of the amendment, we start with the basis for the rule against amending an indictment without grand jury involvement. The prohibition is based on the Presentment Clause of the Fifth Amendment, which guarantees in relevant part that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." U.S. Const. amend. V. The Supreme Court has interpreted this provision to mean that "after an indictment has been returned[,] its charges may not be broadened through amendment except by the grand jury itself." Stirone v. United States, 361 U.S. 212, 215–16 (1960); accord Russell v. United States, 369 U.S. 749, 770 (1962) (holding that an indictment may not be "amended except by resubmission to the grand jury"); Ex parte Bain, 121 U.S. 1, 9–10 (1887). Nevertheless, this prohibition does not extend to alterations that are "merely a matter of form." Russell, 369 U.S. at 770; see also United States v. Winter, 663 F.2d 1120, 1139–40 (1st Cir. 1981); cf. United States v. Eirby, 262 F.3d 31, 38 (1st Cir. 2001) ("[A]n indictment is sufficient if it specifies the elements of the offense charged, fairly apprises the defendant of the charge against which he must defend, and allows him to contest it without fear of double jeopardy."). Accordingly, we have allowed ministerial corrections of clerical errors in names, dates, and citations, so long as the change would not deprive the defendant of notice of the charges against him. See Eirby, 262 F.3d at 38 (citations); United States v. Rivera-Ruiz, 244 F.3d 263, 271 (1st Cir. 2001) (names); Jervis v. Hall, 622 F.2d 19, 22–23 (1st Cir. 1980) (dates). Other circuits have similarly allowed corrections regarding facts that are ancillary to the charged offense. See, e.g., United States v. Powers, 572 F.2d 146, 152 (8th Cir. 1978) (permitting change from "30-30 caliber revolver" to "30-30 caliber rifle"). In short, when a change "le[aves] the substance of the charge unaffected, the switch d[oes] not usurp the prerogative of the grand jury." Eirby, 262 F.3d at 38. We agree with the district court that this is such a case. Because Dowdell was prosecuted under § 841(a)(1), which prohibits distribution of any controlled substance regardless of type, drug identity had no bearing on the substance of the charge. See United States v. Rutherford, 175 F.3d 899, 906 (11th Cir. 1999) (explaining that under § 841(a), "[t]he nature of the controlled substance neither constitutes an element of the offense nor broadens the bases for conviction, but is relevant only for sentencing purposes"); United States v. Deisch, 20 F.3d 139, 151 (5th Cir. 1994) (concluding that "the identity of the involved controlled substance as being 'cocaine base' rather than simply 'cocaine' is not an element of any section 841(a)(1) offense"). The statute would thus hold Dowdell as culpable for distribution of cocaine base as it would for distribution of cocaine powder. Indeed, the government could technically have omitted reference to a particular controlled substance altogether. See United States v. Lewis, 113 F.3d 487, 493 (3d Cir. 1997) (reasoning that because "identity of the substance is a sentencing factor rather than an element of the offense," an indictment under § 841(a) could theoretically avoid specifying the identity of the substance).14 Had the government not clarified the matter before trial, and instead proceeded under the original indictment, there would have likely been no grounds for objection whatsoever. Certainly there would have been no constructive amendment. See United States v. Fornilla-Castillo, 408 F.3d 52, 66 (1st Cir. 2005) (explaining that no constructive amendment present where the difference between the evidence presented and the text of the indictment does not affect any element of the offense). At worst, we might have found a variance, although even that is far from certain. See United States v. Wiley, 29 F.3d 345, 352 (8th Cir. 1994) (doubting any variance whatsoever would arise from difference between charge involving "cocaine" and evidence involving cocaine base because cocaine base is merely an isomer of cocaine); United States v. Deisch, 20 F.3d 139, 151 (5th Cir. 1994) (holding that "[f]or a section 841(a)(1) offense involving cocaine base[,] the indictment Of course, a defendant might be entitled to notice at some point as to the nature of the substance alleged. We merely observe that under § 841(a), such notice needn't come by way of the indictment. need only allege, and the jury need only find, that the substance was cocaine"). And had we gone so far as to find a variance, it would have been a harmless one, given all the notice that Dowdell had previously received that he was charged with distributing cocaine base rather than cocaine powder. Cf. United States v. Twitty, 72 F.3d 228, 231 (1st Cir. 1995) ("So long as the statutory violation remains the same, the jury can convict even if the facts found are somewhat different than those charged -- so long as the difference does not cause unfair prejudice."). It would be strange indeed to punish the government for clarifying the indictment before trial when it would have been permitted to proceed without taking any action. Dowdell argues that the alteration was nevertheless prohibited based on two premises that are not in fact implicated here. First, he claims that the change to cocaine base effectively exposed him to a harsher sentencing range. Yet even if sentencing amplification were relevant, none occurred here. It is true that under § 841(a), cocaine base normally exposes defendants to steeper sentencing ranges than does cocaine powder. But here, Dowdell was sentenced as a career offender under Section 4B1.1 of the U.S. Sentencing Guidelines. That provision would have applied in equal force whether he were convicted of distributing cocaine powder or cocaine base; the guideline range was a product of the 30-year statutory maximum in § 841(b)(1)(c) and Dowdell's particular criminal history category. Thus, because we conclude that the change did not in fact alter the sentencing range, we need not resolve whether sentencing ramifications are relevant to the amendment analysis.15 Second, Dowdell asserts that the difference in chemical composition between cocaine powder and cocaine base means that the government would have had to proffer different evidence for each of the substances. Again, even assuming the relevance of the conclusion, its predicate is incorrect. As far as culpability under § 841(a) is concerned, cocaine base is merely an isomer of cocaine. See Wiley, 29 F.3d at 352; United States v. Pierce, 893 F.2d 669, 676 (5th Cir. 1990).16 The government could have The district court expressly found no constitutional violation because "mitigation of sentencing ramifications within the statutory maximum is not among the substantial rights protected by the right to be indicted by a grand jury." Dowdell, 464 F. Supp. 2d at 68. The "substantial rights" standard, however, is only appropriate in the context of variances. It is true that if the government had proceeded to trial with the original indictment, then variance doctrine would have been the appropriate analytical framework. But since we deal here with a direct amendment, rather than a variance, reference to the scope of the defendant's substantial rights is misplaced. In any case, we leave resolution of this issue for a day when the question is put more squarely before us. We do not go so far as to hold in this case that a trial judge is necessarily permitted simply to swap any controlled substance under § 841(a) for any other controlled substance. "Cocaine" and "cocaine base" are inherently related in ways that other potential pairings are not. Had the difference been between cocaine and Vicodin, or cocaine and marijuana, it is possible the larger gap would weigh into our analysis. But cf. United States v. Knuckles, 581 F.2d 305, 311–12 (2d Cir. 1978) (finding no substantial variance between charge of heroin distribution under § 841(a) and evidence of cocaine distribution). proferred evidence of distribution of cocaine base and still carried its burden of proving distribution of "cocaine." Wiley, 29 F.3d at 352; Deisch, 20 F.3d at 150–51; Pierce, 893 F.2d at 676. In sum, we hold that the district court's amendment of the indictment from distribution of "cocaine" to "cocaine base" did not affect the substance of the charges and therefore did not offend the Presentment Clause. D. Evidentiary Rulings Dowdell next raises two evidentiary challenges, one concerning the admission of the police booking sheet and one concerning admission of the coconspirator's videotaped statements. We take up each in turn. 1. Admission of police booking sheet Dowdell claims that the booking sheet from his July 16, 2001 arrest was inadmissible hearsay. Normally, an otherwise hearsay public record is admissible so long as it sets forth "matters observed pursuant to duty imposed by law as to which matters there was a duty to report." Fed. R. Evid. 803(8)(B). However, under what is sometimes called the "law enforcement exception," Rule 803(8)(B) retains the hearsay prohibition in criminal cases for any "matters observed by police officers and other law enforcement personnel." Id. We have interpreted this rule to mean that, as a general matter, "police reports are inadmissible in a criminal case when offered by the prosecution." United States v. Arias-Santana, 964 F.2d 1262, 1264 (1st Cir. 1992). The Rule on its face seems equally applicable to the observations contained in a booking sheet. Nevertheless, the district court held that the law enforcement exception was not meant to encompass routine, non-adversarial documents, and on that basis found the booking sheet admissible. Although our review of rulings admitting or excluding evidence is typically for abuse of discretion, our review of the district court's interpretation of a rule of evidence is de novo. United States v. DeCologero, 530 F.3d 36, 58 (1st Cir. 2008). We have yet to consider whether the law enforcement exception applies to an ostensibly objective, non-adversarial document such as a booking sheet. On two previous occasions, however, we have at least hinted that it should not. First, in United States v. Union Nacional de Trabajadores, 576 F.2d 388 (1st Cir. 1978), we held admissible a copy of a U.S. marshal's return despite its genesis at the hands of law enforcement personnel. We reasoned that [t]here is nothing to indicate that Congress meant to cut back upon the common law rule respecting sheriff's returns. A sheriff or marshal reporting the service of process is not reporting in the capacity of a police observer at the scene of a crime, nor is he ordinarily connected with the case in a law enforcement capacity. The "adversarial" circumstances which might render a law enforcement officer's observations unreliable are unlikely, therefore, to be present. Id. at 391. Then, in United States v. Trenkler, 61 F.3d 45 (1st Cir. 1995), we cited United States v. Brown, 9 F.3d 907, 911-12 (11th Cir. 1993), in dicta for the proposition that "Rule 803(8) does not necessarily prohibit the use of police records prepared in a routine non-adversarial setting that do not result from subjective investigation and evaluation." Trenkler, 61 F.3d at 59. Drawing a line at routine, non-adversarial documents would best comport with the purpose for which Congress originally approved the exception. The Rule's enactment history indicates that "the reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases." S. Rep. No. 1277, 93d Con., 2d Sess., reprinted in (1974) U.S.C.C.A.N. 7051, 7064. Congress was generally "concerned about prosecutors attempting to prove their cases in chief simply by putting into evidence police officers' reports of their contemporaneous observations of crime." United States v. Grady, 544 F.2d 598, 604 (2d Cir. 1976). Recognizing this intent, those circuits to have considered the issue have all found that the limitation in Rule 803(8)(B) does not exclude routine observations that are inherently non-adversarial.17 See, e.g., United States v. Harris, 557 F.3d 938, 941 (8th Cir. 2009) (admitting testimony regarding the contents of a probation file because while the rule "does prohibit the admission of records that contain opinions or conclusions resulting from criminal investigations, it does not bar the admission of records concerning routine and unambiguous factual matters"); United States v. Weiland, 420 F.3d 1062, 1074–75 (9th Cir. 2005) (admitting Department of Corrections' packet containing fingerprints and photographs of defendant because they are records of "routine and nonadversarial matters" rather than "police officers' reports of their contemporaneous observations of crime that might be biased by the adversarial nature of the report") (internal quotation marks omitted); Brown, 9 F.3d at 911-12 (admitting property receipt prepared during booking for firearm because "the police custodian in the instant case had no incentive to do anything other than mechanically record the relevant Dowdell argues that there is actually a circuit split on this issue, citing to the Second Circuit's decision in United States v. Oates, 560 F.2d 45 (2d Cir. 1977). Oates, however, was concerned not so much with what constitutes a "report" as with who constitute "law enforcement personnel," holding that the term encompassed chemists working in the U.S. customs service. Here, there is no dispute that the police officers who drew up the booking sheet were within the class of actors envisioned by Rule 803(8)(B). Less clear is whether the documents were within the class of evidence. On this point, even the Second Circuit has acknowledged that the Rule's language is not absolute. See Grady, 544 F.2d at 604; United States v. Feliz, 467 F.3d 227, 236–37 (2d Cir. 2006) (autopsy reports prepared by medical examiner's office admissible because they were routinely created and did not constitute police observations). information on the property receipt"); United States v. Quezada, 754 F.2d 1190, 1193–94 (5th Cir. 1985) (admitting an INS form indicating arrest and deportation because officials' only motivation was to "mechanically register an unambiguous factual matter"); United States v. Orozco, 590 F.2d 789, 793–94 (9th Cir. 1979) (finding no error in admission of Customs Service computer cards of license numbers of cars crossing the border since "the simple recordation of license numbers . . . is not of the adversarial confrontation nature which might cloud [an officer's] perception"); Grady, 544 F.2d at 604 (permitting admission of serial number and receipt of weapons because "they did not concern observations . . . of the appellants' commission of crimes," but rather were "strictly routine records"). Dowdell argues that this construction violates the Rule's plain language, which seems to bar categorically the prosecution's introduction of any and all documents prepared by the police. This much may be true. Yet, the alternative would violate the rule's plain purpose, and "[i]t is a well-established canon of statutory construction that a court should go beyond the literal language of a statute if reliance on that language would defeat the plain purpose of the statute." Bob Jones Univ. v. United States, 461 U.S. 574, 586 (1983). Given the clear intent that undergirded the passage of Rule 803(8), we decline to give it a literal, unqualified meaning. See United States v. Smith, 521 F.2d 957, 968 n.24 (D.C. Cir. 1975) (refusing to construe 803(8)(B) according to its literal meaning because it "should be read[] in accordance with the obvious intent of Congress"); see also United States v. Pagan- Santini, 451 F.3d 258, 264 (1st Cir. 2006) (referring to Rule 803(8) as "no model of lucid drafting"). Instead, we join the other circuits in concluding that ministerial, non-adversarial information is admissible under Rule 803(8)(B), notwithstanding its documentation at the hands of law enforcement personnel. With this interpretation of Rule 803(8)(B) in place, we now must consider whether a booking sheet would violate it. In an unpublished decision, a panel of the Fifth Circuit answered this precise question in the negative, summarily finding that "booking information [i]s taken in a routine, nonadversarial setting." United States v. Haughton, 235 Fed. App'x 254, 2007 WL 2186250, at *1 (5th Cir. Jul. 30 2007). We agree. The rote recitation of biographical information in a booking sheet ordinarily does not implicate the same potential perception biases that a subjective narrative of an investigation or an alleged offense might. A booking sheet does not recount the work that led to an arrest so much as the mere fact that an arrest occurred. As a result, unlike the investigative reports that lie at the heart of the law enforcement exception, booking sheets raise little concern that suspicion of guilt will function as proof of guilt. We think that a police booking sheet is in this respect analogous to the INS warrant that was the subject of the Fifth Circuit's analysis in Quezada. The Quezada court upheld the admissibility of the warrant, which recounted the defendant's prior arrest and deportation,"[d]ue to the lack of any motivation on the part of the recording official to do other than mechanically register an unambiguous factual matter." 754 F.2d at 1194. The same reasoning applies here. Dowdell asserts that, even if this much may be true in the abstract, the particular booking sheet admitted in his trial may have been prepared with an eye toward proving his identity and as such was excludable as "indicat[ing] lack of trustworthiness." Fed. R. Evid. 803(8)(c). He offers no factual support for such a finding, instead indulging in a bare worst-case-scenario speculation that the booking officer might have colluded with Monteiro before completing the form. We need not tarry on this. An entirely conjectural and uncorroborated conspiracy theory does not transform an otherwise trustworthy document into an untrustworthy one.18 There was no abuse of discretion. We note that other circuits have placed the burden of proving untrustworthiness under Rule 803(8) squarely on the shoulders of the party opposing admission. See, e.g., Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594, 600–01 (8th Cir. 2005); Bridgeway Corp. v. Citibank, 201 F.3d 134, 143–44 (2d Cir. 2000); Zeus Enterprises, Inc. v. Alphin Aircraft, Inc., 190 F.3d 238, 241 (4th Cir. 1999); Reynolds v. Green, 184 F.3d 589, 596 (6th Cir. 1999); United States v. Loyola-Dominguez, 125 F.3d 1315, 1318 (9th Cir. 1997); Graef v. Chemical Leaman Corp., 106 F.3d 112, 118 (5th Cir. 1997). We have not yet considered who should bear the burden in this context, although our default position seems to be that it would be the party seeking admission, United States v. Bartelho, 2. Admission of videotapes Dowdell's second evidentiary challenge, that the court erred in admitting White's videotaped comments to Monteiro, implicates another carve-out from the prohibition on hearsay. Federal Rule of Evidence 801(d)(2)(E) provides that any statement of a coconspirator acting during the course and in furtherance of a conspiracy is non-hearsay and, therefore, admissible for the truth of the matter asserted. In order to determine whether the factual predicates for this exception exist, the trial court must make a so-called Petrozziello ruling. See United States v. Petrozziello, 547 F.2d 20, 23 (1st Cir. 1977). A Petrozziello ruling has two stages. First, following a timely objection, the court makes a provisional finding as to whether the evidence is admissible. If so, that finding is then subject to a second and final review at the close of all the evidence. United States v. Famania-Roche, 537 F.3d 71, 75 (1st Cir. 2008). At both stages, the court applies a preponderance of the evidence standard, namely, whether "it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement 129 F.3d 663, 670 (1st Cir. 1997), which in this case is the government. Regardless, even if the government were to bear the burden here, neither the booking sheet itself nor the known facts surrouding its preparation suggest untrustworthiness by a preponderance of the evidence. "The government's burden [of proof] . . . does not mean . . . that it must disprove all of the defendant's alternative theories, no matter how speculative or implausible." United States v. Ribeiro, 397 F.3d 43, 53 (1st Cir. 2005). was made, and that the statement was in furtherance of the conspiracy." Id. Finding such a preponderance here, the district court admitted White's statements. Dowdell now argues that the prosecution's evidence established nothing more than friendship and proximity with the declarant, rather than a joint venture to sell controlled substances. Assuming this argument was properly preserved, we must still accept the district court's findings of fact unless they were clearly erroneous.19 See United States v. Thompson, 449 F.3d 267, 273 (1st Cir. 2006). This heavy burden is There may be some uncertainty as to the proper standard of review for Petrozziello rulings, due to recent cases that employ the abuse of discretion standard. See, e.g., United States v. Vazquez-Botet, 532 F.3d 37, 65 (1st Cir. 2008); United States v. Colon Diaz, 521 F.3d 29, 36 (1st Cir. 2008); United States v. Rivera-Hernandez, 497 F.3d 71, 82 (1st Cir. 2007). But we long ago said in United States v. Patterson, 644 F.2d 890, 894 (1st Cir. 1981), and have endorsed on countless subsequent occasions, that we review a trial court's Petrozziello determination for clear error. Every other circuit has long been in accord. See United States v. Edmond, 52 F.3d 1080, 1110 (D.C. Cir. 1995); United States v. Gessa, 971 F.2d 1257, 1260–61 (6th Cir. 1992); United States v. Cruz, 910 F.2d 1072, 1081 n.11 (3d Cir. 1990); United States v. Bouck, 877 F.2d 828, 831 (10th Cir. 1989); United States v. Jackson, 863 F.2d 1168, 1172 (4th Cir. 1989). United States v. Kaden, 819 F.2d 813, 820 (7th Cir. 1987); United States v. Rahme, 813 F.2d 31, 36 (2d Cir. 1987); United States v. Silverman, 771 F.2d 1193, 1199 (9th Cir. 1985); United States v. Harshaw, 705 F.2d 317, 320 (8th Cir. 1983; United States v. Bulman, 667 F.2d 1374, 1379 (11th Cir. 1982); United States v. Perry, 624 F.2d 29, 30 (5th Cir. 1980). See also Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:62 (3d ed. 2007) (referring to "almost universal agreement" throughout the federal judiciary on use of clear error review). In the Petrozziello context, it is likely that review for abuse of discretion applies only to the district court's ultimate decision whether to admit or exclude the statement, and not to the underlying factual findings. carried only when "although there is evidence to support [the finding], the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Where the evidence is susceptible of two plausible interpretations, the trier of fact's choice between them cannot be clearly erroneous." United States v. Newton, 326 F.3d 253, 257 (1st Cir. 2003). A heavier burden still awaits those attempting unpreserved challenges, which are reviewed only for plain error. United States v. Aviles-Colon, 536 F.3d 1, 14 (1st Cir. 2008). Though the parties disagree as to whether Dowdell successfully preserved his challenge by renewing his objection at the close of all the evidence, the dispute is ultimately irrelevant. Even adopting the less deferential standard, we would still affirm the district court's ruling. It is well established that "the preponderance of evidence required for the introduction of an out-of-court statement under Rule 801(d)(2)(E) must necessarily comprise more than the weight of the statement itself." United States v. Sepulveda, 15 F.3d 1161, 1181 (1st Cir. 1993). An alleged coconspirator's declarations are thus insufficient in isolation. At the same time, however, the court may consider the hearsay statements themselves in the context of other extrinsic, corroborating evidence. Bourjaily v. United States, 483 U.S. 171, 180–81 (1987); United States v. Mangual-Garcia, 505 F.3d 1, 8 n.5 (1st Cir. 2007). Such corroboration was amply available here. When Monteiro first saw White on July 6, White was counting cash with Dowdell. Moments later, when White agreed to make the initial sale to Monteiro, his first action was to walk over to Dowdell and consult with him. Then, on July 16, Dowdell sold drugs to Monteiro when White was unavailable. These facts, coupled with White's statements themselves, adequately supported a finding of a conspiracy by a preponderance of the evidence. Accordingly, the district court did not clearly err in its Petrozziello ruling. Dowdell further maintains that even if the statements themselves were admissible, introducing them on video nevertheless violated Federal Rule of Evidence 403, which provides that otherwise admissible evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Specifically, he argues that a printed transcript would have been less prejudicial because it would not have allowed the jury to see White, who, according to Dowdell, "looks like an obvious drug addict and just makes a very bad impression." But the mere fact that Dowdell might have fared better without the video is not in itself cause for exclusion. "By design, all evidence is meant to be prejudicial; it is only unfair prejudice which must be avoided." United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989) (emphasis in original). The trial court has wide latitude in determining when the amount of unfair prejudice has tipped the scale too far. "Only rarely -- and in extraordinarily compelling circumstances -- will we, from the vista of a cold appellate record, reverse a district court's on-the-spot judgment concerning the relative weighing of probative value and unfair effect." United States v. Shinderman, 515 F.3d 5, 17 (1st Cir. 2008) (quoting Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988)). In this case, in which the reliability of Monteiro's identification of Dowdell as Smoke was hotly contested, any contextual inferences available from a visual record would be highly probative. Whatever minimal unfair prejudice might have resulted from seeing White's physical appearance, it did not overcome this probative value. In any event, it was Dowdell, not the government, who chose to associate himself with White. We discern no abuse of discretion. E. Sentencing This brings us to the last of Dowdell's litany of arguments. He asks us to vacate his 198-month sentence because the government allegedly reneged on a promise not to seek a sentence greater than 20 years. A sentence of 198 months is, of course, itself less than 20 years. Dowdell's theory is that the sentence was nevertheless voidable because the government's filing of an information of prior conviction, which increased the minimum guideline sentence from 210 to 262 months, raised the baseline from which the trial court would have varied downward. Because this issue was not raised at sentencing, we review for plain error, United States v. Matos, 531 F.3d 121, 122 (1st Cir. 2008), although we think this argument ultimately unavailing under any standard of review. Dowdell does not make clear what jurisprudential basis would merit vacating a sentence in this context. He directs our attention to Santobello v. New York, 404 U.S. 257 (1971), United States v. Gonczy, 357 F.3d 50, 53 (1st Cir. 2004), United States v. Rexach, 896 F.2d 710, 714 (2d Cir. 1990), and United States v. Giorgi, 840 F.2d 1022, 1026 (1st Cir. 1988), but none is on point. Those cases all deal with a prosecutor's breach of an assurance made during a plea agreement, not an isolated comment made during a pre-trial hearing in a case in which the defendant received his full panoply of constitutional trial rights. Cf. Gonczy, 357 F.3d at 53 (explaining that the "meticulous standards of both promise and performance" that govern prosecutors in plea agreements stem from the defendant's waiver of fundamental constitutional rights that would otherwise be present in a jury trial). Instead, we understand Dowdell to be advancing a theory of estoppel. The lack of any briefing on this issue renders the issue waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Even if not waived, the argument is not supported by the record. The government did not, as Dowdell argues, affirmatively commit itself to the original 20-year statutory maximum. Rather, it offered a descriptive (and accurate) statement of sentencing law. The government explained to the court that the proposed change to the indictment would not violate Apprendi in that the statutory maximum would remain the same irrespective of the controlled substance alleged in the indictment. See Apprendi v. New Jersey, 530 U.S. 466 (2000). At the time, that statutory maximum was 20 years. Upon the filing of the information, it became 30 years. Although the number changed, the substance of the government's remark -- that drug identity would have no impact on the statutory maximum -- remained just as applicable. Thus we disagree with Dowdell's assertion that the government bound itself to any particular sentencing recommendation to begin with. Moreover, even had such a promise existed, there is no evidence in the record to suggest that the court gave any weight whatsoever to the government recommendation at sentencing. Dowdell thus fails to show a reasonable probability that he would have received a more lenient sentence but for the alleged error. See Matos, 531 F.3d at 122–23. For all of these reasons, we find no flaw in Dowdell's sentence. III. Conclusion The appellant's conviction and sentence are AFFIRMED.

United States Court of Appeals For the First Circuit No. 09-1075 UNITED STATES, Appellee, v. DANIEL EKASALA, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge] Before Lynch, Chief Judge, Lipez and Howard, Circuit Judges. Robert L. Ullmann, Alexa H. O'Keefe, and Nutter, McClennen & Fish, LLP on brief for appellant. Jennifer Hay Zacks, Assistant United States Attorney, and Carmen M. Ortiz, United States Attorney, on brief for appellee. March 1, 2010 Per Curiam. This is a direct appeal from the defendant's 42-month, below-guidelines sentence for possessing and distributing oxycodone. He raises two issues on appeal. First, he argues that the marijuana equivalent for oxycodone is irrationally high. Second, he argues that the district court abused its discretion in declining to impose a lighter sentence for that and other reasons. For the reasons discussed below, we find neither argument persuasive and therefore summarily affirm the district court's judgment. Because we do not believe that oral argument would be helpful, we deny the appellant's request for argument. The first issue that the defendant raises on appeal is whether the marijuana equivalent for oxycodone, as amended by Amendment 657,1 is arbitrary and capricious. This argument has two components. Primarily, the defendant challenges the rationality of changing the marijuana equivalent from 500 grams per gram of pill weight, regardless of the amount of oxycodone contained in each pill, to 6,700 grams per gram of actual oxycodone. Secondarily, he challenges the rationality of attaching a higher marijuana equivalent, and resulting higher base offense level, to oxycodone than to an equal weight of heroin. Amendment 657 changed the marijuana equivalent for oxycodone in two respects. First, it based the equivalent on the amount of actual oxycodone involved rather than on the gross weight of the pills containing oxycodone. Second, it made 1 gram of oxycodone equivalent to 6,700 grams of marijuana, rather than 1 gram of pill weight equivalent to 500 grams of marijuana. See Guidelines Manual, App. C, vol. II at 396. The latter argument, which is raised in a single conclusory sentence, is effectively waived and therefore need not be considered. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). The former argument, while novel, can be readily dispatched. Two threshold issues raised by the government are whether the defendant is effectively challenging the constitutionality of Amendment 657 and, if so, whether any such constitutional claim was preserved below. We bypass those threshold issues since, even assuming that the defendant effectively raises a preserved constitutional claim, which is therefore subject to plenary review by this court, that claim fails on its merits. To the extent that the defendant is challenging Amendment 657 as violating the equal protection component of the Fifth Amendment's Due Process Clause, that claim must fail as long as the Sentencing Commission had a rational basis, United States v. Singleterry, 29 F.3d 733, 740 (1st Cir. 1994), for basing the marijuana equivalent of oxycodone on the weight of actual oxycodone, rather than on the gross weight of the pills involved, and for setting a proportionately higher marijuana equivalency for 80 milligrams than for 10 milligrams of actual oxycodone. Such a rational basis existed here. As the Commission itself explained in adopting Amendment 657, that amendment was intended to address "proportionality issues in the sentencing of oxycodone trafficking offenses" that arose under the pre-amendment version, under which pills containing greatly differing amounts of actual oxycodone had the same marijuana equivalent and, hence, the same base offense level. Guidelines Manual, App. C., vol. II at 396-97. It was certainly not irrational for the Commission to set higher marijuana equivalencies--and thereby increased punishment--for offenses involving higher actual amounts of oxycodone. In particular, it was not irrational to make the marijuana equivalent for pills containing 80 milligrams of actual oxycodone eight times higher than the marijuana equivalent for pills containing 10 milligrams of actual oxycodone. Although the Commission's explanation focused on the disproportionality of assigning the same marijuana equivalency to 135-milligram pills containing 10, 20, or 40 milligrams of actual oxycodone, the same rationale supports a proportional increase in the marijuana equivalency for pills containing 80 milligrams of actual oxycodone. That is so even if, as the defendant alleges, the gross weight of those pills is higher than 135 milligrams and such pills therefore would have had a somewhat higher--but not proportionately higher-- marijuana equivalent even prior to Amendment 657. Given that rational basis, a constitutional attack on Amendment 657 fares no better than did such attacks on the guidelines' former 100:1 ratio for crack as opposed to powder cocaine. See Singleterry, 29 F.3d at 740. The defendant's second argument--that the district court abused its discretion in failing to vary downward more than four months below the applicable guideline range based on the alleged irrationality of Amendment 657 and other factors--is equally unavailing. As we held in rejecting a similar argument as to crack/powder disparity, the mere fact that a sentencing court has the discretion to disagree with the guidelines on policy grounds, Kimbrough v. United States, 552 U.S. 85, 102, 109 (2007), does not mean that it is required to do so. United States v. Gibbons, 553 F.3d 40, 46 (1st Cir. 2009). Here, the district court expressly recognized that Amendment 657, like any other guideline, is advisory; but the court chose to follow it because it agreed, rather than disagreed, with its underlying policy rationale to increase the punishment for offenses involving large amounts of actual oxycodone. That choice was well within the district court's post-Kimbrough discretion. United States v. Stone, 575 F.3d 83, 93-94 (1st Cir. 2009), cert. denied, 2010 WL 58756 (U.S. Jan. 11, 2010). The remainder of the defendant's brief faults the district court for failing to grant a greater downward variance based on other factors, including the nature and circumstances of the offense and the history and characteristics of the defendant. However, in choosing to vary four months below the bottom of the applicable guideline range, the court expressly took into account the very factors that the defendant points to here--that the defendant counseled the cooperating witness to stop using oxycodone and that the defendant had a loving family and had led an "otherwise exemplary life." Despite those factors, the court declined to impose an even lighter sentence because of the "most serious" nature of the offense, possessing and distributing a relatively large amount of oxycodone on three separate occasions. That the district court did not weigh the mitigating factors more heavily does not make its resulting sentence unreasonable. United States v. Dixon, 449 F.3d 194, 204 (1st Cir. 2006). Accordingly, the district court's judgment is affirmed. See 1st Cir. R. 27.0(c).

United States Court of Appeals For the First Circuit No. 09-1135 SONIA I. JIMÉNEZ; LOURDES MOLINA-DOVAL, Plaintiffs, Appellants, v. LUIS ALFONSO RODRÍGUEZ-PAGÁN; ALIDA RAMONA BINET-MIESES; CONJUGAL PARTNERSHIP RODRÍGUEZ-BINET; FEDERICO TOMÁS RODRÍGUEZ-BINET a/k/a Tommy Rodríguez; ISABELA BEACH COURT, Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Salvador E. Casellas, U.S. District Judge] Before Torruella, Lipez and Howard, Circuit Judges. Irma R. Valldejuli for appellants. Mónica I. De Jesús Santana, with whom Fiddler González & Rodríguez. PSC, was on brief, for appellees. March 1, 2010 HOWARD, Circuit Judge. This case calls on us to navigate the turbulent waters of Colorado River abstention. That doctrine, established in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), allows federal courts in limited instances to stay or dismiss proceedings that overlap with concurrent litigation in state court. The plaintiffs here originally sued in federal district court, asserting diversity jurisdiction. They later commenced an identical action in a Puerto Rico Commonwealth court during what they considered to be a burdensomely long pendency of a motion to dismiss for failure to join an indispensable party. The federal court eventually granted the motion to dismiss, leaving the action in the Commonwealth court to proceed alone. The plaintiffs appealed from the federal dismissal and now ask us to reinstate the diversity suit to its parallel track alongside the ongoing Commonwealth litigation. The defendants argue not only that we should affirm the dismissal for lack of an indispensable party, but also, among other things, that the Commonwealth-court action provides an alternative ground for disposing of the federal case under Colorado River. We conclude that the narrow conditions for Colorado River abstention are met here. We therefore stay the federal proceedings pending the outcome of the Commonwealth-court case. I. Background Since the district court did not reach the merits, we provide a "condensed version of the dispute." Tell v. Trs. of Dartmouth Coll., 145 F.3d 417, 418 (1st Cir. 1998). On December 22, 1998, Manuel Molina-Godinez, the plaintiffs' decedent, sold the defendants 100% of the stock in an apartment complex development known as Isabela Beach Court. Molina-Godinez agreed to manage Isabela Beach Court in exchange for a monthly fee and 18% of the proceeds after the complex's completion and the sale of all units. In addition, before construction began, Molina-Godinez verbally agreed to buy one of the penthouses in Isabela Beach Court for $220,000, and the defendants reserved the unit for him. This agreement was later confirmed in writing. For reasons unspecified at this stage, the defendants dispute the scope and validity of these agreements. On January 3, 2003, Molina-Godinez died. Construction of Isabela Beach Court was completed at some point after his death and all of the units were sold successfully. On March 27, 2007, Molina-Godinez's widow, plaintiff Sonia I. Jiménez, commenced an action in the federal district court for the District of Puerto Rico asserting that she was entitled to half of her late husband's 18% share, which had never been paid. Additionally, she sought to exercise his option on the penthouse apartment that had allegedly been reserved for him. Because Jiménez was a Florida resident and the defendants were all Puerto Rico residents, she claimed that the district court had diversity jurisdiction over the matter. The defendants moved to dismiss for failure to join an indispensable party under Rule 19 of the Federal Rules of Civil Procedure. They argued that the case could not proceed without Molina-Godinez's three other heirs, two of whom were also Puerto Rico residents. Because joinder of the Puerto Rico heirs would defeat complete diversity, the defendants maintained, dismissal was compulsory. On August 10, 2007, Jiménez amended the complaint to join the one diverse heir while still excluding the non-diverse heirs. She also altered her theory of the case, explaining that she was now seeking the contractual proceeds on behalf of Molina-Godinez's estate rather than for herself alone. She claimed that she could adequately protect the interests of the non-diverse heirs and that, as a result, the action did not depend on their joinder. The amended complaint asked the court to award any judgment to the estate, where it could be allocated to heirs and creditors by a Puerto Rico probate court at some later date. The addition of the diverse heir as a named plaintiff did not, however, affect the substance of the defendants' argument. The defendants renewed their motion to dismiss, maintaining that Jiménez was not an adequate representative of the estate and that an adverse judgment could affect the non-diverse heirs' interests. According to them, neither the case's new posture nor the joinder of the one diverse heir would lessen the indispensability of the non-diverse heirs. The plaintiffs filed their response three days later. Over six months passed without any further action from the court. On March 27, 2008, the plaintiffs sought to learn the status of the pending motion to dismiss, but the docket does not indicate a response from the court. On August 29, 2008, after an additional five months, the plaintiffs filed a parallel complaint in the Court of First Instance for the Commonwealth of Puerto Rico. Unlike the federal action, this second suit joined all of Molina- Godinez's heirs as parties. On December 12, 2008, the district court granted the defendants' motion to dismiss. Jiménez v. Rodríguez-Pagán, 254 F.R.D. 151 (D.P.R. 2008). This appeal followed. Meanwhile, the Commonwealth action has progressed in due course and is now into the discovery stage. II. Discussion The defendants-appellees present three different possible grounds to deny appellate relief to the plaintiffs-appellants. First, they argue that this case involves matters that fall within the probate exception to diversity jurisdiction and thus cannot be adjudicated in federal court. Second, they reiterate their Rule 19 claim that the non-diverse heirs remain indispensable. Finally, they ask us to abstain under Colorado River and allow the Puerto Rico court to resolve the case. Though we reject the first of these arguments and harbor considerable skepticism as to the second, we ultimately agree that this case warrants Colorado River abstention.1 A. The Probate Exception It has been said that "[t]he probate exception is one of the most mysterious and esoteric branches of the law of federal jurisdiction." Dragan v. Miller, 679 F.2d 712, 713 (7th Cir. 1982). Once more unto the breach.2 The probate exception is a judge-made doctrine stemming from the original conferral of federal equity jurisdiction in the Judiciary Act of 1789. The ambit of that jurisdiction, coterminous with that exercised by the framers' contemporaries in the English courts of chancery, "did not extend to probate matters." Markham v. Allen, 326 U.S. 490, 494 (1946). The Supreme Court accordingly held in Markham that federal courts have no authority to "interfere with the probate proceedings or assume general jurisdiction of the Under different circumstances, we might proceed directly to the dispositive Colorado River analysis, bypassing the other two questions. In this case, however, a cursory treatment of those questions does not suffice. Were the probate exception to apply here, we would have no subject matter jurisdiction over this dispute, and we think it appropriate to determine our own jurisdiction at the outset. The Rule 19 issue merits its own analysis because it factors into our eventual determination to abstain. See William Shakespeare, King Henry the Fifth, act 3, sc. 1. probate or control of the property in the custody of the state court." Id. Yet "stating the probate exception has proven easier than applying it." Umsted v. Umsted, 446 F.3d 17, 20 n.2 (1st Cir. 2006). After Markham, just what would constitute "interfere[nce] with the probate proceedings" proved notoriously difficult to pin down. When we last had the opportunity to consider the doctrine nearly a decade ago, we acknowledged that "the precise scope of the probate exception has not been clearly established." Mangieri v. Mangieri, 226 F.3d 1, 2 (1st Cir. 2000) (internal brackets omitted). Since then, the Supreme Court has revisited the issue and illuminated matters somewhat. In Marshall v. Marshall, the Court explained that the “interference” language in Markham [is] essentially a reiteration of the general principle that, when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res. Thus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent's estate; it also precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction. 547 U.S. 293, 311-12 (2006) (citations omitted). Marshall made clear that the scope of the probate exception is "distinctly limited." Id. at 296; cf. Mooney v. Mooney, 471 F.3d 246, 248 (1st Cir. 2006) (noting that the Supreme Court in Marshall also emphasized the narrow scope of the domestic relations exception). The case before us does not fall within that limited scope. "[W]here exercise of federal jurisdiction will result in a judgment that does not dispose of property in the custody of a state probate court, even though the judgment may be intertwined with and binding on those state proceedings, the federal courts retain their jurisdiction." Lefkowitz v. Bank of N.Y., 528 F.3d 102, 106 (2d Cir. 2007). The only property at issue in this case is the proceeds from the sale of the Isabela Beach Court units and the penthouse apartment on which Molina-Godinez allegedly held an option to purchase. Because neither the money nor the apartment are yet part of the decedent's estate, neither are yet in the custody of a Puerto Rico probate court. Indeed, the very relief sought here is enlargement of the decedent's estate through assets not currently within it. While divvying up an estate falls squarely within the probate exception, merely increasing it does not. Gustafson v. zumBrunnen, 546 F.3d 398, 400 (7th Cir. 2008) (finding that the probate exception did not apply because "the judgment sought would just add assets to the decedent's estate" rather than "reallocat[ing] the estate's assets among contending claimants or otherwise interfer[ing] with the probate court's control over and administration of the estate"). B. Rule 19 We review a district court's Rule 19 determinations for abuse of discretion. Picciotto v. Cont'l Cas. Co., 512 F.3d 9, 14- 15 (1st Cir. 2008). Because the decision to dismiss for lack of an indispensable party "involve[s] the balancing of competing interests and must be steeped in pragmatic considerations," id. at 14 (internal quotation marks omitted), we will reverse only if "the district court makes an error of law or relies significantly on an improper factor, omits a significant factor, or makes a clear error of judgment in weighing the relevant factors." Id. at 15 (internal citations and quotation marks omitted). Rule 19 is designed to protect the interests of parties who are not yet involved in ongoing litigation. To measure how critical those interests are, the rule instructs courts to engage in a two-part analysis. See Pujol v. Shearson Am. Exp., Inc., 877 F.2d 132, 134 (1st Cir. 1989). Parties should be joined, when feasible, if they are "necessary" to the action according to the criteria laid out in Rule 19(a).3 If a necessary party cannot be The term "necessary" is a vestige of a superseded version of Rule 19 and no longer appears in the text. Rule 19(a) now speaks only of "Persons Required to be Joined if Feasible." Nevertheless, many circuits (including this one) continue to cling to the traditional nomenclature. See Confederated Tribes of Chehalis Indian Reservation v. Lujan, 928 F.2d 1496, 1501 n.1 (9th Cir. 1991) (O'Scainnlain, J., concurring in part and dissenting in part). Lest there be any confusion, the word is used as a term of art and signifies desirability rather than actual necessity. Parties are not truly necessary in the vernacular sense of the word "unless and until they satisfy the terms of Rule 19(b)." Id. joined in the action without divesting the court of subject-matter jurisdiction, Rule 19(b) lays out additional criteria for determining whether that party is "indispensable." If the court finds that party is anything less than indispensable, the case proceeds without her. If, on the other hand, the court finds that the litigation cannot proceed in the party's absence, the court must dismiss the case. See B. Fernandez & Hnos, Inc. v. Kellogg USA, Inc., 516 F.3d 18, 23 (1st Cir. 2008). Ultimately, the unsettled state of governing Puerto Rico law hampers our ability to adjudicate this issue definitively. Assuming for the purposes of argument that the district court exercised its discretion properly in finding that the non-diverse heirs were necessary parties under Rule 19(a), we proceed directly to the indispensability analysis under Rule 19(b). See Delgado v. Plaza Las Americas, Inc., 139 F.3d 1, 3 n.2 (1st Cir. 1998) (per curiam) (noting that parties cannot be indispensable under Rule 19(b) unless they are first deemed necessary under Rule 19(a)). The "critical question" in the Rule 19(b) context is "'whether in equity and good conscience' the action may proceed in [the necessary party]'s absence." B. Fernandez, 516 F.3d at 23 (quoting Fed. R. Civ P. 19(b)). To answer that question, the district court must consider four factors specified in the Rule: (1)the extent to which a judgment rendered in the person's absence might prejudice that person person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided by (A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures; (3) whether a judgment rendered in the person's absence will be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for non-joinder. Fed. R. Civ. P. 19(b). The district court emphasized the first and third factors, finding that a judgment rendered in the non-diverse heirs' absence could potentially prejudice their interests. It reasoned that since each heir possesses a right to part of Molina-Godinez's estate, any ruling on the sums due to the estate under the alleged contract would affect each heir's individual portion. In order to adequately protect his or her interest in that portion, each heir was therefore entitled to participate in the litigation, even to the point of eliminating federal diversity jurisdiction. We are not so sure. In Puerto Rico, the decedent's as- yet undivided estate is known as a community of property. See, e.g., Arias-Rosado v. Gonzalez Tirado, 111 F. Supp. 2d 96, 99 (D.P.R. 2000). On several occasions, the federal district court for the District of Puerto Rico has interpreted Puerto Rico law to provide that an individual participant in a community of property does not impair other participants' interests merely by asserting common legal rights to the property while the other participants are absent. "Any judgment in favor of one or more participants benefits all other participants in a community of property whereas an adverse judgment only prejudices the one who filed the judicial action." Id. (internal quotation marks omitted); accord Rodriguez- Rivera v. Rivera Rios, No. 06-1381, 2009 WL 564221, at *3 (D.P.R. Mar. 5, 2009); Ruiz-Hance v. P.R. Aqueduct & Sewer Auth., 596 F. Supp. 2d 223, 230 (D.P.R. 2009); Cintron v. San Juan Gas, 79 F. Supp. 2d 16, 19 (D.P.R. 1999). In Arias-Rosado, a Rule 19 challenge to a survivorship action, the court went on to hold that "a favorable judgment to [the individual heir litigating in federal court] will be dispositive of the survivorship claim and benefit the absent heirs. However, an unfavorable judgment will only prejudice her and not the absent heirs[,] who still will have available the suit filed in state court wherein they asserted the survivorship claim." 111 F. Supp. 2d at 99; see also Rodriguez- Rivera, 2009 WL 564221 at *3; Ruiz-Hance, 596 F. Supp. 2d at 229–30; Cintron, F. Supp. 2d at 19. Taking these cases at face value, as the plaintiffs urge us to, it appears that the federal suit here is something of a free shot for the non-diverse heirs. Success inures to their benefit while failure is costless. Surely there can be no impairment when they stand to lose nothing. If the plaintiffs are providing a correct statement of the local law, they would appear to be the best of all possible representatives for the absentees' interests: the kind that may very well help but cannot hurt. See Tell, 145 F.3d at 419 ("If an absent party's interests are the same as those of an existing party, and the existing party will adequately protect those interests, this bears on whether the absent party's interest will be impaired by its absence from the litigation."). At this juncture, however, we cannot state this proposition as anything other than a conditional hypothetical. The plaintiffs' interpretation of Puerto Rico community property law is far from certain. To begin with, the cases on which the plaintiffs rely sound exclusively in tort. Seizing on this, the defendants have urged us to limit the applicability of those cases to wrongful death and survivorship actions. When pressed at oral argument, the plaintiffs could not cite a single authority suggesting that their interpretation of the relevant law extends to contract claims. This puts us in an awkward position. On the one hand, we would find it somewhat strange if the rule did indeed govern non- torts actions yet had failed to produce any reported decisions to that effect. It is hard to say that the district court abused its discretion when the ostensible abuse is a matter of unsettled law. On the other hand, none of the four cases that the plaintiffs cite facially limits itself to tort claims. Those cases draw their logical force not from any idiosyncrasy in Puerto Rico's tort law, but from Puerto Rico's community-of-property law. This may make the defendants' argument a good candidate for a distinction without a difference. Contractual proceeds due to the decedent belong to the undivided estate just as much as a wrongful death judgment. All things considered, we have an insufficient basis to accept either the plaintiffs' or the defendants' readings of the case law. A second difficulty remains. Suppose that the plaintiffs here are successful in securing some monetary damages under the contract, but not the full amount that they seek. Does that constitute a successful judgment sufficient to bind the non-diverse heirs under the plaintiffs' theory of the law, or is it instead an adverse judgment that would leave those heirs free to double down in the second suit? The plaintiffs do not attempt to answer this question, and, unaware of any authority one way or the other, neither can we. In sum, we are ill equipped to rule on this question of Puerto Rico law. As this question may very well determine the non- diverse heirs' indispensability here, we are equally ill equipped to rule on the ultimate question of joinder. Under different circumstances, we would consider certifying the underlying question to the Supreme Court of Puerto Rico. See Muniz-Olivari v. Stiefel Labs., Inc., 496 F.3d 29, 39–40 (1st Cir. 2007). As the next section makes clear, though, that consideration is obviated by the parallel litigation ongoing in the Commonwealth court. C. Colorado River Abstention It has long been established that the presence of parallel litigation in state court will not in and of itself merit abstention in federal court. See McClellan v. Carland, 217 U.S. 268, 282 (1910); Stanton v. Embrey, 93 U.S. 548, 554 (1876). Concurrent federal-state jurisdiction over the same controversy does not generally lessen the federal courts' "virtually unflagging obligation . . . to exercise the jurisdiction given them." Colo. River, 424 U.S. at 817. At the same time, the Supreme Court in Colorado River acknowledged that this obligation is not infinite. In special cases, the pendency of a similar action in state court may merit federal abstention based on "considerations of wise judicial administration" that counsel against duplicative lawsuits.4 Id. (internal brackets and quotation marks omitted). This "fourth category" of abstention has come to be known as the Colorado River doctrine.5 See Fuller Co. v. Ramon I. Gill, Inc., 782 F.2d 306, 309 n.3 (1st Cir. 1986) (observing that Colorado River created a fourth category of abstention beyond the "three traditional branches"). As with other forms of abstention, our decision to decline jurisdiction under Colorado River may be sua sponte. See Bellotti v. Baird, 428 U.S. 132, 143 n.10 (1976); Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 517–18 (1st Cir. 2009); Currie v. Group Ins. Comm'n, 290 F.3d 1, 9 n.7 (1st Cir. 2002). We therefore have discretion to review the matter on appeal even if it was not raised in the court below. The first three forms of abstention are Pullman-type (avoiding a constitutional determination by allowing a state court to construe state law), Burford-type (deferring to a state regarding difficult questions of state law that involve significant policy considerations), and Younger-type (invoking federal jurisdiction to restrain criminal proceedings). See Colo. River, 424 U.S. at 814–17; Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 915 F.2d 7, 12 n.8 (1st Cir. 1990). The crevice in federal jurisdiction that Colorado River carved is a narrow one. Of all the abstention doctrines, it is to be approached with the most caution, with "[o]nly the clearest of justifications" warranting dismissal. Colo. River, 424 U.S. at 819. Our authority to find such a clear justification is confined by an "exceptional-circumstances test," Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 16 (1983), whose non-exclusive list of factors we have drawn from Colorado River and its progeny: (1) whether either court has assumed jurisdiction over a res; (2) the [geographical] inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether state or federal law controls; (6) the adequacy of the state forum to protect the parties' interests; (7) the vexatious or contrived nature of the federal claim; and (8) respect for the principles underlying removal jurisdiction. Rio Grande Cmty. Health Ctr. v. Rullan, 397 F.3d 56, 71–72 (1st Cir. 2005). "No one factor is necessarily determinative; a carefully considered judgment taking into account both the obligation to exercise jurisdiction and the combination of factors counselling against that exercise is required." Colo. River, 424 U.S. at 818–19. Furthermore, "the decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction." Moses H. Cone, 460 U.S. at 16. Unsurprisingly, the cases that satisfy this test are few and far between. Yet those cases, "though exceptional, do nevertheless exist." Colo. River, 424 U.S. at 818. From time to time, we have exercised our discretion (or affirmed the lower court's exercise of its own discretion) to decline jurisdiction under Colorado River, notwithstanding the presumption in favor of assuming jurisdiction. See, e.g., Rivera-Feliciano v. Acevedo-Vila, 438 F.3d 50 (1st Cir. 2006); Currie v. Group Ins. Comm'n, 290 F.3d 1 (1st Cir. 2002); Liberty Mut. Ins. Co. v. Foremost-McKesson, Inc., 751 F.2d 475 (1st Cir. 1985). In our view, this is such a case. Applying the factors, we conclude that while some are neutral to our inquiry, the balance of them strongly favors abstention. We begin with the neutral factors, which may be summarized quickly. The federal and Puerto Rico forums are equally convenient (second factor); the Puerto Rico forum is well equipped to protect the parties' interests (sixth factor), see United States v. Fairway Capital Corp., 483 F.3d 34, 43 (1st Cir. 2007) (holding that the adequacy of the state forum is relevant only when it would disfavor abstention); there is nothing vexatious or contrived about the plaintiffs' federal lawsuit (seventh factor); and removal jurisdiction is irrelevant here (eighth factor). So far, so good. But the sum of the other four factors convinces us that deference to the Commonwealth court is the appropriate result here. The first factor, the involvement of a res, tilts toward abstention due to the plaintiffs' claim for the penthouse apartment in Isabela Beach Court. Though the plaintiffs characterize this as a suit over monetary damages, both versions of the complaint request the court to enforce the decedent's alleged option on the apartment. There is therefore a possibility for inconsistent dispositions of property.6 The third factor, avoidance of piecemeal litigation, also favors abstention, although it requires a bit more explanation. The "piecemeal litigation" to be avoided is something more than just the repetitive adjudication that takes place in all cases implicating Colorado River doctrine. Concurrent federal-state In Levy v. Lewis, the Second Circuit observed that the res prong of the Colorado River analysis was more concerned with the disposition of property than the actual exercise of in rem jurisdiction: The principle is often stated as a matter of jurisdiction: that a second court cannot have jurisdiction to proceed in rem if jurisdiction over the res is maintained by another court. Nevertheless, as the Court appeared to recognize, the principle involved is more accurately described as a prudential doctrine in which a second court with concurrent jurisdiction will exercise its discretion to defer to another court for the sake of comprehensive disposition of rights in a particular piece of property or in a fund. 635 F.2d 960, 965–66 (2d Cir. 1980). We agree with this assessment. jurisdiction over the same action will necessarily involve some degree of "routine inefficiency that is the inevitable result of parallel proceedings." Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 915 F.2d 7, 16 (1st Cir. 1990). That inefficiency was not significant to the Supreme Court's decision in Colorado River and has not contributed to any of this circuit's subsequent case law. Were it otherwise, courts could abstain in any diversity action that overlapped with a state-court action. "Piecemeal litigation" must instead refer to some additional factor that places the case beyond the pale of duplicative proceedings. Put differently, "[a] duplication of effort, while wasteful, is not exceptional." Gentron Corp. v. H. C. Johnson Agencies, Inc., 79 F.R.D. 415, 418 (E.D. Wis. 1978). We have therefore held that [d]ismissal is not warranted simply because related issues otherwise would be decided by different courts, or even because two courts otherwise would be deciding the same issues. Rather, concerns about piecemeal litigation should focus on the implications and practical effects of litigating suits deriving from the same transaction in two separate fora, and weigh in favor of dismissal only if there is some exceptional basis for dismissing one action in favor of the other. KPS & Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 10–11 (1st Cir. 2003) (internal quotation marks and citations omitted). The canonical example of such an exceptional basis is a clear federal policy in favor of unified proceedings pursuant to a federal statute that is at issue in the case. See Colo. River, 424 U.S. at 819–20 (finding abstention appropriate because the federal law at issue evinced a clear policy against piecemeal adjudication of river system water rights); cf. Moses H. Cone, 460 U.S. at 20 (finding abstention inappropriate because the Federal Arbitration Act requires piecemeal litigation if necessary to give effect to an arbitration agreement). But there are other reasons why the piecemeal litigation factor might loom large in a given case. On multiple occasions, we have found an exceptional basis that counsels in favor of abstention, even though no particular federal policy was in play. See, e.g., Rivera-Feliciano, 438 F.3d at 50 (holding that "in light of the many underlying unresolved issues of Puerto Rican law[,] it would be better to avoid piecemeal litigation"); Currie, 290 F.3d at 10 (finding a risk of piecemeal litigation that rises above routine inefficiency where parallel state-court case was already on appeal and involved an issue of state law which could moot or otherwise inform the federal litigation); Liberty Mut. Ins. Co., 751 F.2d at 477 (finding an exceptional basis where there existed a "real possibility" that an insurance policy might be interpreted differently in each forum, leaving the insured with insufficient coverage after years of paying premiums). We think the potential implications of proceeding in federal court without the non-diverse heirs provides the requisite exceptional basis here. The absence of the additional heirs in the federal action means that in all likelihood the district court would be unable to resolve the defendants' contractual liability to them if the case is allowed to continue. The district court could determine the defendants' obligations to the diverse heirs, but the defendants would need to look to the Commonwealth court to determine their obligations to the non-diverse heirs under the same contract. The Commonwealth action, by contrast, includes all of the heirs and can therefore comprehensively adjudicate the defendants' liability. This disparity in inclusiveness thus creates a greater practical risk of piecemeal litigation than the baseline inefficiencies of the average exercise of concurrent federal-state jurisdiction. Recognizing this, other circuits have found Colorado River abstention more appropriate when non-diverse parties are joined in the state-court action but not the federal action. See Sto Corp. v. Lancaster Homes, Inc., 11 F. App'x 182, 188 (4th Cir. 2001); Federated Rural Elec. Ins. Corp. v. Ark. Elec. Coops., Inc., 48 F.3d 294, 298 (8th Cir. 1995); Cont'l Cas. Co. v. Robsac Indus., 947 F.2d 1367, 1373 (9th Cir. 1991), overruled on other grounds, Gov't Employees Ins. Co. v. Dizol, 133 F.3d 1220 (9th Cir. 1998). We agree. This potential for fragmented adjudication, to be distinguished from merely duplicative adjudication, warrants consideration in the Colorado River analysis.7 We move next to the fifth factor, whether state or federal law controls, which weighs particularly heavily here. Not only does the dispute here turn entirely on issues of Puerto Rico law, see Liberty Mut. Ins. Co., 751 F.2d at 477 (finding it significant that "no federal issues are raised . . . and no federal interest would be served by retaining jurisdiction over the case"), but the issues that would inform our jurisdictional analysis remain unsettled. We have previously held that under this part of the exceptional-circumstances test, abstention may be preferable when the "parties' claims present particularly novel, unusual or difficult questions of legal interpretation." Elmendorf Grafica, Inc. v. D.S. Am. (East), Inc., 48 F.3d 46, 52 (1st Cir. 1995); accord KPS & Assocs., 318 F.3d at 11. As we described above, the plaintiffs' ability to maintain complete diversity in this case hinges on our Rule 19 analysis. That analysis, in turn, hinges in part on the question of whether the non-diverse heirs' interests could be impaired if they are not joined as parties to the suit. We cannot intelligently answer that question without some clear indication as to whether Puerto Rico courts would apply the To be sure, it may not weigh as strongly as a clear federal policy of the sort that was considered in Colorado River, but it at least diminishes the presumption in favor of exercising federal jurisdiction. plaintiffs' proposed community-of-property rule to causes of action other than tort claims. From our vantage point, we cannot say definitively one way or the other. The local law that would underlie our determination on compulsory joinder would be best left to the Puerto Rico courts to sort out.8 The sixth factor, the order in which the courts obtained jurisdiction, similarly points toward abstention. The label for this factor is something of a misnomer, as "the relative progress of the suits is more important than the strict order in which the courts obtained jurisdiction." Gonzalez v. Cruz, 926 F.2d 1, 4 (1st Cir. 1991). "[T]he order in which jurisdiction was taken is not a mechanical concept automatically favoring the party who files first, but rather a concept that favors the case that is the more advanced at the time the Colorado River balancing is being done." Elmendorf, 48 F.3d at 52. We thus "measure which action -- the suit in the federal court or that in the state court -- is the more advanced in a 'pragmatic, flexible manner, with a view to the realities of the case at hand.'" Id. (quoting Moses H. Cone, 460 U.S. at 21). A quick comparison of the two docket sheets at issue here reveals that while the federal action foundered on jurisdictional questions, leaving only this appeal, the Because the Commonwealth action includes the non-diverse heirs, this question is not likely at issue there. Our deferral therefore means that the question will not be resolved until a future case. We think this delay is still preferable to our attempting to settle a state-law question of first impression here. Commonwealth action is already well into the discovery stage.9 The Commonwealth's head start into the merits lessens the federal court's need to exercise jurisdiction. See Colo. River, 424 U.S. at 820 (stating that an absence of any federal proceedings beyond a motion to dismiss favors the surrender of jurisdiction). Considering all of these factors, we conclude that this is one of the rare instances meriting Colorado River abstention. Because of the possibility for inconsistent dispositions of a res, the heightened potential for piecemeal litigation, the exclusive reliance on Puerto Rico law, the unsettled nature of aspects of that law that would inform our jurisdictional analysis, and the more advanced progress of the litigation in the Puerto Rico court system, we are convinced that the wisest judicial administration of this case is to defer to the judgment of the Puerto Rico court. Neither the parties nor, apparently, the Court of First Instance's Spanish-language docket specify how close to trial the Puerto Rico case actually is. Yet a significant disparity in favor of the Commonwealth court is clear enough. As the Seventh Circuit recently observed in an analogous situation, "[a]lthough the precise status of discovery is not apparent from the record before us, it is clear that various depositions have been taken in the state case. At the very least, the controversy appears to be closer to a resolution in the state proceedings than in the federal." Tyrer v. City of South Beloit, 456 F.3d 744, 755 (7th Cir. 2006) (internal brackets and quotation marks omitted). Since a court engaging in Colorado River analysis should "look at the total situation as it stands at the time of appeal," Lumen Const., Inc. v. Brant Const. Co., Inc., 780 F.2d 691, 697 n.4 (7th Cir. 1985), we take judicial notice of the progress of the parallel Commonwealth litigation. Having come to this conclusion, we must next decide whether the appropriate disposition is a dismissal or a stay of the proceedings. In Moses H. Cone, the Supreme Court committed this question to the discretion of the lower courts, finding "no occasion in this case to decide whether a dismissal or a stay should ordinarily be the preferred course of action when a district court properly finds that Colorado River counsels in favor of deferring to a parallel state-court suit." 460 U.S. at 28 (footnote omitted); see also Arizona v. San Carlos Apache Tribe of Ariz., 463 U.S. 545, 570 n.21 (1983). Most circuits to have considered the issue have held that a stay is always preferable because it may likely produce the same practical result as a dismissal while still leaving the docket open in case loose ends remain at the conclusion of the state proceedings. See Moorer v. Demopolis Waterworks & Sewer Bd., 374 F.3d 994, 998 (11th Cir. 2004); Cigna Healthcare of St. Louis, Inc. v. Kaiser, 294 F.3d 849, 851-52 (7th Cir. 2002); Mahaffey v. Bechtel Assoc. Prof'l Corp., D.C., 699 F.2d 545, 546–47 (D.C. Cir. 1983) (per curiam); see also Lops v. Lops, 140 F.3d 927, 960 n.24 (11th Cir. 1998) (Kravitch, J., dissenting); but see Cox v. Planning Dist. I Cmty. Mental Health & Mental Retardation Servs. Bd., 669 F.2d 940, 943 (4th Cir. 1982) (holding that dismissal is appropriate so long as "the determinative issues will unfailingly be resolved within the parameters of the state-court litigation . . . as no further action by the district court is anticipated"). There is no need to decide this issue categorically here. In this Circuit, Colorado River abstention has historically resulted in a stay, see, e.g., Rivera-Feliciano; Currie; Liberty Mut. Ins. Co., and we elect to continue that trend in this case. Although we do not anticipate any unresolved issues remaining after the Commonwealth case concludes, we see no harm to judicial economy in going the more cautious route. See LaDuke v. Burlington N. R.R. Co., 879 F.2d 1556, 1562 (7th Cir. 1989) (noting that a stay "protects the rights of all the parties without imposing any additional costs or burdens on the district court") (footnote omitted). III. Conclusion Like the district court, we think that this case should ultimately be resolved in the Puerto Rico judicial system. But we reach this conclusion not because of the probate exception or Rule 19, but rather because of exceptional circumstances that satisfy Colorado River's demanding test for abstention. Accordingly, we vacate the district court's dismissal and remand with instructions to stay all further proceedings. It is so ordered. Costs to neither party.

Not for Publication in West’s Federal Reporter United States Court of Appeals For the First Circuit No. 09-1223 UNITED STATES OF AMERICA, Appellee, v. STEPHEN ADRIAN RAMNATH, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge] Before Lipez, Circuit Judge, Souter, Associate Justice,* and Selya, Circuit Judge. J. Gregory Batten for appellant. Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee. March 1, 2010 * The Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. SOUTER, Associate Justice. The defendant, Stephen Ramnath, was convicted of conspiracy to distribute, and possess with intent to distribute, more than fifty grams of crack in violation of 21 U.S.C. §§ 846 and 841(a)(1). He argues that admission of pre-conspiracy and bad act evidence was error, that the evidence was insufficient to prove conspiracy, that admission of alleged co-conspirator hearsay was reversible and that the Maine venue for trial was unsupported. We hold the pre-conspiracy and bad act evidence admissible and the conspiracy clearly shown. The remaining claims assume that the conspiracy was unproven and fall in consequence of our contrary conclusion. On July 25, 2007, law enforcement agents in Portland, Maine, made a controlled purchase of crack cocaine from Hussein Al- Rikabi, and then got authorization to tap his phone. Over the course of the next week, Ramnath (speaking from New Jersey) was a party in conversations that anyone would recognize as guarded discussions about price and quantity of drugs to be obtained by Ramnath for sale to Al-Rikabi. Ultimately, they arranged that Al- Rikabi would drive from Maine to see Ramnath in New Jersey. The police observed this meeting through binoculars and saw a large quantity of cash pass from Al-Rikabi to Ramnath in exchange for something they could not make out. The next day, officers in Portland saw Al-Rikabi engage in a series of short encounters in commercial establishments and on the streets, including a neighborhood noted for drug sales. Less than two weeks later, the wiretap picked up another conversation in which Al-Rikabi apparently sought to buy more drugs from Ramnath, who spoke to the ability of his sources to produce material good to “cook.” Two months after that phone interception, Al-Rikabi was arrested in Maine on drug charges, and a day later so was Ramnath, in New Jersey. Ramnath admitted that he already knew of Al- Rikabi’s arrest, and that twice he had sold him 100 grams of crack knowing it was for resale in Maine at a price higher than the rate in the New Jersey market. Ramnath consented to a search of his apartment, which produced 16 grams of powder cocaine, some cutting agent, a digital pharmacist’s scale and the sort of plastic baggies used for individual drug sales. As for Ramnath’s assignment of error in admitting evidence of the controlled purchase on July 25, trial counsel objected that it was irrelevant because the conspiracy was charged as having begun on July 26. Current counsel adds that its unfair prejudicial effect substantially outweighed its probative value, see Fed. R. Evid. 403, and that trial counsel was ineffective in failing to request an instruction limiting its consideration to any possible bearing on Ramnath’s understanding or intentions in dealing with Al-Rikabi. The relevance objection was rightly overruled; the evidence served to identify Ramnath’s alleged co- conspirator, Al-Rikabi, as a drug dealer, with the implication that someone supplying him with large quantities of drugs would know what he would do with them. Since evidence subsequently obtained showed that Ramnath and Al-Rikabi engaged in substantial drug transactions (as, indeed, Ramnath admitted, only denying that the parties were conspirators), the relevance of this evidence was clear, and its probative value not substantially outweighed. The further claim of counsel’s constitutional inadequacy adds nothing to this appeal; the prevailing rule in this circuit generally bars consideration of an ineffectiveness claim raised for the first time on appeal, United States v. Theodore, 354 F.3d 1, 3 (1st Cir. 2003), and in any event Ramnath’s counsel mentions it with a brevity that fails to address adequately the elements of a charge of ineffective assistance under Strickland v. Washington, 466 U.S. 668, 687 (1984). Ramnath’s unsuccessful objection to admission of the drugs and paraphernalia found in his apartment was followed by an instruction that the jury could consider them “only for the limited purpose of deciding whether Mr. Ramnath had the state of mind or intent necessary to commit the crime charged,” and its admission was consistent with the provision of Federal Rule of Evidence 404(b) that evidence of other crimes, while inadmissible to prove propensity to commit the crime charged, nonetheless may be received to show motive, intent or plan, among other things. Being admissible here, it was an evidentiary bookend to the testimony about Al-Rikabi’s drug sale just before the authorities got wind of his connection with Ramnath. The quantity of drugs, the baggies, the cutting agent and the scale (described by a police witness as a distributor’s “number one tool”) combined to confirm that Ramnath was, as he admitted, a sophisticated drug dealer, and provided probative evidence of his intent when he undertook to supply another known dealer with commercial quantities of crack cocaine. Ramnath’s admissions were thus given corroborative context for consideration on the conspiracy charge, that is, that Ramnath had voluntarily agreed with Al-Rikabi to distribute the specified quantity of crack (and to possess it for that purpose) with the understanding that Al-Rikabi would distribute it to others. See United States v. Thompson, 449 F.3d 267, 275 (1st Cir. 2006). This could not have been a difficult issue for the jury. The evidence just discussed indicates that Ramnath was a distributor and Al-Rikabi was dealing in retail quantities in street sales. The telephone conversations show that Ramnath also sold in volume and undertook to get a large quantity of crack for Al-Rikabi. (This much is inferrable from Ramnath’s own intercepted statements, as to which he has no sustainable hearsay objection.) The account of the New Jersey surveillance established that the initial dialogue led to a transaction involving a considerable sum of money, and Ramnath’s subsequent statements over the phone reflect an understanding that his relationship with Al-Rikabi would continue. These facts are confirmed by his confession, which mentioned two sales of commercial quantities to Al-Rikabi as well as the Maine destination of the crack for profitable resale there. While Ramnath argues that his confession ought to be ignored as uncorroborated, if corroboration were needed the record supplies it: evidence of Al-Rikabi’s occupation, observations during the New Jersey surveillance, Ramnath’s intercepted statements, and the dealer’s accoutrements in his apartment. The pieces fit comfortably together and the jury was entitled to find agreement to a joint course of conduct resulting in Al-Rikabi’s retail sales in Maine. Given the sufficient support for the conspiracy charged, the remaining issues here go by the boards. The objection to admitting Al-Rikabi’s intercepted statements simply repeats the claim that no conspiracy was proven. But because it was shown (by evidence including “some extrinsic proof,” United States v. Sepulveda, 15 F.3d 1161, 1182 (1st Cir. 1993)), the co-conspirator statements fall outside the definition of hearsay, see Fed. R. Evid. 801(d)(2)(E), there being no serious question that the discussions of larger sales were made during and in furtherance of the conspiracy. What Al-Rikabi’s statements added to the probative force of Ramnath’s own is debatable, but admissibility is not. Neither is proper venue. Ramnath told the police the drugs Al-Rikabi obtained from him were for resale in Maine, at prices higher than those in New Jersey, and evidence in the record is enough to show that Maine was where the chain of commerce ended. To be sure, Ramnath argues that his statement is incompetent to support the venue because he was a mere seller, not part of a conspiracy whose business extended to Maine. But our conclusion that conspiracy was sufficiently shown settles that; the venue was properly laid in a district where the object of the conspiracy offence was realized, see 18 U.S.C. § 3237(a); United States v. Santiago, 83 F.3d 20, 25 (1st Cir. 1996). Affirmed.

United States Court of Appeals For the First Circuit No. 09-1625 POWERSHARE, INC., Plaintiff, Appellee, v. SYNTEL, INC., Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nancy Gertner, U.S. District Judge] [Hon. Judith G. Dein, U.S. Magistrate Judge] Before Lynch,Chief Judge, Souter,* Associate Justice, and Selya, Circuit Judge. Steven P. Perlmutter, with whom Christopher S. Feudo, Robinson & Cole LLP, Dennis M. Haffey, Stephen W. King, and Dykema Gossett PLLC were on brief, for appellant. Paul Mark Sandler, with whom Robert B. Levin, John J. Lovejoy, Shapiro Sher Guinot & Sandler, Rory Fitzpatrick, and Cetrulo & Capone were on brief, for appellee. March 1, 2010 * Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. SELYA, Circuit Judge. Two corporations, one based in Massachusetts, and the other in Michigan, entered into a business arrangement (the Agreement). After a falling-out, one of the contracting parties, PowerShare, Inc., commenced a civil action in the district court to enforce the Agreement. The defendant, Syntel, Inc., countered by instituting a parallel arbitration proceeding and moving to stay litigation pending arbitration. The district court denied the motion, and Syntel now appeals. We have jurisdiction pursuant to the Federal Arbitration Act to review the interlocutory order denying Syntel's motion to stay litigation pending arbitration. See 9 U.S.C. § 16(a)(1)(A); Combined Energies v. CCI, Inc., 514 F.3d 168, 170 (1st Cir. 2008). The question that lies at the heart of the appeal is whether the Agreement contains a mandatory arbitration provision. The district court thought not. We hold that the Agreement does so provide and therefore reverse. Along the way, we address, as a matter of first impression at the federal appellate level, an issue concerning the standard of review to be applied by a district judge when reviewing a magistrate judge's disposition of a motion to stay litigation pending the completion of a parallel arbitration proceeding. I. BACKGROUND PowerShare and Syntel entered into the Agreement on July 16, 2003. Their evident purpose was to form a joint venture to handle the outsourcing needs of third parties. Paragraph 18 of the Agreement reads in relevant part:1 All disputes, controversies and claims directly or indirectly arising out of or in relation to this Agreement or the validity, interpretation, performance, breach, enforceability of the Agreement (collectively referred to as "Dispute") shall be resolved amicably between Syntel and PowerShare at an operational level in consultation with the top management of both companies. If any such Dispute cannot be resolved, as stated above, the same shall be settled in accordance with the principles and procedures of the American Arbitration Association and per the decision of an accredited arbitrator acceptable to both parties. Nothing in this clause shall prejudice Syntel or PowerShare's right to seek injunctive relief or any other equitable/legal relief or remedies available under law. Some five years after the execution of the Agreement, a dispute arose. On August 8, 2008, PowerShare invoked diversity jurisdiction, 28 U.S.C. § 1332(a), and filed suit against Syntel, claiming breach of the Agreement, in the United States District Court for the District of Massachusetts. PowerShare accompanied its complaint with a request for jury trial. See Fed. R. Civ. P. 38(b). In response, Syntel lodged a demand for arbitration with the American Arbitration Association (AAA). It simultaneously moved in the district court to stay PowerShare's action pending resolution The parties agree that other material at the beginning and end of Paragraph 18 is, for present purposes, uncontroversial. We thus quote the three relevant sentences of the paragraph and henceforth refer to them as the "first," "second," and "third" sentences. This practice emulates what the parties have done. of the parallel arbitration proceeding. Not to be outdone, PowerShare filed a motion to stay the arbitration. The district court assigned the motions to a magistrate judge, who denied Syntel's motion to stay the litigation and granted PowerShare's cross-motion to stay the arbitration. PowerShare, Inc. v. Syntel, Inc., 607 F. Supp. 2d 240, 244 (D. Mass. 2008). In her rescript, the magistrate judge concluded that, under the Agreement, arbitration was optional. Id. at 241. She reasoned that the third sentence of Paragraph 18, which refers to "any other equitable/legal relief or remedies available under law," made manifest the parties' intention to allow litigation because a jury trial is a remedy "available under law." Id. at 243. In so holding, the magistrate judge rejected Syntel's argument that the federal policy favoring arbitration should be given weight. Rather, she declared that this policy applies only to the resolution of "scope" questions, not to questions about whether a contract calls for mandatory arbitration at all. Id. at 244. Syntel appealed this decision to the district judge, Fed R. Civ. P. 72(a), who issued an electronic order stating that the decision was "not clearly erroneous or contrary to law." This timely appeal followed. II. ANALYSIS We divide our analysis into two parts. First, we clarify the standard of review to be employed by a district judge when reviewing a magistrate judge's order on a motion to stay litigation pending the resolution of a parallel arbitration proceeding. Only then do we proceed to the merits. A. The Federal Magistrates Act confers authority upon district judges to designate magistrate judges to hear pretrial motions. 28 U.S.C. § 636(b)(1). Magistrate judges serve as aides to, and under the supervision of, district judges; but magistrate judges are not themselves Article III judicial officers. Given their status as Article I judicial officers, magistrate judges ordinarily may not decide motions that are dispositive either of a case or of a claim or defense within a case.2 This is so because "[t]he Constitution requires that Article III judges exercise final decisionmaking authority." Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1463 (10th Cir. 1988); see Stauble v. Warrob, Inc., 977 F.2d 690, 693-94 (1st Cir. 1992). Dispositive motions include those enumerated in 28 U.S.C. § 636(b)(1)(A), but this list is not exhaustive; rather, it simply "informs the classification of other motions as dispositive or nondispositive." Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 5-6 (1st Cir. 1999). Consistent with this dichotomy between dispositive and non-dispositive motions, Federal Rule of Civil Procedure 72 sets out We say "ordinarily" because there is an exception for cases in which all parties consent. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. The record reveals no such consent here. two separate standards of review to be employed by a district judge in reviewing a magistrate judge's determinations. When a magistrate judge decides a non-dispositive motion, the district judge may, given a timely appeal, set aside the order if it "is clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a). Absent a timely appeal, the order stands. Id. When, however, a magistrate judge passes upon a dispositive motion, he or she may only issue a recommended decision, and if there is a timely objection, the district judge must engage in de novo review. Fed. R. Civ. P. 72(b). Absent a timely objection, the recommended decision ripens into an order. Id. Here, the district judge employed the "clearly erroneous or contrary to law" standard applicable to non-dispositive motions under Rule 72(a). Syntel protests that its motion to stay the litigation to allow resolution of the parallel arbitration proceeding was, in effect, dispositive of the court case and, thus, should have engendered de novo review by the district judge pursuant to Rule 72(b). No court of appeals has decided this precise question. Nevertheless, a number of district courts have held that motions to stay litigation and compel related arbitration are non-dispositive motions under Rule 72(a). See, e.g., Gonzalez v. GE Group Adm'rs, Inc., 321 F. Supp. 2d 165, 166 (D. Mass. 2004); Torrance v. Aames Funding Corp., 242 F. Supp. 2d 862, 865 (D. Or. 2002); All Saint's Brands, Inc. v. Brewery Group Den., A/S, 57 F. Supp. 2d 825, 833 (D. Minn. 1999); Herko v. Metro. Life Ins. Co., 978 F. Supp. 141, 142 n.1 (W.D.N.Y. 1997). But see Flannery v. Tri-State Div., 402 F. Supp. 2d 819, 821 (E.D. Mich. 2005) (concluding that such a motion, if granted, is dispositive because it "has the practical effect of allowing the case to proceed in a different forum"). Motions to stay litigation pending the resolution of parallel arbitration proceedings are not among the motions enumerated in 28 U.S.C. § 636(b)(1)(A). Nor are they of the same character as the listed motions. A federal court's ruling on a motion to stay litigation pending arbitration is not dispositive of either the case or any claim or defense within it. Although granting or denying a stay may be an important step in the life of a case (lawyers are keenly aware that there are substantive consequences to whether or not a stay is granted), in the last analysis a stay order is merely suspensory. Even if such a motion is granted, the court still retains authority to dissolve the stay or, after the arbitration has run its course, to make orders with respect to the arbitral award. See Federal Arbitration Act, 9 U.S.C. § 9 (permitting parties to apply to the court for an order confirming the award); id. § 10 (providing district courts with authority to vacate an arbitral award); id. § 11 (providing district courts with authority to modify an arbitral award). We acknowledge that the scope of judicial review of arbitral awards is very narrow, but that does not extinguish such review. See Advest, Inc. v. McCarthy, 914 F.2d 6, 8 (1st Cir. 1990). Thus, there is no final exercise of Article III power at the time the court acts on the motion to stay. See Herko, 978 F. Supp. at 142 n.1. In light of these realities, we conclude that, from a procedural standpoint, the district judge acted appropriately in reviewing the magistrate judge's denial of Syntel's motion to stay under the "clearly erroneous or contrary to law" standard elucidated in Rule 72(a). In this case arbitrability depended on interpreting a contractual term, a question of law for the courts. See Combined Energies, 514 F.3d at 171. Nothing in the contract expressly provided that an arbitrator would decide questions of arbitrability instead. See Coady v. Ashcraft & Gerel, 223 F.3d 1, 8-9 (1st Cir. 2000). When, as in this case, review of a non-dispositive motion by a district judge turns on a pure question of law, that review is plenary under the "contrary to law" branch of the Rule 72(a) standard. See, e.g., Haines v. Liggett Group Inc., 975 F.2d 81, 91 (3d Cir. 1992); EEOC v. Burlington N. & Santa Fe Ry. Co., 621 F. Supp. 2d 603, 605-06 (W.D. Tenn. 2009); Sprint Commc'ns Co. v. Vonage Holdings Corp., 500 F. Supp. 2d 1290, 1346-47 (D. Kan. 2007); 14 James Wm. Moore et al., Moore's Federal Practice § 72.11[1][b] (3d ed. 2009); 12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 3069, at 350 (2d ed. 1997). This means that, for questions of law, there is no practical difference between review under Rule 72(a)'s "contrary to law" standard and review under Rule 72(b)'s de novo standard. To complete the picture, we limn the standard of review at this level. Here, too, the purely legal nature of the question controls: we, like the district court, must afford de novo review to the purely legal question of whether the Agreement provides for mandatory arbitration of the parties' dispute. See Osband v. Woodford, 290 F.3d 1036, 1041 (9th Cir. 2002). B. Arbitration is a matter of contract. First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943 (1995). In this case, the Agreement contains a choice-of-law provision in favor of the laws of the United States. The parties agree that this provision brings into play the federal common and statutory law. In construing a contract governed by federal common law, courts must be guided by common-sense rules of contract interpretation. Smart v. Gillette Co. Long-Term Disab. Plan, 70 F.3d 173, 178 (1st Cir. 1995); Burnham v. Guardian Life Ins. Co., 873 F.2d 486, 489 (1st Cir. 1989). And although more a product of the Federal Arbitration Act than of federal common law, per se, federal law undeniably includes a policy favoring arbitration. See Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 475-76 (1989). At a minimum, this policy requires that "ambiguities as to the scope of the arbitration clause itself [must be] resolved in favor of arbitration." Id. Syntel contends that this policy creates a presumption of arbitrability here. PowerShare demurs, relying principally on our decision in Paul Revere Variable Annuity Insurance Co. v. Kirschhofer, 226 F.3d 15, 25 (1st Cir. 2000), which it characterizes as limiting the presumption of arbitrability to questions about the scope of an arbitration agreement (as contrasted with questions about the existence of such an agreement). Because the issue in this case is whether a mandatory arbitration agreement exists, PowerShare contends that the presumption does not attach. Despite the parties' importunings, we need not decide whether the federal policy favoring arbitration applies here. Even if we assume that the presumption does not affect the decisional calculus, the plain language of the Agreement mandates arbitration. Thus, the applicability vel non of the presumption makes no ultimate difference. With this question set to one side, we go directly to the language of the Agreement itself. Paragraph 18, quoted above, sets out the mechanisms for resolving disputes between the parties. The first sentence provides that all disputes "shall be resolved amicably between Syntel and PowerShare." The second sentence provides that if a dispute cannot be resolved amicably, it "shall be settled in accordance with the principles and procedures of the American Arbitration Association and per the decision of an accredited arbitrator." The third sentence states that "[n]othing in this clause shall prejudice Syntel or PowerShare's right to seek injunctive relief or any other equitable/legal relief or remedies available under law." In deciding whether this language mandates arbitration, we are mindful that "an interpretation which gives effect to all the terms of a contract is preferable to one that harps on isolated provisions, heedless of context." Blackie v. Maine, 75 F.3d 716, 722 (1st Cir. 1996); see Fashion House, Inc. v. K mart Corp., 892 F.2d 1076, 1084 (1st Cir. 1989). In line with this wise counsel, we strive for a reasonable interpretation of the Agreement as a whole, while avoiding constructions that would render any term within it meaningless. Summit Packaging Sys., Inc. v. Kenyon & Kenyon, 273 F.3d 9, 12 (1st Cir. 2001); Jimenez v. Penin. & Oriental Steam Navig. Co., 974 F.2d 221, 223 (1st Cir. 1992). PowerShare urges us to focus on the third sentence of Paragraph 18 and to read that sentence as reserving to the parties the right to pursue remedies at law (that is, the right to litigate in court). In order to square this interpretation with the second sentence of Paragraph 18, PowerShare suggests that the parties intended arbitration to be an optional mechanism for dispute resolution. Although PowerShare's interpretation of the third sentence may be plausible when read in isolation, that interpretation cannot be reconciled with the unvarnished language of Paragraph 18's second sentence. That sentence states explicitly that disputes between the parties "shall" be settled through arbitration. The word "shall" denotes obligation, not choice; therefore, accepting PowerShare's interpretation of the third sentence would drain the second sentence of its essential meaning. Put bluntly, the word "shall" in the second sentence would be rendered nugatory were we to read the arbitration provision as creating nothing more than an option. That PowerShare's interpretation of Paragraph 18 would negate the obvious meaning of the second sentence is a powerful argument against accepting that interpretation. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 64 (1995) (rejecting reading of two clauses in an arbitration agreement as "untenable" when that reading "sets up the two clauses in conflict with one another"); Blackie, 75 F.3d at 722 (rejecting reading of one section of a contract when that reading would "flatly contradict[]" other sections); see also Smart, 70 F.3d at 179 ("Accepted canons of construction forbid the balkanization of contracts for interpretative purposes."). We conclude that the only sensible reading of Paragraph 18 is that the second sentence mandates arbitration and the third sentence furnishes the arbitrator with broad legal and equitable powers should either party seek special kinds of relief (say, an injunction). This is the only plausible interpretation of the third sentence that fits with, and gives effect to, the plain meaning of the second sentence.3 In an endeavor to deflect the force of this reasoning, PowerShare argues that a jury trial is a "remedy" preserved in the third sentence. It says that because only a court can implement such a remedy, the interpretation that we propose must be incorrect. This argument is unconvincing. Unlike the second sentence, which plainly mandates arbitration, the reference in the third sentence to "any other equitable/legal relief or remedies available under law" never mentions jury trials (or, for that matter, recourse to the courts). Moreover, there is no textual support for a belief that this reference necessarily includes jury trials. PowerShare tries to counter-punch by citing a pair of decisions holding that "remedies" include "jury trials." But some words mean different things in different contexts, see United States Other courts have reached similar conclusions. See, e.g., Laughton v. CGI Techs. & Sol'ns, Inc., 602 F. Supp. 2d 262, 265 (D. Mass. 2009) (holding, in similar circumstances, that "[t]he correct reading of the Arbitration and Cumulative Remedies provisions is that arbitration is mandatory, but the arbitrator is not limited to awarding certain remedies" (citation and internal quotation mark omitted)); Kingstown Corp. v. Black Cat Cranberry Corp., 839 N.E.2d 333, 338 (Mass. App. Ct. 2005) (holding, in similar circumstances, that the agreement "provides an aggrieved party with the right to mandatory arbitration while also empowering an arbitrator to grant injunctive or other equitable relief"). v. Romain, 393 F.3d 63, 74 (1st Cir. 2004) (explaining that "words are like chameleons; they frequently have different shades of meaning depending upon the circumstances"); and when context is taken into account, the decisions on which PowerShare relies are off-point. Each of them interprets a savings clause in a maritime statute. See Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 454-55 (2001) (holding that "[t]rial by jury is an obvious . . . example of the remedies available" under the savings to suitors clause of 28 U.S.C. § 1333(1)); Curcuru v. Rose's Oil Serv., Inc., 802 N.E.2d 1032, 1037 (Mass. 2004) (holding that savings clause of the Death on the High Seas Act preserves jury trial right in state court). These decisions, immersed in the historical context of admiralty law, offer little guidance for the issue of contract interpretation with which we must grapple. See, e.g., Laughton v. CGI Techs. & Sol'ns, Inc., 602 F. Supp. 2d 262, 265 (D. Mass. 2009) (rejecting argument that reference to "remedies" in an agreement containing a mandatory arbitration clause preserves a party's right to litigate and, thus, renders the arbitration provision elective); Beaver Constr. Co. v. Lakehouse, L.L.C., 742 So. 2d 159, 164 (Ala. 1999) (similar). In the end, we come full circle. Reading the "remedies" language in the third sentence to allow access to a jury trial would place this provision at cross purposes with the mandatory arbitration provision spelled out in the second sentence. That would violate one of the cardinal rules of contract interpretation: "that a document should be read to give effect to all its provisions and to render them consistent with each other." Mastrobuono, 514 U.S. at 63. Confronted with two competing interpretations of the "remedies" language, we must give preference to the one that makes sense of the Agreement as a whole. See Blackie, 75 F.3d at 722. PowerShare tries to turn this principle to its advantage. It asserts that our reading of the third sentence — to afford the arbitrator broad power to dispense legal and equitable remedies — renders that sentence superfluous because, under the AAA's rules, an arbitrator already has those powers. As support for this assertion, PowerShare identifies Rule 34(a) of the AAA's Commercial Arbitration Rules, which allows an arbitrator to "take whatever interim measures he or she deems necessary." Here, however, the parties went beyond Rule 34(a); they agreed to vest in the arbitrator broad powers extending to the arbitrator's final decisionmaking, not just powers in connection with interim relief. The "remedies" provision, read in this way, is not superfluous but, rather, makes perfect sense. In commercial arbitration cases, the scope of a final award is governed by Rule 43(a), which provides that the arbitrator "may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties" (emphasis supplied). Because an arbitrator's power to award relief can be shaped by the parties' agreement, it is reasonable — and certainly not redundant — for the parties to clarify that the person arbitrating their disputes will be free to choose from the widest possible array of remedies. Consequently, PowerShare's superfluity argument fails. The short of it is that the Agreement as a whole admits of only one reasonable interpretation: the parties are obliged to submit their disputes to arbitration. See Fashion House, 892 F.2d at 1084 ("Black letter law teaches that 'a construction which comports with the Agreement as a whole is to be preferred even if it be thought that certain language, viewed only by itself, more readily suggests something else.'" (quoting Spartans Indus., Inc. v. John Pilling Shoe Co., 385 F.2d 495, 499 (1st Cir. 1967))). III. CONCLUSION We need go no further. For the reasons elucidated above, we reverse the decision appealed from and remand the case to the district court for the entry of an order staying the litigation pending the resolution of the parallel arbitration proceeding, dissolving the existing stay of arbitration, and making such other provisions consistent with this opinion, as the district court may deem meet. Reversed and remanded.

United States Court of Appeals For the First Circuit No. 08-1276 UNITED STATES OF AMERICA, Appellee, v. ALVIN F. AGUIRRE-GONZÁLEZ, Defendant, Appellee, RICHARD J. SCHMEELK; WILLIAM B. FINNERAN; and JIRA ASSOCIATES, LP, Movants, Appellants, WELLS CAPITAL MANAGEMENT, INC., Provisional Intervenor. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. Senior District Judge] Before Torruella, Circuit Judge, Baldock,* Senior Circuit Judge, and Howard, Circuit Judge. Ina M. Berlingeri-Vicenty, with whom Greenberg Traurig, P.A., was on brief for appellants Schmeelk, Finneran, and Jira Associates. Michael A. Rotker, Attorney, U.S. Department of Justice, Criminal Division, Appellate Section, with whom Rosa E. Rodríguez- Vélez, United States Attorney, District of Puerto Rico, were on brief for appellee. Daniel J. Vaccaro, with whom Aaron H. Kastens, and Michael Best & Friedrich LLP, were on brief for the provisional intervenor. * Of the Tenth Circuit, sitting by designation. March 2, 2010 TORRUELLA, Circuit Judge. Richard J. Schmeelk, William B. Finneran, and JIRA Associates, LP were victims of a fraudulent investment scheme run by Defendant Alvin F. Aguirre- González ("Aguirre").1 They brought this appeal after the district court denied their motion for an order of restitution at Aguirre's sentencing. The government concedes that, under the applicable federal restitution statutes, the district court "indisputably erred" when it concluded that the appellants were not "victims" of Aguirre's fraud entitled to restitution.2 Nonetheless, the government asserts that appellants cannot challenge the district court's restitution order because they were not parties to the criminal proceedings below. Rather, the government contends, the exclusive remedy for crime victims seeking to challenge a district court's order of restitution in criminal proceedings is to petition for a writ of mandamus under the Crime Victims' Rights Act (CVRA), For simplicity's sake, we refer to Schmeelk, Finneran, and JIRA Associates, LP as "appellants" notwithstanding our conclusion that this challenge should have been brought as a mandamus petition. As we will explain, these statutes are (1) the Victim Witness Protection Act, 18 U.S.C. § 3663, which provides crime victims with a limited right to restitution at sentencing; (2) the Mandatory Victim Restitution Act, 18 U.S.C. §§ 3663A, 3664, which provides victims of certain economic crimes with a right to a mandatory restitution, and sets forth certain procedural mechanisms to enforce such restitution orders; and (3) the Crime Victims' Rights Act, 18 U.S.C. 3771, which makes available to crime victims, among other things, procedural mechanisms to assert substantive rights in a defendant's criminal proceedings and on appeal, including rights as provided in the VWPA and MVRA. 18 U.S.C. 3771(d)(3), which provides victims with a right to expedited, 72-hour appellate review. The government further contends that, by failing to bring a timely mandamus petition, appellants are no longer capable of seeking relief under the CVRA. We asked the parties to brief a series of questions pertaining to the right of crime victims to seek appellate review of restitution orders imposed as part of a defendant's criminal sentence. After careful consideration, we hold as follows. First, a petition for a writ of mandamus under the CVRA is the exclusive mechanism for appellate review of sentencing orders affecting crime victims' rights. Next, the 72-hour time limit for mandamus review imposed by the CVRA is precatory, not mandatory, such that appellate courts retain authority, in appropriate circumstances, to consider petitions after the expiration of that deadline. Nonetheless, in this case, we do not exercise our discretion to convert appellant's direct appeal into a mandamus petition, as consideration of the petition on the merits at this late date would be fruitless in light of the CVRA's express concern for finality in criminal sentencing orders. Accordingly, we have no need to address what standard of review applies to timely mandamus petitions under the CVRA. I. Background A. The Criminal Proceedings3 From approximately 1994 through 2003, Aguirre was president and chief executive officer of two businesses incorporated under the laws of Puerto Rico which purchased vehicles and equipment and then leased them to various public and private entities. Acting through his corporations, Aguirre would sell or assign rights to periodic payments under the leases to various third-party investors. By August 1997, Aguirre began to sell or assign rights to fraudulent leases and pocket investors' money. He forged signatures, created false invoices, and made various misrepresentations to investors and potential investors in the course of this scheme. In 2001 and 2002, appellants were among the investors Aguirre deceived. Together, they purchased rights to payments under several lease agreements, including, as is relevant here, leases with the Municipality of Bayamón and with the Puerto Rico Office of Courts Administration (OAT). Both leases were, in various aspects, fraudulent, and appellants now claim losses of more than $2.7 million as a result.4 The facts relating to Aguirre's fraudulent investment scheme are drawn from the uncontested portions of his presentence report (PSR). United States v. Brewster, 127 F.3d 22, 24 (1st Cir. 1997). In July 2003, appellants and others filed a civil action against Aguirre in federal district court in Puerto Rico seeking to recoup their losses stemming from the fraud. Aguirre failed to answer, On November 9, 2005 Aguirre was charged in a 31-count indictment with wire fraud, mail fraud, and criminal forfeiture. All of the counts were alleged to be part and parcel of the "scheme and artifice to defraud" third-party investors we have just described. The indictment alleged total losses for all victims of approximately $30 million. Counts 28 and 29 pertained to leases purchased by appellants, and specifically named Finneran and Jira Associates. Aguirre's Rule 11 hearing was held on January 23, 2007. Under the terms of a written plea and forfeiture agreement with the government, Aguirre agreed, among other things, to plead guilty to counts 1 through 18 (wire fraud) and count 31 (civil forfeiture); to forfeit $1,500,000 to the government; and to pay $3,321,382 in restitution. In exchange, the government agreed to recommend the dismissal of the remaining counts at sentencing, including counts 28 and 29. The district court accepted Aguirre's guilty plea. Thereafter, appellants submitted victim impact statements; moved for restitution under the Victim Witness Protection Act (VWPA) and the Mandatory Victims Restitution Act (MVRA); submitted declarations in support of their claims; and argued the merits at Aguirre's sentencing hearing held on and the district court subsequently entered a partial default judgment, on which appellants have been unable to collect. Previously, in 2002, appellants were able to recover roughly a third of their total losses resulting from the OAT lease in unrelated proceedings. January 17, 2003. The district court denied the motion for restitution, reasoning that appellants were "victims" of the counts as to which Aguirre had not pled guilty and, therefore, had no criminal liability. The court ultimately awarded approximately $4.8 million to other defrauded investors5 and $1.5 million to the government on the civil forfeiture count. Aguirre was sentenced to 57 months in prison, the upper end of the Guidelines' recommended range. At the end of the hearing, the court dismissed counts 19 through 30 of the indictment. Final judgment was entered on January 25, 2008 and, four days later, appellants filed a notice of appeal as to the denial of their motion for restitution.6 The government now concedes that, under the definition of "victim" used in the VWPA and MVRA, appellants were entitled to restitution notwithstanding the dismissal of counts 28 and 29. Further, they acknowledge that, under the MVRA, the district court had no discretion to deny appellants restitution. See 18 U.S.C. 366A (district court "shall order" defendants convicted of certain offenses, including fraud resulting in pecuniary loss, to pay restitution to identifiable "victims"). Nonetheless, as we We allowed one such victim, Wells Capital Management, Inc., successor in interest to Strong Capital Management, to participate in these proceedings as a provisional intervenor only. On May 8, 2008, we ordered appellants to show cause as to why their appeal should not be dismissed for want of jurisdiction. On September 5, 2008, we directed the parties to address certain issues we now consider in this appeal. discuss, the government contends that appellants may no longer claim their right to restitution due to procedural defects in their challenge. B. Crime Victims and the Federal Restitution Statutes Before turning to the issues specific to this appeal, we provide a brief sketch of the network of federal statutes affecting crime victims' rights to restitution. 1. The Victim Witness Protection Act The VWPA authorizes a district court in criminal sentencing proceedings to "order 'in addition to or . . . in lieu of any other penalty authorized by law, that the defendant make restitution to any victim' of the offense." United States v. Acosta, 303 F.3d 78, 86 (1st Cir. 2002)(quoting 18 U.S.C. § 3663 (a)). The purpose of the statute is to "insure that the wrongdoer make good[], to the degree possible, the harm he has caused his victim." United States v. Vaknin, 112 F.3d 579, 582 (1st Cir. 1997)(quoting S. Rep. No. 97-532, at 31 (1982), reprinted in 1982 U.S.C.C.A.N. 2515, 2536). When the VWPA was enacted in 1982, it represented a "tectonic" shift in the criminal restitution regime, transforming "criminal restitution from a sporadically imposed condition of probation into the sentencing norm in cases involving quantifiable economic loss." Id. (explaining that "federal judges were not able to impose criminal restitution as a condition of probation until 1925 when Congress passed the Federal Probation Act" and, even after that, "used the power sparingly"). In its earlier forms, the VWPA did not define who was a "victim" eligible for restitution. In 1990 the Supreme Court filled that gap, construing the statute "to authorize an award of restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction," and not counts which were dismissed. Hughey v. United States, 495 U.S. 411, 413, 421 (1990)(recognizing that "[t]he essence of a plea agreement is that both the prosecution and the defense make concessions to avoid potential losses"). Congress responded in short order, amending the VWPA to provide that "[f]or purposes of restitution, a victim of an offense that involves as an element a scheme, a conspiracy, or pattern of criminal activity means any person directly harmed by the defendant's conduct in the course of the scheme, conspiracy or pattern." Crime Control Act of 1990, Pub. L. No. 101-647, 104 Stat. 4789 (codified at 18 U.S.C. § 3663(a)(2)). In such cases, like this one, the district court may now "order restitution without regard to whether the conduct that harmed the victim was conduct underlying the offense of conviction." Acosta, 303 F.3d at 86-87. In 1996 Congress amended the VWPA again, retaining the specific definition of "victim" for crimes involving a "scheme, conspiracy, or pattern of activity" and adding more generally that "the term 'victim' means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered." Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996)(codified at 18 U.S.C. § 3663(a)(2)). 2. The Mandatory Victim Restitution Act Also in 1996, Congress enacted the MVRA, which "compels a sentencing court to order a defendant convicted of certain crimes, including crimes against property, to make restitution to his victim." United States v. Innarelli, 524 F.3d 286, 292-93 (1st Cir. 2008)(emphasis added); see 18 U.S.C. § 3663A. To that end, the statute directs district courts to "order restitution to each victim in the full amount of each victim's losses . . . without consideration of the economic circumstances of the defendant." 18 U.S.C. § 3664(f)(1)(A). The definition of "victim" under the MVRA is substantively identical to that set forth in the VWPA, as amended. Id. 3663A(a)(2); see, e.g., United States v. Chalupnik, 514 F.3d 748, 753 (8th Cir. 2008) (MVRA and VWPA "contain identical definitions of the term 'victim'"). The MVRA's "changes reflect a [] fundamental shift in the purpose of restitution" away from its strictly penal origins; "[t]he new restitution scheme is not merely a means of punishment and rehabilitation, but an 'attempt to provide those who suffer the consequences of crime with some means of recouping the personal and financial losses.'" United States v. Perry, 360 F.3d 519, 530 (6th Cir. 2004)(quoting H.R. Rep. No. 104-16, at 5 (1995)). 3. The Crime Victims Rights Act This shift towards a more compensatory regime found further expression in the CVRA, enacted in 2004. See 18 U.S.C. § 3771. The CVRA enshrines a panoply of crime victims' "rights," including rights "to be reasonably heard at any public proceeding in the district court involving release, plea, [or] sentencing" and "to full and timely restitution as provided in law." Id. §§ 3771 (a)(4), (a)(6). The CVRA obligates district courts in criminal proceedings to "ensure that the crime victim is afforded [such] rights" and requires government prosecutors to "make their best efforts to see that crime victims are notified of, and accorded, the[ir] rights." Id. §§ 3771(b)(1), (c)(1). It further provides that the "crime victim or the crime victim's lawful representative, and the attorney for the Government may assert the [victim's] rights." Id. § 3771(d)(1). Critically for purposes of this appeal, the CVRA states, under the heading "Enforcement and limitations": The [victim's] rights . . . shall be asserted in the district court in which a defendant is being prosecuted for the crime or, if no prosecution is underway, in the district court in the district in which the crime occurred. The district court shall take up and decide any motion asserting a victim's right forthwith. If the district court denies the relief sought, the movant may petition the court of appeals for a writ of mandamus. The court of appeals may issue the writ on the order of a single judge pursuant to circuit rule or the Federal Rules of Appellate Procedure. The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed. In no event shall proceedings be stayed or subject to a continuance of more than five days for purposes of enforcing this chapter [this section]. If the court of appeals denies the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion. Id. § 3771(d)(3) (emphasis added). In the alternative, the statute provides that "[i]n any appeal in a criminal case, the Government may assert as error the district court's denial of any crime victim's right in the proceeding to which the appeal relates." Id. § 3771(d)(4)(emphasis added).7 The CVRA defines "crime victim" for purposes of its provisions as "a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia." Id. § 3771(e). In addition, the CVRA provides an additional "[l]imitation on relief": In no case shall a failure to afford a right under this chapter [this section] provide grounds for a new trial. A victim may make a motion to re-open a plea or sentence only if-- (A) the victim has asserted the right to be heard before or during the proceeding at issue and such right was denied; (B) the victim petitions the court of appeals for a writ of mandamus within 14 days; and (C) in the case of a plea, the accused has not pled to the highest offense charged. This paragraph does not affect the victim's right to restitution as provided in title 18, United States Code. 18 U.S.C. § 3771(d)(5). Notwithstanding the general shift in the restitution statutes towards a more compensatory regime, the law in this circuit remains that "restitution ordered as part of a criminal sentence is a criminal penalty, not a civil remedy." United States v. Ziskind, 471 F.3d 266, 270 (1st Cir. 2006). But see United States v. Serawop, 505 F.3d 1112, 1122 & n.4 (10th Cir. 2007) (stating that "the MVRA does not inflict criminal punishment, and thus is not punitive," but acknowledging that many courts hold otherwise). II. Discussion "We review de novo questions of law regarding the application of restitution statutes." United States v. Berger, 574 F.3d 1202, 1204 (9th Cir. 2009); see GMC v. Darling's, 444 F.3d 98, 107 (1st Cir. 2006). A. Appellate Review of Restitution Orders Appellants first contend that a petition for mandamus is not the exclusive remedy for crime victims seeking to challenge a district court's restitution order. Rather, they contend that the CVRA offers a procedural choice: petition the court of appeals for a writ of mandamus on an expedited basis, or file an appeal in the normal course under the general appellate jurisdictional statute, which grants us jurisdiction over all "final decisions" of the federal district courts. 28 U.S.C. § 1291. At the outset, we clarify that the issue before us is not whether we lack jurisdiction under § 1291, which "constrains what may be appealed, not who may bring such appeals"; "the issues of jurisdiction under § 1291 and non-party appellate rights are distinct." United States v. Hunter, No. 08-4010, 2008 U.S. App. LEXIS 24319, at *7, 9 (10th Cir. Dec. 2, 2008)(emphasis added). Instead, our inquiry turns on whether appellants, as crime victims denied their right to restitution under the federal statutes, may appeal the restitution component of a defendant's criminal sentence. See id. at *9. "The rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled." Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per curiam, civil judgment); Karcher v. May, 484 U.S. 72, 77 (1987) ("[O]ne who is not a party or has not been treated as a party to a judgment has no right to appeal therefrom."). Exceptions to this general rule exist, typically in the context of civil disputes, but they "are few and far between." Microsystems Software, Inc. v. Scandinavia Online AB, 226 F.3d 35, 40 (1st Cir. 2000) (limited exception for nonparty challenge of denial of motion to intervene); see Nat'l Ass'n of Chain Drug Stores v. New Eng. Carpenters Health Benefits Fund, 582 F.3d 30, 41 (1st Cir. 2009)(explaining, in context of civil claims, that "the fact that a decision against a defendant may practically impact a third party is not ordinarily enough for appellant status absent intervention or joinder in the trial court"). Notwithstanding the rights reflected in the restitution statutes, crime victims are not parties to a criminal sentencing proceeding. See, e.g., United States v. Palma, 760 F.2d 475, 479 (3d Cir. 1985) (under VWPA, "the victim . . . is not made a party to the sentencing proceeding"); United States v. Brown, 744 F.2d 905, 909-10 (2d Cir. 1984); see also Ziskind, 471 F.3d at 270. Thus, the baseline rule is that crime victims, as non-parties, may not appeal a defendant's criminal sentence. See Hunter, 2008 U.S. App. LEXIS 24319, at *7; United States v. Grundhoefer, 916 F.2d 788, 793 (2d Cir. 1990) ("The victim as a non-party is accorded only a limited presence at a sentencing proceeding and has no right to appeal an inadequate remedy."); United States v. Franklin, 792 F.2d 998, 999-1000 (11th Cir. 1986) (dismissing appeal because "[a]ppellant cites no statute, including the [VWPA], and we find none, that would give us the authority to entertain an appeal by a victim . . . who was not a party to the sentencing proceeding in the district court"); see also 18 U.S.C. § 3742 (providing that the government and the defendant, under appropriate circumstances, may appeal a criminal sentence). Appellants maintain that the rule against appellate review by non-parties does not apply to crime victims seeking to challenge restitution orders, essentially because those orders affect their substantial rights as reflected in the restitution statutes. But the cases they rely on do not support this premise. First, appellants point to a collection of civil cases in which courts have entertained direct appeals by non-parties. E.g., Devlin v. Scardelletti, 536 U.S. 1 (2002)(permitting unnamed class member to appeal class action settlement). However, as the Tenth Circuit has aptly explained: On the issue of non-party appeals, there is an important distinction between civil and criminal cases. Civil cases often implicate the pecuniary rights of non-parties, such as the unnamed class member in Devlin. . . . Criminal trials, on the other hand, place an individual citizen against the United States government. While non-parties may have an interest in aspects of the case, they do not have a tangible interest in the outcome. This distinction is evidenced by our procedural rules. The Federal Rules of Civil Procedure allow non-parties to intervene to assert their rights. The Federal Rules of Criminal Procedure contain no comparable provision. This distinction recognizes that non-parties often have a unique interest in civil cases. Because non-parties do not have a comparable unique interest in the outcome of criminal trials, we do not consider Devlin or [similar civil cases] persuasive [authority in support of the proposition that crime victims may bring an appeal of a restitution sentence]. Hunter, 2008 U.S. App. LEXIS 24319, at *10-11. Second, appellants cite a handful of cases in which courts of appeals have permitted non-parties to challenge collateral orders issued in the course of criminal sentencing proceedings, but not the sentence itself. For example, in United States v. Berger, the Ninth Circuit asserted without discussion that it had proper jurisdiction under § 1291 over an appeal brought by a defendant's wife, not a crime victim, who challenged a district court's order regarding the distribution of proceeds from an illegal sale of her husband's assets "to the victims of [his] fraud who were entitled to receive restitution." 574 F.3d 1202, 1204 (9th Cir. 2009). In In re Siler, the Sixth Circuit entertained a direct appeal brought by crime victims seeking to inspect a defendant's PSR pursuant to their rights under the CVRA, "although they were not technically parties below" and despite the general rule that non-parties may not bring an appeal, because "the district court effectively treated the [victims] like intervening parties and decided the merits of their motions." 571 F.3d 604, 608 (6th Cir. 2009). Neither case involved a crime victim's direct appeal of a criminal restitution sentence, nor would a result in the third party's favor have required the court to disturb the sentence imposed. Finally, appellants point to United States v. Cienfuegos, which involved a direct appeal of the restitution component of a defendant's sentence brought by the government on behalf of a crime victim under the MVRA. 462 F.3d 1160, 1161 (9th Cir. 2006). Cienfuegos provides no support for the proposition that crime victims have the right to bring a direct appeal of a criminal sentence. None of the cases on which appellants rely call into question the default rule that crime victims have no right to directly appeal a defendant's criminal sentence, under the CVRA or otherwise. Rather, the CVRA expressly provides crime victims with a limited avenue to challenge the restitution component of a defendant's sentence through a petition for a writ of mandamus, and states that in the normal course the government may assert victims' rights on their behalf in a direct appeal. 18 U.S.C. § 3771 (d)(3), (d)(5); see TAMA v. Lewis, 444 U.S. 11, 19 (1979)("[W]here a statute expressly provides a particular remedy of remedies, a court must be chary of reading others into it."); Marbury v. Madison, 5 U.S. 137, 175 (1803)("[T]he appellate jurisdiction may be exercised in a variety of forms, and [] if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed."). Accordingly, we join the Tenth Circuit to hold that "individuals claiming to be victims under the CVRA may not appeal from the alleged denial of their rights under that statute except through a petition for a writ of mandamus." Hunter, 2008 U.S. App. LEXIS 24319, at *3; see also In re Antrobus, 519 F.3d 1123, 1129 (10th Cir. 2008)("While the CVRA provides individuals seeking review of a district court's 'victim status' decision with mandamus review, it simultaneously affords the government with the ability to obtain ordinary appellate review of the same decision."). The government alone may bring a direct appeal of a defendant's sentence on behalf of a victim denied his rights under the CVRA. See 18 U.S.C. § 3771(d)(5); see also 18 U.S.C. § 3742. B. Availability of Mandamus Review The CVRA provides that the court of appeals "shall take up and decide" mandamus petitions under the statute "forthwith within 72 hours after the petition has been filed." 18 U.S.C. § 3771(d)(3). The parties do not dispute that we have authority to review mandamus petitions under the CVRA outside of the 72 hour window set forth in the statute. Cf. Kenna v. United States Dist. Ct. for the Centr. Dist. of Cal., 435 F.3d 1011, 1018 (9th Cir. 2006)(ruling on CVRA mandamus petition outside of statutory timeframe). The CVRA imposes no consequence for failure to comply with the time limitation, and in such circumstances we construe such limitations as precatory, rather than mandatory. See Rodríguez v. Superintendent, Bay State Correctional Ctr., 139 F.3d 270, 272-73 (1st Cir. 1998) (construing statutory deadline as "precatory not mandatory" where it did not "contain both an express command that the official act within a given temporal period and a consequence attached to noncompliance" (emphasis added)). The parties also agree that we have the authority to convert appellants' direct appeal into a petition for mandamus relief. See, e.g., In re: Providence Journal Co., 293 F.3d 1, 9 (1st Cir. 2002) ("Under the All Writs Act, a federal court of appeals has the power to treat an attempted appeal from an unappealable (or possibly unappealable) order as a petition for a writ of mandamus." (internal citations, quotation marks, and alteration omitted)); see 28 U.S.C. § 1651. However, at the present juncture, conversion of this appeal into a petition for mandamus relief would serve no purpose, and we decline to exercise our discretion to do so. The CVRA plainly envisions that crime victims' petitions challenging a denial of their rights will be taken up and decided in short order. It requires expeditious consideration by the district court, quick appellate review, and provides that a victim may not move to disturb a defendant's plea or sentence unless, among other things, "the victim petitions the court of appeals for a writ of mandamus within 14 days" of the denial of the victim's motion in the district court. 18 U.S.C. §§ 3771(d)(3), 3771(d)(5). We are mindful that the federal restitution statutes are intended to protect victims, not defendants. See, e.g., United States v. Rostoff, 164 F.3d 63, 66 (1st Cir. 1999)(applying VWPA). However, the criminal justice system also has a strong interest in the finality of criminal sentences. Olsen v. Correiro, 189 F.3d 52, 69 (1st Cir. 1999) (noting society's "interest in the integrity of the system of compromise resolution of criminal charges"); see Blackledge v. Allison, 431 U.S. 63, 71 (1977) ("[T]he guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. . . . [The] advantages can be secured, however, only if dispositions by guilty plea are accorded a great measure of finality."); see also Teague v. Lane, 489 U.S. 288, 309 (1989)("[T]he principle of finality . . . is essential to the operation of our criminal justice system."). These finality concerns animate the CVRA's procedural mechanisms. The CVRA was in force when appellants elected to pursue a direct appeal rather than petition for the writ as provided by statute, and more than two years have passed since the district court sentenced Aguirre. Under these circumstances, we conclude that appellants would not be entitled to mandamus relief regardless of whether we applied the exacting standard of review governing traditional petitions for the writ, see In re Dean, 527 F.3d 391, 394 (5th Cir. 2008)(applying traditional mandamus standard to petition under CVRA); In re Antrobus, 519 F.3d at 1125 (same), or the more lenient, abuse of discretion standard which some courts have found appropriate when considering crime victims' petitions under the CVRA, see In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 562-63 (2d Cir. 2005) (applying abuse of discretion standard); Kenna, 435 F.3d at 1017 (Ninth Circuit, same); see also In re Simons, No. 09-3109, 2009 U.S. App. LEXIS 8694, at *3 (6th Cir. Feb. 5, 2009) (noting the "split of authority among the circuit courts as [to] whether a petition for a writ of mandamus under the CVRA is reviewed under the traditional standard applied to petitions under the All Writs Act or a more lenient, appellate-review standard"). Thus, because conversion of this appeal into a mandamus petition would be futile, we decline to exercise our discretion to do so. We therefore have no need to decide which standard of review governs mandamus petitions under the CVRA. Affirmed.

United States Court of Appeals For the First Circuit No. 08-1766 UNITED STATES OF AMERICA, Appellee, v. VICTOR DIAZ, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge] Before Boudin, Gajarsa* and Lipez, Circuit Judges. Martin J. Vogelbaum, Federal Defender Office, for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Michael K. Loucks, Acting United States Attorney, was on brief, for appellee. March 3, 2010 __________________ *Of the Federal Circuit, sitting by designation. LIPEZ, Circuit Judge. Appellant Victor Diaz was found guilty of conspiring to engage in the sexual trafficking of children based on his involvement in a prostitution business, operated by his niece, that employed several minors. See 18 U.S.C §§ 371, 1591. On appeal, he asserts that his right to a fair trial was compromised by the district court's failure to investigate an incident of premature jury deliberations. He also claims that the court improperly admitted two sets of hearsay statements: (1) comments made by two minors during the course of prostitution calls that had been set up by police officers in Boston and Cambridge, and (2) statements made by his niece during the Cambridge sting operation. We conclude that the district court did not abuse its discretion in the handling of the jury deliberation issue and that all of the statements were either properly admitted or harmless. We therefore affirm appellant's conviction. I. A federal grand jury returned a six-count indictment charging Diaz and his niece, Evelyn Diaz,1 with conspiracy to engage in the sexual trafficking of children, in violation of 18 U.S.C. §§ 371 and 1591. Evelyn pled guilty to the conspiracy charge and the other five counts, which alleged substantive sex To avoid confusion, we refer to Evelyn Diaz by her first name throughout the remainder of the opinion. trafficking offenses that did not involve Diaz. A jury found Diaz guilty of the conspiracy charge after a four-day trial.2 The facts underlying the charge, as the jury could have found them, are as follows. Evelyn operated a prostitution business in the Boston area from at least 2003 through the time of Diaz's arrest in April 2005. Evelyn, who sometimes used the name "Messiah," advertised her business as an escort service in various publications and online, including on Craigslist, under the name "Messiah's Adult Entertainment." Her group of prostitutes included her two teenage sisters, "C" and "P," who were both under age eighteen. Diaz knew that Evelyn ran a prostitution business whose employees included minors. In 2001, he had urged his girlfriend, Evalicia Torres, who was then fourteen years old, to stay away from Evelyn because she was reputed to be a prostitute. Torres, however, moved in with Evelyn and two other women in July 2004, when she was still a minor, and began working as a prostitute for her. The women would entertain customers at the house where they lived, at customers' homes or in hotels. Law enforcement officers investigating prostitution activities set up sting operations in March and April 2005, first in Cambridge and then in Boston. On March 25, Cambridge police Diaz was sentenced to a term of imprisonment of fifty-one months and twenty-four months of supervised release. officers occupied two adjoining rooms in a Cambridge hotel, one for the undercover activity and one for surveillance. From the undercover room, Detective Louis Cherubino called a phone number listed on one of Evelyn's Craigslist ads and asked for a girl pictured in the ad who was identified as "Jenna." A short time later, a girl who said she was "Jenna" returned the call and made plans to meet Cherubino at the hotel. Evelyn drove to the hotel with her sister, C, who entered Cherubino's room and asked him for $175. When asked what he would get in return, C replied "a full service." C handed Cherubino a condom and said, "Put it on, you won't be disappointed." The officers from the adjoining surveillance room then entered, arrested C and took her into the surveillance room. At the officers' direction, C called Evelyn and asked her to come up to the room. Upon entering, Evelyn told C to "shut up." Evelyn was read her Miranda rights, after which she told the officers that C was eighteen years old and that Evelyn drove her to various locations to give massages. The second sting operation occurred on April 14 at a Boston hotel, where officers again took two adjoining rooms.3 Detective Steven Blair called a telephone number listed in one of Evelyn's Craigslist ads and asked for "two girls," specifying that "they have to be young." The person on the other end, apparently Evelyn was apparently out on bail following the first arrest. a woman, said "we can help you out," and gave Blair a price. A short time later, Blair received a call from a man telling him that the girls were "on their way." An officer conducting surveillance outside the hotel, Sergeant Paul Mahoney, subsequently saw a red Jeep pull up in front of the hotel to drop off two females. The Jeep's driver, appellant Diaz, drove the car to a parking lot behind the hotel. About twenty minutes after the second phone conversation, two women knocked on Blair's door and entered the hotel room. The older one appeared to be eighteen to twenty years old and the younger one between thirteen and fifteen. The younger one, Evelyn's sister P, placed a call on her cell phone and told the man on the other end that "[w]e're in."4 A conversation ensued about the services to be provided and their cost. The older woman, Chavonne Lewis, stated that she would provide "straight oral and masturbation" for $300. When Blair asked if both women would do this, P stated, "I don't fuck. I'll jerk you off." After Blair gave Lewis the $300, P said, "[g]ive me the money, give me the money. I'll run it downstairs." The officers in the adjoining room then entered, and Mahoney was instructed to arrest the driver of the red Jeep. In a search of the vehicle, Mahoney found, inter alia, cell phones, a business Blair testified that he knew the person P called was male because he could hear the person's voice on the phone. card with the word "Messiah" and escort information, including phone numbers, and a pink bag that contained condoms, among other items. Diaz was arrested and, after signing a waiver of his Miranda rights, admitted in an interview with FBI Agent Tamara Harty and Sergeant Detective Kelly O'Connell of the Boston Police Department that he had driven P and Lewis to the hotel at Evelyn's request. Harty, who had begun investigating Evelyn's escort service about ten months earlier, testified that Diaz said that Evelyn expected him to let her know when the prostitution call was completed. He also admitted to driving females who worked for Evelyn to prostitution calls on other occasions, including P, whom he knew was thirteen years old. He said he was not paid for his help, but drove the girls as a favor to Evelyn. In his own testimony at trial, Diaz denied driving P to prostitution calls or telling Agent Harty that he had done so. He claimed that he did not know that C was involved in prostitution until the March sting operation and did not know that P was involved before his arrest. Diaz admitted driving the two women to the hotel at Evelyn's request. He had expected, however, to pick up only Lewis and said that P explained that she was going into the hotel with Lewis so that Lewis would not be alone. He also said he was not planning to pick up the women after the call, but pulled into the parking lot so that he could watch a wrestling match on the television in the car. Diaz further explained that he had agreed to drive Lewis at Evelyn's request because she threatened not to let him use her car again. He had no car and relied on Evelyn to provide him with a vehicle to visit his friends, go job hunting, help his mother and see his daughter. He acknowledged regularly driving P and other women working for Evelyn, but only on trips to visit friends or go shopping. II. Appellant contends that the district court committed reversible error in failing to investigate whether a juror note given to the court about ninety minutes after the start of testimony showed that the jury had engaged in premature deliberations. We first describe in some detail the parties' discussions with the court concerning the note and then consider the court's response. A. The Note and the Court's Colloquy with Counsel The juror note was given to the court during a mid- morning break in the cross-examination of the government's first witness, Evalicia Torres. Although the note and its exact wording are not in the record, the court reported that it asked about "the meaning of conspiracy and what the government has to prove beyond a reasonable doubt."5 The record indicates that the note was signed by a single juror, but it referred to "our question." Before Torres's cross-examination resumed, the court gave counsel the opportunity to see the note, and then advised them that it would respond by telling the jury "it's a legal question that I'll address at the end in the instructions." Neither party objected, and the court then spoke to the jury as follows: One juror sent me a question about the meaning of conspiracy and what the government has to prove beyond a reasonable doubt. I will be addressing all of those issues in detail during my final instructions of law, so I will not be discussing it right now. We'll continue with the cross. But if you want to ask questions, that was the right mode to do it, and, as I said, I'll address that later on. The trial continued for about another ninety minutes, and the jurors were then excused for the day. The next morning, defense counsel returned to the subject of the note. She observed that "the note is some evidence perhaps of premature deliberations on the part of the jury," pointing out that the last line of the note referred to "our question." She urged the court to question the juror "to determine the context in which this note came to be written." She explained that, if the note resulted from a group discussion, "that would appear on its face anyway to be a violation of the Court's instructions not to [discuss the case]" and the jury The note was marked to be included in the record, but it was not preserved. would "at least need[] to be admonished, [and] if it's gone farther than that . . . there may be some other action." Counsel also commented that it was "very troubling" that the note was written so early in the case: "I'm very concerned that the jury is prejudging the case already and trying to figure out what the verdict should be halfway through the testimony of the first witness." Inquiry into the circumstances was warranted, she stated, because it was difficult to know how to respond "in a vacuum of knowledge." Rather than an individual voir dire, which the government argued was unnecessary, counsel suggested that the court could question the jurors as a group, without the lawyers present, to be sure they were not "reaching some factual conclusions." The court acknowledged that the defendant's concern was "very well taken," but it adopted the government's view that an admonishment to the jury not to talk about the case and to disregard any prior deliberations would be sufficient in the circumstances. The court observed that, even assuming "the worst case" – that the jurors discussed the meaning of "knowingly" – "there's no remedy . . . other than what I'm about to do, which is tell them not to do it again." The court also noted that everyone had agreed with the court's decision the day before to tell the jury it would instruct on the law later in the trial, and it expressed a "reluctan[ce] to backtrack." It noted that the jurors could not have discussed the facts very much in any event because the trial was "only . . . an hour into the first witness." Thus, when the jury returned, the court gave the following instruction: We reread a question that came in from one juror yesterday after we got out, and there was some concern there, and I wanted to just reiterate something. You cannot discuss this case in the jury room either. No one should be deliberating now. And one word there struck our attention. There can't be any questions from the jury yet because you haven't started deliberating yet, and you can't start deliberating. So at this point, if some individual juror wants to ask a question, that's fine; but as a jury, no one should be talking about the case. It's a flat ban. And you might wonder why because you'll just be talking about it in a day or two. It's because you haven't heard everything. You haven't heard all the witnesses, and you haven't heard all the legal instructions, and that's why we want you not to be talking about it in the jury room. So to the extent that there was any lack of clarity before, I'm making it crystal clear now, when you go back for the break or you go back afterwards or tomorrow morning as you're coming in, no one can talk about the case until I send the verdict to you and give you the instructions. No objections followed the instruction. B. The Adequacy of the Court's Response 1. Standard of Review When a defendant has timely objected to the district court's handling of a claim of premature deliberation, we review the court's response for abuse of discretion. United States v. Mikutowicz, 365 F.3d 65, 74 (1st Cir. 2004). Because trial judges enjoy broad discretion in addressing potential juror misconduct, we "normally . . . will not reverse unless the judge's choice among the various avenues available was patently unreasonable." United States v. Lemmerer, 277 F.3d 579, 591 (1st Cir. 2002). Indeed, we have held that the court's discretion is "at its broadest" when it responds to an allegation of premature jury deliberations. Mikutowicz, 365 F.3d at 74; see also United States v. Dominguez, 226 F.3d 1235, 1246 (11th Cir. 2000) (noting "broadest" discretion "when the allegation involves internal misconduct such as premature deliberations"). The government argues that an even higher hurdle – plain error review – applies to this case because Diaz did not object to the court's original response to the note or to its instruction the next day. The government also contends that, because Diaz never moved for a mistrial based on the jury's conduct, he may not now claim entitlement to a new trial. In response, Diaz asserts that his claim was fully preserved by his request on the second day of trial that the district court probe the possibility of improper jury deliberations. He argues that his "delayed objection did not impair the court's ability to craft a solution," noting that the court could have at that point excused any jurors who had formed an opinion about guilt or innocence. He further emphasizes that the court expressly rejected the possibility of a mistrial, making it futile for him to move for a mistrial or to object to the second jury instruction. We need not rule on the timeliness of Diaz's objection because, even under the more favorable abuse of discretion standard, his claim of reversible error is unavailing. With respect to timing, we note only that, while Diaz's counsel was slow to register an objection to the district court's original approach, the court acknowledged that some remedy was still appropriate and useful when the issue was raised on the second morning of the trial. See United States v. Carpenter, 494 F.3d 13, 21 (1st Cir. 2007) (noting that "[t]he preservation requirement" is designed to alert the trial judge to a party's objection to a ruling, with adequate explanation, so the judge "can decide what course of action to take to assure, so far as possible, the legal correctness of the trial proceedings"). For present purposes, we can assume for convenience that the abuse of discretion standard applies. 2. Analysis Trial courts employ a multi-step framework in assessing claims of juror misconduct, including premature deliberations. See, e.g., United States v. Tejada, 481 F.3d 44, 52 (1st Cir. 2007); Mikotowicz, 365 F.3d at 74. The court first must ascertain whether the allegation is colorable. Mikotowicz, 365 F.3d at 74. If it is, the court must investigate to "assess[] the magnitude and extent of any prejudice caused" and, where necessary, it must consider prophylactic measures to alleviate the prejudice. Tejada, 481 F.3d at 52. If no curative measures appear adequate, the court may grant a timely motion for mistrial. Id. The district court in this case rejected the defendant's claim at the threshold, refusing to probe the possibility that the jurors had engaged in premature deliberations, and instead relied on its firm instruction reminding the jurors of its earlier admonition against discussing the case before all of the evidence was presented. We cannot fault the court for that measured course of action. Just the day before the note was received, after the jurors were sworn, they had been told not to discuss the case until after they heard all of the testimony.6 The note barely intimated that the jurors had violated that prohibition at all, let alone engaged in inappropriate deliberation. Although the use of the pronoun "our" suggested a conversation among at least two jurors, the note requested clarification only of a legal principle and gave The court told the jury: Now, a few words about your conduct as jurors. You cannot talk about this case with anyone. . . . You cannot talk to anyone about the case now. Once the case is concluded, you can talk about it with whoever you want to, but for now you can't. You can't even talk about it in the jury room, and I say that because what we don't want is the first three jurors deciding the case after the first witness and then the next three after the next one. It's important for you to hear all of the witnesses and my instructions of law before you form an opinion as to the appropriate outcome of this case. no indication that the jurors had discussed the merits of the case against the defendant. In addition to the content of the note itself, the fact that the trial had been underway for less than ninety minutes diminishes the likelihood that the conversation that apparently took place constituted inappropriate deliberations about the facts of the case as then presented, or the defendant's guilt or innocence. Conversations between jurors concerning the case they are hearing do not always amount to premature deliberations. See United States v. Peterson, 385 F.3d 127, 135 (2d Cir. 2004) ("Not every comment a juror may make to another juror about the case is a discussion about a defendant's guilt or innocence that comes within a common sense definition of deliberation."); Mikutowicz, 365 F.3d at 75 (finding no duty to investigate where juror expressed doubt about her ability to determine guilt because that conversation was "a far cry from a conversation in which the jurors discussed the merits of the parties' positions"). Indeed, the district court observed that, "[t]ruthfully, the way [the jurors] phrased [their question] and the way the law is going to go, their focusing on that is exactly the right issue." Diaz's counsel responded that she was "not necessarily disagreeing" with the court's assessment, but pointed out that, if asked, the jurors might say "they were actually reaching some factual conclusions." The court deemed this hypothetical possibility of juror misconduct an insufficient basis to justify further inquiry, but it did not simply dismiss the defendant's concerns. Rather, the court provided a remedy in the form of an emphatic reminder that the jurors should not talk about the case. Particularly given the ambiguous content of the note, the court's handling of the situation was sensible and appropriate, and well within the bounds of its broad discretion.7 III. Diaz argues that the district court improperly allowed the admission into evidence of seven out-of-court statements made by Evelyn's teenage sisters, as well as two statements made by Evelyn herself at the time of her arrest at the Cambridge hotel.8 He contends that these statements were all inadmissible hearsay. Alternatively, he asserts that the statements should have been In his reply brief, Diaz suggests that the district court was acting under the misconception that, even if further investigation revealed that the jurors had engaged in premature deliberations, the only remedy would be a curative instruction. He points to the court's observation that, "there's no remedy even if they did talk about it . . . , other than what I'm about to do, which is tell them not to do it again." Whatever the court's understanding of the range of available remedies, it is apparent that the court viewed the circumstances in this case to present only a slight possibility of improper deliberations, for which a curative instruction was a sufficient remedy. As we have explained, that judgment is supportable. Two of these seven "statements" consist of multiple sentences that the parties grouped together for purposes of discussion. excluded because they were irrelevant and more prejudicial than probative. District court rulings on the admission and exclusion of evidence are reviewed for abuse of discretion. United States v. Rodríguez-Berríos, 573 F.3d 55, 60 (1st Cir. 2009); see also United States v. Colón-Díaz, 521 F.3d 29, 33 (1st Cir. 2008) (noting that the abuse of discretion standard ordinarily applies to rulings on "whether to admit evidence over a hearsay objection"). A. The Teenagers' Statements The government introduced four statements made by C through the testimony of Cambridge Detective Cherubino and three statements made by P through the testimony of Boston Detective Blair. Two of the statements related to setting up the Cambridge prostitution call. Although the speaker was not identified at the time these statements were made, Diaz attributes both of them to C and the record reflects general agreement as to that assumption. The first such statement was made by the person who answered the phone at the escort service when Cherubino called from the Cambridge hotel to set up a rendezvous there, and the second was made by the person who called him back a short time later. They were: ". . . she told me that she would return a call within five minutes." "And there was discussion of the price for a half hour for $175 for full service, and I agreed, and I was told that she would respond within a half hour to my location." C's other two statements were made in the hotel room. According to Cherubino: "[S]he told me that she wanted to take care of the financial obligation and asked me for the $175 . . . ." "I asked the female what I would get for this fee, and she replied "'a full service.'" She also remarked upon handing Cherubino a condom: "'Put it on. You won't be disappointed.'" P's three challenged statements, which all occurred in the Boston hotel room where she and Lewis met Detective Blair, were: Her report to a male on the other end of a phone call that "'[w]e're in.'" Her statement to Blair that "'I don't fuck. I'll jerk you off.'" Her statement to Lewis, "'Give me the money, give me the money. I'll run it downstairs.'" The district court admitted the first six statements on the basis that they were non-hearsay directions whose truth or falsity was immaterial. It allowed the final statement into evidence for the limited purpose of showing P's state of mind. We briefly address the group of six before considering the court's treatment of the final statement. 1. The Six "Non-Hearsay" Statements The government acknowledges that certain of the statements admitted by the district court as non-hearsay probably should not be classified as instructions or requests that categorically fall outside the hearsay rule. It nonetheless argues that such statements were properly admitted as non-hearsay because they constitute "verbal acts" or "verbal parts of acts" that evidenced the prostitution transactions. See, e.g., United States v. DeCologero, 530 F.3d 36, 59 (1st Cir. 2008); United States v. Murphy, 193 F.3d 1, 5 (1st Cir. 1999); 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 801.11[3]-[4], at 801-818-21 (Joseph M. McLaughlin, ed., 2d ed. 2009).9 We find it unnecessary to closely examine the propriety of allowing the six statements into evidence because we are persuaded that any error in their admission was harmless.10 See United States v. Benitez-Avila, 570 F.3d 364, 372 (1st Cir. 2009) ("Improper admission of testimony is harmless if it is highly probable that the error did not influence the verdict.") (citation and internal quotation marks omitted). Although all six of the statements provided telling evidence about Evelyn's business, and the statements made by C and P in the hotel rooms confirmed that "Verbal acts" include statements whose utterance "gives rise to legal consequences," such as the words used by contracting parties in reaching an agreement or by individuals charged with making a threat, bribe or misrepresentation. 5 Weinstein's Federal Evidence § 801.11[3], at 801-18-20. The "verbal parts of actions" doctrine establishes that "utterances that help to clarify or define ambiguous conduct are not hearsay." Id. at § 801.11[4], at 801-21. Diaz concedes that he failed to object to the two statements made in phone calls with Cherubino. Admission of those statements would in any event be subject only to plain error review. minors employed by her were engaging in prostitution, none of the statements implicated appellant Diaz in Evelyn's activities.11 Moreover, Diaz does not dispute that Evelyn was involved in prostitution with her younger sisters and other minors, and there was substantial evidence about the sting operations, other than the challenged statements, that would have led the jury to find that prostitution was occurring on those occasions. Nor do we find merit in Diaz's contention that the sexually graphic nature of the statements could have confused or misled the jurors, or provoked their disgust with him, thereby causing undue prejudice. As an initial matter, we note that Diaz never argued to the district court that the probative value of the statements was substantially outweighed by "the danger of unfair prejudice, confusion of the issues, or misleading the jury," Fed. R. Evid. 403. We therefore would reverse the district court's ruling only for plain error – a standard that certainly was not met here. The jury heard other far more pertinent, explicit testimony linking Diaz to the prostitution scheme and Evelyn's exploitation of her sisters, including his admission to Agent Harty that P was among the girls he had driven to calls. We thus see no meaningful possibility that the distasteful nature of the statements The only one of the six suggestive of Diaz's complicity was P's statement "[w]e're in" because Blair could hear that she was reporting that information to a male. Even within that context, however, the statement did not point to Diaz. contributed to the jurors' finding that Diaz was a knowing and willing participant in Evelyn's business. 2. "I'll run it downstairs" Diaz also contends that P's request for the money and her assertion that she would bring it downstairs was improperly admitted under a sub-category of the state-of-mind exception to the hearsay rule known as the Hillmon doctrine. See Fed. R. Evid. 803(3) (describing the state-of-mind exception); Mut. Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892); Minh Tu v. Mut. Life Ins. Co., 136 F.3d 77, 81 (1st Cir. 1998).12 That doctrine allows admission of a hearsay statement of intent for the purpose of showing that the declarant later acted in accordance with his or her expressed intention, see Minh Tu, 136 F.3d at 81, and some courts also have allowed such evidence to prove the actions of a third party, see 2 George E. Dix, et al., McCormick on Evidence § 275, at 275-76 (Kenneth S. Broun, ed., 6th ed. 2006). We need not delve into the intricacies of the Hillmon doctrine here. Although the court raised the doctrine during the Rule 803 lists various exceptions to the hearsay rule, including subsection (3) as follows: Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. final pretrial conference, it gave only a standard state-of-mind instruction when it ruled during trial that P's statement was admissible.13 Moreover, defense counsel objected to admission of the statement during the pretrial colloquy only on the ground that P's intent was not relevant and offered no additional explanations for the objection at trial.14 Any other contention regarding the statement's admissibility is therefore subject to plain error review. See United States v. Dowdell, No. 08-1855, slip op. at 35 (1st Cir. Feb. 12, 2010). The court instructed the jury as follows: Now, at this point, "I'll run it downstairs" I'm admitting only for what was in the state of mind of that younger woman when she said that, what was in her mind at that point, with that limiting instruction in mind. Before Detective Blair took the stand, the court had advised counsel that it would "give a limiting instruction as to [P's] state of mind." The following exchange then took place: DEFENSE COUNSEL: What is the limiting instruction the Court is planning to give? I do object to it, and I want the record to reflect clearly that that should not be admissible against Mr. Diaz. COURT: Yes, your objection is clear, and you should probably object again just to make sure it's clear for the record. But I'll give a limiting instruction: "You're only to consider it as to what her intent is and her plan was." DEFENSE COUNSEL: I will object. During Blair's testimony about his conversation with the two girls, counsel objected repeatedly to "this entire line of questioning" and asked if the attorneys could "come up just so I can make sure that the record is clear about my objection on this." The court denied the request, stating "No. You've made it." After Blair testified to the "I'll run it downstairs" statement, the court gave the instruction described in footnote 13. The Hillmon claim and appellant's other contentions would be unavailing even under a less onerous standard,15 however, because the statement's admission, if error at all, was harmless. P's intention to bring the money downstairs shows that she believed someone would be there to collect it from her, but her statement does not explicitly identify appellant as the expected recipient. Diaz argues that the statement was nonetheless prejudicial because it included an implied assertion that he was the individual to whom P expected to give the money. Even if such an implied assertion were subject to an appropriate hearsay objection (an issue we do not decide), the jury's finding of guilt would not be compromised. Diaz's willing participation in the Boston transaction, and thus the conspiracy, was more directly shown through other evidence – particularly that he had driven P and Lewis to the hotel, stayed in the area after the drop-off, and gave an odd reason for remaining. In addition, the government presented evidence that appellant had admitted knowingly driving females, including P, to prostitution calls. P's statement added only marginally to this evidence, and we have no doubt that the jury would have reached the same outcome without it. B. Evelyn's Statements Diaz, inter alia, reiterates his claim that the statement should have been excluded as irrelevant. The district court allowed the introduction of two statements that Evelyn made, as recounted by Detective Robert Ahern, after C summoned her to the Cambridge hotel room. Ahern testified that, when Evelyn first entered the room, she "looked at C--- and just told her to shut up." He also testified that Evelyn stated that "C was her sister, that she was eighteen years old, that she drove her sister around to give massages, but that was it." The court admitted the statements over defendant's objection after the government argued that they were made in furtherance of the conspiracy and were thus admissible under Federal Rule of Evidence 801(d)(2)(E), which provides an exception to the hearsay rule for co-conspirator statements made during and in furtherance of a conspiracy. On appeal, Diaz reasserts his contention that the statements were not admissible on that basis. Although he acknowledges that they were made during the conspiracy, he argues that they were not made in furtherance of the conspiracy's objective – the sexual trafficking of minors – because the arrests of C and Evelyn already had foiled that objective. Diaz claims that the statements were made "solely for the purpose of concealing the thwarted illegal agreement," and were therefore inadmissible. See Grunewald v. United States, 353 U.S. 391, 401-03 (1957); United States v. Serrano, 870 F.2d 1, 8-9 (1st Cir. 1989). The government argues that Diaz failed to preserve this claim because he did not ask the district court to make a Petrozziello determination, see United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977), in which the court rules on whether it is more likely than not that the declarant and the defendant were members of a conspiracy and whether the challenged statement was in furtherance of that conspiracy. See Colón-Díaz, 521 F.3d at 36. Without such a request, and an objection to the court's ruling, review is only for plain error. Id.; see also United States v. Avilés-Colón, 536 F.3d 1, 13-14 (1st Cir. 2008) (noting that, "to properly preserve an objection to the admission of evidence under the co-conspirator hearsay exception, a defendant must ordinarily object both when the hearsay statements are provisionally admitted and again at the close of all the evidence") (citation and internal quotation marks omitted). Diaz cannot show error, let alone plain error. He admits that the statements were made within the dates of the conspiracy charged in the indictment. The evidence allowed the district court to conclude that the conspiratorial conduct – involving minors in prostitution activity – did not end with the arrests in Cambridge. Indeed, Diaz testified that he transported Lewis and P to the Boston hotel, at Evelyn's request, a month later. The district court could properly find that Evelyn's statement directing C to stop talking, as well as her statements about C's age and the services she was providing, were intended to prevent the law enforcement officers from putting her out of business – and thus to allow the conspiracy to continue operating. See, e.g., United States v. Rodriguez, 525 F.3d 85, 101 (1st Cir. 2008) (holding that "[a] statement is in furtherance of the conspiracy if it tends to advance the objects of the conspiracy as opposed to thwarting its purpose") (citations and internal quotation marks omitted); United States v. Fahey, 769 F.2d 829, 839 (1st Cir. 1985) (holding that a statement "fabricated to convince the [FBI] agent that the project should be allowed to continue . . . [is] made to further the object of the conspiracy"). Nor do we find merit in Diaz's assertion, raised for the first time on appeal, that the statements should have been excluded because they were unfairly prejudicial. Evelyn's attempts to silence her sister and mislead the police officers were hardly shocking in the context of a case centered on the alleged sexual trafficking of minors. Diaz was not present when the statements were made, and the jurors would have no reason to associate him with the comments except insofar as other evidence showed that he was complicit in Evelyn's prostitution activities. Admission of the statements was not error. Affirmed.

United States Court of Appeals For the First Circuit No. 09-1156 FEDERAL INSURANCE COMPANY, as subrogee of Berkshire Health Systems, Inc., Plaintiff, Appellant, v. COMMERCE INSURANCE COMPANY, ESTATE OF LUCIA A. ROBERTS and KITTY HOWARD, as Trustee of the D. EVOR ROBERTS and LUCIA A. ROBERTS REVOCABLE TRUST, Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Kenneth P. Neiman, U.S. Magistrate Judge] Before Torruella, Boudin, and Howard, Circuit Judges. Mark J. Albano, with whom Dalsey, Ferrara & Albano, was on brief for appellant. Eric S. Goldman, with whom Byrne & Drechsler, L.L.P., was on brief for appellees. March 3, 2010 TORRUELLA, Circuit Judge. In this appeal, based on diversity jurisdiction, appellant Federal Insurance Company ("Federal"), the insurer of Berkshire Retirement Community, Inc. ("Berkshire Retirement"), challenges the district court's decision to grant summary judgment on its subrogation claim in favor of defendants Commerce Insurance Company ("Commerce") and the Estate of Lucia A. Roberts ("Roberts"). After Federal had reimbursed Berkshire Retirement for its loss from a fire negligently started by Roberts, Federal sued in the U.S. District Court of Massachusetts, arguing that the implied coinsured doctrine did not bar its subrogation claim against defendants. The district court granted summary judgment in favor of the defendants, and Federal now appeals. After careful consideration, we affirm the district court's judgment. I. Background On April 4, 2007, Roberts, an elderly resident, negligently started a fire in her unit at the Kimball Farms retirement community, which is owned by Berkshire Retirement. The fire damaged Berkshire Retirement's property, and Federal, which had insured Berkshire Retirement, reimbursed Berkshire Retirement over $75,000 for its loss. Roberts had her own individual liability policy provided by Commerce. When Roberts first moved to Berkshire Retirement's Kimball Farms in 1999, she signed the Residence and Care Agreement ("RCA"), which both parties characterize as a lease. The RCA is at the core of this dispute. In addition to accommodations, dining, medical, and housekeeping services, Article VIII, § B, entitled "Responsibility for Damages," of the RCA provided, in relevant part, as follows: Any loss or damage to the real or personal property owned by KIMBALL FARMS caused by the negligence of RESIDENT will be charged to and paid for by RESIDENT. If any negligence of anyone other than KIMBALL FARMS or its personnel results in injury, illness, or damage to RESIDENT or to RESIDENT'S personal property, RESIDENT hereby releases and discharges KIMBALL FARMS from all liability or responsibility for such injury or damage to RESIDENT'S personal property. RESIDENT shall have the responsibility of providing any insurance desired to protect against such loss. Federal, as a subrogee of Berkshire Retirement, paid Berkshire Retirement for its loss from the fire and filed suit against the estate of Roberts and against Commerce in the district court, claiming that this provision in the RCA, along with other evidence, provided an exception to the Massachusetts implied coinsured doctrine, which otherwise would protect defendants from reimbursing Federal for its loss from a negligently started fire.1 The parties filed cross-motions for summary judgment. On The implied coinsured doctrine provides that the landlord's liability insurance is held "for the mutual benefit of both parties," that is landlord and tenant, unless an express provision states otherwise. Seaco Ins. Co. v. Barbosa, 761 N.E.2d 946, 948 (Mass. 2002). November 6, 2008, the district court granted summary judgment in favor of defendants after it determined that the implied coinsured doctrine controlled the outcome in this case and precluded Federal from pursuing a subrogation claim against defendants. The district court held that under the Massachusetts Supreme Judicial Court's ("SJC") decision in Peterson v. Silva, the exception to the implied coinsured doctrine would apply only if the resident's lease expressly provided for a "tenant's liability for loss from a negligently started fire." 704 N.E.2d 1163, 1165 (Mass. 1999). Thus, because the RCA did not specifically impose liability on residents for fire damage, the exception to the implied coinsured doctrine did not apply. The district court barred the subrogation claim and held that the fact that Roberts had chosen to purchase her own liability insurance was irrelevant to the application of the implied coinsured doctrine. Federal now appeals. II. Discussion A. Standard of Review We review a district court's grant of summary judgment de novo. Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009). "We will affirm entry of summary judgment if the record -- viewed in the light most favorable to the nonmoving party, including all reasonable inferences drawn in favor of the nonmoving party -- discloses no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law." Kunelius v. Town of Stow, 588 F.3d 1, 8-9 (1st Cir. 2009). B. Applicable Law 1. Lease Interpretation If the terms of a contract are unambiguous, then it must be enforced according to those terms in accordance with their ordinary and usual sense.2 See Bukuras v. Mueller Group, LLC, No. 08-2160, 2010 WL 175085, at *5 (1st Cir. Jan. 20, 2010); Cady v. Marcella, 729 N.E.2d 1125, 1129-30 (Mass. App. Ct. 2000). However, if an ambiguity exists, and the court is called to interpret it, we must avoid "constructions that render contract terms meaningless." Summit Packaging Sys., Inc. v. Kenyon & Kenyon, 273 F.3d 9, 12 (1st Cir. 2001); see also Lexington Ins. Co. v. All Regions Chem. Labs, Inc., 647 N.E.2d 399, 400 (Mass. 1995). Furthermore, "ambiguous terms are usually to be construed against the drafter." Nadherny v. Roseland Prop. Co., 390 F.3d 44, 49 (1st Cir. 2004); see also Air Plum Island, Inc. v. Soc'y For Preservation of New England Antiquities, 873 N.E.2d 1159, 1165 (Mass. App. Ct. 2007). 2. The Implied Coinsured Doctrine In insurance matters, a subrogation claim sometimes allows an insurer to recover what it pays to an insured under a policy, even in the absence of an express provision for such a claim, by standing in the shoes of the insured and suing the Massachusetts law governs construction of the lease. wrongdoer.3 See Frost v. Porter Leasing Corp., 436 N.E.2d 387, 389 (Mass. 1982). Massachusetts, however, in cases involving subrogated claims against residential tenants, has departed "from the common- law principle that a person is liable for his own negligent acts, absent an express agreement to the contrary." Seaco, 761 N.E.2d at 948. In Peterson, the SJC interpreted the terms of the lease to determine whether the parties intended that the negligent tenant be relieved of liability for fire damage and found that the landlord and tenant were coinsureds, thereby defeating the insurer's subrogation claim. See 704 N.E.2d at 1166. The SJC's approach to the implied coinsured doctrine differs from other jurisdictions and creates a presumption that the tenant is an implied coinsured when a landlord fails to make explicit in its lease that the tenant needs to obtain its own insurance to cover the landlord's property in case of a negligently started fire.4 Subrogation is an equitable doctrine that is based on a theory of restitution and unjust enrichment, where the party who paid for the loss is made whole by being able to collect that debt from the wrongdoer. See Money Store/Mass., Inc. v. Hingham Mut. Fire Ins. Co., 708 N.E.2d 687, 691 (Mass. App. Ct. 1999). This doctrine was acknowledged in Alaska Insurance Co. v. RCA Alaska Communications, Inc., where the court denied the landlord and its subrogee the right to pursue damage actions against negligent tenant when the lease required the landlord to carry fire insurance on the property. 623 P.2d 1216, 1218 (Alaska 1981). As this doctrine developed in Massachusetts, the SJC in Peterson explained that the landlord has to make explicit the tenant's obligation to obtain property insurance and concluded that a landlord's insurer may not pursue a subrogation claim against a The SJC developed its approach through a trilogy of key cases. In Lumber Mutual Insurance Co. v. Zoltek Corp., the SJC held, in a commercial setting, that based on the language of the lease together with an accompanying letter in which the landlord informed the tenant that the tenant need not carry insurance because of his contribution to the premium, tenant would be treated as an implied coinsured of the landlord, and thus landlord's insurer could not pursue subrogation claim against tenant for a loss from a negligently started fire. 647 N.E.2d 395, 396 (Mass. 1995). In Lexington, the SJC held that based on a "yield-up" clause5 alone, the commercial tenants were exempt from liability to the landlord and landlord's fire insurance carrier for negligent fire damage. 647 N.E.2d at 400. In Peterson, the SJC found, despite a general residential lease provision requiring the tenants to indemnify the landlord for their "carelessness, neglect[,] or improper conduct," that "absent an express provision in a lease establishing a tenant's liability for loss from a negligently started fire, the landlord's insurance is deemed held for the tenant unless there is an express provision to the contrary. 704 N.E.2d at 1165. A "yield-up" clause is a provision in a lease which states that the tenant must peacefully vacate the premises and leave them in a good state of repair at the end of the lease term. For example, in Lexington, the "yield-up" clause provided that at the expiration of the lease tenants will "peaceably yield up the Demised Premises . . . in the same condition and repair as the same were in at the commencement of the term[,] . . . damage by fire or other casualty . . . only excepted." 647 N.E.2d at 400. mutual benefit of both parties." 704 N.E.2d at 1165. Thus, the tenant stands in the shoes of the insured landlord for the purpose of defeating the insurer's subrogation claim. See id. C. Application In this appeal, Federal argues that the "Responsibility for Damages" provision of the RCA, unlike the provision in Peterson, unequivocally establishes tenant liability for any loss or damage to the real or personal property of Kimball Farms caused by the negligence of the tenant. Federal emphasizes that the RCA requires the tenant to obtain insurance. While Federal acknowledges that the last sentence of the provision granted some discretion to Roberts about her choice of insurers, Federal argues that the RCA did not state that Berkshire Retirement would provide coverage for a fire on the premises that Roberts may have negligently caused or that part of the rent would be allocated to insurance coverage. In our view, even drawing all reasonable inferences in Federal's favor, we find that the Massachusetts coinsured doctrine applies and that the landlord's insurance in this case was held for the mutual benefit of both parties. In applying the Massachusetts coinsured doctrine, we first must determine whether the RCA is a residential lease6 and, In Commercial Union Insurance Co. v. North American Paper Co., the district court interpreted Lumber, Peterson, and Lexington to suggest that the implied coinsured doctrine should be applied even second, whether the Peterson exception applies. "[A] residential lease is a contract between a landlord and a tenant . . . [where] landlord promises to provide and maintain residential premises in a habitable condition," and the tenant "promises to pay the agreed upon rent for the habitable premises." Jablonski v. Casey, 835 N.E.2d 615, 618 (Mass. App. Ct. 2005). According to the "Preliminary Statement" of the RCA, Kimball Farms provides for its tenants, in consideration for rent, "comfortable living accommodations and associated facilities, services[,] and amenities, together with certain medical and nursing care facilities." We agree with the district court, and both parties appear to agree, that the RCA is clearly a residential lease, which, in addition to accommodations, included other services and amenities, and not a commercial lease, which is "[a] lease for business purposes." Black's Law Dictionary (8th ed. 2004). Based on the reasoning underlying the decision to apply Peterson only to residential leases, which is the lack of sophistication and the reasonable expectations of the residential tenants, we are even more inclined to find that the lease for this retirement community for elderly residents is a residential lease. See Seaco, 761 N.E.2d at 949-50. in commercial settings. 138 F. Supp. 2d 222, 226-27 (D. Mass. 2001). However, a later decision, Seaco, did not extend "the rule of Peterson v. Silva . . . to commercial tenancies," noting that commercial tenants tend to be more sophisticated than residential tenants. 761 N.E.2d at 950-51. Next, we must determine whether the Peterson exception applies, that is whether in this case there is "an express provision in the lease establishing a tenant's liability for loss from a negligently started fire." 704 N.E.2d at 1165. While recognizing that the lease in Peterson is not identical to the lease in the instant case, we are persuaded that the reasoning in Peterson is equally applicable here. In a residential lease case with multiple unit dwellings, it would be an undue hardship to require all tenants to insure against their own negligence when they are paying, through their rent or, in Roberts' case, a monthly service fee, for the fire insurance which covers the premises in favor of the landlord. In this retirement community case, the elderly Roberts could reasonably expect that Kimball Farms, which could establish its adjustable monthly service fee based on the insurance premium, would provide fire protection for the building. In this regard, as the SJC noted in Peterson: Prospective tenants ordinarily rely upon the owner of the dwelling to provide fire protection for the realty (as distinguished from personal property) absent an express agreement otherwise. Certainly it would not likely occur to a reasonably prudent tenant that the premises were without fire insurance protection or if there was such protection it did not inure to his benefit and that he would need to take out another fire policy to protect himself from any loss during his occupancy. Peterson, 704 N.E.2d at 1165 (quoting Sutton v. Jondahl, 532 P.2d 478, 482 (Okla. Ct. App. 1975)). In Seaco, the SJC also considered, as an important factor in a residential tenancy, "the insurable interest that the landlord and the tenant each had in the premises, and the common business practice of passing insurance premium costs along to tenants when determining rental rates such that the tenant pays that portion of the premium that is attributable to the rented premises." 761 N.E.2d at 949 (quoting Sutton, 532 P.2d at 482). We agree that in the case of a retirement community, which provides more services than a residential apartment building in Peterson, it is not in the public interest to require all of the senior residents to insure Kimball Farms, causing the building to be fully insured by each resident and by the landlord. If this is what Berkshire Retirement intended, it needed to be crystal clear in requiring that tenants maintain fire insurance; otherwise, the tenants could reasonably expect that their monthly service fee included Berkshire Retirement's cost for fire insurance. The language of the lease in this case is general, and although the first sentence mentions specific liability for damages caused by the resident to the real and personal property owned by Kimball Farms, there is no express language establishing liability for fire damages, as required by Peterson. Commerce argues that since the "Responsibility for Damages" provision does not specifically reference insurance for fire loss, it does not support Federal's conclusion that this provision falls under the Peterson exception and establishes a tenant's liability. The sentence requiring insurance, which does not mention fire, is inartfully drawn and could imply that the tenants are liable only for losses to their personal property, and that Berkshire Retirement is responsible for all other property damage. Ultimately, the insurance clause, similarly to the first sentence, does not reference fire liability, and to the extent that there is any ambiguity, the lease must be strictly construed against the drafter. This conclusion is supported by the clear drafting of the other insurance provisions of the lease. The clauses dealing with insurance specifically mention other required insurance, including health and automobile insurance, but not fire insurance. While this is a strict approach, the SJC in Peterson emphasized the burden on the landlord to make explicit the tenant's obligation to maintain fire insurance, stating that the landlord could have but did not "insist[ ] that the [tenants] maintain fire insurance." 704 N.E.2d at 1166. In this case, Kimball Farms could have insisted in the lease that the residents maintain fire insurance covering real property, in addition to the required auto and health insurance. III. Conclusion We are not persuaded that Federal has met its burden of proving that the "Responsibility for Damages" provision of the RCA overcomes the presumption that the landlord's insurance is held for the mutual benefit of both parties. For the reasons stated above, then, we affirm the district court's grant of defendants' motion for summary judgment barring Federal's subrogation claim. Affirmed.

United States Court of Appeals For the First Circuit No. 08-1921 JOHN A. UPHOFF FIGUEROA, Plaintiff, Appellant, v. HECTOR ALEJANDRO; and NITZA VAZQUEZ RODRIGUEZ, Defendants, Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge] Before Lynch, Chief Judge, Boudin and Stahl, Circuit Judges. Raul Barrera Morales for the appellant. Marie L. Cortes Cortes for the appellees. March 4, 2010 LYNCH, Chief Judge. A judge and a jury, between them, rejected all of the multitude of employment claims John Uphoff Figueroa, an environmental attorney, brought against his employer, the Puerto Rico Electric Power Authority (PREPA) and at least seven PREPA officials. His basic theory, dressed in many garbs, was that the new Popular Democratic Party (PDP) regime discriminated against him by denying him a permanent appointment as the administrator of PREPA's environmental law office and by creating hostile working conditions because he was a member of the New Progressive Party (NPP). He alleges the NPP regime then retaliated against him after he filed a federal lawsuit in 2003. We find no merit to his claims and affirm. We hold as a matter of law under Branti v. Finkel, 445 U.S. 507 (1980), and its progeny that the position of administrator is not within First Amendment protection because it is a policy position. PREPA officials could have considered political affiliation when deciding whether to give Uphoff the permanent position. Once again we remind litigants that political discrimination and retaliation claims under the First Amendment cannot be restated as claims under the Equal Protection Clause. And we hold that Uphoff did not state a claim under the Fair Labor Standards Act (FLSA) because he did not allege he was involved in FLSA-protected activity. I. Uphoff's suit, as amended in 2004, brought First Amendment and equal protection political discrimination claims; First Amendment retaliation claims; FLSA retaliation claims, 27 U.S.C. § 215(a)(3); Title VII retaliation claims, 42 U.S.C. § 2000e-3(a); civil rights conspiracy claims, 42 U.S.C. § 1985(3);1 and state constitutional and statutory claims.2 He sued PREPA; two of his supervisors, Hector Alejandro Navarez and Nitza Vazquez Rodriguez; and other PREPA officials.3 The trial court dismissed on the pleadings Uphoff's First Amendment discrimination claim that he was denied the position of administrator of the environmental law office, holding that political affiliation was a legitimate qualification for the job. Uphoff-Figueroa v. P.R. Elec. Power Auth. (Uphoff-Figueroa I), No. 03-1509, 2005 WL 3095517, at *6-11 (D.P.R. Nov. 18, 2005). The court dismissed his political discrimination and retaliation claims Uphoff also sued under the Fifth Amendment's Due Process Clause and the Ninth Amendment. He does not appeal the district court's dismissal of these claims. See Uphoff-Figueroa I, 2005 WL 3095517, at *12. Those claims were under Puerto Rico Law 100, P.R. Laws Ann. tit. 29, §§ 146 et seq., and Puerto Rico Law 115, P.R. Laws Ann. tit. 29, § 194a; articles 1802 and 1803 of the Puerto Rico Code, P.R. Laws Ann. §§ 5141-42; and Article II, sections 1, 4, 6, 7, 8, and 16, of the Constitution of the Commonwealth of Puerto Rico. Those officials were Maria Mendez Rivera, Maria Torrales Hernandez, Ana Blanes Rodriguez, Hector Rosario, Ramon Rodriguez Melendez, and several John Does. against all defendants except Vazquez and Alejandro. See id. at *12-14. It dismissed his Title VII and civil rights conspiracy against all defendants, id. at *14-16, and his FLSA claim against PREPA, dismissing PREPA from the case, Uphoff-Figueroa v. P.R. Elec. Power Auth. (Uphoff-Figueroa II), No. 09-1509, 2006 WL 1663537 (D.P.R. Jun. 7, 2006). The court allowed Uphoff's FLSA and state law claims against all individual defendants to proceed to trial, and it allowed his political discrimination and retaliation claims against Alejandro and Vazquez to proceed to trial as well. After trial, the court granted judgment as a matter of law (JMOL), Fed. R. Civ. P. 50(a), in favor of all defendants, including Alejandro and Vazquez, on Uphoff's FLSA claims and on one of his state law claims, under Puerto Rico Law 115 (Law 115). Uphoff-Figueroa v. P.R. Elec. Power Auth. (Uphoff-Figueroa III), No. 09-1509, slip op. at 4-10 (D.P.R. Jun. 2, 2008). It also held Uphoff had not presented sufficient evidence for a jury to find the individual defendants except Alejandro and Vazquez liable on any of the remaining (state law) claims, and it dismissed those defendants from the case. Id. at 10-11. Only Alejandro and Vazquez were left in the case. Uphoff's remaining claims against them, for political discrimination and retaliation and for violations of state law, went to a jury. A jury rejected all of Uphoff's claims against Alejandro and Vazquez. The trial court denied his new trial motion for purported errors in the jury instructions and verdict form and his motion to amend the verdict. Uphoff appeals the court's dismissal of his claims on the pleadings, its grants of judgment as a matter of law, the jury instructions and verdict form, and the court's denial of his motion for a new trial or to amend the verdict. We affirm. II. In 1996, Uphoff started as principal environmental attorney at PREPA, a position just below the position of administrator of the environmental office. He handled the office's more complex cases. Just before the 2000 elections, he was temporarily appointed the administrator of the office. After the PDP took power in the 2000 elections, two PDP members, defendants Hector Alejandro and Nitza Vazquez, became Uphoff's supervisors. The environmental law office was moved to Alejandro's directorate in September 2001. In June 2002, Alejandro appointed Vazquez as administrator without allowing Uphoff to apply for the permanent position; Uphoff returned to being the principal attorney. Alejandro was promoted in September 2003 and no longer supervised Uphoff or Vazquez. Uphoff apparently claimed that Alejandro and Vazquez began a campaign to mistreat him because he was an NPP member.4 He The briefs and trial transcript do not clearly explain how all of Uphoff's factual allegations supported his legal theories. We briefly recite his core factual claims as we testified that they excluded him from meetings, blocked him from attending professional seminars, reduced his workload and responsibilities, and maligned him to other employees, destroying his relationships with his colleagues. Before he became Uphoff's supervisor, Alejandro's directorate often consulted the environmental law office, and Alejandro and Uphoff worked together. In early 2001, Uphoff and Alejandro already began disagreeing over how to handle several cases. Alejandro testified that Uphoff did not obtain approval before improperly awarding a $3.4 million contract, failed to timely negotiate a contract, and failed to send documents to federal authorities upon request. Uphoff, in turn, asserted that Alejandro and Vazquez limited his autonomy at work. They ordered him to arrive promptly at the start of business, 7:30 a.m. Uphoff sometimes credited hours he worked late to morning hours on his time sheet without obtaining prior permission to do so, as PREPA regulations required. Alejandro and Vazquez ordered him to accurately report his arrival time. Once Alejandro refused to sign a time sheet, after Uphoff missed a 10:00 a.m. conference call about a federal regulatory matter but reported on his sheet that he had arrived at 7:30 a.m. Uphoff also testified that Alejandro and Vazquez denied him vacation leave. Vazquez and Alejandro testified, however, that understand them. in 2002 PREPA began requiring all executive and managerial personnel to accept payment for vacation time in excess of 450 hours and that Uphoff refused to comply. Uphoff claimed that his immediate supervisor, Nitza Vazquez, tried to isolate him. In late 2003 Vazquez prevented Uphoff's secretary from using a computer to edit Uphoff's work. Vazquez also changed the locks to the environmental law office (then on the sixth floor) for security reasons. Uphoff claimed he was the only attorney not given a key; Vazquez, Alejandro, and other employees, however, testified that no attorneys were given keys. When the office later moved to the seventh floor, all attorneys, including Uphoff, were given keys. Uphoff testified that his position as principal attorney eroded in 2004 and 2005. As principal attorney, Uphoff was accustomed to having a larger office than the other lawyers. When the environmental law office moved floors in 2004, Uphoff tried to claim the second-largest office but was told it would become a conference room. He was left to choose among five identical, small offices designated for attorneys. In 2005 PREPA instituted an agency-wide reclassification plan, based on recommendations by an outside consultant, which made Uphoff and all the attorneys "senior attorneys." The other attorneys received raises to match Uphoff's salary; Uphoff received no raise. Several of his colleagues received promotions even before the reclassification plan; the defendants offered nondiscriminatory reasons for those promotions. Uphoff attempted to tie all these incidents to political animus. He showed that Alejandro, Vazquez, and a few of the other individual defendants were PDP members but had little evidence they felt animosity toward NPP members. His secretary testified that Alejandro had told her the executive director of the agency was pressuring him to oust Uphoff. Uphoff also testified that Alejandro had said he, Alejandro, had experienced "real" discrimination when the NPP was in power. The defendants denied that Uphoff was mistreated and that his political affiliation made any difference. Vazquez testified that she gave Uphoff many complex cases and that she and Alejandro let Uphoff attend appropriate meetings and seminars. She explained that she only stripped him of cases after he failed to execute assignments. Alejandro admitted telling Uphoff and others that Uphoff was "Machiavellic," after a particular incident in which he disapproved of what Uphoff had done. Otherwise, Alejandro, Vazquez, and other employees denied that Uphoff's supervisors undermined his work relationships. Alejandro and Vazquez testified that tensions arose because Uphoff was insubordinate, displayed a bad attitude, and often lost his temper. They also testified that Uphoff never respected Nitza Vazquez's authority over him as the administrator, and Uphoff did not properly complete assignments that Vazquez assigned him. Alejandro testified that Uphoff did not work well with supervisors, colleagues, or state and federal agencies. III. A. The District Court Properly Dismissed Several of Uphoff's Claims under Rule 12(b)(6) Uphoff appeals the district court's dismissal under Rule 12(b)(6) of his First Amendment discrimination claim based on his removal as administrator; his FLSA, Title VII, and civil rights conspiracy claims; and his First Amendment retaliation claim against all defendants except Alejandro and Vazquez.5 We review a district court's decision dismissing claims under Rule 12(b)(6) de novo, "accepting as true all well-pleaded facts in the complaint and drawing all reasonable inferences in the plaintiff['s] favor." Sutliffe v. Epping Sch. Dist, 584 F.3d 314, 325 (1st Cir. 2009). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)) (internal quotation marks omitted). "[W]e may affirm on any basis apparent in the record." Id. Uphoff does not challenge the district court's dismissal of his Fourteenth Amendment political discrimination claims against all defendants except Alejandro and Vazquez or its ruling that res judicata barred several claims. 1. Uphoff Stated No First Amendment Political Discrimination Claim as to the Position of Administrator When a position is one for which political affiliation may be considered is a question of law for the courts. Flynn v. City of Boston, 140 F.3d 42, 44 (1st Cir. 1998). Whether or not Alejandro considered political affiliation when he replaced Uphoff with Vazquez as administrator, political affiliation was a permissible consideration for that position. The First Amendment does not bar public employers from considering political affiliation for positions for "which political affiliation is an 'appropriate requirement for . . . effective performance.'" Galloza v. Foy, 389 F.3d 26, 28 (1st Cir. 2004) (quoting Branti, 445 U.S. at 518). The Supreme Court crafted this "policymaking" or "position-of-trust" exception because political officials must be able to hire staff who will help them execute their policy goals--and so effectuate voters' wishes. Id. Uphoff was not dismissed from, but rather was not appointed to, the permanent administrator's position. We have regularly upheld even "the dismissal on political grounds of mid- or upper-level officials or employees who are significantly connected to policy-making," either as policymakers or by working closely with policymakers. Flynn, 140 F.3d at 45. The official may be a subordinate and need not be "the ultimate decisionmaker in the agency;" "it is enough that the official [is] involved in policy, even if only as an adviser, implementer, or spokesperson." Id. at 46 (internal citation omitted).6 "Actual functions of the job, not titles, control, and an official description of job functions is a presumptively reliable basis for determining those functions." Olmeda v. Ortíz-Quiñónez, 434 F.3d 62, 66 (1st Cir. 2006) (internal citation omitted).7 The job description says the duty of the administrator of the environmental law office is to develop and formulate PREPA's legal strategy for all environmental law issues and cases and advise the legal advisor's office about that strategy. The administrator implements PREPA's policies by directing how the agency litigates and resolves cases. Candidates must have "[e]xtensive knowledge of the general policy of the Authority." "Thus, we have upheld political discharges of the regional director of an administrative agency, the municipal secretary in a mayor's office, an officer in charge of human resources, a director of public relations, a superintendent of public works, a director of a city's federal programs office, and a director of a satellite office of the Massachusetts Secretary of State." Flynn, 140 F.3d at 45; see also, e.g., Ruiz-Cassillas, 415 F.3d at 132-33 (holding the second-ranking officer in a municipality's Federal Programs Division was a policymaker); Galloza, 389 F.3d at 30-32 (holding the regional administrator for the state's municipal tax collection agency was a policymaker). Puerto Rico law classifies government positions as either "career" or "trust." Costa-Urena v. Segarra, 590 F.3d 18, 22 (1st Cir. 2009). "Trust" employees participate in policymaking and can be hired and fired on political grounds. Id. "Career" employees must be selected and terminated based on merit, not politics. Id. How Puerto Rico law classifies a position is not dispositive on whether the position is a policymaking one under the First Amendment. See Ruiz-Casillas v. Coamacho-Morales, 415 F.3d 127, 133 (1st Cir. 2005). Also telling is that the administrator is subject only to "general supervision" and must exercise "a high degree of . . . independent judgment." The administrator meets with other PREPA officers and state and federal agencies, serves on relevant committees, and coordinates with other departments. And candidates must have a law degree, a license to practice, and experience practicing environmental law. In short, PREPA relies on the administrator to develop, understand, and execute its environmental-policy goals. Those policy goals may change with different administrations, and political affiliation is a relevant consideration.8 The mistreatment claims that proceeded to trial against Alejandro and Vazquez were improperly classified under the rubric of the Equal Protection Clause rather than the First Amendment. An equal protection claim alleging political discrimination merely restates a First Amendment political discrimination claim and, as we have said repeatedly, should have been considered under the First Amendment. See, e.g., Morales-Santiago v. Hernández-Pérez, 488 F.3d 465, 471 (1st Cir. 2007); Pagán v. Calderón, 448 F.3d 16, 36 (1st Cir. 2006). We discuss the disposition of those claims later. The Supreme Court has held that plaintiffs can bring political discrimination claims based on employment action beyond hiring and firing, but it has not precisely articulated what actions qualify. See Rutan v. Republican Party of Ill., 497 U.S. 62, 64-65 (1990). It is unclear under current law whether many incidents of mistreatment Uphoff has alleged qualify. See id. But we need not reach that question; Uphoff does not appeal the district court's ruling that he failed to plead sufficient facts supporting political discrimination claims against the defendants except Alejandro and Vazquez, and the jury rejected his claims against Alejandro and Vazquez. 2. Uphoff Stated No FLSA Retaliation Claim against the Defendants The FLSA regulates certain adult employees' minimum wages and maximum hours. See 29 U.S.C. §§ 206-07. Uphoff's amended complaint purported to sue under § 215(a)(3), which prohibits employers from retaliating against employees who "filed any complaint or instituted or caused to be instituted any proceeding under or related to" the FLSA. Plaintiffs must prove (1) that they "engaged in statutorily protected activity" and (2) that their employers afterward took "adverse employment action" against them (3) "as a reprisal for having engaged in the protected activity." Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 102 (1st Cir. 2004). Uphoff pled no facts supporting an FLSA retaliation claim because he did not allege that he engaged in protected activity.9 That suffices to affirm the district court's dismissal of Uphoff's FLSA claims against PREPA under Rule 12(b)(6). Uphoff-Figueroa II, 2006 WL 1663537, at *1.10 For that reason, the dismissal of His original federal court complaint did not set forth a cause of action under the FLSA, and his amended complaint did not erase that problem by purporting to add a retaliation claim. In any event, as we explain below, the district court properly held that Uphoff presented no evidence showing the individual defendants except Alejandro and Vazquez were liable on any claim. And the jury found, in a special verdict in favor of Alejandro and Vazquez, that Uphoff did not suffer retaliation. Once the FLSA claim was dismissed, the district court declined to exercise supplemental jurisdiction over the remaining state law claims against PREPA. Uphoff-Figueroa II, 2006 WL Uphoff's FLSA claims against all other defendants under Rule 50(a) was also appropriate. Uphoff-Figueroa III, slip op. at 3-7. Not only did Uphoff not plead such a claim, but he had no claim under the FLSA's wage and hours provisions. He pled he was lawyer for PREPA, and all of the jobs he held were within the "learned professional" exemption to the FLSA.11 See 29 U.S.C. § 213(a)(1). 3. The Title VII Retaliation Claims Were Properly Dismissed Uphoff appeals the district court's dismissal of his Title VII retaliation claims against all defendants. Because plaintiffs may not bring Title VII suits against individual employees, Fantini v. Salem State Coll., 557 F.3d 22, 28-31 (1st Cir. 2009), the dismissal against all individual defendants was proper. 1663537, at *3. Uphoff asserts the district court erred by doing so, but he has waived this argument by failing to develop it any further in his brief. Regardless, a district court has discretion to decline to exercise supplemental jurisdiction after dismissing "all claims over which it ha[d] original jurisdiction." 28 U.S.C. § 1367(c)(3); see also Alvarez-Torres v. Ryder Mem. Hosp., Inc., 582 F.3d 47, 53 (1st Cir. 2009). The FLSA exempts from its wage and hours requirements, inter alia, "any employee employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C. § 213(a)(1). Federal regulations define "professional" to include "learned professionals" and establish a three-part test to determine whether employees are "learned professionals." See 29 C.F.R. § 541.301(a). Employees must "perform work requiring advanced knowledge." Id. § 541.301(a), (b). That advanced knowledge "must be in a field of science or learning," which "includes the traditional professions of law, medicine, theology," and the like. Id. § 541.301(a), (c). And it "must be customarily acquired by a prolonged course of specialized intellectual instruction," generally an academic degree. Id. § 541.301(a), (d). The dismissal of Uphoff's claim against PREPA was also proper. Uphoff was required to exhaust his administrative remedies before suing in federal court, including by filing a complaint with the Equal Opportunity Employment Commission (EEOC). Frederique- Alexandre v. Dep't of Natural & Envtl. Res., 478 F.3d 433, 440 (1st Cir. 2007); Jorge v. Rumsfeld, 404 F.3d 556, 564-65 (1st Cir. 2005). Nothing in Uphoff's complaint or the record shows Uphoff ever filed any complaint with the EEOC, let alone any claim of retaliation. 4. The Civil Rights Conspiracy Claims under 42 U.S.C. § 1985 Were Properly Dismissed A plaintiff suing under 42 U.S.C. § 1985(3) must allege (1) a conspiracy existed, (2) the defendants had "a conspiratorial purpose to deprive the plaintiff of the equal protection of the laws," (3) the defendants committed an "overt act in furtherance of the conspiracy," and (4) the plaintiff suffered "injury to person or property, or a deprivation of a constitutionally protected right." Perez-Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008). Uphoff's complaint set forth no facts alleging a conspiracy. And he only alleged political discrimination, which is not actionable under § 1985(3). Id. at 109. 5. The Dismissal of Uphoff's First Amendment Retaliation Claims against All Defendants Save Alejandro and Vazquez Was Proper The dismissal of Uphoff's claims against all defendants except Alejandro and Vazquez that he suffered retaliatory adverse employment action for exercising his First Amendment right to file suit was proper. (And as for Alejandro and Vazquez, the jury found them not liable.) Plaintiffs may sue under 42 U.S.C. § 1983 if they suffered adverse employment action after exercising their First Amendment rights. Powell v. Alexander, 391 F.3d 1, 16-17 (1st Cir. 2004); see Rosado-Quiñones v. Toledo, 528 F.3d 1, 5-7 (1st Cir. 2008) (discussing the scope of public employees' right to petition). Plaintiffs must show they "engaged in constitutionally protected conduct and that this conduct was a substantial or motivating factor in the alleged adverse employment decision." Welch v. Ciampa, 542 F.3d 927, 936 (1st Cir. 2008). Assuming arguendo that Uphoff's filing his 2003 federal court complaint was protected activity, see Rosado-Quiñones, 528 F.3d at 5-7, the 2004 amended complaint's factual allegations against the other defendants failed to connect them to his filing of the 2003 complaint. B. The District Court Properly Granted Judgment as a Matter of Law for All Defendants on Uphoff's Law 115 Claims and for All Remaining State Law Claims against the Defendants Save Alejandro and Vazquez The court granted JMOL on Uphoff's Law 115 claims against all the defendants and dismissed the other state law claims against all defendants except Alejandro and Vazquez. Uphoff-Figueroa III, at 4-9. We review de novo a district court's decision granting JMOL. Acevedo-Feliciano v. Ruiz-Hernandez, 447 F.3d 115, 121 (1st Cir. 2006). Taking all inferences in favor of Uphoff, we review the evidence at trial and ask whether a reasonable jury could have found these defendants liable. Id.; see also Jennings v. Jones, 587 F.3d 430, 435-39 (1st Cir. 2009). We may affirm the district court "on any independently sufficient ground" in the record. Invest Almaz v. Temple-Inland Forest Prods. Corp., 243 F.3d 57, 75 (1st Cir. 2001) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 172 (1st Cir. 1998)). 1. JMOL Was Properly Granted on State Law 115 Claims and Dismissal against Alejandro and Vazquez Was Otherwise Warranted Puerto Rico Law 115 prohibits employers from discriminating against employees for "offer[ing] or attempt[ing] to offer, verbally or in writing, any testimony, expression or information before a legislative, administrative or judicial forum in Puerto Rico." P.R. Laws Ann. tit. 29 § 194a(a). Employees must establish they engaged in activity protected under Law 115 and then suffered discrimination at work. Velez v. Janssen Ortho, LLC, 467 F.3d 802, 809 (1st Cir. 2006); MVM, Inc. v. Rodriguez, 568 F. Supp. 2d 158, 176-77 (D.P.R. 2008). Assuming arguendo that Law 115 applies to the filing of a federal court complaint in Puerto Rico, Uphoff presented no evidence, other than his evidence against Alejandro and Vazquez, that any of the individual defendants retaliated against him for filing the 2003 complaint. There is a different reason to affirm the ultimate dismissal of the Law 115 claims against Alejandro and Vazquez. An identical retaliation claim went to the jury under federal law, and the jury rejected Uphoff's claim of retaliation against Alejandro and Vazquez. In the special verdict asking whether Uphoff had suffered any retaliation after filing his 2003 complaint, the jury found he had not met his burden. Thus, even if there was error in entering JMOL on the Law 115 claims, it was harmless. See Molloy v. Blanchard, 115 F.3d 86, 90 (1st Cir. 1997) (holding that any error the district court committed in granting JMOL was harmless because it did not affect the plaintiff's damages); see also, e.g., Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 124 (3d Cir. 2003) (holding that any error in dismissing a claim on JMOL was harmless because the jury rejected a legal theory necessary to the claim); Snyder v. Ag Trucking, Inc., 57 F.3d 484, 491 (6th Cir. 1995) (same); 11 Wright, Miller & Kane, Federal Practice and Procedure § 2888, at 479, 485 (2d ed. 1995). 2. JMOL Was Properly Granted on Other State Law Claims against Defendants Rosario, Rodriguez, Mendez, Blanes, and Hernandez The only claims remaining against the defendants Rosario, Rodriguez, Blanes, Mendez, and Hernandez were state law claims under Law 100, articles 1802 and 1803, and Article II of the Puerto Rican constitution. We affirm the district court's dismissal of these claims. Uphoff did not present sufficient evidence for a reasonable jury to find these defendants liable for discriminating or retaliating against him.12 Uphoff presented no evidence that Rosario, PREPA's executive director, was involved in any activity Uphoff alleged was improper or even that Rosario knew Uphoff's political affiliation. The only evidence against Rosario was Uphoff's secretary's testimony that Alejandro told her the executive director was pressuring him to remove Uphoff. Even if true, without more, that evidence is insufficient to show retaliation or discrimination. As for the remaining four defendants, Uphoff offered no evidence against any of them except Blanes, the human resources director. Uphoff merely showed that Blanes supported the PDP and administered the agency-wide reclassification plan; he presented no evidence that she made decisions about Uphoff's reclassification. C. The Jury Instructions and Special Verdict Form Were Not an Abuse of Discretion and Uphoff Waived Any Challenge to the Jury Verdict Uphoff's case at trial, in the end, came down to First Amendment political discrimination (styled as equal protection) Law 100 prohibits employment discrimination, including because of political affiliation. P.R. Laws Ann. tit. 29, § 146; Baralt v. Nationwide Mut. Ins. Co., 251 F.3d 10, 15 n.6 (1st Cir. 2001). Uphoff sued under several Puerto Rican constitutional provisions that also bar employment discrimination and retaliation. See P.R. Const. art. II, §§ 1, 4, 6, 7, 8, 16. Articles 1802 and 1803 are derivative tort statutes that depend on "the viability of the underlying employment discrimination claim." Costa-Urena, 590 F.3d at 30; see also P.R. Laws Ann. tit. 31, §§ 5141-42. claims and retaliation claims against Alejandro and Vazquez.13 At the charge conference, Uphoff offered a list of eleven incidents of what he alleged were discrimination and retaliation he had suffered at their hands.14 He primarily appeals the district court's decision not to include that list in the jury instructions and special verdict form. 1. Jury Instructions To the extent Uphoff is challenging the jury instructions, his argument fails. We review de novo preserved claims of legal error in jury instructions, but we review for abuse of discretion claimed errors in instructions' form or wording. Goodman v. Bowdoin Coll., 380 F.3d 33, 47 (1st Cir. 2004). We ask "whether the charge in its entirety--and in the context of the evidence--presented the relevant issues to the jury fairly and adequately." Id. The jury also rejected the remaining state law claims against Alejandro and Vazquez. The parties dispute whether Uphoff preserved his objections. Uphoff preserved his objection to the jury instructions on political retaliation; he asked the district court to use his list of eleven incidents in that instruction. Uphoff arguably waived his objection to how the verdict form presented his political discrimination claims. He asked the court to include his list in question 7 but argues on appeal the court should have included his list in question 6. Because question 6 contained materially identical language to question 7, we will assume arguendo that Uphoff preserved an objection to question 6. Uphoff agrees he did not preserve his objection that the verdict form prevented the jury from reaching question 7 and accepts we must review it for plain error. The court did not abuse its discretion here. Uphoff argues that the court erred when instructing the jury on his retaliation claim by including only three of the eleven items on his list: that he was not assigned duties, that work assigned to him was not complex, and that he was not invited to staff meetings. It was not necessary for the court to instruct as to the minutiae of Uphoff's case, which might well have confused the jury or overly emphasized Uphoff's version of events. Uphoff's counsel had a full opportunity to argue every detail of his mistreatment claims. The court's instructions accurately captured the law that plaintiffs must show that working conditions were "unreasonably inferior to the norm for the position." Bergeron v. Cabral, 560 F.3d 1, 8 (1st Cir. 2009) (internal quotation marks omitted), abrogated on other grounds by Estrada v. Rhode Island, No. 09-1149, 2010 WL 376978 (1st Cir. Feb. 4, 2010), and Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009). 2. Jury Special Verdict Form We review preserved objections to special verdict forms for abuse of discretion and objections not raised in the district court for plain error. Arthur D. Little, Inc. v. Dooyang Corp., 147 F.3d 47, 53 (1st Cir. 1998). District courts have "considerable discretion about the formulation, nature, and scope of the issues" on a special verdict form. 9B Wright, Miller & Kane, supra § 2506, at 119. The form must "present the case fairly and accurately," id., and "address all factual issues essential to judgment," Santos v. Posadas de P.R. Assocs., Inc., 452 F.3d 59, 65 (1st Cir. 2006). "[W]e examine the court's instructions and the wording of the verdict form as a whole." Sanchez-Lopez v. Fuentes- Pujols, 375 F.3d 121, 134 (1st Cir. 2004). Uphoff objects to questions 6 and 7 of the form. After question 5 asked if Uphoff suffered discriminatory treatment because of his political views, question 6 asked whether the removal of the keys to the main door of the 6th floor, the moving and change of the office to the 7th floor, and the instructions to liquidate excess vacation leave were nondiscriminatory and reasonable administrative decisions based on [PREPA's] needs to conduct its operations? The verdict form then said that only if the jury answered "no" could it consider, in question 7, whether PREPA's nondiscriminatory reasons were pretextual. Question 6, Uphoff argues, (1) did not reflect his real point, that these actions were discriminatory as they were applied to him; (2) should not have grouped all allegations together because the jury needed to consider each allegation separately; and (3) was incomplete and should have included his eleven points. The district court correctly instructed the jury that it had to consider whether the defendants had a valid reason other than Uphoff's political affiliation for their actions, and the court did not abuse its discretion by concluding that question 6 fairly presented this issue. As to the first objection, after hearing all the evidence, the jury would have understood Uphoff's interpretation of the events question 6 listed. Second, the court did not need to separately list each factual allegation for the jury to consider the core legal issue. Third, given the many instances of purported discrimination Uphoff offered at trial, the jury could have understood this list was representative and was asking the larger, important question--whether the defendants had nondiscriminatory reasons for their conduct. Uphoff did not preserve his objection that the verdict form prevented the jury from considering whether these reasons were pretextual in question 7. The jury may well have done this in question 6 after the court's instruction to consider whether the defendants' justifications were pretextual. Uphoff cannot meet his burden to show plain error.15 Uphoff also argues the jury's discrimination verdict was inconsistent because it found he was treated differently because of his political affiliation (in some undefined way) but found the defendants' actions described were nondiscriminatory. Parties must object that a jury verdict was inconsistent before the jury is dismissed to preserve that objection. E.g., Wennik v. Polygram Group Distrib., Inc., 304 F.3d 123, 130 (1st Cir. 2002). Uphoff does not dispute that he did not object before the jury was discharged, and this claim is waived. D. The District Court Did Not Abuse Its Discretion by Refusing to Grant a New Trial or Set Aside the Verdict We review denials of motions for a new trial and motions to set aside a verdict for abuse of discretion and "rarely" reverse district courts. Jennings, 587 F.3d at 436-37 & n.7 (new trial); Cigna Ins. Co. v. Oy Saunatec, Ltd., 241 F.3d 1, 8 (1st Cir. 2001) (set aside verdict). The trial court did not abuse its discretion. Uphoff argues that the district court abused its discretion by not recognizing that errors at trial with the instructions, verdict form, and verdict entitled him to a new trial. As we explained, the instructions and verdict form fairly presented the core issues. The verdict was certainly not against the weight of the evidence. See Jennings, 587 F.3d at 436. We affirm the district court's entry of judgment for all defendants.

United States Court of Appeals For the First Circuit No. 08-1765 ANDRES PERALTA, Petitioner, Appellant, v. UNITED STATES OF AMERICA, Respondent, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge] Before Lynch, Chief Judge, Boudin, Circuit Judge, and Saylor,* District Judge. B. Alan Seidler, for appellant. Renée M. Bunker, Assistant United States Attorney, with whom Paula D. Silsby, United States Attorney was on brief for appellee. March 5, 2010 * Of the District of Massachusetts, sitting by designation. Per Curiam. This is an appeal by a federal prisoner from the denial of a motion to vacate his sentence under 28 U.S.C. § 2255. Appellant Andres Peralta pleaded guilty to a drug conspiracy count in 2004 and was sentenced to 135 months’ imprisonment. He now contends that he received ineffective assistance of counsel in violation of the Sixth Amendment and, as a result, was wrongly classified as a career criminal and sentenced to an unreasonably long term of imprisonment. Because we find that Peralta has not met his burden of proving a constitutional violation, we affirm. I. Background A. Indictment and Motion to Dismiss On August 6, 1996, Andres Peralta was charged in the United States District Court for the District of Maine in a one- count indictment. The indictment charged Peralta and three others with conspiring to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). The conspiracy was alleged to have occurred between early 1992 and February 1996. Peralta remained at large for nearly eight years. He was ultimately arrested on May 12, 2004, in New York. On July 8, 2004, attorney Frank Ortiz entered an appearance as his counsel. Ortiz was a graduate of Harvard Law School and a member of the New York bar who had practiced law since 1959. Ortiz was fluent in Spanish; because Peralta is a native of the Dominican Republic whose English is limited, Ortiz communicated with him in Spanish. Peralta entered a plea of not guilty. On August 26, 2004, Ortiz filed a motion to dismiss the indictment, alleging a violation of Peralta’s constitutional right to a speedy trial. As the Magistrate Judge later characterized the motion, it was “substantial” and “well-researched.” Because Peralta ultimately pleaded guilty pursuant to a plea agreement, the government never filed an opposition, and the District Court never resolved the issue. In addition to filing the motion, Ortiz entered into plea negotiations with the government. On September 16, 2004, Ortiz sent Peralta a copy of a proposed plea agreement with significant parts of it translated into Spanish. Ortiz believed at the time, and advised Peralta, that under the proposed agreement the guideline sentencing range would be 188 to 235 months. Ortiz also visited Peralta in Maine to discuss the plea agreement before he signed it.1 Whether Ortiz discussed the agreement with Peralta in person is a matter of some dispute. Peralta testified at the hearing before the Magistrate Judge that all communications with Ortiz concerning the plea agreement were made through the mail. However, Ortiz’s September 16 letter refers to an upcoming visit on September 21. Both Peralta and Ortiz signed and dated the agreement September 21, 2004. Peralta also initialed each page of the plea agreement, despite not having been requested to do so in any of the correspondence between himself and Ortiz. The Magistrate Judge thus concluded that Ortiz did in fact visit Peralta on September 21, 2004, to discuss the plea agreement and Peralta executed the written plea agreement on September 21, 2004, and on October 1, 2004, it was filed with the court. B. Plea Agreement The plea agreement included a stipulation to a drug quantity of 500 grams to two kilograms of cocaine, which resulted in a base offense level of 26 under the Sentencing Guidelines. The agreement also provided that the government would move for a three- level downward departure for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1; that the government would not file an information under 21 U.S.C. § 851 in order to obtain an enhanced sentence; and that Peralta would not waive his rights under the then-recent Blakely decision.2 At some point after Peralta signed the plea agreement, but before the change of plea took place, Ortiz came to realize for the first time that Peralta’s criminal record might result in a “career offender” classification under the Sentencing Guidelines. See U.S.S.G. § 4B1.1. As a career offender, Peralta would be subject to a substantially longer guideline sentence. On October 15, 2004, Ortiz wrote a letter to Peralta explaining that he had postponed the change of plea hearing because of this late that Peralta signed it on that date. See Blakely v. Washington, 542 U.S. 296 (2004). By the time of the sentencing hearing, on May 16, 2005, the Supreme Court had decided United States v. Booker, 543 U.S. 220 (2005), and the sentencing guidelines were thus treated as advisory. realization. The letter stated that although the plea agreement had been signed, Peralta had not yet entered a plea of guilty, and it was therefore likely that he could proceed on the motion to dismiss without any “harm” to his rights. Ortiz further explained--apparently for the first time--that Peralta could be facing a sentence of 262 to 327 months as a career offender. Ortiz attempted to negotiate a further reduction in the agreed-upon drug quantity, but was unsuccessful. Peralta did, however, cooperate with the government sufficiently to earn an additional concession; the government agreed that if he were found to be a career offender, it would not oppose his motion for a downward departure based upon the fact that his criminal history category overstated his criminal history. That agreement was memorialized in a letter from the Assistant U.S. Attorney dated November 8, 2004. Peralta pleaded guilty on November 10, 2004, to the single conspiracy count. The court accepted the guilty plea as voluntary and knowing. The same day, the court entered an order terminating the motion to dismiss. C. Developments Between the Guilty Plea and the Sentencing During the period that Peralta was awaiting his sentencing hearing, he exchanged three letters with Ortiz. On February 7, 2005, Peralta sent a letter alleging that Ortiz had promised him a sentence of 60 months based upon his “deal” with the Government. On March 2, 2005, Ortiz responded; he unequivocally denied that he had ever made such a promise and told Peralta that if he intended to make such an accusation, he should tell the judge immediately that he had been misled and wanted a new attorney. Ortiz offered to withdraw from representation. On March 9, 2005, Peralta wrote a letter of apology explaining that he was depressed and apparently not thinking clearly when he wrote the earlier letter. The Presentence Report attributed 7.8 kilograms of cocaine to Peralta, and accordingly calculated a base offense level of 32 under U.S.S.G. § 2D1.1.3 A two-level role enhancement and three-level reduction under U.S.S.G. § 3E1.1 produced an adjusted offense level of 31. Peralta had two prior drug-trafficking convictions, which qualified him as a career offender under § 4B1.1; this resulted in a revised base offense level of 34. With a reduction for acceptance of responsibility, the total offense level became 31. The PSR calculated Peralta’s criminal history score as eight. Although he would otherwise have been placed in criminal history category IV, his career-offender status placed him in criminal history category VI. The resulting guideline range was All references are to the 1995 edition of the Guidelines. 188 to 235 months. A mandatory minimum sentence of five years also applied.4 One of the predicate convictions under the career offender guideline was a 1988 conviction in New York for attempted sale of a controlled substance. On March 22, 1988, Peralta had been sentenced to a five-year probationary sentence on that offense; the probation was terminated early in April 1990. The 1988 conviction was a “youthful offender adjudication” under New York law. See N.Y. Crim. Proc. Law § 720.10. The PSR stated that Peralta was 18 years old at the time he committed the offense on January 28, 1988. The PSR listed Peralta’s birth date as October 1, 1969, in two separate locations. It also listed his then-current age as 35 years, which implied a birth date between February 1969 and February 1970. Peralta raised no objection as to his date of birth or his age. D. Sentencing On May 15, 2005, Peralta appeared with his attorney for sentencing. Ortiz and Peralta confirmed separately that they had read and discussed the PSR. The PSR stated that Peralta’s criminal history category might over-represent his prior record because, although he had three felony convictions and qualified as a career offender, he had served only a total of six months in custody. The government argued that Peralta qualified as a career offender because the 1988 conviction counted as a predicate. It specifically argued that Peralta “was 18 when he was convicted. It does not even qualify as a juvenile conviction under the guidelines. In addition, juvenile convictions can be counted as predicates.”5 The court found that “it is clear that the defendant was 18 or older at the time of the offense.” It accordingly counted the 1988 conviction as a predicate, which rendered Peralta a career offender. The court, however, granted Peralta a two-level downward departure as to his criminal history category (to Category IV) and a 16-month downward departure under § 5K1.1 for his cooperation. It then sentenced him to a term of incarceration of 135 months. E. Appeal This Court affirmed the sentence, holding that “the sentencing judge sentenced Peralta to a reasonable prison term.” United States v. Peralta, 457 F.3d 169, 172 (1st Cir. 2006)(per curiam). F. The § 2255 Proceeding On March 15, 2007, Peralta filed a pro se motion under 28 U.S.C. § 2255 to set aside his conviction on the grounds, among The government also argued that “even under New York law, the state of New York permits consideration of a youthful offender conviction under certain circumstances. . . a conviction occurs before the defendant receives the youthful offender status.” other things, that he received ineffective assistance of counsel in connection with his plea of guilty, sentencing, and direct appeal.6 With his motion, Peralta filed a transcript of the plea proceeding in New York on February 11, 1988. According to the transcript, Peralta’s attorney had told the judge that Peralta was then 17 years old. Peralta also attached a copy of what he represented was a certified copy of a birth certificate from the Dominican Republic showing his date of birth as October 1, 1970. The matter was referred to a Magistrate Judge for a report and recommendation.7 After an evidentiary hearing in April 2008, the Magistrate Judge made various factual findings and recommended that the District Judge deny the motion. On May 22, 2008, the District Judge adopted the report and recommendations of the Magistrate Judge. Peralta now appeals that decision. II. Standard of Review Because the district court held an evidentiary hearing on the ineffective assistance of counsel claim, this Court will The motion raised three grounds: (1) trial counsel was ineffective by withdrawing a motion to dismiss the indictment "counting on an alleged promised sentence as a ‘quid pro quo’ agreement"; (2) appellate counsel was ineffective by withdrawing a pro se submission filed by Peralta under Fed. R App. P. 28(j) to present newly-acquired evidence of Peralta's birth date; and (3) the government breached the plea agreement by offering Peralta a sentence of five years and then "declar[ing] him as a ‘career criminal.’" Counsel was appointed for Peralta prior to the hearing. “review[] its factual conclusions for clear error.” Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007)(citing Awon v. United States, 308 F.3d 133, 140 (1st Cir. 2002)). See also Strickland v. Washington, 466 U.S. 668, 698 (1984). The district court’s legal conclusions will be reviewed de novo. Owens, 483 F.3d at 57. III. The Claim of Ineffective Assistance of Counsel To succeed on a claim of ineffective assistance of counsel under the Sixth Amendment, Peralta must show both deficient performance by counsel and resulting prejudice. Strickland, 466 U.S. at 687. The Constitution guarantees only an “effective defense, not necessarily a perfect defense or a successful defense.” Scarpa v. DuBois, 38 F.3d 1, 8 (1st Cir. 1994). In order to satisfy the “deficient performance” prong, Peralta must show that his trial counsel’s representation “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. This Court’s review of counsel’s performance must be deferential, and reasonableness must be considered in light of “prevailing professional norms.” Id. In order to satisfy the “prejudice” prong, Peralta must establish that “but for his counsel’s deficiency, there is a reasonable probability that he would have received a different sentence.” Porter v. McCollum, 130 S. Ct. 447, 453 (2009) (per curiam); see Strickland, 466 U.S. at 694; Hill v. Lockhardt, 474 U.S. 52, 59 (1985). Although he need not show “that counsel’s deficient conduct more likely than not altered the outcome” of his sentencing proceeding, he must establish “a probability sufficient to undermine confidence in [that] outcome.” Porter, 130 S. Ct. at 455-56, quoting Strickland, 466 U.S. at 693-94. A. Counsel’s Withdrawal of Motion to Dismiss At the time Peralta entered into the plea agreement, a motion to dismiss the indictment on speedy-trial grounds was pending before the court. Peralta contends that his counsel was constitutionally ineffective because he failed to prosecute the motion to dismiss, and instead advised him to plead guilty. That claim fails both prongs of the Strickland test. 1. Objectively Reasonable Performance by Counsel The first question is whether it was objectively unreasonable for Ortiz to advise Peralta to accept the plea agreement and withdraw the motion to dismiss. The Magistrate Judge concluded that “[Ortiz] informed Peralta that the motion had some merit and it would certainly give them some leverage during plea negotiations,” but that he could “never guarantee that the motion would ultimately be granted.” According to Ortiz’s testimony, Peralta expressed concern as to whether the motion would be granted and preferred to withdraw it and enter into a plea agreement rather than risking the possibility of losing the motion on the merits.8 While the motion was pending, Ortiz negotiated a plea agreement that provided substantial benefits to Peralta. The original plea agreement included a stipulated drug amount that resulted in a base offense level of 26 (the PSR recommended 32); an agreement for a government motion for a three-level adjustment for acceptance of responsibility, notwithstanding evidence that Peralta knew he was under indictment and remained a fugitive for nearly eight years; and an agreement not to file an information under § 851 seeking an enhanced sentence. As supplemented by the November 8 letter, it also included agreement not to oppose defendant’s motion for a downward departure based on his criminal history category. The district court in fact departed downward, and imposed a sentence (135 months) that was nearly one-half of the low end of the guideline range (262 months) that might otherwise have applied. The decision to accept the plea agreement, rather than pursue the motion to dismiss, was a strategic choice. Neither option--pleading guilty or pursuing the motion--was obviously According to Ortiz, Peralta was convinced that, because he was of Dominican origin and being tried in Maine, the charges against him would never be dismissed. Ortiz explained that the motion would rise or fall on its own merits, regardless of Peralta's ethnic background, but that he could not guarantee success on the motion. This fear of racial prejudice, Ortiz contends, was the basis for Peralta's decision. correct or incorrect. The Magistrate Judge concluded that “Ortiz informed Peralta of the risks, explained a range of options to Peralta, and allowed Peralta to make the final decision about whether to proceed with the motion to dismiss or to plead guilty under the terms of the plea agreement.” (Rept. and Rec. at 21).9 Peralta was aware at the time he made that decision that he was potentially subject to sentencing as a career offender. Under the circumstances, Ortiz’s performance as counsel was not objectively unreasonable, and Peralta therefore cannot satisfy the first prong of the Strickland test. 2. Resulting Prejudice In any event, Peralta has not established a probability that he suffered prejudice as a result of Ortiz’s advice sufficient to undermine confidence in the outcome of the sentencing. Peralta does not now contend that the motion to dismiss, had it not been withdrawn, would have succeeded, or even that it was likely to succeed. Instead, he has only speculated that he was prejudiced by the motion’s withdrawal. And, as described above, he certainly received benefits as a result of the plea agreement. Peralta therefore cannot satisfy the second prong of the Strickland test. During the sentencing hearing, Ortiz told the court that it was Peralta’s desire to withdraw the motion and instead plead guilty. Peralta was present at the time that statement was made and did not indicate that he disagreed. B. Age at the Time of His 1988 Conviction Peralta next contends that he received constitutionally ineffective assistance because counsel did not argue that he was 17 at the time of his 1988 New York conviction. Had his counsel made such an argument, he argues, the 1988 conviction would not have been used as a predicate to calculate his career offender status and his sentence would have been significantly less severe as a result. That argument again fails both prongs of the Strickland test. 1. Objectively Reasonable Performance by Counsel The first question is whether it was objectively unreasonable for Ortiz not to conduct further research as to the issue of Peralta’s age. From Ortiz’s perspective, as of the relevant time, the evidence as to Peralta’s age was the following: First, Peralta and his wife had provided Ortiz with a marriage certificate and birth certificates for their children, all of which indicated that he was born in 1969. Peralta did not tell Ortiz that those dates were erroneous. Second, an affidavit by the arresting Deputy U.S. Marshal indicated that the government believed that Peralta was born on either October 1 or 2, 1969. The affidavit also noted that Peralta was carrying a driver’s license that listed his birth year as 1969. Third, the PSR stated that Peralta was 18 at the time of the 1988 conviction, and listed his birth date as October 1, 1969, in two different locations. Peralta did not tell Ortiz that those statements were erroneous. The only evidence to suggest that Peralta ever told Ortiz that he was actually born in 1970, and not 1969, is his own unsubstantiated claim that he did so--an issue that he raised for the first time on appeal. The Magistrate Judge found as a factual matter that Peralta never gave his attorney any reason to believe that he was 17 at the time of the 1988 conviction. Peralta has since produced other contradictory evidence, in the form of a birth certificate from the Dominican Republic and the transcript of the 1988 New York proceedings. The issue is not, however, whether that evidence reliably establishes that he was born in 1970. Rather, it is whether a reasonable attorney under the circumstances would have searched for that evidence. The mere existence of the evidence does not prove, by hindsight, that Ortiz should have looked for it or found it. Under the circumstances, we do not find that Ortiz’s performance was deficient. It was not unreasonable for Ortiz to presume that Peralta was an adult at the time of his 1988 conviction, and that the conviction would therefore serve as a predicate for career offender status. Trial counsel inevitably must decide where to focus his or her efforts; not every fact can be double-checked. In the apparent absence of evidence suggesting an earlier birth date, it was not unreasonable for Ortiz to shift his efforts toward conducting plea negotiations that were more likely to provide a greater benefit to his client than further research into his birth date. We find no error in the District Court’s finding that Ortiz acted within a reasonable professional standard of care. Peralta has therefore failed to establish “deficient performance” under the first prong of Strickland. 2. Resulting Prejudice Even if the evidence had shown that Peralta was born in 1970, it is likely that the conviction would have nonetheless qualified as a career offender predicate. Peralta thus cannot show prejudice sufficient to satisfy the second prong of Strickland. Under the Sentencing Guidelines, a conviction qualifies as a career offender predicate--even if the defendant was a juvenile at the time he committed the offense--if the defendant “was released from . . . confinement” or the “sentence [was] imposed” within five years of the defendant’s “commencement of the instant offense.” U.S.S.G. § 4A1.2(d)(2); see also 4B1.2, comment.(n.3). Here, the relevant sentence was imposed on March 22, 1988. The indictment for the present offense--to which Peralta pleaded guilty--alleged that Peralta joined the conspiracy in early 1992.10 Moreover, the PSR indicated that LaChance was obtaining During the Rule 11 colloquy at the change of plea, Ortiz stated that, from defendant’s perspective, the only “deviation, if any” from the prosecution version of the offense was that Peralta drugs from Peralta in New York as early as 1991.11 Peralta submitted no contrary evidence. The present offense was therefore commenced within five years after his 1988 sentencing. Thus, even if Ortiz had been successful in establishing that Peralta was 17 at the time of the 1988 conviction, it is likely that he would have nonetheless been found to be a career offender. We further note that even if all the evidence concerning Peralta’s birth date had been presented to the sentencing court, it is doubtful whether there is a reasonable probability of a different outcome as to the court’s finding that he was born in 1969. There was documentary evidence supporting both potential dates, and while Peralta now claims he was born in 1970, he failed to object on multiple occasions to contrary statements. Peralta’s lawyer’s statements during his 1988 plea proceeding were, at best, second-hand evidence of dubious reliability. As the Magistrate Judge concluded, his true birth date appears to have been “lost in the mists of time” (Rept. and Rec. at 2). did not “recollect joining the conspiracy in 1992, but in 1993.” The PSR stated that in December 1995, the Maine Drug Enforcement Agency received information that Rick LaChance, Albin Lavallee, and Albert Letourneau were involved in cocaine trafficking. An undercover agent made several purchases of cocaine from Lavallee, who was then arrested. Lavallee cooperated and told agents that LaChance had been selling cocaine since 1991, and that LaChance had traveled to New York to purchase the drugs from David Gell and “Luis” Peralta, who turned out to be the defendant. Peralta, however, told the probation officer during the presentence investigation that “in his recollection he became involved in the conspiracy during 1993.” Peralta accordingly has failed to present evidence of prejudice sufficient to undermine confidence in the outcome of his sentencing proceeding, and thus has failed to satisfy the second prong of Strickland. IV. Other Issues Outside the Certificate of Appealability This appeal has been unnecessarily complicated by counsel’s failure to adhere to the issues set forth in the Certificate of Appealability (“COA”) issued by the District Court. By statute, a COA is required for an appeal from a final disposition of a § 2255 petition. See 18 U.S.C. § 2253(c); Fed. R. App. P. 22(b); United States v. Barrett, 178 F.3d 34, 41 (1st Cir. 1999). Peralta moved below for a COA as to two issues, identifying them on page 5 of his motion as follows: 1. Did the Report and Recommendation Decision of the Magistrate Judge, as adopted by the District Court, holding that the conduct of trial counsel (in failing to prosecute a viable Motion to Dismiss the Indictment on Speedy Trial grounds (eight year delay) and to investigate Petitioner-Appellant’s criminal history before having him enter into a binding plea agreement with the government) did not fall measurably below that which might be expected from an ordinary fallible attorney, constitute an unreasonable application of clearly-established Federal law?; and 2. Was the Report and Recommendation Decision of the Magistrate Judge, as adopted by the District Court, based upon an unreasonable determination of the facts in light of the evidence presented at the evidentiary hearing? The District Court granted the motion by electronic order “as to the two issues set forth in the motion, page 5.” Peralta has raised a variety of issues outside the scope of the COA. Specifically, he contends (1) that he was denied effective assistance of counsel because Ortiz failed to properly advise him concerning “the Criminal History calculus” (Appt. Br. at 9); (2) that he was denied effective assistance of counsel because Ortiz allegedly informed him that the prosecutor’s office had promised a sentence of five years (Appt. Br. at 12); (3) that his sentence of 135 months’ incarceration was unreasonable (Appt. Br. at 16); and (4) that his counsel for his direct appeal provided ineffective assistance (Appt. Br. at 22). Although the issues in the COA are framed somewhat awkwardly and inaccurately, the Court has read it broadly to permit an appeal as to (1) the claim of ineffective assistance of counsel concerning (a) counsel’s alleged failure to prosecute the motion to dismiss and (b) counsel’s alleged failure to investigate his criminal history (including the question of his age at the time of his 1988 conviction) and (2) the related findings of fact made by the Magistrate Judge. To the extent his brief raises other issues, they are outside the scope of the COA. The general rule is that “a court of appeals should not consider the merits of an issue advanced by a habeas petitioner unless a COA first has been obtained with respect to that issue.” Bui v. DiPaolo, 170 F.3d 232, 237 (1st Cir. 1999) (emphasis in original). Where the district court denies a request for a COA as to a particular issue, the proper procedure is to seek a complementary COA with the court of appeals. Id. This is not, however, a case where the district court granted a request for a COA as to some issues but not as to others. Cf. id. Instead, Peralta has simply raised new issues in his appellate brief that he never addressed in his request for a COA. Having failed to request a COA as to those issues in either the district court or the court of appeals, Peralta has waived his right to appellate review of those issues.12 V. Conclusion The district court committed no error in finding that petitioner was not denied constitutionally effective assistance of counsel. Accordingly, we affirm the denial of his § 2255 motion. Affirmed. To the extent Peralta claims his sentence was unreasonable, the “subsequent appellate panel” branch of the law of the case doctrine also applies. See United States v. Wallace, 2009 WL 2184670, **5, 8 (1st Cir. July 23, 2009). This Court has already held “that the sentencing judge sentenced Peralta to a reasonable prison term, that no legal error underlay the court’s reference to the co-conspirator’s sentence, and that the court employed a mode of analysis which was entirely consistent with that later prescribed” in United States v. Jiminez-Beltre, 440 F.3d 514 (1st Cir. 2006)(en banc). Peralta I, 457 F.3d at 172. Peralta has not met the heavy burden required to invoke an exception to that doctrine. Wallace, 2009 WL 2184670 at *8.

United States Court of Appeals For the First Circuit No. 07-1384 SECURITIES AND EXCHANGE COMMISSION, Plaintiff, Appellant, v. JAMES TAMBONE AND ROBERT HUSSEY, Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nathaniel M. Gorton, U.S. District Judge] Before Lynch, Chief Judge, Torruella, Selya, Boudin, Lipez and Howard, Circuit Judges. John W. Avery, Senior Litigation Counsel, with whom David M. Becker, General Counsel, Mark D. Cahn, Deputy General Counsel, and Jacob H. Stillman, Solicitor, were on supplemental brief, for appellant. Arthur R. Miller, William B. Scoville, Jr., Peter G.A. Safirstein, Milberg LLP, Kevin P. Roddy, Wilentz, Goldman & Spitzer, P.A., Salvatore J. Graziano, Ann M. Lipton, and Bernstein Litowitz Berger & Grossmann LLP, on supplemental brief for National Association of Shareholder and Consumer Attorneys (NASCAT), amicus curiae. Paula J. DeGiacomo, with whom Elliot H. Scherker, Greenberg Traurig LLP, A. John Pappalardo, John A. Sten, and Greenberg Traurig, P.A. were on supplemental brief, for appellee Tambone. Clifford M. Sloan, with whom Christopher M. Joralemon, Gibson, Dunn & Crutcher LLP, Warren L. Feldman, Skadden, Arps, Slate, Meagher & Flom LLP, Frank A. Libby, Jr., John J. Commisso, and LibbyHoopes, P.C. were on supplemental brief, for appellee Hussey. Douglas R. Cox, Michael J. Scanlon, Jason J. Mendro, Gibson, Dunn & Crutcher LLP on supplemental brief for Center for Audit Quality, amicus curiae. Carter G. Phillips, Jonathan F. Cohn, Daniel A. McLaughlin, Eric D. McArthur, Sidley Austin LLP, Ira D. Hammerman, Kevin M. Carroll on supplemental brief for Securities Industry and Financial Markets Association, amicus curiae. Richard D. Bernstein, Barry P. Barbash, Frank M. Scaduto, Willkie Farr & Gallagher LLP, Robin S. Conrad, and Amar D. Sarwal on supplemental brief for United States Chamber of Commerce, amicus curiae. John Pagliaro, Staff Attorney, and Martin J. Newhouse on supplemental brief for New England Legal Foundation and Associated Industries of Massachusetts, amici curiae. OPINION EN BANC March 10, 2010 SELYA, Circuit Judge. Rule 10b-5(b), promulgated by the Securities and Exchange Commission (SEC) under the aegis of section 10(b) of the Securities Exchange Act of 1934 (Exchange Act), renders it unlawful "[t]o make any untrue statement of a material fact . . . in connection with the purchase or sale of any security." 17 C.F.R. § 240.10b-5(b). The issue before us is one of first impression. It turns on the meaning of the word "make" as used in Rule 10b-5(b). The SEC advocates an expansive definition, contending that one may "make" a statement within the purview of the rule by merely using or disseminating a statement without regard to the authorship of that statement or, in the alternative, that securities professionals who direct the offering and sale of shares on behalf of an underwriter impliedly "make" a statement, covered by the rule, to the effect that the disclosures in a prospectus are truthful and complete. We reject the SEC's expansive interpretation. It is inconsistent with the text of the rule and with the ordinary meanings of the phrase "to make a statement," inconsistent with the structure of the rule and relevant statutes, and in considerable tension with Supreme Court precedent. Consequently, we affirm the district court's dismissal of the SEC's Rule 10b-5(b) claim. I. BACKGROUND Because this appeal follows the district court's granting of a motion to dismiss, we rehearse the facts as well-pleaded in the SEC's complaint. See Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 5 (1st Cir. 2005). At all times material hereto (roughly, 1998-2003), the defendants, James Tambone and Robert Hussey, were senior executives of a registered broker-dealer, Columbia Funds Distributor, Inc. (Columbia Distributor), or its predecessor in interest. Columbia Distributor underwrites and markets mutual funds. The SEC alleges that the defendants violated sundry provisions of both the Securities Act of 1933 (Securities Act) and the Exchange Act. Its complaint depicts a tangled web of interlocking entities. We briefly trace the fibers within that web. During the relevant period, Columbia Distributor was a wholly-owned subsidiary of Columbia Management Group, Inc. (Columbia Management) and an indirect subsidiary of FleetBoston Financial Corporation (Fleet). Columbia Distributor was known as Liberty Funds Distributor, Inc. (Liberty Distributor) until 2001, when Fleet purchased its parent corporation, Liberty Financial Group (Liberty). Columbia Distributor acted as the principal underwriter and distributor of over 140 mutual funds in the Columbia mutual fund complex (the Columbia Funds). The Columbia Funds included several funds that had been owned by Liberty prior to the take-over by Fleet. In its wonted role, Columbia Distributor sold shares in the Columbia Funds and disseminated their prospectuses to investors. Direct responsibility for the representations contained in the prospectuses rested with the funds' sponsor, Columbia Management Advisors, Inc., and its predecessors in interest (collectively, Columbia Advisors). Like Columbia Distributor, Columbia Advisors was a wholly-owned subsidiary of Columbia Management and, thus, an indirect subsidiary of Fleet for much of the relevant period. The defendants held positions of trust and responsibility in this corporate pyramid. Tambone served as co-president of Columbia Distributor from 2001 to 2004. Prior thereto, he held the same post with Liberty Distributor. Hussey served as managing director (national accounts) of Columbia Distributor from 2002 until 2004. Before that, he occupied a comparable position with Liberty Distributor. The SEC does not allege that either defendant worked for the Columbia Funds' sponsor, Columbia Advisors, during the relevant time frame. The short-term trading practice that lies at the epicenter of this case is known in the trade as "market timing." Market timing is the practice of frequent buying and selling of shares of a single mutual fund in order to exploit inefficiencies in mutual fund pricing. According to the SEC, market timing, though not illegal per se, can harm other fund investors and, therefore, is commonly barred (or at least restricted) by those in charge of mutual funds. The Columbia Funds' prospectuses contained representations touching upon the subject of market timing. Starting at least as early as 1998, language was inserted into many Columbia Funds' prospectuses restricting the number and frequency of round-trips (i.e., exchanges from one fund to another and back again) in which an investor could indulge. Emblematic of this prophylaxis was language, first appearing in May of 1999, inserted in prospectuses for funds belonging to the Acorn Fund Group, a constituent of the Columbia Funds. That language stated that the funds within the group "do not permit market-timing and have adopted policies to discourage this practice." This effort to curb market timing escalated over time. In 2000, Hussey co-chaired an internet working group formed to create procedures designed to detect and deter market timing in the Columbia Funds. The working group ultimately recommended that each of the member funds take a consistent position against market timing in future prospectuses. As a result, a number of funds began to include a "strict prohibition" in every prospectus, expressly barring short-term or excessive trading. By 2003, the strict prohibition language, or a variant of it, appeared in all the Columbia Funds' prospectuses. The SEC alleges that, despite the language in the prospectuses expressing hostility toward market timing — the existence of which Tambone and Hussey allegedly either knew or recklessly ignored — the defendants jointly and severally entered into, approved, and/or knowingly permitted arrangements allowing certain preferred customers to engage in market timing forays in at least sixteen different Columbia Funds during the relevant period. The SEC also alleges that the defendants used the prospectuses in their sales efforts by allowing them to be disseminated and referring potential clients to them. II. TRAVEL OF THE CASE On May 19, 2006, the SEC filed a civil complaint in the United States District Court for the District of Massachusetts.1 In its complaint, the SEC alleged that Tambone and Hussey had violated section 17(a) of the Securities Act, section 10(b) of the Exchange Act, and Rule 10b-5 thereunder. In addition, the SEC alleged that the defendants had aided and abetted primary violations of section 10(b) and Rule 10b-5 by Columbia Advisors and Columbia Distributor, primary violations of section 15(c) of the Exchange Act by Columbia Distributor, and primary violations of section 206 of the Investment Advisers Act of 1940, 15 U.S.C. § 80b-6, by Columbia Advisors. An earlier action, filed in February of 2005, was dismissed without prejudice for failure to plead fraud with particularity. That action is of no moment here. In due season, each defendant moved to dismiss. The SEC opposed the motions. As the parties' arguments with respect to liability under Rule 10b-5(b) are central to this appeal, we summarize them succinctly. The defendants premised their challenge on the thesis that the SEC had failed properly to plead any actionable misstatements on their part. In opposition, the SEC countered that the complaint sufficiently alleged that the defendants had made material misrepresentations regarding market timing in the Columbia Funds' prospectuses. Specifically, the SEC argued that the defendants "made" false statements of material facts within the meaning of Rule 10b-5(b) by (i) participating in the drafting process that went into the development of the market timing language,2 and (ii) using the prospectuses in their sales efforts, allowing the prospectuses to be disseminated and referring clients to them for information.3 Finally, the SEC argued that the defendants were liable for a material omission under Rule 10b-5(b). This contention was based on the SEC's allegations that the defendants reviewed and commented on the market timing statements before those statements were included in the prospectuses. We do not quote these allegations at length, as the SEC has not pursued this line of argument on appeal. In addition, the SEC argued that Tambone had made material misrepresentations by signing selling agreements in which he vouched for the accuracy of the statements in the prospectuses. Because the SEC has not pursued this argument on appeal, we disregard it. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). The district court granted the motions to dismiss. SEC v. Tambone (Tambone I), 473 F. Supp. 2d 162, 168 (D. Mass. 2006). With respect to the Rule 10b-5(b) claim premised on the defendants' making of false statements, the court applied the bright-line test articulated in Wright v. Ernst & Young LLP, 152 F.3d 169, 175 (2d Cir. 1998), and held that the SEC's allegations about the defendants' participation in the drafting process and their subsequent use of the prospectuses were too conclusory and attenuated to satisfy the particularity requirement of Federal Rule of Civil Procedure 9(b). Tambone I, 473 F. Supp. 2d at 166. The court found unconvincing the SEC's other arguments for liability under Rule 10b-5. Id. at 167. The court likewise rejected the SEC's section 17(a) and aiding and abetting claims. Id. at 167-68. The SEC appealed from the granting of the motions to dismiss with respect to its section 17(a)(2), Rule 10b-5(b), and aiding and abetting claims. With respect to Rule 10b-5(b), the SEC briefed two arguments as to how the defendants "made" the alleged misrepresentations. First, the SEC argued that the defendants "made" the misrepresentations by using the prospectuses to sell the mutual funds. Second, the SEC argued that the defendants impliedly made false representations to investors to the effect that they had a reasonable basis for believing that the key representations in the prospectuses were truthful and complete. This implied statement theory rested on the premise that a securities professional engaged in the offering of securities has a "special duty" to undertake an investigation that would provide him with a reasonable basis for believing that the representations in the prospectus are truthful and complete. Therefore, the theory goes, a securities professional "makes" an implied representation to investors that the prospectus is truthful and complete when he engages in an offering. What the SEC chose not to argue is also noteworthy. The SEC did not allude to its argument, which at one point had been raised below, that the defendants made the alleged misstatements through their involvement with the preparation of the prospectuses. Similarly, although the SEC had pleaded violations of subparagraphs (a) and (c) of Rule 10b-5, it did not pursue those claims on appeal. In accordance with our usual praxis, we deem abandoned all arguments that have not been briefed and developed on appeal. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). A divided panel of this court reversed the dismissal of the SEC's section 17(a)(2), Rule 10b-5(b), and aiding and abetting claims. SEC v. Tambone (Tambone II), 550 F.3d 106, 149 (1st Cir. 2008) (withdrawn).4 With respect to Rule 10b-5(b), the panel majority adopted the SEC's implied representation theory and held The panel parted ways only with respect to the Rule 10b-5(b) claims. See Tambone II, 550 F.3d at 149 (Selya, J., concurring in part and dissenting in part). that the SEC had thereby alleged that the defendants had made false statements. Id. at 135. The defendants filed petitions for en banc review, Fed. R. App. P. 35, challenging all of the panel's holdings. The full court withdrew the panel opinion but ordered rehearing en banc only on the Rule 10b-5(b) issues. SEC v. Tambone, 573 F.3d 54, 55 (1st Cir. 2009) (order granting rehearing en banc). The court declined to rehear the parties' arguments concerning either the section 17(a)(2) or the aiding and abetting rulings. Id. Following a new round of briefing (including helpful submissions by an array of amici) and reargument, we took the matter under advisement. III. STANDARD OF REVIEW We review de novo a district court's disposition of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Centro Medico del Turabo, 406 F.3d at 5. In the process, we accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the pleader. In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003). As a general proposition, a complaint must contain no more than "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). But even though a complaint need not plead "detailed factual allegations," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), it must nonetheless "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted). In other words, the complaint must include "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal. Twombly, 550 U.S. at 555. Because the complaint in this case contains allegations of fraud, an additional hurdle must be surmounted: the pleader (here, the SEC) must "state with particularity the circumstances constituting [the] fraud." Fed. R. Civ. P. 9(b). To satisfy this particularity requirement, the pleader must set out the "time, place, and content of the alleged misrepresentation with specificity." Greebel v. FTP Software, Inc., 194 F.3d 185, 193 (1st Cir. 1999). IV. ANALYSIS This case presents the two-part question of whether a securities professional can be said to "make" a statement, such that liability under Rule 10b-5(b) may attach, either by (i) using statements to sell securities, regardless of whether those statements were crafted entirely by others, or (ii) directing the offering and sale of securities on behalf of an underwriter, thus making an implied statement that he has a reasonable basis to believe that the key representations in the relevant prospectus are truthful and complete. The answer to each part of this two-part question is "no." We think it appropriate to commence our analysis with the text of the relevant statute and rule. See Cent. Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 173 (1994). Section 10(b) of the Exchange Act renders it unlawful for a person "[t]o use or employ . . . any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe." 15 U.S.C. § 78j(b). Pursuant to its rulemaking authority under section 10(b), the SEC adopted Rule 10b- 5(b), which provides, in pertinent part, that "[i]t shall be unlawful for any person, directly or indirectly, . . . [t]o make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading." 17 C.F.R. § 240.10b-5(b). The inquiry here centers on whether the defendants made untrue statements of material fact within the meaning of this rule. In conducting this inquiry, the pivotal word in the rule's text is "make," as in "to make a statement." The rule itself does not define that word, nor does it suggest that the word is imbued with any exotic meaning. In the absence of either a built-in definition or some reliable indicium that the drafters intended a special nuance, accepted canons of construction teach that the word should be given its ordinary meaning. See Smith v. United States, 508 U.S. 223, 228 (1993) ("When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning."); Santa Fe Indus., Inc. v. Green, 430 U.S. 462, 472 (1977) (interpreting Rule 10b-5 according to the "commonly accepted meaning" of its words); In re Hill, 562 F.3d 29, 32 (1st Cir. 2009) (noting that, in general, words in a statute carry their ordinary meanings if not specially defined). One reference point for determining the ordinary meaning of a word is its accepted dictionary definition. See, e.g., Smith, 508 U.S. at 228-29 (consulting various dictionaries to discern the plain meaning of the word "use" in the relevant statute). For purposes of this analysis, we refer to several common and representative dictionary definitions of "make," which include "create [or] cause," Webster's Third New Int'l Dict. 1363 (2002); "compose," id.; and "cause (something) to exist," Black's Law Dict. 1041 (9th ed. 2009). This case does not require us to set forth a comprehensive test for determining when a speaker may be said to have made a statement. It is enough to say that the SEC's purported reading of the word is inconsistent with each of these definitions. In any event, the question does not turn on dictionary meanings alone. We also look to the structure of section 10(b) and Rule 10b-5, as well as other, related provisions, to interpret the term at issue. Chief among these structural considerations is the relationship between section 10(b) and Rule 10b-5(b). Section 10(b) grants the SEC broad authority to proscribe conduct that "use[s] or employ[s]" any "manipulative or deceptive device or contrivance," in connection with the purchase or sale of any security. 15 U.S.C. § 78j(b). In Rule 10b-5(b), the SEC prohibited a specific subset of all "manipulative or deceptive device[s] or contrivance[s]," namely, untrue or misleading statements of material fact. It likewise prohibited a specific subset of all conduct that might be said to "use or employ" such a manipulative device or contrivance: the making of untrue or misleading statements of material fact. In light of this deliberate word choice ("make"), the SEC's asseveration that one can "make" a statement when he merely uses a statement created entirely by others cannot follow. That asseveration ignores the obvious distinction between the verbs contained in the statute ("use," "employ") and the significantly different (and narrower) verb contained in Rule 10b-5(b) ("make"). Word choices have consequences, and this word choice virtually leaps off the page. There is no principled way that we can treat it as meaningless. Section 10(b) is helpful to our analysis in another way as well. That provision conferred upon the SEC authority to prohibit the "use or employ[ment]" of any manipulative device or contrivance in connection with the purchase or sale of any security. The SEC knew how to wield this authority and proscribe "use or employ[ment]" of a manipulative device or contrivance: in Rule 10b-5(a), it did just that, rendering it unlawful "to employ" a device, scheme, or artifice to defraud. See 17 C.F.R. § 240.10b- 5(a). That the SEC wrote this prohibition in a different subparagraph of the rule and selected a more inclusive verb is a telling combination. The Supreme Court remarked on this phenomenon in Affiliated Ute v. United States, 406 U.S. 128 (1972), observing that: [T]he second subparagraph of the rule specifies the making of an untrue statement of a material fact and the omission to state a material fact. The first and third subparagraphs are not so restricted. Id. at 152-53. It is not the judiciary's proper province to rewrite an administrative rule to sweep more broadly than its language permits. Thus, we must honor the limitation that the drafters deliberately built into Rule 10b-5(b). In an effort to blunt the force of this reasoning, the SEC suggests that the broad language of the statute ("use or employ") requires an equally broad construction of the wording contained in Rule 10b-5(b). To support this suggestion, it touts the Supreme Court's statement that "[t]he scope of Rule 10b-5 is coextensive with the coverage of § 10(b)." SEC v. Zandford, 535 U.S. 813, 816 n.1 (2002). On that basis, the SEC posits that "make" must include "use" because the statute prohibits "use" and the rule perforce must prohibit all that the statute prohibits. This argument comprises more cry than wool. Most notably, it fails to account for an abecedarian point: even if Rule 10b-5 is coextensive with the coverage of section 10(b), that supposed verity does not mean that each of the subparagraphs of Rule 10b-5, taken singly, is itself coextensive with the coverage of section 10(b). That cannot be so. If it was, then each subparagraph would proscribe exactly the same conduct. They do not. See, e.g., Finkel v. Docutel/Olivetti Corp., 817 F.2d 356, 359-60 (5th Cir. 1987). Our view of the meaning of Rule 10b-5(b) is reinforced when we contrast the language of the rule with that of section 17(a) of the Securities Act. By way of background, the phrasing of Rule 10b-5 largely mirrors the language of section 17(a) of the Securities Act.5 That is not happenstance; the drafters of Rule That section provides in pertinent part: It shall be unlawful for any person . . ., directly or indirectly (1) to employ any device, scheme, or artifice to defraud, or (2) to obtain money or property by means of any untrue 10b-5 modeled the rule on section 17(a). See United States v. Persky, 520 F.2d 283, 287 (2d Cir. 1975). But there is a salient difference between the language of the rule and the language of section 17(a) with respect to the types of conduct that may render a person liable for a false statement. Section 17(a)(2) makes it unlawful "to obtain money or property by means of any untrue statement of a material fact," 15 U.S.C. § 77q(a)(2), whereas Rule 10b-5(b) makes it unlawful "to make any untrue statement of a material fact," 17 C.F.R. § 240.10b-5(b). In short, the drafters of Rule 10b-5 had before them language that would have covered the "use" of an untrue statement of material fact (regardless of who created or composed the statement). The drafters easily could have copied that language. They declined to do so. Instead, the drafters — who faithfully tracked section 17(a) in other respects — deliberately eschewed the expansive language of section 17(a)(2). The import of this eschewal is clear: although section 17(a)(2) may fairly be read to cover the "use" of an untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or (3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser. 15 U.S.C. § 77q(a). statement to obtain money or property, see, e.g., Edward J. Mawod & Co. v. SEC, 591 F.2d 588, 596 (10th Cir. 1979), Rule 10b-5(b) is more narrowly crafted and its reach does not extend that far.6 We must honor the drafters' deliberate decision to insert the word "make" in Rule 10b-5(b) in lieu of the more expansive phrase "by means of." See United States v. Ahlers, 305 F.3d 54, 59-60 (1st Cir. 2002) (discussing court's obligation to "presume that . . . differential draftsmanship was deliberate"). The SEC's other arguments for defining "make" to encompass "use" with respect to Rule 10b-5(b) liability are unavailing. One of the SEC's main arguments appears to be that "[i]t seems self-evident that any statute or rule that prohibits making a false statement in connection with the sale of property would cover a seller who knowingly uses misleading sales materials." This type of abstract, decontextualized approach to the interpretation of a statute or regulation is ill-suited to the construction of a rule laden with over sixty years of interpretation in literally hundreds of opinions. This is especially so because the rule in question is an integral part of an extensive regulatory framework forged by Congress, the SEC, and the federal courts. The SEC has in fact brought a separate section 17(a)(2) claim against the defendants in this case. That claim is not before the en banc court. At any rate, what the SEC now calls "self-evident" is not self-evident at all. What does seem self-evident is that if the SEC intended to prohibit more than just the actual making of a false statement in Rule 10b-5(b), then it would not have employed the solitary verb "make" in the text of the rule.7 There is another reason to reject the SEC's interpretation; it is in tension with Supreme Court precedent. Under modern Supreme Court precedent dealing with Rule 10b-5, much turns on the distinction between primary and secondary violators. See Cent. Bank, 511 U.S. at 191. Although Central Bank did not address the precise issue with which we are concerned, the definition of "make" that we propose is compatible with Central Bank as it holds the line between primary and secondary liability in a manner faithful to Central Bank. We explain briefly. The SEC also endeavors to prop up its "use" theory of Rule 10b-5(b) liability by referring to a venerable Fourth Circuit case deciding, for venue purposes, whether a defendant violated a federal mortgage fraud statute in West Virginia or in Pennsylvania. See Reass v. United States, 99 F.2d 752, 755 (4th Cir. 1938). The only reason the opinion has even an epsilon's worth of relevance to the issue at hand is that the challenged statute rendered it unlawful to "make[] any statement, knowing it to be false, for the purpose of influencing in any way the action of a Federal Home Loan Bank upon any application for loan." Id. at 752. But the Reass court did not presume to act as a legal lexicographer, chiseling in stone a definition of "make" for all time and for every purpose. The result in Reass proceeds from the simple proposition that the statute could not be violated until the defendant presented the misstatements to the bank "upon . . . application for a loan." Id. at 755. The Exchange Act does not explicitly confer a private right of action for section 10(b) violations. The Supreme Court nevertheless has found a private right of action to be implicit in the statute and the implementing rule (Rule 10b-5). Sup't of Ins. of N.Y. v. Bankers Life & Cas. Co., 404 U.S. 6, 13 n.9 (1971). This right of action is not unbridled: private plaintiffs are permitted to bring suit under Rule 10b-5 against only "primary" violators. See Cent. Bank, 511 U.S. at 177-78. In the wake of Central Bank, Congress amended section 20 of the Exchange Act to clarify that the SEC may bring suit against aiders and abetters, that is, persons who knowingly provide substantial assistance to primary violators of the securities laws. Pub. L. 104-67, § 104, 109 Stat. 737, 757 (1995) (codified at 15 U.S.C. § 78t(e)). Although the SEC has exhorted Congress to extend the same right to private parties, see 4 Thomas Lee Hazen, The Law of Securities Regulation 506 n.31 (6th ed. 2009), Congress has not done so. Thus, Rule 10b-5's private right of action extends only to primary violations, not to secondary violations. If Central Bank's carefully drawn circumscription of the private right of action is not to be hollowed — and we do not think that it should be — courts must be vigilant to ensure that secondary violations are not shoehorned into the category reserved for primary violations. The SEC's position poses a threat to the integrity of this dichotomy. Refined to bare essence, the SEC, through the instrumentality of Rule 10b-5(b), seeks to impose primary liability on the defendants for conduct that constitutes, at most, aiding and abetting (a secondary violation). Allowing the SEC to blur the line between primary and secondary violations in this manner would be unfaithful to the taxonomy of Central Bank. Of course, the Central Bank Court did not purpose to decide the precise issue before us. Withal, the Court's methodology for determining the scope of the private right of action (and, thus, the scope of primary liability) is a beacon by which we must steer. That methodology emphasizes fidelity to the text of section 10(b) and Rule 10b-5. See Cent. Bank, 511 U.S. at 173 (explaining that a "private plaintiff may not bring a 10b-5 suit against a defendant for acts not prohibited by the text of § 10(b)"); see also id. ("We have refused to allow 10b-5 challenges to conduct not prohibited by the text of the statute.").8 An expansive reading of the rule, unmoored from its text and based on judicially manufactured policy rationales, is plainly antithetic to Although the Central Bank Court focused its inquiry on section 10(b), its methodology is equally applicable to Rule 10b-5. The rule is incorporated into the statutory framework and, thus, its scope "is coextensive with the coverage of § 10(b)." Zandford, 535 U.S. at 816 n.1. Fidelity to the text of section 10(b) requires fidelity to the text of Rule 10b-5 and, therefore, fidelity to the text of each of the subsections that comprise the rule. this restrained methodology. See id. at 188 (warning that, absent the prospect of a bizarre result, policy considerations cannot override the text and structure of the statute). There is more. Reading "make" to include the use of a false statement by one other than the maker would extend primary liability beyond the scope of conduct prohibited by the text of Rule 10b-5(b). See id. Furthermore, doing so would "add a gloss to the operative language of the [rule] quite different from its commonly accepted meaning." Id. at 174 (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185, 199 (1976)). Allowing courts to imply that "X" has made a false statement with only a factual allegation that he passed along what someone else wrote would flout a core principle that underpins the Central Bank decision. We decline the SEC's invitation to go down that road. As an aside, blurring the line between primary and secondary violations also would create unacceptable tension with the substantial body of case law that has evolved post-Central Bank — case law that maps the outer boundaries of primary liability under Rule 10b-5. This case law, though not directly on point, does not fit comfortably with the view that the SEC espouses here. Let us explain. In the aftermath of Central Bank, several courts of appeals have had to plot the line between primary violations and mere aiding and abetting in Rule 10b-5 actions brought by private plaintiffs. Two divergent strains of authority have evolved. We have not yet chosen between these divergent strains and we have no need to do so today. It suffices to say that the line of authority most hospitable to the establishment of primary violations of Rule 10b-5 embraces the "substantial participation" test, under which a person's "substantial participation or intricate involvement in the preparation of fraudulent statements" is enough to establish a primary violation. Howard v. Everex Sys., Inc., 228 F.3d 1057, 1061 n.5 (9th Cir. 2000). The other line of authority, less hospitable to plaintiffs, adheres to the "bright-line" test, under which a primary violation requires proof both that the defendant actually made a false or misleading statement and that it was attributable to him at the time of public dissemination. See Wright, 152 F.3d at 175; see also Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 1205 (11th Cir. 2001); Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1226 (10th Cir. 1996); In re Kendall Sq. Research Corp. Sec. Litig., 868 F. Supp. 26, 28 n.2 (D. Mass. 1994). While these tests are designed for private litigation, and, thus, are poorly suited to public enforcement actions,9 one For example, the bright-line test cannot be imported wholesale into the public enforcement context because its attribution prong reflects the need to prove reliance, see Wright, 152 F.3d at 175 — an element that the SEC need not establish in a Rule 10b-5 case. See Schellenbach v. SEC, 989 F.2d 907, 913 (7th Cir. 1993); see also SEC v. Wolfson, 539 F.3d 1249, 1260 (10th Cir. 2008) (declining to impose the attribution requirement in an SEC thing is crystal clear. The conduct for which the SEC strives to hold the defendants as primary violators — the use and dissemination of prospectuses created by others — does not satisfy either test. Both tests focus, albeit to different degrees, on the actual role that a defendant played in creating, composing, or causing the existence of an untrue statement of material fact. The SEC's attempt to impute statements to persons who may not have had any role in their creation, composition, or preparation falls well short.10 As the Second Circuit put it: "If Central Bank is to have any real meaning, a defendant must actually make a false or misleading statement in order to be held liable [as a primary violator] under section 10(b). Anything short of such conduct is merely aiding and abetting." Shapiro v. Cantor, 123 F.3d 717, 720 (2d Cir. 1997). There is yet another problem with the SEC's implied statement theory: that theory effectively imposes upon securities professionals who work for underwriters an unprecedented duty. We elaborate on this mischief below. The SEC notes, correctly, that securities professionals working for underwriters have a duty to investigate the nature and enforcement action). Although the SEC at one time argued that the defendants "made" untrue statements of material fact through some vaguely described involvement in drafting the prospectuses, it has not pursued that argument on appeal. circumstances of an offering. See, e.g., SEC v. Dain Rauscher, Inc., 254 F.3d 852, 857 (D.C. Cir. 2001). Building on this foundation, the SEC theorizes that such securities professionals impliedly "make" a representation to investors that the statements in a prospectus are truthful and complete. If we were to give credence to this theory, the upshot would be to impose primary liability under Rule 10b-5(b) on these securities professionals whenever they fail to disclose material information not included in a prospectus, regardless of who prepared the prospectus. That would be tantamount to imposing a free-standing and unconditional duty to disclose. The imposition of such a duty flies in the teeth of Supreme Court precedent. The key precedent is Chiarella v. United States, 445 U.S. 222 (1980). It instructs that a party's nondisclosure of information to another is actionable under Rule 10b-5 only when there is an independent duty to disclose the information arising from "a fiduciary or other similar relation of trust and confidence" between the parties. Id. at 228. As the Fourth Circuit explained, "the duty to disclose material facts arises only when there is some basis outside the securities laws, such as state law, for finding a fiduciary or other confidential relationship." Fortson v. Winstead, McGuire, Sechrest & Minick, 961 F.2d 469, 472 (4th Cir. 1992); accord SEC v. Cochran, 214 F.3d 1261, 1264 (10th Cir. 2000). Adopting the SEC's implied statement theory would pave the way for suits against securities professionals for nondisclosure of material information without the required showing of a fiduciary relationship. Fidelity to that requirement demands that we reject the SEC's notion that a breach of a duty to investigate, without more, is a breach of a duty to disclose (and, thus, should be treated as a primary violation under Rule 10b- 5(b)). The SEC labors to depict its implied statement theory as firmly rooted in both case law and longstanding administrative interpretation. This depiction is inaccurate. As to case law, the SEC relies principally on three decisions. See Dolphin & Bradbury, Inc. v. SEC, 512 F.3d 634, 641 (D.C. Cir. 2008); Sanders v. John Nuveen & Co., 524 F.2d 1064, 1070 (7th Cir. 1975); Chris-Craft Indus., Inc. v. Piper Aircraft Corp., 480 F.2d 341, 370 (2d Cir. 1973). These decisions, it asserts, stand for the linchpin proposition that an underwriter participating in an offering makes an implied statement, potentially actionable under Rule 10b-5(b), that he has a reasonable basis for believing that the prospectus is truthful and complete. That assertion is incorrect. To begin, neither Dolphin nor Sanders holds that an underwriter may be found liable as a primary violator under Rule 10b-5(b) for "making" an implied representation that proves to be false. Those cases did not present any issue as to whether the underwriter had "made" a statement. In fact, in both cases the underwriter personally made the misrepresentations. See Dolphin, 512 F.3d at 638, 640; Sanders, 524 F.2d at 1067; see also Sanders v. John Nuveen & Co., 619 F.2d 1222, 1234 (7th Cir. 1980). Both decisions were directed toward a wholly distinct issue: whether the defendant acted with the required state of mind in making the statements. See Dolphin, 512 F.3d at 639; Sanders, 524 F.2d at 1066. Any language suggesting that various representations might be imputed to underwriters must be viewed in this (very different) context. Chris-Craft also fails to breathe life into the SEC's argument. The case holds that an underwriter's constructive representation that the statements made in registration materials are truthful and complete constitutes the making of a statement under section 14(e) of the Exchange Act.11 See Chris-Craft, 480 F.2d at 370. But Chris-Craft preceded Central Bank by over twenty years, and its continued vitality with respect to this section 14(e) holding is doubtful. In all events, nothing turned on the distinction between primary and secondary violations at that time, so the Chris-Craft That section provides in pertinent part that: "[i]t shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, . . . in connection with any tender offer." 15 U.S.C. § 78n(e). panel had no reason to distinguish between them. In retrospect, it is reasonable to read Chris-Craft as holding that the underwriters were liable only as secondary violators. See In re MTC Elec. Techs. S'holder Litig., 993 F. Supp. 160, 162 (E.D.N.Y. 1997) (concluding that "the holding of Chris-Craft was that an underwriter was liable as an aider and abettor"). We turn next to the array of administrative pronouncements. We freely accept the principle that the existence of a longstanding pattern of administrative interpretation might well call for Chevron deference. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). Here, however, the SEC's claim of a "longstanding administrative interpretation" is wildly exaggerated. The SEC has cobbled together a bricolage of agency decisions and statements all of which antedate Central Bank. Without exception, nothing in this carefully culled collection says that an implied representation of an underwriter can constitute a basis for primary liability under Rule 10b-5(b). The fact that the SEC has never before articulated the implied statement theory as a basis for Rule 10b-5(b) liability dooms its quest for Chevron deference. After all, there is no occasion for Chevron deference when there is nothing to which a court may defer. Before leaving this topic, we wish to comment briefly on the dissent's metronomic reliance on the special role and duties of underwriters. We agree that underwriters have a special niche in the marketing of securities and, thus, have a special set of responsibilities. But the duty that the dissent seeks to impose is unprecedented — and far exceeds the scope of Rule 10b-5(b). While that rule could have been drafted to cut a wider swath, it was not. The SEC has other, more appropriate tools that it may use to police the parade of horribilis that the dissent envisions, and it is neither necessary nor wise to attempt to expand the rule by judicial fiat. Most importantly, doing so would, as a matter of law, be wrong. There is one loose end, which relates to waiver. The SEC argues to the en banc court that the defendants can be held primarily liable for violating Rule 10b-5(b) under an entanglement test. See, e.g., In re Cabletron Sys., Inc., 311 F.3d 11, 37-38 (1st Cir. 2002); Elkind v. Liggett & Myers, Inc., 635 F.2d 156, 163 (2d Cir. 1980). Under this test, a defendant may be held primarily liable for misstatements appearing in reports authored by outside analysts when those misrepresentations are based on information provided by the defendant. See Cabletron, 311 F.3d at 38. Such liability inheres when "defendants have expressly or impliedly adopted the statements, placed their imprimatur on the statements, or have otherwise entangled themselves with the analysts to a significant degree." Id. at 37-38. This argument has not been preserved and, thus, need not concern us. The SEC did not advance it before the district court in connection with the dispositive motions to dismiss. To make a bad situation worse, the SEC did not coherently present this argument before the panel during the first stage of this appeal. To the contrary, the SEC's panel briefs were devoid not only of any developed argumentation to the effect that the defendants entangled themselves with the statements in the prospectuses but also of citations to Cabletron, Elkind, or any comparable precedent. In this instance, silence speak volumes. A party cannot switch horses mid-stream, changing its theory of liability at a later stage of the litigation in hopes of securing a swifter steed. So it is here: because the SEC unfurled its "entanglement" argument for the first time in the en banc proceedings, we have no occasion to address that argument. See United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992) ("It is a bedrock rule that when a party has not presented an argument to the district court, she may not unveil it in the court of appeals."); Zannino, 895 F.2d at 17 (explaining that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived"). This is not the only waiver that has transpired. The SEC unveiled for the first time in its reply brief regarding rehearing en banc a contention that its implied statement theory of Rule 10b- 5(b) liability could be upheld under the so-called shingle theory. See, e.g., Duker & Duker, 6 S.E.C. 386, 388-89 (1939).12 This belated contention is likewise waived. V. CONCLUSION We need go no further. This is one of those happy occasions when the language and structure of a rule, the statutory framework that it implements, and the teachings of the Supreme Court coalesce to provide a well-lit decisional path. Following that path, we affirm the district court's dismissal of the SEC's Rule 10b-5(b) claim. Because en banc review is limited to this claim, we reinstate those portions of the vacated panel judgment that reversed the dismissal of the SEC's section 17(a)(2) and aiding and abetting claims. To that end, we also reinstate those portions of the withdrawn panel opinion, and concurrence thereto, addressing those claims (which, when reinstated, will have the force ordinarily associated with panel opinions). We remand the case to the district court for further proceedings on the SEC's section 17(a)(2) and aiding and abetting claims consistent, of course, with this en banc opinion. Under the shingle theory, a broker-dealer may be held liable under section 17(a) of the Securities Act or section 10(b) of the Exchange Act if he sells a security to a customer for a price unreasonably in excess of the current market price without disclosing the fact of the markup. See Grandon v. Merrill Lynch & Co., 147 F.3d 184, 192-93 (2d Cir. 1998); Duker & Duker, 6 S.E.C. at 388-89. We have not been able to find any case in which the shingle theory has successfully been applied, under Rule 10b-5(b), to facts similar to the facts at hand. So Ordered. — Concurring Opinion and Dissenting Opinion follow — BOUDIN, Circuit Judge, with whom LYNCH, Chief Judge, joins, concurring. A "plain language" approach to statutory construction has well-known adherents, and--in construing the SEC's rule at issue ("make any untrue statement of a material fact")-- bare wording forcefully supports Judge Selya's thorough and persuasive decision. Yet even a more elastic "all things considered" reading of the rule's language would not justify the alarmingly ambitious use of it that the agency seeks to deploy in this case. The word "make," in reference to a statement, ordinarily refers to one authoring the statement or repeating it as his own; one who lends to a friend a book is not normally deemed to "make" the statements in the book. See Regents of the Univ. of Cal. v. Credit Suisse First Boston (USA), Inc., 482 F.3d 372, 384 n.20 (5th Cir. 2007). There is some breathing room: for example, imagine an underwriter orally or in writing specifically affirming to an investor the truth of specific statements in a prospectus that he knew to be false. Here, the SEC propounds a far more expansive view: it asks the courts to treat securities professionals as a matter of course as impliedly representing the entire contents of prospectuses whenever they sell securities or assist those who do. The argument against so sweeping a position begins with language, but it does not end there: congressional policy, Supreme Court precedent, practical consequences and the nearly uniform view of circuit courts that have spoken all argue against the SEC's proposed interpretation. It helps focus the issue, and underscores the reach of the SEC's position, to recite briefly the SEC's allegations--both those rejected and not appealed, and those on appeal--as to Tambone and Hussey's relationship to and use of the Columbia Funds prospectuses. Tambone and Hussey were officers of Columbia Funds Distributor, Inc. ("Columbia Distributor"), which served as principal underwriter for Columbia mutual funds. As underwriters, they were required by law to furnish prospectuses to broker-dealers selling Columbia funds and to investors to whom they sold directly. See 15 U.S.C. § 77e(b) (2006); 17 C.F.R. § 240.15c2-8(b) (2009). The prospectuses, however, were drafted by a separate entity, Columbia Management Advisors, Inc. ("Columbia Advisors"), and the SEC admits in its complaint that Columbia Advisors rather than Columbia Distributor (and hence the defendants) "remained primarily responsible for all representations made in the prospectuses for those funds." The SEC's more specific allegations concern the creation of the prospectuses and, separately, their use. The SEC complaint charged that the defendants were "involved in the process of revising the prospectuses," "reviewed the market timing representations before they were included in the prospectuses" and "comment[ed] on these representations to in-house counsel for Columbia Advisors." The district court found that these allegations failed to plead fraud with requisite particularity, SEC v. Tambone, 473 F. Supp. 2d 162, 165-66 (D. Mass. 2006); the SEC does not now challenge this determination. As to the use of the prospectuses, the SEC initially argued that Tambone and Columbia Distributor "signed hundreds of [selling] agreements" with broker-dealers that expressly represented and warranted that "each Prospectus and all sales literature . . . [would] not by statement or omission be misleading." The district court again found that these allegations "flatly fail[ed]" to meet the particularity requirements. Tambone, 473 F. Supp. at 167. The SEC does not argue otherwise, nor does it point to any other specific oral or written statements made by the two defendants.13 The SEC's remaining allegations regarding the defendants' use of the prospectuses, which are before us, are simply that the defendants, as required, disseminated prospectuses to broker-dealers and investors in their capacity as underwriters. The SEC does not say that the defendants explicitly represented as Oral or written statements made by underwriters while placing securities can be predicates for securities violations. See, e.g., Dolphin & Bradbury, Inc. v. SEC, 512 F.3d 634, 638-40 (D.C. Cir. 2008); Sanders v. John Nuveen & Co., 554 F.2d 790 (7th Cir. 1977); Picard Chem. Inc. Profit Sharing Plan v. Perrigo Co., 940 F. Supp. 1101, 1120-21 (W.D. Mich. 1996). true to investors the prospectuses' market timing provisions or that they even discussed the prospectuses with investors. The SEC instead claims that in selling securities, a defendant who neither personally authorized nor repeated an inaccurate statement nevertheless "make[s]" an implied statement or representation under Rule 10b-5(b) that the prospectuses prepared by the issuer are in all respects accurate and not materially misleading. Following Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994), Congress gave the SEC alone statutory authority to bring actions against individuals who aided and abetted a section 10(b) violation, 15 U.S.C. § 78t(e); and this authority might be used to charge one who distributed a false prospectus knowing that it contained false statements. The SEC's position in this case would undo this deliberate legislative compromise, see S. Rep. No. 104-98, at 19 (1995), and it would conflict with practically all of the pertinent circuit cases.14 Post Central Bank, this implied representation theory has been regularly rejected by the circuits, see Lattanzio v. Deloitte & Touche LLP, 476 F.3d 147, 155 (2d Cir. 2007) (rejecting an "implied assertion" theory because "[p]ublic understanding that an accountant is at work . . . does not create an exception to the requirement that an actionable misstatement be made by the accountant"); Fidel v. Farley, 392 F.3d 220, 235 (6th Cir. 2004); Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 1205-06 (11th Cir. 2001); Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1226-27 (10th Cir. 1996), with the exception of the Ninth Circuit, see Howard v. Everex Sys., Inc., 228 F.3d 1057, 1061 n.5 (9th Cir. 2000). While the defendants in this case held significant positions, there is no obvious stopping point: virtually anyone involved in the underwriting process might under the SEC's "making a statement" theory be charged and subject to liability in a suit under section 10(b). The SEC may select its defendants sensibly; but private litigants have their own incentives, and the SEC concedes that its definition of "make," if adopted, would apply to private party actions as well. The Supreme Court has repeatedly acknowledged the unique risk of "vexatious" securities litigation,15 and it has likewise cautioned against extending further the court- created private remedy under section 10(b). See Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 165 (2008); accord Ernst & Ernst v. Hochfelder, 425 U.S. 185, 199-201 (1976). Nothing justifies the adventure proposed by the agency. The conduct charged is already covered by an aiding and abetting remedy available to the SEC itself. 15 U.S.C. § 78t(e). Sections 11 and 12 of the 1933 Act, 15 U.S.C. §§ 77k, 77l, allow private suits--but with important limitations--against underwriters who fail to make reasonable investigations into the prospectuses they distribute. And private litigants are free to sue the actual See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 547 U.S. 71, 86 (2006); Cent. Bank, 511 U.S. at 189; Va. Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1105 (1991); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 739 (1975). authors of misstatements in the prospectus under section 10(b) itself. See note 1, above. More than enough is too much. No one sophisticated about markets believes that multiplying liability is free of cost. And the cost, initially borne by those who raise capital or provide audit or other services to companies, gets passed along to the public. Cent. Bank, 511 U.S. at 189; Winter, Paying Lawyers, Empowering Prosecutors, and Protecting Managers: Raising the Cost of Capital in America, 42 Duke L.J. 945, 962 (1993). Congress and the Supreme Court have struck a balance; the SEC is obliged to respect it. LIPEZ, Circuit Judge, with whom TORUELLA, Circuit Judge, joins, dissenting in part. The majority acknowledges that the Supreme Court in Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994), "did not purpose to decide the precise issue before us" – what it means to "make" a statement – but asserts that a construction of "make" that embraces the conduct alleged in this case would be at odds with Central Bank's careful distinction between primary and secondary liability. There is no such conflict. My colleagues overstate the significance of Central Bank for the interpretive issue before us, fail to account for the underwriter's unique statutory duty to provide investors with accurate information, and misguidedly allow concerns about excessive private litigation to influence their judgment on the scope of public enforcement by the Securities and Exchange Commission. In my view, the language of section 10(b) and Rule 10b-5(b), the underwriter's role and duties in the securities market, and decades of case law – including Central Bank – inescapably permit the SEC to proceed against Tambone and Hussey for making false statements within the purview of Rule 10b-5(b). I therefore respectfully dissent.16 I join the majority's decision to reinstate the portions of the panel opinion addressing the SEC's section 17(a)(2) and aiding and abetting claims and the portions of the panel judgment reversing those claims. I. The important issue before the en banc court is whether the defendants' use of false and misleading prospectus statements can constitute the making of statements that render the defendants primarily liable under Rule 10b-5(b). The Commission asserts that, as senior executives of the primary underwriter for the Columbia Funds, Tambone and Hussey had a duty to confirm the accuracy and completeness of the prospectuses they were responsible for distributing to broker-dealers and potential investors. It further contends that, by using the prospectuses as required to perform their duties to potential investors, defendants made implied statements asserting that they had a reasonable basis to believe that the key statements in the prospectuses regarding market timing were accurate and complete. Because the defendants allegedly knew that those statements were false, or were reckless in not knowing, their implied statements were also false. The SEC argues that these direct representations of Tambone and Hussey, albeit implied, subject the defendants to primary liability under section 10(b) and Rule 10b-5(b). The majority dismisses the SEC's position as untenable on the basis of "the language and structure of [the] rule, the statutory framework that it implements, and the teachings of the Supreme Court." It is the majority's view that is untenable. It construes the Rule to exclude the long accepted understanding that underwriters "make" implied statements to investors about the accuracy and completeness of prospectuses they are using to induce investments. It rejects primary liability for fraudulent conduct at the heart of Rule 10b-5's prohibitions by stretching Central Bank beyond both its text and context and using that unjustified expansion to justify its contraction of the Rule's scope. As I shall explain, the language of the statute and the Rule, viewed in the context of the unique role of underwriters in selling securities, supports the Commission's allegation that Tambone and Hussey made implied statements to investors that are actionable as primary violations of Rule 10b-5(b). I begin, however, by addressing the premise at the heart of the majority's position – its unfounded assumption that Central Bank's "carefully drawn circumscription of the private right of action" substantially changed the landscape for securities claims under Rule 10b-5 in the very different context of an SEC enforcement action against underwriters. A. Central Bank and Rule 10b-5 The majority argues that reading Rule 10b-5(b) to reach the making of implied statements would be to disregard the Supreme Court's holding in Central Bank and to effectively eliminate the boundaries between primary and secondary liability required by that decision. This contention overstates the substance of the case and, consequently, its reach. 1. What the Court Decided The issue in Central Bank was whether the bank, the indenture trustee for bonds issued by the public Building Authority to finance improvements at a planned development in Colorado Springs, could be held liable in a private cause of action under Rule 10b-5 for aiding and abetting a primary violation of the law. Although Central Bank had become aware that the collateral for the bonds had likely become insufficient to support them, it delayed undertaking an independent review of the original appraisal. Before an independent review could be done, the Building Authority defaulted on a portion of the bonds. The plaintiff raised claims of primary liability against four violators: the Building Authority, which issued the defaulted bonds in question, two underwriters for the bonds, and a director of the development company in charge of providing an appraisal of the bonds. The Building Authority defaulted early in the litigation and the claims against the underwriters were settled. See First Interstate Bank of Denver, N.A. v. Pring, 969 F.2d 891, 893 n.1 (10th Cir. 1992). The Supreme Court, relying on the text of section 10(b) and Rule 10b-5, concluded that the aiding and abetting claims against Central Bank had to be dismissed because private plaintiffs may only bring claims of primary liability, not aiding and abetting liability. Nevertheless, the Court noted that "[i]n any complex securities fraud . . . there are likely to be multiple violators; in this case, for example, respondents named four defendants as primary violators."17 511 U.S. at 191. Finally, the Court concluded that it is not the identity of a securities actor but his conduct that determines whether he may be liable as a primary violator: The absence of § 10(b) aiding and abetting liability does not mean that secondary actors in the securities markets are always free from liability under the securities Acts. Any person or entity, including a lawyer, accountant, or bank, who employs a manipulative device or makes a material misstatement (or omission) on which a purchaser or seller of securities relies may Tambone and Hussey argue, inter alia, that the Commission's claims of primary liability should be rejected because of the SEC's own admission that Columbia Advisors, not defendants, "remained primarily responsible for all representations made" in the fund prospectuses. However, this quotation from Central Bank illustrates the Supreme Court's recognition that a securities fraud will likely involve multiple violators, thereby suggesting that individuals with different responsibilities could be primarily liable for the same misstatement. See 511 U.S. at 191. Therefore, the primary liability of Columbia Advisors does not preclude the primary liability of Tambone and Hussey for their own use of the false and misleading statements contained in those prospectuses. The Supreme Court recently confirmed this principle in a private lawsuit by indicating that defendants Charter Communications, Scientific-Atlanta, Inc., and Motorola, Inc., had all engaged in the fraudulent conduct at issue. See Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 158-61 (2008). Although the Court's statement in Central Bank referred to Rule 10b-5(b), addressing material statements and omissions, and its comment in Stoneridge applied to 10b-5(a) or (c), addressing other types of deceptive conduct, the scope of primary liability in each subsection is governed by the language of section 10(b) of the Exchange Act. Therefore, the Supreme Court's recent confirmation that multiple individuals may be primarily liable under Rule 10b- 5(a) or (c) is applicable to its interpretation of Rule 10b-5(b). be liable as a primary violator under 10b-5, assuming all of the requirements for primary liability under Rule 10b-5 are met. Id. (emphasis omitted). 2. What the Court Did Not Decide The Court in Central Bank addressed only the question of "whether private civil liability under § 10(b) extends as well to those who do not engage in the manipulative or deceptive practice, but who aid and abet the violation." 511 U.S. at 167; see also id. at 176 ("The problem, of course, is that aiding and abetting liability extends beyond persons who engage, even indirectly, in a proscribed activity; aiding and abetting liability reaches persons who do not engage in the proscribed activities at all, but who give a degree of aid to those who do."). The issue here is whether the defendants themselves "engage[d] in the manipulative or deceptive practice," i.e., whether the defendants' acts are "sufficient to show that they 'made' the [alleged] material misstatements and omissions . . . such that they can be held primarily liable." SEC v. Wolfson, 539 F.3d 1249, 1258 (10th Cir. 2008). Holding Tambone and Hussey responsible for their own false implied statements does not threaten the primary/secondary dichotomy. Moreover, it is critical to recognize that Central Bank analyzes the scope of section 10(b) and Rule 10b-5 in a suit brought by a private plaintiff. Although the Court focused on the text of the provisions, it also emphasized the element of reliance (which was not satisfied in that case), as well as a set of policy considerations that arise exclusively in the context of private securities litigation. See 511 U.S. at 173-178, 180, 188-89. In this respect, Central Bank reflected the Court's desire to limit the scope of the judicially implied private cause of action under Rule 10b-5.18 Indeed, the Court has consistently distinguished between the broad contours of the SEC's "express statutory authority to enforce [Rule 10b-5]," Merrill Lynch, Pierce, Fenner & Smith v. Dabit, 547 U.S. 71, 79-81 (2006), and the "narrow dimensions" of the implied private right of action, Stoneridge, 552 U.S. at 167; see also SEC v. Zandford, 535 U.S. 813, 819 (2002) (noting, in a Commission action, that the Securities Exchange Act, including § 10(b), "should be 'construed "not technically and restrictively, but flexibly to effectuate its remedial purposes"'") (citations omitted). Thus, as the SEC argues, "[p]olicy considerations concerning private litigation can have no relevance in defining the scope of primary liability under Section 10(b) in a Commission enforcement action." The Court's restrictive application of Rule 10b-5 in Central Bank – a case brought by a private plaintiff – Cf. United States v. O'Hagan, 521 U.S. 642, 664 (1997) (noting that Central Bank "concerned only private civil litigation under § 10(b) and Rule 10b-5, not criminal liability[,]" and therefore that its "reference to purchasers or sellers of securities must be read in light of a longstanding limitation on private § 10(b) suits"). cannot sensibly be stretched beyond its logic to invalidate, in an SEC enforcement action, an interpretation of an element of Rule 10b-5(b) on which the Supreme Court was silent. 3. Distinguishing between Primary and Secondary Violations Although the private action context limits Central Bank's significance for the SEC enforcement action at issue here, the Court did effect an important change in securities law by holding that aiding and abetting claims were no longer available in private actions. In its aftermath, lower courts sought to delineate the outer boundaries of primary liability, an issue the Supreme Court had not addressed. As the majority notes, our sister circuits have crafted two divergent standards to analyze the question: the "bright-line" test, associated most closely with the Second Circuit, and the broader "substantial participation" test, articulated by the Ninth Circuit. The majority observes that it is unnecessary to choose one of these paths in this case because the conduct at issue – "the use and dissemination of prospectuses created by others" – does not satisfy either test. I agree that there is no need to choose between these standards, but for a different reason: neither the bright-line nor substantial participation test is relevant here. The substantial participation test evaluates whether one actor can be deemed to have made a statement made or created by another because of the actor's "substantial participation" in the making or creation of that statement. In this case, the SEC alleges that Tambone and Hussey are accountable for their own implied statements, making the "substantial participation" inquiry unnecessary. See In re LDK Solar Sec. Litig., No. C07-05182WHA, 2008 WL 4369987, at *8 n.9 (N.D. Cal. Sept. 24, 2008) (declining to address defendants' claim that they had not "substantially participated" in making the fraudulent statements at issue because the court had already determined that they should be "deemed actually to have made those statements"). Similarly, the bright line test does not address what it means to "make" a statement. It simply requires that the defendant "actually make" the statement at issue, Wright v. Ernst & Young LLP, 152 F.3d 169, 175 (2d Cir. 1998), and it imposes an attribution requirement that is inapplicable to SEC enforcement actions because it relates to the element of reliance that is required only in a private Rule 10b-5 action. See Wolfson, 539 F.3d at 1259-60 (observing that the attribution requirement "stems directly from the need for private litigants to prove reliance on alleged fraud to succeed on a private cause of action"). Whether or not these tests are useful in distinguishing primary from secondary conduct, they shed no light on the issue that is before us: determining whether the defendants have "made" a statement, which unquestionably would subject them to primary liability. 4. The Limited Relevance of Central Bank The Supreme Court in Central Bank focused on the crucial dichotomy between those who, regardless of their role in a securities transaction, make misleading representations themselves, and those who assist the culpable actor without personally using or employing any "manipulative or deceptive device" as prohibited by section 10(b). In this SEC enforcement action, primary liability is premised on the defendants' having themselves impliedly stated that they had a reasonable basis to believe that the market timing disclosures in the prospectuses were truthful and complete. Central Bank does not address the important issue in this case – whether the defendants "made" statements within the meaning of Rule 10b-5(b) – and we must look elsewhere for guidance. As I describe below, both the language of the Rule and substantial precedent on the role and status of underwriters in the distribution of securities support the SEC's argument that Tambone's and Hussey's alleged actions fall within the purview of the "make a statement" requirement of Rule 10b-5(b). B. The Scope of Liability under Rule 10b-5(b): Making a Statement 1. Text of Section 10(b) Although Rule 10b-5 itself offers little guidance on how to define "make," the text of section 10(b), its authorizing statute, also must be examined. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197 (1976) ("In addressing [the question of the proper scienter requirement under section 10(b) and Rule 10b-5], we turn first to the language of s 10(b), for '(t)he starting point in every case involving construction of a statute is the language itself.'" (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975) (Powell, J., concurring))); Pinter v. Dahl, 486 U.S. 622, 653 (1988) ("The ascertainment of congressional intent with respect to the scope of liability created by a particular section of the Securities Act must rest primarily on the language of that section."). The statutory language is particularly relevant in this case because "[t]he scope of Rule 10b-5 is coextensive with the coverage of § 10(b)," a view that has led the Supreme Court to "use § 10(b) to refer to both the statutory provision and the Rule." Zandford, 535 U.S. at 816 n.1; see also Stoneridge, 552 U.S. at 157 ("Rule 10b-5 encompasses only conduct already prohibited by § 10(b)."). In other words, the term "make a statement" in Rule 10b- 519 must be read in conjunction with the text of section 10(b), The Rule states: It shall be unlawful for any person, directly or indirectly . . . (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in 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 which deems it "unlawful for any person . . . [t]o use or employ, in connection with the purchase or sale of any security . . . , any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe." 15 U.S.C. § 78j(b) (emphasis added). The SEC's allegations against appellants are stated in precisely those statutory terms. The SEC avers that defendants used and employed prospectuses containing statements prohibiting market timing practices – statements that they knew or were reckless in not knowing were false – and in so doing impliedly stated that they had a reasonable basis to believe that the market timing disclosures in the prospectuses were truthful and complete. The majority counters that one cannot "'make' a statement when he merely uses a statement created entirely by others." It asserts that subsection (b) of Rule 10b-5 applies to only a subset of the conduct that falls within the statute's proscription – i.e., only the literal "making" of statements and not all "uses" of them. Id. The majority reinforces this pronouncement by pointing out that another section of the Rule, 10b-5(a), does prohibit the "employ[ment]" of any "device, scheme or artifice to defraud," and it concludes that this difference in language proves that or sale of any security. 17 C.F.R. § 240.10b-5. subsection (b) of the Rule was deliberately framed as a narrower prohibition against "making," but not "using," statements. The question before us is not whether the words "use" and "make" are interchangeable, however – I agree they are not – but whether the conduct that occurred here could constitute "making" a statement within the meaning of Rule 10b-5(b). The majority's position is that one cannot make a statement without explicitly speaking or writing the words at issue. The statutory language, however – prohibiting the "use," inter alia, of "deceptive device[s]" – is broad enough to encompass less literal forms of "making" a statement. Indeed, it defies ordinary experience to say that a statement can only be "made" by "the physical or manual act of writing or transcribing [a] report" or speaking words. State v. O'Neil, 135 P. 60, 63 (Idaho 1913). It is a commonplace observation that someone has "made a statement" through his or her conduct. Unsurprisingly, a broader reading of "make" also is consistent with the dictionary definitions, which are more inclusive than the majority acknowledges and include "deliver, utter, or put forth." See The Random House Dictionary of the English Language 1161 (2d ed. 1987). Those meanings embrace the SEC's argument that, by using the prospectuses as they did, the defendants "deliver[ed]" or "put forth" implied statements of their own attesting to the accuracy and completeness of the prospectuses. In case law, as well as common parlance, this is not an unprecedented interpretation of the word "make." In Reass v. United States, 99 F.2d 752 (4th Cir. 1938), for example, the court held that "making" a false statement for purposes of a federal mortgage fraud statute meant communicating it and not merely composing it. Id. at 755. Although the majority correctly points out the very different context in Reass, the fact remains that the court did not confine "making a statement" to the literal meaning on which the majority insists. See also, e.g., O'Neil, 135 P. at 63. To be sure, Rule 10b-5(b) contemplates some range of conduct narrower than the statute's all-encompassing "use or employ." But that fact does not mean that particular uses of statements by particular players in the sale of securities cannot constitute the "making" of implied statements. The Rule thus does not require Tambone and Hussey to have explicitly spoken or written the false statement at issue here, i.e., that "I have a reasonable basis for believing that the market timing disclosures in the prospectuses are truthful and complete." Rather, given the statutory duties imposed upon them as underwriters, see infra, that representation was implicit in the defendants' conduct in using the prospectuses to induce individuals to invest in Columbia Funds. As the SEC explains in its en banc brief, this understanding of what it means to "make" a statement is necessary to fulfill the objective of Congress and the Commission to punish "any untrue statement of a material fact" made with knowledge or reckless disregard for its truth. See Rule 10b-5(b). An underwriter could well know that representations in a prospectus are false even when the individual who actually wrote the words was unaware of the inaccuracies. In those circumstances, an underwriter who knowingly gives investors a prospectus containing falsehoods could not be held liable in an SEC enforcement action for aiding and abetting the unwitting drafter, who did not himself commit fraud. If such an underwriter could not be held responsible as a primary offender, the underwriter would, in the SEC's words, "be free from any liability under Section 10(b) whatsoever."20 It takes no stretch of the language of Rule 10b-5(b) to view such an underwriter as having attested to the accuracy of the prospectus contents, i.e., to have knowingly "made" an implied – false – statement to investors that the prospectus accurately describes the fund's risks. See Hanly v. SEC, 415 F.2d 589, 597 (2d Cir. 1969) ("By [an underwriter's] recommendation he implies that a reasonable investigation has been made and that his recommendation rests on the conclusions based on such investigation."). Although deceptive conduct in the sale of securities could trigger liability under section 17(a), that provision does not cover purchases and therefore would not always offer an alternative vehicle for SEC enforcement. 2. The Duties of an Underwriter In assessing whether a defendant has committed a primary violation of the securities laws, courts have examined the defendant's role in the securities market in addition to the specific conduct alleged in the complaint. These decisions indicate that a defendant's general responsibilities and statutory duties with respect to the sale and distribution of securities inform the legal significance of specific conduct under Rule 10b-5(b). See, e.g., In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 77 (2d Cir. 2001) (analyzing a corporate executive's liability for "making" misleading statements in light of his duties and responsibilities); SEC v. KPMG LLP, 412 F. Supp. 2d 349, 376-77 (S.D.N.Y. 2006) (holding that three engagement partners of an auditing firm who possessed the "ultimate authority to determine whether an audit opinion should be issued" could be primarily liable under the securities laws for misstatements contained in the audit opinion letters, although a fourth defendant, who only acted as a concurring review partner, could not be held primarily liable, as his responsibilities were "not the equivalent of the audit engagement partner's responsibilities"). Indeed, the Second Circuit has made the particularly relevant observation that "[s]ilence where there is a duty to disclose can constitute a false or misleading statement within the meaning of § 10(b) and Rule 10b-5." Wright, 152 F.3d at 177 (emphasis added). Thus, by virtue of his role in the securities market and his statutory duties, a defendant may make an implied statement without actually uttering the words in question. Underwriters play an essential role in the sale and distribution of mutual funds to the investing public, which occurs either directly or through other broker-dealers. The text and statutory history of the Securities Act of 1933, and specifically the statute's treatment of underwriters in sections 1121 and 12,22 highlight the unique position they occupy in the securities industry. As the Southern District of New York has observed in the context of evaluating several securities claims: [I]n enacting Section 11, "Congress recognized that underwriters occupied a unique position that enabled them to discover and compel disclosure of essential facts about the offering. Congress believed that subjecting underwriters to the liability provisions would provide the necessary incentive to ensure their careful investigation of the offering." In re Worldcom, Inc. Sec. Litig., 346 F. Supp. 2d 628, 662 (S.D.N.Y. 2004) (quoting The Regulation of Securities Offerings, Securities Act Release No. 7606A, 63 Fed. Reg. 67174, 67230 (Dec. Section 11 of the Securities Act "prohibits false statements or omissions of material fact in registration statements" and "identifies the various categories of defendants subject to liability for a violation," including underwriters. Central Bank, 511 U.S. at 179; see also 15 U.S.C. § 77k(a)(5). Section 12 "prohibits the sale of unregistered, nonexempt securities as well as the sale of securities by means of a material misstatement or omission; and it limits liability to those who offer or sell the security." Central Bank, 511 U.S. at 179; see also 15 U.S.C. § 77l(a). 4, 1998), 1998 WL 833389). Although underwriters are not insurers for offerings, id., Congress has mandated that they "exercise diligence of a type commensurate with the confidence, both as to integrity and competence, that is placed in [them]." H.R. Conf. Rep. No. 73-152, 1933 WL 984, at *26 (1933). The duty of an underwriter to conduct a reasonable investigation was explained by the SEC more than forty years ago as follows: "By associating himself with a proposed offering [an underwriter] impliedly represents that he has made such an investigation in accordance with professional standards. Investors properly rely on this added protection which has a direct bearing on their appraisal of the reliability of the representations in the prospectus. The underwriter who does not make a reasonable investigation is derelict in his responsibilities to deal fairly with the investigating public." In re Worldcom, 346 F. Supp. 2d at 662-63 (insertions in original) (quoting In re the Richmond Corp., Exchange Act Release No. 4585, 41 SEC Docket 398 [1961-1964 Transfer Binder], Fed. L. Sec. Rep. (CCB) ¶ 76,904, 1963 WL 63647, at *7 (Feb. 27, 1963)); see also Municipal Securities Disclosure, Exchange Act Release No. 26,100, 41 SEC Docket 1131, 1988 WL 999989, at *20 (Sept. 22, 1988) (observing that the underwriter "occupies a vital position in an offering" and that, by its participation in a sale of securities, the underwriter makes a recommendation that "implies that the underwriter has a reasonable basis for belief in the truthfulness and completeness of the key representations made in any disclosure documents used in the offerings").23 The case law addressing the duties of underwriters buttresses the SEC's analysis and extends it beyond the traditional context of sections 11 and 12 of the Securities Act, which specifically concern an underwriter's obligation to ensure the accuracy of registration statements and prospectuses. Courts have repeatedly applied section 10(b) to underwriters. See, e.g., SEC v. Dain Rauscher, Inc., 254 F.3d 852, 858 (9th Cir. 2001) (finding genuine issue of material fact as to whether underwriter violated Rule 10b-5 by not complying with its "duty to make an investigation that would provide him with a reasonable basis for a belief that the key representations in the statements provided to the investors were truthful and complete"); Flecker v. Hollywood Entm't Corp., 1997 WL 269488, at *9 (D. Or. Feb. 12, 1997) (finding triable issue of section 10(b) primary liability against underwriter for allegedly false statements that inflated stock prices); In re MTC Elec. Techs. S'holder Litig., 993 F. Supp. 160, 162 (E.D.N.Y. 1997) (applying the standard of primary liability to underwriters in the context of private allegations of Rule 10b-5 violations); Phillips v. Kidder, Peabody & Co., 933 F. Supp. 303, 315-16 (S.D.N.Y. 1996) The SEC specifically observes in this Release that the underwriters' "obligation to have a reasonable basis for belief in the accuracy of statements directly made concerning the offering is underscored when a broker-dealer underwrites securities." Id. at *21. (same); In re U.S.A. Classic Sec. Litig., No. 93 Civ. 6667 (JSM), 1995 WL 363841, at *5 (S.D.N.Y. June 19, 1995) (finding that an underwriter's participation in the issuance of a prospectus was sufficient to state a claim of primary liability under Rule 10b-5); In re Software Toolworks, Inc. Sec. Litig., 50 F.3d 615, 629 (9th Cir. 1994) (finding disputed issues of material fact as to whether underwriters' participation in drafting an allegedly misleading letter to the SEC violated section 10(b)); In re Enron Corp. Sec., Derivative & ERISA Litig., 235 F. Supp. 2d 549, 612 (S.D. Tex. 2002) (finding, based on case law highlighting an underwriter's duty to investigate an issuer and the securities it offers to investors, that an underwriter of a public offering could be held liable under section 10(b) and section 11 of the Securities Act "for any material misstatements or omissions in the registration statement made with scienter"). These precedents reflect the unique position of underwriters as securities insiders whose role is "that of a trail guide – not a mere hiking companion," and who are relied upon by investors for their "reputation, integrity, independence, and expertise." Dolphin and Bradbury, Inc. v. SEC, 512 F.3d 634, 640- 41 (D.C. Cir. 2008) ("Although other broker-dealers may have the same responsibilities in certain contexts, underwriters have a 'heightened obligation' to ensure adequate disclosure."); see also Chris-Craft Indus., Inc. v. Piper Aircraft Corp. 480 F.2d 341, 370 (2d Cir. 1973) ("No greater reliance in our self-regulatory system is placed on any single participant in the issuance of securities than upon the underwriter."). Underwriters have access to information of substantive interest and consequence to investors, and a concomitant duty to investigate and confirm the accuracy of the prospectuses and other fund materials that they distribute. Chris-Craft, 480 F.2d at 370; see also Sanders v. John Nuveen & Co., 524 F.2d 1064, 1071 (7th Cir. 1975) ("Although the underwriter cannot be a guarantor of the soundness of any issue, he may not give it his implied stamp of approval without having a reasonable basis for concluding that the issue is sound."); Walker v. SEC, 383 F.2d 344, 345 (2d Cir. 1967) ("The Commission is justified in holding a securities salesman chargeable with knowledge of the contents of sales literature."). The underwriter's statutory duty to review and confirm the accuracy of the material in the documentation that it distributes generates the implied statement to investors that the underwriter has a reasonable basis to believe that the information contained in the prospectus it uses to offer or sell securities is truthful and complete. See Sanders, 524 F.2d at 1070, 1073 ("[T]he relationship between the underwriter and its customers implicitly involves a favorable recommendation of the issued security. . . . [A]s an underwriter selling the . . . notes, Nuveen made an implied representation that it had reasonable grounds for belief that these notes would be paid at maturity." (footnote omitted));24 see also Chris-Craft, 480 F.2d at 370. Thus, contrary to the majority's assertion, this is not a situation in which the liability alleged is based "merely" on the use of "a statement created entirely by others." In this limited context, where the duties of underwriters to potential investors are prescribed by statute, the knowing or reckless use of a prospectus containing false statements involves the underwriter's own implied statement falsely affirming the accuracy of the prospectus content. The majority attempts to discredit some of this inconvenient precedent because it pre-dates Central Bank. The majority's treatment of Chris-Craft, which strongly supports the SEC's position, is illustrative. The Second Circuit held that an underwriter "makes" a statement under section 14(e) of the Exchange Act when constructively representing that registration materials The judgment in Sanders was vacated and remanded for further consideration in light of the Supreme Court's decision in Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976), which held that scienter is an element of a private cause of action under section 10(b) and Rule 10b-5. See John Nuveen & Co. v. Sanders, 425 U.S. 929 (1976); Hochfelder, 425 U.S. at 193. The Seventh Circuit on remand held that liability could no longer rest on Rule 10b-5 because the defendant's conduct had been "mistaken but honest in belief." 554 F.2d at 792. As the majority points out, when the Seventh Circuit subsequently re-heard the case, it referred to explicit statements made by the defendant underwriter. See 619 F.2d 1222, 1234 (7th Cir. 1980). In its earlier ruling, however, the court had noted that "the evidence does not indicate that all members of the class relied on express recommendations," 524 F.2d at 1069, and it therefore based liability on the underwriter's implied statements. are accurate and complete.25 480 F.2d at 370 (noting that, although an underwriter does not "in a literal sense" make statements to potential investors, we do not read § 14(e) so narrowly"). The majority disregards Chris-Craft because it preceded Central Bank by more than twenty years, observing that the Second Circuit had no reason to distinguish between primary and secondary liability at that time. As the SEC points out, however, and our discussion above confirms, Central Bank did not diminish the statutory duties of underwriters or otherwise affect the courts' identification of the duties owed by underwriters to the investing public. Hence, Chris-Craft and similar cases may not be cast aside as no longer relevant. The majority errs in its dismissal of precedent, fully consistent with Central Bank, indicating that implied statements made by underwriters – a unique class of securities professionals – may fall within the scope of Rule 10b-5. II. My colleagues fear that including implied statements within the purview of Rule 10b-5(b) would trigger a flood of vexatious private lawsuits against a wide spectrum of participants Section 14(e) provides, in relevant part: "It shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading, . . . in connection with any tender offer." 15 U.S.C. § 78n(e). That language is in pertinent respects identical to the language in Rule 10b-5(b) that is at issue here. in the securities industry. I cannot deny that private plaintiffs would try to push the SEC's implied statement position beyond its context in this case. That is a predictable and familiar phenomenon in our legal system. It then becomes the responsibility of courts to determine which attempts to expand the law are meritorious and which are not. Inescapably, this method of developing the law imposes costs on defendants who ultimately prevail. These inevitable costs should not deter us, however, from reaching the result required by the applicable law in the case before us. Specifically, they should not lead us here to circumscribe the authority of the SEC to meet its responsibility to the public to prevent fraud in the securities industry. In addition, the majority's fears discount too readily the particular context of this case. As I have described, underwriters play a unique role in the securities industry, and they have responsibilities and a statutory duty not shared by every securities professional. Indeed, the cases cited in the concurrence for the proposition that the implied representation theory "has been regularly rejected by the circuits" all involve secondary players, such as accountants, auditors and lawyers, who typically lack the "trail guide" relationship with the investing public that is the hallmark of the underwriter's role.26 See Lattanzio v. Deloitte & Touche LLP, 476 F.3d 147, 155 (2d Cir. 2007) (accountant); Fidel v. Farley, 392 F.3d 220, 235 (6th Cir. 2004) (auditor), overruled on other grounds by Tellabs, Tambone's and Hussey's implied statements about their belief in the accuracy of the prospectuses arise from their special status, enforced by statute, which is both widely acknowledged and of long duration. The majority, quoting Chiarella v. United States, 445 U.S. 222, 228 (1980), acknowledges that a duty to disclose information in the securities setting may arise from "'a fiduciary or other similar relation of trust and confidence' between the parties" that exists outside the obligations imposed by Rule 10b-5. See SEC v. Cochran, 214 F.3d 1261, 1265 (10th Cir. 2000) (noting that "a duty to disclose under § 10(b) may be present if either a federal statute (other than § 10(b) itself) or a state statutory or common law recognizes a fiduciary or similar relationship of trust and confidence"). Federal law imposes such a duty on underwriters,27 and that duty provides the context in which an underwriter's conduct may generate an implied statement attesting to the accuracy of a prospectus the underwriter is using Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 324 (2007); Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 1205-06 (11th Cir. 2001) (accounting and law firms); Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1226-27 (10th Cir. 1996) (accountant). The majority quotes Fortson v. Winstead, McGuire, Sechrest & Minick, 961 F.2d 469 (4th Cir. 1992), for the proposition that "'the duty to disclose material facts arises only when there is some basis outside the securities laws, such as state law, for finding a fiduciary or other confidential relationship.'" Id. at 472. Several circuits have adopted the proposition that federal securities law cannot establish the requisite duty. Id. That exclusion would be inappropriate for underwriters, whose unique duty to investors is deeply embedded in federal law independent of section 10(b) and Rule 10b-5. See supra Section B.2. to sell securities. Plaintiffs seeking to expand the SEC's implied statement approach beyond underwriters will face the challenge of identifying an equivalent duty on the part of other actors in the securities industry. Moreover, private litigants face multiple burdens in pleading securities claims. Not only must they meet the standard requirement that allegations of fraud be pleaded with particularity, see Fed. R. Civ. P. 9(b), but – unlike the SEC – they also must prove reliance on the alleged misrepresentations, economic loss, and loss causation, see, e.g., Stoneridge, 552 U.S. at 157. The reliance requirement, in particular, weakens my colleagues' concern that private litigants will be able to bring impermissible aiding and abetting claims in the guise of primary claims. With significant barriers already in place to protect against excessive securities litigation by private plaintiffs, the way to protect against overreaching by private plaintiffs is to strictly enforce those requirements – not to deny the SEC the full scope of its enforcement authority. III. The underwriter's special duty to investors is anchored in statutes and administrative guidance and confirmed by case law whose relevant wisdom was unaffected by the Supreme Court's decision in Central Bank. In light of that duty, an underwriter who uses a prospectus in a securities transaction in the manner alleged here impliedly states that he has reason to believe the contents of the prospectus are accurate. If the underwriter knows, or is reckless in not knowing, that the statements contained within the prospectus are in fact false, the underwriter's implied statement is likewise false. An underwriter who makes such a statement has violated Rule 10b-5(b). The SEC in this case alleges that Tambone and Hussey made such statements to investors when they used the prospectuses containing false statements about timing practices to sell the Columbia Funds. They allegedly knew, or were reckless in not knowing, that those statements were false. These allegations were stated with sufficient particularity to meet the requirements of Fed. R. Civ. P. 12(b)(6), in conjunction with Rule 9(b).28 Defendants' motions to dismiss the primary liability claims under section 10(b) and Rule 10b-5(b) should therefore have been denied. Hence, I would reverse the dismissal of the SEC's claims under section 10(b) and Rule 10b-5(b) and remand to the district court for further proceedings on those claims, as well as on the section 17(a)(2) and aiding and abetting claims. The allegations in the SEC's complaint are described in detail in the panel decision, SEC v. Tambone, 550 F.3d 106, 141-143 (1st Cir. 2008), and need not be repeated here. It suffices to say that the SEC meticulously identified the alleged misrepresentations, the defendants' roles in overseeing the distribution of fund prospectuses in connection with the sale of Columbia Funds, and the basis for their knowledge or recklessness in not knowing that prohibited market timing arrangements existed (rendering the prospectus statements false).

Not for Publication in West’s Federal Reporter United States Court of Appeals For the First Circuit No. 09-1787 GINETTE MORRISSETTE, ADMINISTRATOR OF THE ESTATE OF DANIEL J. GAGNON, Plaintiff, Appellant, v. TELEDYNE PRINCETON, INC., Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, District Judge] Before Lynch, Chief Judge, Boudin and Stahl, Circuit Judges. R. David DePuy with whom Scott H. Harris, Adam M. Hamel, and McLane, Graf, Raulerson & Middleton, Professional Association were on brief for appellant. David G. Klaber with whom Mark D. Feczko, Jared S. Hawk, Jeffrey S. King, Gregory R. Youman, and K&L Gates LLP were on brief for appellee. February 12, 2010 Per Curiam. The issue before us is whether the district court abused its discretion by denying plaintiff Ginette Morrissette's post-trial motions for a new trial and for default judgment as a sanction for an alleged discovery violation. Plaintiff was granted a continuance to conduct further discovery when the disputed evidence emerged and expressly elected to proceed with trial after doing so. We find no abuse of discretion and affirm. The underlying case involves a federal products liability action arising out of a forklift accident that occurred on June 9, 1999. The forklift manufacturer is the defendant. The forklift driver died on June 17, 2006, while this litigation was pending; the administrator of his estate proceeded to trial in the federal district court of Massachusetts. Trial began on January 15, 2008. On the fourth day of a fifteen-day jury trial, plaintiff learned that test results from a different model forklift had been used to derive capacity information about the forklift involved in the accident. Defendant had previously denied having any test information relevant to the forklift model that the decedent had been driving. After hearing from both sides on the issue, the district court denied plaintiff's motion for sanctions and opted to suspend trial for three days to allow the parties "to get to the bottom of this testing and talk to whomever [they] need[ed] to talk to." During this period, plaintiff conducted three depositions and obtained seventy-nine pages of documents related to the forklift test results. At a conference on January 31, 2008, the court asked plaintiff's counsel how he intended to proceed. Plaintiff's counsel repeatedly indicated his readiness to move forward with the trial. Plaintiff did not ask for a further continuance or move for a new trial and went forward with the trial. Plaintiff then admitted the test results into evidence, had her liability expert testify about them, used them in her cross-examination of defendant's liability expert, and referred to them repeatedly at closing. On February 12, 2008, the jury returned a unanimous verdict for the defendant. Plaintiff moved for a grant of new trial under Rules 59 and 60(b) and for entry of default judgment against the defendant as a sanction for its alleged discovery violation. The trial judge died before acting on this motion. Another judge denied the motion on March 24, 2009, and denied plaintiff's motion for reconsideration on May 13, 2009.1 On appeal, plaintiff urges that the district court erred by refusing to set aside the jury's verdict. We review for abuse of discretion the denial of the new trial, Jennings v. Jones, 587 Defendant's assertion that we lack jurisdiction over the March 24 order because plaintiff failed to file a notice of appeal within thirty days of that order is flatly contradicted by our caselaw. See Marie v. Allied Home Mortgage Corp., 402 F.3d 1, 7 (1st Cir. 2005). F.3d 430, 436-37 (1st Cir. 2009), and the denial of sanctions, see Ferrara & DiMercurio v. St. Paul Mercury Ins. Co., 240 F.3d 1, 12- 13 (1st Cir. 2001). Plaintiff asks that we order as a remedy the entry of judgment in her favor and does not seek a new trial. There was no error, however, to remedy. Plaintiff made the strategic choice to proceed with trial after the disputed evidence emerged. We have repeatedly held "that the appropriate course for parties who uncover discovery violations is 'not to seek reversal after an unfavorable verdict,' but to request a continuance 'at the time the surprise occurs.'" Tiller v. Baghdady, 294 F.3d 277, 281 (1st Cir. 2002) (quoting U.S. Fid. & Guar. Co. v. Baker Material Handling Corp., 62 F.3d 24, 29 (1st Cir. 1995)). Plaintiff was granted a three-day continuance and used this time to conduct extensive discovery. Plaintiff did not request an additional continuance or seek a mistrial at that point, and she must live with that choice. The district court did not abuse its discretion when it denied plaintiff's post-trial motions. Affirmed.

United States Court of Appeals For the First Circuit No. 09-1165 IN RE: AMERICAN BRIDGE PRODUCTS, INC., Debtor. __________ LYNNE F. RILEY, CHAPTER 7 TRUSTEE OF AMERICAN BRIDGE PRODUCTS, INC., Appellant, v. NICHOLAS J. DECOULOS, ESQ., Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. George A. O'Toole, Jr., U.S. District Judge] Before Boudin, Stahl and Lipez, Circuit Judges. Lynne F. Riley with whom Altman Riley Esher LLP was on brief for appellant. Charles R. Bennett, Jr. with whom Kathleen E. Cross and Hanify & King, P.C. were on brief for appellee. March 10, 2010 BOUDIN, Circuit Judge. More than 16 years ago, Nicholas Decoulos (appellee in this court) was appointed receiver of American Bridge Products, Inc., by a Massachusetts state court, and more than 13 years ago American Bridge was put into involuntary bankruptcy. Most of the issues involved in American Bridge's receivership and bankruptcy have been resolved, but a claim endures by bankruptcy trustee Lynne Riley (now appellant in this court) to recover from Decoulos for misfeasance while receiver that damaged the American Bridge estate. That claim is the subject of the present appeal. In August 1993, American Bridge and its then-owners filed a complaint in Massachusetts Superior Court alleging that a group of defendants--including Robert Conti, a major investor in American Bridge, and John Conti, Robert's son and a former employee of American Bridge--had converted and were conspiring to convert American Bridge's assets to their private benefit in fraud of the company's creditors. Everett Savings Bank was also charged with assisting Robert Conti to divert American Bridge's bank assets into accounts controlled by Conti. The next month, the state court appointed Decoulos as receiver of American Bridge. Not long after, American Bridge's principals and creditors began to complain about Decoulos' performance as receiver. Efforts opposing Decoulos began in October 1993, and included a failed attempt to put the company into federal bankruptcy proceedings, fruitless complaints about Decoulos to state bar authorities, and objections to Decoulos' fee and other applications, which were nevertheless approved by the state court, summarily so in most cases. In July 1995, American Bridge's owners filed the first of two unsuccessful motions seeking to remove Decoulos as receiver. In August 1996, the owners and a major creditor of American Bridge filed an involuntary Chapter 7 bankruptcy petition against the company. When Decoulos resisted, proponents filed an affidavit that set forth in detail Decoulos' shortcomings as receiver. In October, the federal bankruptcy court granted the motion for an involuntary bankruptcy and shortly thereafter appointed Joseph Braunstein as bankruptcy trustee. Control of the estate passed to him. Under the Bankruptcy Code, Decoulos now had an obligation to account to the federal court as to the property he had held as receiver (and which now passed to the trustee). 11 U.S.C. § 543(b)(2) (2006) (accounting requirement); id. § 543(c) (surcharge authority); Fed. R. Bankr. P. 6002 (2009). Without filing an accounting, Decoulos sought compensation for earlier work as receiver. Braunstein and several creditors objected and the court allowed an examination of Decoulos as to the fate of certain American Bridge assets. The matter then remained in limbo while other disputes involving the bankruptcy were resolved. In March 1999, Braunstein resigned as trustee and was replaced in October 1999 by Riley. On March 9, 2000, Riley filed an adversary proceeding against Decoulos personally, alleging inter alia negligence and breach of fiduciary duty by Decoulos in his capacity as receiver.1 Under Massachusetts law, these two claims had a three-year statute of limitations, Mass. Gen. Laws ch. 260, § 2A (2009); LoCicero v. Leslie, 948 F. Supp. 10, 12 n.2 (D. Mass. 1996), and Decoulos had ceased to be a receiver in 1996. Further, Riley's predecessor Braunstein had investigated possible claims against Decoulos and determined not to pursue them. Nevertheless, the bankruptcy court rejected Decoulos' statute of limitations objection on the ground that the statute did not start to run until Decoulos had accounted for his administration and been discharged, and neither had occurred either in the state court prior to bankruptcy or in the bankruptcy court thereafter. In re Am. Bridge Prods., Inc., 328 B.R. 274, 350 (Bankr. D. Mass. 2005). A trial on Riley's claims, held over 15 days in 2004, resulted in detailed findings by the bankruptcy judge that Decoulos had mismanaged the receivership, and a substantial judgment was awarded to Riley as trustee. Id. at 341-50, 356. Riley also brought a claim for unfair trade practices, claims against Decoulos in his capacity as attorney to the estate, claims against his law firm and claims against other defendants, but none of these are at issue on this appeal. Liability was imposed, with particulars, for "fail[ing] to adhere to the orders issued by the" state court, "fail[ing] to take possession of [American Bridge]'s assets in a timely manner," "fail[ing] to recognize and proceed with causes of action," "fail[ing] to act impartially in considering the allegations in" American Bridge's Complaint, "fail[ing] to take steps" to prevent the conversion of American Bridge's assets, and "fail[ing] to seek, let alone obtain, appropriate court orders" to pursue actions against the defendants in the litigation. In re Am. Bridge Prods., 328 B.R. at 342. The judgment against Decoulos was for the lesser of $379,173.78 or the amount needed to pay all creditors and administrative claims of the estate, In re Am. Bridge Prods., 328 B.R. at 356, amended thereafter to add prejudgment interest. The damages, calculated item by item, comprised waste of inventory and materials under Decoulos' management; diminishment of value of assets; unremedied diversion to the Contis of debts owed the company; and unremedied loss due to similar diversion by Everett Savings Bank. Id. at 349. The bankruptcy court also ordered Decoulos to disgorge any fees paid to him while receiver. Id. at 349-50. On appeal, the district court reversed, ruling that the Massachusetts statute of limitations ran from the discovery of Decoulos' actions and barred Riley's claims. In re Am. Bridge Prods., Inc., 398 B.R. 724, 730-34, 736 (D. Mass. 2009). Riley now appeals. Decoulos defends the district court and, in addition, offers alternative grounds for sustaining its result. Our review of rulings of law is de novo; the bankruptcy court's findings are tested for clear error. In re Northwood Props., LLC, 509 F.3d 15, 21 (1st Cir. 2007). At the threshold, Decoulos claims that the bankruptcy court lacked subject matter jurisdiction, arguing first that under Barton v. Barbour, 104 U.S. 126, 136 (1881), actions against the receiver required the approval of the state court and, second, that under the Rooker-Feldman doctrine federal courts cannot review final orders of a state court. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). The second argument was raised below, although the first was not; however, Barton v. Barbour may be viewed as jurisdictional, Muratore v. Darr, 375 F.3d 140, 146-47 (1st Cir. 2004); but cf. Robinson v. Tr. of N.Y., N.H. & H.R. Co., 60 N.E.2d 593, 599 (Mass. 1945). Barton aims to protect the authority of the court that appointed the receiver and avoid costs and other complications that would arise from dual superintendence of the same property. Barton, 104 U.S. at 136-37; In re Linton, 136 F.3d 544, 545 (7th Cir. 1998). In this case, authority over the estate had passed to the federal courts before Riley's claim was filed; the receiver was therefore responsible to account to the bankruptcy court, and Riley had permission from that court to bring suit. Thus, the concerns that animated Barton were not present. As for Rooker-Feldman, the rule applies only when "the losing party in state court filed suit in federal court after the state proceedings ended, complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291 (2005). Whatever limited and implicit attention the state court may have paid to charges of wrongdoing when approving Decoulos' various applications on largely unrelated topics, no prior judgment was entered by the state court on the claims that Riley now pursues. Finally, the bankruptcy court had authority to resolve Riley's claims. Decoulos had made his own claim in the bankruptcy court for compensation and a compulsory counterclaim appears to fall within the statutory definition of core proceedings. 28 U.S.C. § 157(b)(2); In re CBI Holding Co., Inc., 529 F.3d 432, 460 (2d Cir. 2008); In re Am. Bridge Prods., 398 B.R. at 729-30. We need not determine whether, independently, the statutory surcharge power under 11 U.S.C. § 543 extends to pre-bankruptcy conduct by a prior custodian. See generally In re Sundance Corp., 149 B.R. 641, 650 (Bankr. E.D. Wash. 1993). On the merits, we agree with Decoulos that but for his status as receiver, the limitations defense would likely succeed. Riley framed her charge as state causes of action for negligence and breach of fiduciary duty, and she does not argue they have become federal claims merely because the estate later entered federal bankruptcy. As already noted, the Massachusetts limitations period for the state claims is three years, and Decoulos' challenged conduct as receiver occurred more than three years before Riley sued. Of course, limitations statutes may be tolled where the wrongful conduct was concealed or difficult to ascertain at the time it occurred. E.g., Koe v. Mercer, 876 N.E.2d 831, 836 (Mass. 2007). But although Riley contends otherwise, enough was known by those who objected to Decoulos' conduct in the state court and by Braunstein, who conducted his own investigation, to bring an end to such tolling more than three years before Riley's suit. We would describe the pertinent facts in detail if the fate of Riley's appeal depended on this tolling issue, but it does not. The bankruptcy court rejected the limitations defense not because of concealment or lack of knowledge but on the ground that Decoulos had not rendered a final accounting or been discharged in either state or federal court. In re Am. Bridge Prods., 328 B.R. at 350. In the bankruptcy judge's view, a receiver or bankruptcy trustee's liability for misconduct remains open, despite ordinary limitations rules, until a final accounting and discharge (unless, presumably, the issue had been definitively determined by a competent court before a final accounting). Thus, the bankruptcy judge said that "[a]ny determination of a receiver's liability, whether personal or official, is not subject to a statute of limitations defense in the absence of his discharge," 328 B.R. at 350, citing to a passage of the treatise Clark on Receivers; the passage can be read to say that a receiver's liability for misconduct in relation to his duties continues, despite the statute of limitations, until he has fulfilled his duty to account and is discharged.2 "Decoulos," the judge pointed out, "neither received a discharge in [state court] nor filed a report and account in accordance with Fed. R. Bankr. P. 6002." Id. In reversing, the district court said that the treatise position, supported only by citation to a 19th-century English case, might have been referring only to actions against the receiver in an official capacity (as opposed to personal dereliction) and anyway nothing showed that Massachusetts has adopted the treatise position. In re Am. Bridge Prods., 398 B.R. "Statute of limitations does not run in favor of receiver. The position of a receiver is one in which liability to account would not easily be barred, and so long as he is living he must be held to have been a trustee of the money received[,] therefore the defense of the statute of limitations is not a bar to a claim against him." Clark, Law of Receivers, § 418, at 705-06 (3d ed. 1959). at 730-32. The district court thought the position refuted by Massachusetts cases indicating that where an ordinary trustee breaches his duties and repudiates the trust, the limitations period begins to run when a beneficiary has knowledge of the breach and repudiation. E.g., Lattuca v. Robsham, 812 N.E.2d 877, 884 (Mass. 2004). However, this court In re San Juan Hotel Corp., 847 F.2d 931 (1st Cir. 1988), rejected a former bankruptcy trustee's argument that "personal liability actions against a bankruptcy trustee can be time-barred before the trustee has presented a final account to the bankruptcy court and been discharged." Id. at 939. Instead, the court held "a trustee cannot be released from liability before discharge" because the purpose of the final accounting is to ensure that a trustee can be held accountable after making full disclosure. Id. at 939.3 True, the trustee in San Juan Hotel was already under federal authority when he committed his wrongs while Decoulos was a state receiver at the time of the wrongs. Although the bankruptcy court had jurisdiction to decide the claims against Decoulos, facially the claims remained ones arising under state law and presumptively Riley could not recover if those claims were now This was one of two alternative grounds adopted in San Juan Hotel (the other being tolling of the statute until the wrong was revealed). San Juan Hotel is not binding precedent as to Massachusetts law but rather is relevant and useful authority. barred under state limitations rules. The first assumption seems fairly secure and the second, if perhaps open to debate, we will assume arguendo in favor of Decoulos.4 Claims against a trustee for breach of fiduciary duty are typically equitable claims, In re San Juan Hotel Corp., 847 F.2d at 938, but, in Massachusetts, such equitable claims are nevertheless subject to statutes of limitation. Stoneham Five Cents Sav. Bank v. Johnson, 3 N.E.2d 730, 732 (Mass. 1936) ("statutes of limitation apply of their own force to suits in equity"); Farnam v. Brooks, 26 Mass. 212, 216 (1830); 6 Smith & Zobel, Massachusetts Practice § 8.17 (2d ed. 2006). The district judge was correct in saying that in a suit against an ordinary faithless or incompetent trustee, the statute begins to run once the wrongdoing comes to light. O'Connor v. Redstone, 896 N.E.2d 595, 607-09 (Mass. 2008). But ordinary trusts operate without much court supervision and often indefinitely. Receivers and bankruptcy trustees, by contrast, look to wind up an estate, aiming at a final, closing-the-books accounting. Hess, Bogert & Bogert, The Law of Trusts and Trustees § 14, 165-71 (3d ed. 2008); Scott & Fratcher, The Law of Trusts § 16A, 211-12 (4th ed. 1989). San Juan Hotel treated the rule it propounded not as some peculiarity of Occasionally, a federal connection may convert state law claims into ones governed by federal law, Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 62-67 (1987); Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 456-57 (1957), but the concerns in those cases are different. federal law but as a general rule applicable to trustees who are winding up estates, and the Clark treatise relied upon by the bankruptcy judge was not focused on federal law at all. Absent Massachusetts case law to the contrary, it is reasonable to assume that Massachusetts would follow the same approach in cases where the receiver is engaged in winding up an estate. Cf. Mass. R. Civ. P. 66(e) ("[N]o order discharging a receiver from further responsibility will be entered until he has settled his final account."). Decoulos argues that the Clark treatise approach entails liability without limit in time, but filing the required accounting and obtaining a discharge would trigger limitations protections. In re San Juan Hotel Corp., 847 F.2d at 940. Further, although limitations periods have not run, Massachusetts case law allows laches to be asserted against equitable claims where undue delay combines with prejudice. Cohen v. Bailly, 165 N.E. 7, 11 (Mass. 1929); W. Broadway Task Force v. Boston Hous. Auth., 608 N.E.2d 713, 716 (Mass. 1993). So even without a final accounting, Decoulos was free to show that he had been prejudiced by the delay in the claims against him; but he did not do so. Decoulos does argue that his receivership terminated; that he gave an "oral accounting" to Braunstein; and that the bankruptcy court's authority to "surcharge" is limited only to improper disbursements. But termination neither extinguishes liabilities nor under San Juan Hotel and the Clark treatise starts the limitations period running. And an accounting must ordinarily be presented for court review, e.g., Fed. R. Bankr. P. 6002; In re Ira Haupt & Co., 287 F. Supp. 318, 322-23 (S.D.N.Y. 1968); disclosure to a successor may have other consequences but it does not prompt a discharge or constitute approval by a court. Decoulos says that "virtually all" of the conduct for which he was surcharged had been approved by the state court and, under settled doctrine governing trustee conduct and under res judicata principles, cannot be made the basis for personal liability.5 But most of the orders entered by the state court are unrelated to the actions for which the bankruptcy court surcharged him. Ironically, the bankruptcy court surcharged Decoulos in part for actions taken in disregard of or contrary to the orders of the state court which Decoulos claims protect him. The state court order most closely related to Riley's claims permitted Decoulos to sell American Bridge's personal property for $6,000 to a company controlled by the Contis. Decoulos argues this order barred the bankruptcy court from awarding $29,000 against him for allowing "the loss and waste of "[A] trustee acting with the explicit approval of a bankruptcy court is entitled to absolute immunity" from personal liability as long as trustee has made "full and frank disclosure to creditors and the court" and did not "prevaricate[] or otherwise act[] in bad faith." In re Mailman Steam Carpet Cleaning Corp., 196 F.3d at 8; accord, Kermit Const. Corp. v. Banco Credito y Ahorro Ponceno, 547 F.2d 1, 3 (1st Cir. 1976)). [American Bridge]'s assets." Id. at 343. But the bankruptcy court premised liability not on misconduct making the sale approved by the state court, but on Decoulos' "failure to secure inventory and equipment belonging to [American Bridge]," allowing conversion of $29,000 in value before the sale. Id. The other state court sale-of-assets order cited by Decoulos authorized him "to sell the blueprint machine that is presently in the possession of John Conti for the sum of Eight Hundred ($800.00) Dollars." The bankruptcy court held Decoulos liable for the loss in value of $35,000 in equipment acquired in 1990, id. at 285, 344, but the blueprint machine, referred to by the bankruptcy court as having been purchased in 1993, id. at 298, does not appear to have been part of this category. In re Iannochino, 242 F.3d 36, 45 (1st Cir. 2001), relied on by Decoulos, is not on point. There, an attorney making a final fee request from an estate gained approval without objection as to the quality of his services and was later sued for malpractice. The complaint was deemed barred by claim preclusion on the ground that the misconduct could and should have been asserted as a defense to the fee award and that allowing the malpractice suit would undermine the final judgment by opening up the fee award to disgorgement, contrary to claim preclusion doctrine. Here, by contrast, objectors to the initial Decoulos fee request did object that Decoulos had been guilty of misconduct-- exactly what Iannochino says they should have done; but the state court seems to have ignored the issue and rejected two further requests to remove Decoulos with cursory or no explanation. Of course, had the state court heard evidence and made findings vindicating Decoulos, there might be possible claims of issue preclusion; but the burden of showing such a vindication was upon Decoulos and he has not even attempted any such showing.6 Lastly, Decoulos argues that the bankruptcy court was barred from imposing liability on him for failing to pursue prompt action against Everett Savings Bank because, in his last report to the state court, Decoulos reported the full amount of the misappropriation, along with the bank's possible defenses. Decoulos' mere reporting of the amount of the claim does not indicate that the state court approved his failure to pursue it. In a nutshell, the state court does not appear to have authorized or approved the challenged conduct. Decoulos does not argue on appeal that the bankruptcy court erred in finding that he breached his duty of care, but does The Restatement requires for issue preclusion a showing that the issue was actually litigated and decided on the merits. Restatement (Second) of Judgments §§ 27-28 (1982). Massachusetts law is similar. Alba v. Raytheon Co., 809 N.E.2d 516, 522 (Mass. 2004) (where not "strictly essential" to the judgment, proponent must show adjudication to be "the product of full litigation and careful decision" (quoting Green v. Brookline, 757 N.E.2d 731, 735- 36 (Mass. App. Ct. 2001))). The resolution must also be final, a requirement that Iannochino found satisfied because--unlike Decoulos' awards--the disposition ended the attorney's service. Iannochino, 242 F.3d at 45. argue in closing that the evidence does not support the finding that his actions or inactions caused the damages assessed. We review the bankruptcy court's causation finding for clear error, Clement v. United States, 980 F.2d 48, 53 (1st Cir. 1992), and our review here does not leave us "with the definite and firm conviction that a mistake has been committed," id. (quoting Deguio v. United States, 920 F.2d 103, 105 (1st Cir. 1990)). The judgment of the district court is vacated and the case remanded for further proceedings consistent with this decision. Costs are taxed in favor of the appellant. It is so ordered.

United States Court of Appeals For the First Circuit No. 09-1558 CHIEF CHARLES D. FOLEY, JR., Plaintiff, Appellant, v. TOWN OF RANDOLPH, MASSACHUSETTS; RICHARD W. WELLS, PAUL J. CONNORS, WILLIAM ALEXOPOULOS IN THEIR OFFICIAL CAPACITIES; MAUREEN C. KENNY AND JAMES BURGESS IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge] Before Lynch, Chief Judge, Stahl, Circuit Judge, and DiClerico,* District Judge. Kevin G. Powers with whom Linda Evans and Rodgers, Powers & Schwartz LLP were on brief for appellant. John Foskett with whom Paul R. DeRensis and Deutsch, Williams, Brooks, Derensis & Holland, P.C., were on brief for appellees. March 10, 2010 * Of the District of New Hampshire, sitting by designation. STAHL, Circuit Judge. Plaintiff-appellant Charles D. Foley, Jr. ("Foley"), Chief of the Fire Department in Randolph, Massachusetts, claims that the Town of Randolph and the Town selectmen ("Defendants") wrongfully retaliated against him in violation of his First Amendment rights when they suspended him for fifteen days based on public statements that he made at the scene of a fatal fire. Plaintiff brought suit pursuant to 42 U.S.C. § 1983, and the district court granted summary judgment in favor of Defendants. Plaintiff now appeals, and after a careful review, we affirm. I. Facts and Background The following facts are undisputed, except where stated. On May 17, 2007, at approximately 5:00 a.m., the Randolph Fire Department ("Department") responded to a fire at a single-family residence in Randolph. When Foley arrived at the scene, he took command as Chief of the Fire Department. Tragically, two children, ages seventeen and ten, were trapped in a second floor bedroom and died. At the scene of the fatal fire, the State Fire Marshal, Foley, and Sergeant Frank McGinn, an employee of the State Fire Marshal's office and the lead investigator that day, answered questions from the media at press conferences convened by the Marshal.1 Foley was in uniform and fire suppression activities According to Foley, there were three press conferences at the scene, all of which were facilitated by the Marshal. Foley also recalled in his deposition that Deputy Marshal Leonard, the State were still ongoing when he spoke, though Foley asserts that, by the time of the first press conference, the fire was under control and he had stepped away from command, leaving the deputy chief in charge. At that first press conference, the Marshal spoke, and then Foley addressed the reporters. Foley spoke about the details of the fire, but he also commented on what he considered to be inadequate funding and a related lack of staffing at the Randolph Fire Department.2 Foley noted that the Department had lost positions each year since 2002 and that the Department's response times had increased over the same period. While Foley could not definitively state that the outcome in this particular fire would have been different if the Department had been better staffed, he indicated that the operation would have gone more professionally and more according to standard if the Department had more manpower. Foley then declined to answer questions from the press which related to the ongoing investigation of the fire, for example, whether there were any working smoke detectors inside the Fire Marshal's second-in-command, was present at the press conferences, but Foley said that he did not believe that Leonard made a statement. Foley characterizes his role at the press conferences as "talking about the fire" and answering questions from the press. However, it is unclear from the partial transcript of the first press conference whether Foley's comments about the understaffing and underfunding of the Department were prompted by a question from the press or were made on Foley's own initiative. house and where in the house the fire started. Subsequently, in response to questions from reporters, he again spoke of his frustration that the staffing levels of the Department were inadequate to accomplish the Department's goals. He referred specifically to Proposition 2 ½, Mass. Gen. Laws ch. 59, § 21C, the Massachusetts statute which limits property tax increases by municipalities, and lamented that the proposed overrides to Proposition 2 ½ had been defeated in the Town of Randolph for two years in a row. He said, "I've been asking to replace the fire fighters here in the Town over the last five years and it seems to have fallen on deaf ears." He then said to the reporters, "As many of you are here today you have the resources to bring this information to the public." Also, at the scene of the fire, Foley objected to the reduction in the number of firefighters in the Department to Defendant James F. Burgess, Jr., a Randolph Selectman. Burgess asserted in his affidavit that during this exchange, Foley grabbed the draft of a reporter's newspaper article and "shoved [it] forcefully" into Burgess's chest. Foley disputes this allegation, asserting that he "passed the draft to Burgess." Foley also spoke with Defendant Maureen C. Kenney, a Selectwoman of Randolph, at the scene and made reference to the manpower cuts in the Department. Later that day, Foley called Kenney at her home, and Kenney criticized him for addressing staffing and budgetary issues at the scene of the fire, rather than focusing on the victims or the heroism of the firefighters. Subsequent to these events, disciplinary charges were brought against Foley.3 It was alleged that Foley's statements to the media at the scene of the fire "demonstrated a lack of sound judgment and of accuracy" and "were not conducive to the Town's mission of providing effective fire protection services"; that Foley had "initiated inappropriate physical contact" with Burgess; and that Foley "displayed a lack of the demeanor, ability, and independent judgment required for competent command and control" while interacting with Kenney at the scene. The Town appointed a hearing officer to evaluate the allegations and determine whether there was cause to discipline Foley. The hearing officer considered testimony and exhibits during a three-day hearing, and on August 27, 2007, issued a report finding that Foley did "initiate inappropriate and unprovoked physical contact" with Burgess and that he made "inappropriate, inaccurate, intemperate, and misleading statements to the news media" at the scene of the May 17, 2007, fire.4 The hearing Though Foley asserts that it was Burgess and Kenney who brought the charges against him, the record does not reveal the origin of the allegations. Regarding the third allegation, the hearing officer concluded that while Foley was, in fact, "emotional" at the scene, "his exhibition of emotions did not impair him from being in command or in tactical control of the fire scene nor was such behavior inappropriate or irregular under those circumstances." officer recommended that Foley be suspended without compensation for fifteen workdays. On September 10, 2007, the Board of Selectmen voted three-to-two to adopt the hearing officer's recommendation, and Foley was suspended for fifteen consecutive workdays without compensation, commencing on September 17, 2007. Neither the contract which governed Foley's employment from 2003 to 2006 nor the "strong" chief statute, Mass. Gen. Laws ch. 48, § 42, which governed his employment subsequent to October 31, 2006, specifically authorized or required Foley to make public statements on matters affecting the Fire Department as part of his official duties as Chief. However, nothing in the contract or the statute prohibited Foley from doing so.5 Previously, in August 2006, Foley received a written performance evaluation from the Town, which scored his job performance in seven categories, including "Public & Community Relations/Communication." The description of that category included: "[i]nteracts well with the media." In an affidavit, Foley stated that his communications with the media were made of In 2006, when Foley and the Board of Selectmen were engaged in contract negotiations, Foley proposed a provision that specifically granted him, as Fire Chief, the authority to make public statements on "any matters which may affect the public as they may apply to public safety . . . or the fire department generally." That provision and the majority of the other provisions proposed by Foley were rejected by the Board. Because Foley and the Town were unable to agree on a negotiated contract, the Board reappointed Foley under the provisions of Mass. Gen. Laws ch. 48, § 42. his "own volition" but that he was expected by Town officials and residents to "interact well" with the media on those occasions when he chose to do so. Prior to the incident at issue in this case, Foley had conducted at least one other press conference, answered media inquiries, and offered comment to the media regarding the business of the Department and the Department's activities. Richard Wells, Foley's immediate predecessor in the Fire Chief position, also routinely responded to inquiries from the media regarding the Fire Department during his tenure. Foley filed this action in the United States District Court for the District of Massachusetts, on November 30, 2007, alleging a violation of his First Amendment rights and several state law claims. Both parties filed motions for summary judgment, and after a hearing and a review of the submissions, the district court granted the Defendants' motion as to Foley's First Amendment claim in a Memorandum and Order dated March 11, 2009. It is from that order that Foley now appeals.6 II. Discussion A. Standard of Review We review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to Foley The district court dismissed Foley's state law claims without prejudice, and Foley has limited his appeal to his First Amendment claim. and drawing all reasonable inferences in his favor. Schubert v. City of Springfield, 589 F.3d 496, 500 (1st Cir. 2009). Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). B. Foley's First Amendment Claim Foley argues that his speech to the media at the scene of the fire on May 17, 2007, was protected by the First Amendment and that by disciplining him on account of that speech, the Defendants have violated the Constitution. Given the circumstances surrounding the speech in this case, we disagree. The Supreme Court has long recognized that public employees do not forego all the protections of the First Amendment by virtue of working for the government. See Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). The Court's employee-speech jurisprudence has protected the rights not only of the employees themselves, but of the general public "in receiving the well- informed views of government employees engaging in civic discussion." Garcetti v. Ceballos, 547 U.S. 410, 419 (2006). Against these interests, the Court has sought to balance the interests of government employers in exercising some degree of control over their employees' words and actions in order to ensure the efficient provision of public services. Id. at 418-19. The Court has held that "[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively." Id. at 419. In other words, to determine whether Foley's speech is entitled to First Amendment protection, the first question we must answer is whether Foley was both (1) speaking about a matter of public concern and (2) speaking as a citizen.7 If the answer to either of these sub-parts is no, then he has no First Amendment claim based on the Defendants' action in relation to his speech. Garcetti, 547 U.S. at 418. It is only if we determine that Foley was speaking as a citizen about a matter of public concern that "the possibility of a First Amendment claim arises, and the second step of the inquiry is made: 'The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.'" Curran v. Cousins, 509 F.3d 36, 45 (1st Cir. 2007)(quoting Garcetti, 547 U.S. at 418). Here, Foley was obviously speaking about a matter of public concern. The budget and effectiveness of a town's fire Though Foley argues otherwise, we have previously held that this is a question of law for the court when, as here, the material facts are not in dispute. Curran v. Cousins, 509 F.3d 36, 45 (1st Cir. 2007); accord Gagliardi v. Sullivan, 513 F.3d 301, 306 n.8 (1st Cir. 2008). department is certainly of concern to the public, especially when that budget may be impacted by voter approval of an increase to the town's property tax burden. As Chief of the Fire Department, Foley's opinion on the effect of diminished resources on the Department's ability to fight fires is an example of the "well- informed views" which the public has an interest in receiving. At issue, then, is whether Foley was speaking as a citizen when he made his remarks to the press about underfunding and understaffing. In Garcetti, the Court held that when public employees make statements "pursuant to their official duties," they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communication from employer discipline. 547 U.S. at 421. This is so because "[e]mployers have heightened interests in controlling speech made by an employee in his or her professional capacity." Id. at 422. But the Court acknowledged that the case afforded it "no occasion to articulate a comprehensive framework for defining the scope of an employee's duties in cases where there is room for serious debate" since the plaintiff, Ceballos, had conceded his speech was pursuant to his employment duties.8 Id. at 424. Ceballos, a deputy district attorney, had prepared an internal memorandum for his supervisors expressing his belief that an affidavit used to obtain a critical search warrant in a case contained serious misrepresentations and recommending dismissal of the case. Garcetti, 547 U.S. at 413-14. Ceballos claimed that the memorandum was protected speech. The Court did provide some guidance, however, indicating that the scope of an employee's duties for First Amendment purposes may not necessarily be determined by the employee's formal job description, as "[f]ormal job descriptions often bear little resemblance to the duties an employee actually is expected to perform." Garcetti, 547 U.S. at 424-25. Further, it was not dispositive that Ceballos "expressed his views inside his office, rather than publicly" or that the speech in question "concerned the subject matter of [his] employment." Id. at 420-21. Ultimately, "[t]he proper inquiry is a practical one." Id. at 424. In dicta, the Court stated that an employee's speech retains some possibility of First Amendment protection when it is "the kind of activity engaged in by citizens who do not work for the government." Garcetti, 547 U.S. at 423. The Court cited two examples of such activity: (1) writing a letter to a local newspaper, as the teacher-plaintiff did in Pickering to criticize the school board, see 391 U.S. at 566, and (2) discussing politics with a co-worker, see Rankin v. McPherson, 483 U.S. 378 (1987), and equated them to "public statements [made] outside the course of performing [one's] official duties." Garcetti, 547 U.S. at 423. The Court distinguished those examples from speech made pursuant to employment responsibilities, for which "there is no relevant analogue to speech by citizens who are not government employees." Id. at 424. Ceballos's speech had no such analogue; when he wrote the internal memorandum at issue in the case, he "spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case." Id. at 421 (emphasis added). In analyzing whether Foley spoke as a citizen rather than as the Chief of the Fire Department, we first note that it is not dispositive that Foley was not required to speak to the media. See Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192, 1203 (10th Cir. 2007) ("speech may be made pursuant to an employee's official duties even if it deals with activities that the employee is not expressly required to perform"); Williams v. Dallas Ind. Sch. Dist., 480 F.3d 689, 693 (5th Cir. 2007) ("[a]ctivities undertaken in the course of performing one's job are activities pursuant to official duties" even if the speech at issue "is not necessarily required by [the employee's] job duties"). Foley's job description is "neither necessary nor sufficient" to determine whether his speech at the press conference was pursuant to his official duties, Garcetti, 547 U.S. at 425, though we do note that the fact that Foley was ostensibly evaluated on whether he "[i]nteracts well with the media" suggests that speaking to the press is a duty he "actually [was] expected to perform." Id. at 424-25. More critical to our analysis is the context of Foley's speech. Though Foley was not required to speak to the press as part of his job, he did, in fact, choose to do so at a press conference convened by the State Fire Marshal, at the scene of a fatal fire, at which no one but the Marshal, the Marshal's lead investigator, and Foley himself gave comment. Foley was in uniform and on duty at the time.9 While he declined to answer certain questions posed by reporters, he voluntarily spoke about issues related to the budget and staffing of the Department. As Chief, he had been in command of the scene, and when choosing to speak to the press, he would naturally be regarded as the public face of the Department when speaking about matters involving the Department.10 Under these circumstances, Foley addressed the media in his official capacity, as Chief of the Fire Department, at a forum to which he had access because of his position. Thus, "there is no relevant analogue to speech by citizens." Garcetti, 547 U.S. at 424; see Brammer-Hoelter, 492 F.3d at 1203 (equating speaking as a While neither of these factors is dispositive, each is relevant and important to the inquiry. See, e.g., Nixon v. City of Houston, 511 F.3d 494, 498 (5th Cir. 2007) (noting that police officer spoke to the media while on duty, in uniform, and while working at the scene of an accident, and holding that speech was not protected); Mills v. City of Evansville, 452 F.3d 646, 648 (7th Cir. 2006) (observing that police officer was on duty and in uniform when engaged in challenged speech, and concluding that she spoke "in her capacity as a public employee"). Cf. Tabb v. District of Columbia, 605 F. Supp. 2d 89, 95 (D.D.C. 2009) ("If plaintiff was generally responsible for presenting the public face of the agency to the District of Columbia government and to the media, and if she expressly spoke in that capacity when she contacted the Mayor's Office and media outlets . . ., then . . . [her] statements likely are not protected."). government employee with speaking "as an individual acting 'in his or her professional capacity'" (quoting Garcetti, 547 U.S. at 422)); cf. Tamayo v. Blagojevich, 526 F.3d 1074, 1092 (7th Cir. 2008) (holding that a senior administrator of an agency was not speaking as a citizen when testifying before a legislative committee since she was testifying "because of the position she held within the agency" and was "not appearing as 'Jane Q. Public'"). We note that Foley's speech is distinguishable from the letter to the editor written by the plaintiff in Pickering. As the Court noted in Garcetti, that letter had "no official significance and bore similarities to letters submitted by numerous citizens every day." Garcetti, 547 U.S. at 422. Here, given that Foley spoke from the scene of the fire where he was on duty, in uniform, and speaking alongside the State Fire Marshal, we cannot say that the speech had "no official significance." In fact, it is more likely that anyone who observed the speech took it to bear the imprimatur of the Fire Department. Certainly, Foley's comments to the press fall closer to the line of citizen speech than the internal memorandum that Ceballos submitted to his supervisor in Garcetti. However, the fact that Foley expressed his views to the public rather than within the workplace is not dispositive, and other courts have found employee speech to fall outside the protection of the First Amendment even when it is delivered publicly. See, e.g., Nixon, 511 F.3d at 498; Turner v. Clark County Sch. Dist., No. 2:07-CV- 00101-JCM-GWF, 2009 WL 736016, at *2 (D. Nev. Mar. 19, 2009). Foley argues that his speech is nonetheless analogous to that of citizens "who avail themselves of opportunities to publicly express themselves through the media." Foley points specifically to a Boston Globe article in which Randolph residents expressed their opinions on the budgetary and staffing issues of the Fire Department as they related to the May 17, 2007, fire. Foley also cites an article from the Patriot Ledger in which Randolph residents spoke to a reporter regarding their votes on the Proposition 2 ½ override of 2008. However, this speech is not analogous to Foley's. Any citizen can be interviewed by a reporter about her reaction to an event or her thoughts about an issue. But when a government employee answers a reporter's questions involving matters relating to his employment, there will be circumstances in which the employee's answers will take on the character of "[o]fficial communications," Garcetti, 547 U.S. at 422, and thus will not be entitled to First Amendment protection. Those circumstances were present here: Foley spoke while in uniform and on duty; he spoke from the scene of a fire where he had been in command as the Chief of the Fire Department; and his comments were bookended by those of another official -- the State Fire Marshal. When Foley availed himself of this particular opportunity to communicate with Town residents through the media on matters involving his Department, his speech took on a degree of official significance that has "no relevant analogue to speech by citizens." Garcetti, 547 U.S. at 424. Foley also contends that the content of his speech at the press conference entitles that speech to First Amendment protection. He argues that once he stopped speaking about the fire and began to "lecture" the Town residents about their defeat of the Proposition 2 ½ overrides, he was speaking as a citizen. We disagree. Foley characterizes the nature of his comments about Proposition 2 ½ too narrowly. His remarks on Proposition 2 ½ related to his concerns about its impact on the budget and staffing needs of the Fire Department. The general topic of Foley's remarks was the struggle of the Fire Department to accomplish its goals in the absence of additional funding and staffing that an override of Proposition 2 ½ could provide. The subject of Foley's speech was entirely related to matters concerning the Fire Department.11 Under Lindsey v. City of Orrick, 491 F.3d 892 (8th Cir. 2007), which Foley cites for the proposition that an employee speaks as a citizen when his speech deviates from a subject related to his job duties, is distinguishable. In Lindsey, the city public works director, whose duties included maintaining the city's parks, water systems, streets, and sewers, spoke at several City Council meetings about what he believed to be the city's noncompliance with the state's "sunshine" law. 491 F.3d at 895-96. Lindsey questioned whether the city was violating the law by entering into non-public executive sessions and passing city ordinances without public discussion. Id. at 896. Though Lindsey's job required him to attend Council meetings to report about public works issues, id. at 895, his comments about the city's alleged noncompliance with the circumstances of the press conference, when speaking about such matters, Foley was speaking in his official capacity as Chief. Our holding does not, as Foley claims, strip him of the opportunity ever to speak publicly on similar issues, without fear of retaliatory discipline. As Chief, Foley is on call at all hours, but that does not mean that any public statements he makes regarding the Fire Department will be outside the protection of the First Amendment. As the Supreme Court has recognized, "[w]ere [public employees] not able to speak on [the operation of their employers], the community would be deprived of informed opinions on important public issues." Garcetti, 547 U.S. at 420 (citing San Diego v. Roe, 543 U.S. 77, 82 (2004)) (second and third alterations in Garcetti). As Fire Chief, Foley is "'the member[] of [the] community most likely to have informed and definite opinions'" about the budget and staffing of the Fire Department, see Garcetti, 547 U.S. at 419 (quoting Pickering, 391 U.S. at 572), but he is also the individual whose speech is most likely to be construed as an "[o]fficial communication" of the Department. Thus, determining whether a government employee who is the head and de facto spokesperson of his department is speaking as a citizen or an employee is a highly fact-specific inquiry. We emphasize that our holding is limited to the particular facts of this case. Under the circumstances of the the sunshine law were in no way related to public works. press conference discussed above, there could be no doubt that Foley was speaking in his official capacity and not as a citizen. However, as the district court noted, had Foley voiced his concerns and frustrations in another forum -- at a town meeting, in a letter to the editor, or even in a statement to the media at a different time and/or place -- we might characterize his speech differently. See, e.g., McLaughlin v. City of Nashville, Civil No. 06-4069, 2006 U.S. Dist. LEXIS 78133, at *8-9 (W.D. Ark. Oct. 23, 2006) (holding that city finance director stated a claim that she spoke "in her capacity as a concerned citizen, rather than in her official capacity" when she spoke about the financial situation of the city, via newspaper and radio, "at her own expense and on her own time"); Hailey v. City of Camden, Civil No. 01-3967, 2006 WL 1875402, at *16 (D.N.J. July 5, 2006) (holding that deputy fire chiefs who attended City Council meeting and complained about fire department practices after "plac[ing] their names on the agenda as any citizen would" were not speaking pursuant to their official duties). C. Conclusion We recognize that there is a delicate balance that must be struck between the constitutional rights of government employees to express their views on matters related to their employment and the public's interest in hearing those views, on the one hand, and the interest of a government employer in controlling employee speech that contravenes the employer's goals, on the other. We hold that when the circumstances surrounding a government employee's speech indicate that the employee is speaking in his official capacity, Garcetti dictates that we strike the balance in favor of the government employer. Under such circumstances, the employee's speech takes on an official significance and, as the Supreme Court has reasoned, "[o]fficial communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission." Garcetti, 547 U.S. at 422-23. Here, under circumstances which indicate that Foley was speaking as Chief, members of the Board did not violate Foley's free speech right when they concluded that it was inappropriate for Foley to address budgetary and staffing issues at the scene of a fatal fire. Speaking to the media under the circumstances discussed above, Foley could have hoped and anticipated that his frustration with the budgetary and staffing shortfalls of the Department might have reached a greater audience and had a greater impact than if he voiced his views in another forum. However, those same circumstances imbued his speech with the official significance that removed it from the protection of the First Amendment. We conclude that Foley was not speaking as a citizen and that he consequently has no First Amendment cause of action.12 We thus affirm the order of the district court granting summary judgment in favor of the Defendants. We acknowledge that in Brasslett v. Cota, 761 F.2d 827 (1st Cir. 1985), we reached a different outcome on a somewhat similar set of facts. However, that case was decided before Garcetti, which now governs our review of the issues.

United States Court of Appeals For the First Circuit No. 09-1895 REBECCA LOCKRIDGE, Plaintiff, Appellant, v. THE UNIVERSITY OF MAINE SYSTEM, Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge] Before Torruella, Boudin and Howard, Circuit Judges. Eric M. Mehnert, with whom Hawkes & Mehnert, LLP, was on brief, for appellant. Kai W. McGintee, with whom Patricia A. Peard and Bernstein Shur, were on brief, for appellee. March 10, 2010 HOWARD, Circuit Judge. In 2008, Professor Rebecca Lockridge sued her employer, the University of Southern Maine, claiming, among other things, three violations of Title VII (42 U.S.C. § 2000e et seq.): (1) gender discrimination (relating to the denial of a pay raise); (2) retaliation (relating to the denial of her request to move to another office); and (3) hostile work environment (relating to various incidents that occurred during her tenure at the University). The district court, adopting a magistrate judge's recommendation, granted summary judgment to the University on all three claims. Lockridge appeals. After review, we affirm. I. The facts, discussed at length in the magistrate judge's decision, Lockridge v. Univ. of Me. Sys., No. 08-146-P-S, 2009 U.S. Dist. LEXIS 38544, at *4-30 (D. Me. Apr. 23, 2009), can be briefly summarized. Because summary judgment was granted against Lockridge, we state these facts in the light most favorable to her, drawing all reasonable inferences in her favor. Rathbun v. Autozone, Inc., 361 F.3d 62, 64 (1st Cir. 2004). In 1984, Lockridge began work at the University as an Assistant Professor of Communication. Her position was tenure- track and part of the University's Department of Communications.1 Sometime in 2003 or 2004, the University decided to combine the Department of Communications and its Media Studies program to create a new department, the aptly named "Department of From 1985 to 2008, Lockridge suffered through a number of incidents at work. In addition to incidents we will discuss separately and in greater detail, the record contains evidence of the following: In 1985, a fellow professor, Leonard Shedletsky, made what Lockridge considered to be sexually inappropriate overtures toward her on two separate occasions. When Lockridge rejected these overtures, Shedletsky began to appear difficult and angry with her. In 1989, in his capacity as a member of a tenure evaluation committee assigned to review Lockridge, Shedletsky recommended that Lockridge not be granted tenure. Despite his recommendation, Lockridge was ultimately given tenure. In 1992, Lockridge became Chair of the Department of Communications. Shedletsky chafed under Lockridge's authority, frustrating her ability to carry out her responsibilities as Chair. Eventually, Shedletsky requested that the Dean remove Lockridge from her position. During a meeting in 1993, faculty members voted to remove Lockridge as Chair. Immediately after this meeting, an article entitled "Accused of Sexual Harassment," which had been written by Shedletsky, was placed in Lockridge's on- campus mailbox. From 1991 to 2006, Lockridge, during various work-related activities, heard a fellow professor, Richard West, make at least seven sexually charged "jokes" or comments, most concerning either his status/lifestyle as a gay male or his sexual organs. Communications and Media Studies." For ease of exposition, and because it makes no difference in our analysis, we will refer to Lockridge's department as the Department of Communications throughout this opinion. In 2006, Lockridge came up for "post-tenure" review. This review consisted of professors being evaluated over a four year period in three areas: teaching, service, and scholarship. Professors who received a satisfactory rating in all three areas were eligible for a pay raise. The peer review committee assigned to review Lockridge rated her scholarship "unsatisfactory." Not pleased by this, Lockridge wrote a letter to Devinder Malhotra, the Dean of the College of Arts and Sciences, questioning whether there was "gender bias at work." Malhotra thereafter conducted an independent review of Lockridge's scholarship and also rated it "unsatisfactory." Malhotra noted that at the time of Lockridge's review, she had not published a book or juried/peer reviewed article in approximately fourteen years, and that during the four-year review period, she had produced only "four conference presentations and a chapter in a book." Because of this unsatisfactory scholarship rating, Lockridge was denied a pay raise. Convinced that she was denied a pay raise because she was a woman, Lockridge filed a complaint with the Maine Human Rights Commission (MHRC) in December 2006. Not long after this, in May 2007, the University reviewed a tenured male professor in the Department of Communications, Russell Kivatisky. The peer review committee assigned to review Kivatisky, which included Lockridge, rated his scholarship "satisfactory" despite the fact that he had published less than Lockridge during the four-year review period. In reviewing his scholarship, however, the committee noted that Kivatisky was on a "non-scholarly track for evaluation." Non-scholarly track professors are not expected to produce scholarship at the same rate as scholarly track professors. During this time period, Lockridge, like many faculty members in the Department of Communications, worked out of a satellite office on the University's campus. These satellite offices were necessary due to the limited space in the Department's hub, the Chamberlain Street building. Sometime in late 2007 or early 2008, however, an office in the Chamberlain Street building became available. Because these offices were desirable -- they were located at the Department's center and had direct access to the Department's administrative support staff -- they were typically assigned based partially on seniority. Lockridge requested that she be given the vacant office. The University denied her request. When explaining the denial to Lockridge in a letter, Kivatisky, who had become the Department Chair, wrote, "given the continuing legal issues2, I want to be particularly sensitive to the climate in the office and the working environment of the staff." Kivatisky also told Lockridge that, "Some find your attitude toward them to be demeaning. They find this ironic given The parties appear to agree that Kivatisky was referring to the 2006 administrative complaint filed by Lockridge. your feminist stance . . . ." The University later assigned the office to a female faculty member less senior than Lockridge. In February 2008, Lockridge sued the University in Maine state court, claiming, inter alia, gender discrimination (based on the denial of a pay raise) and retaliation (based on the denial of her office request). Lockridge also brought a hostile work environment claim, relying on all of the acts discussed above. The University removed the case to federal court and, in due time, moved for summary judgment, which was granted. This appeal ensued. II. We review a district court's grant of summary judgment de novo. Rodi v. S. New Eng. Sch. of Law, 532 F.3d 11, 15 (1st Cir. 2009). Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).3 A. Gender discrimination Title VII prohibits employers from discriminating against an employee with respect to her compensation on the basis of A "material" fact is one "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" only "if a reasonable jury could resolve it in favor of either party." Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004) (quoting Basic Controlex Corp., Inc. v. Klockner Moeller Corp., 202 F.3d 450, 453 (1st Cir. 2000)). gender. 42 U.S.C. § 2000e-2(a)(1). Here, Lockridge claims that the University denied her a pay raise because she was a woman. Because Lockridge failed to proffer any direct evidence of gender discrimination, her claim is generally governed by the burden shifting scheme set out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Garcia v. Bristol-Myers Squibb Co., 535 F.3d 23, 31 n.2 (1st Cir. 2008). Under this scheme, a plaintiff-employee must first establish a prima facie case of gender discrimination. Kosereis v. Rhode Island, 331 F.3d 207, 212 (1st Cir. 2003). The elements of the prima facie case vary according to the nature of the plaintiff's claim, but the plaintiff must show, among other things, that she suffered an adverse employment action. Garcia, 535 F.3d 31 n.2. If the plaintiff establishes this prima facie case, the burden of production -- but not the burden of persuasion -- shifts to the employer, who must articulate a legitimate, non-discriminatory reason for the adverse employment action. See id. If the employer does so, the focus shifts back to the plaintiff, who must then show, by a preponderance of the evidence, that the employer's articulated reason for the adverse employment action is pretextual and that the true reason for the adverse action is discriminatory. Smith v. Stratus Computer, 40 F.3d 11, 16 (1st Cir. 1994). We will assume for the sake of analysis that Lockridge has met her modest burden of establishing a prima facie case. See Garcia, 535 F.3d at 30-31. The University, in turn, has met its burden of production, as it has identified a legitimate, non- discriminatory reason for denying Locrkidge a pay raise: her unsatisfactory scholarship. For purposes of the summary judgment analysis, then, the question reduces to whether Lockridge has identified evidence that would enable a reasonable jury to find that the University's proffered reason is pretextual and that Lockridge was in fact denied the pay raise because she was a woman. Id. at 31. Lockridge focuses most of her efforts on exposing the University's proffered reason as pretextual. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 517 (explaining that "proving the employer's [articulated] reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination")4. She proceeds on a differential treatment theory, reasoning that the University's "unsatisfactory scholarship" explanation must be pretextual because the University gave a similarly situated male professor, Russell Kivatisky, a satisfactory scholarship rating despite the fact that he published less than she. See Garcia, 535 F.3d at 31 (recognizing that "[a] plaintiff can demonstrate that an employer's Indeed, "[t]he factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination." Id. at 511. stated reasons are pretextual . . . by producing evidence that [the] plaintiff was treated differently from similarly situated employees"). But to prove differential treatment at trial, Lockridge would need to show that Kivatisky was similarly situated to her "in all relevant respects." Id. (quoting Kosereis, 331 F.3d at 214); Conward v. Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999) (noting that the comparison cases "must closely resemble one another in respect to relevant facts and circumstances"). She cannot hope to do so. At the time of his review, Kivatisky, unlike Lockridge, was on a "non-scholarly" track. Lockridge acknowledged as much when she, as a member of the peer review committee evaluating Kivatisky, signed a letter to the Dean which read, "When considering scholarship, the committee noted that Russ [Kivatisky] has been on a 4-4 teaching load for the past two academic years and, therefore, sets up a non-scholarly track for evaluation." (emphasis added). The difference between scholarly track professors and non-scholarly track professors is material in this case. Non-scholarly track professors are not expected to produce scholarship at the same rate as scholarly track professors.5 Lockridge attempts to draw the sting of this letter by calling into question the peer review committee's statement that At no point has Lockridge claimed that non-scholarly track professors are situated similarly to scholarly track professors. Kivatisky's "4-4 teaching load" put him on a non-scholarly track. She notes that, when deposed, the current Department Chair, Dan Panici, testified that a professor who carries a 4-4 teaching load is not exempt from scholarship obligations. This testimony, however, is not necessarily inconsistent with the statement made in the letter. A professor carrying a 4-4 teaching load may well have minor scholarship obligations that do not disqualify the professor from being on a non-scholarly track. In any event, even if Panici's testimony does cast some doubt on the statement made in the letter, the fact remains that Lockridge herself endorsed this statement and explicitly acknowledged Kivatisky's different scholarship obligations. Though given an opportunity, she has yet to adequately explain why she did so.6 Ultimately, given the material difference between Kivatisky and Lockridge, and the lack of any other evidence suggesting that the University's proffered reason was pretextual, Lockridge's gender discrimination claim (to the extent it is premised on differential treatment) fails as a matter of law. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000) (explaining that judgment as a matter of law is appropriate where At oral argument, when asked why Lockridge signed the letter, Lockridge's counsel theorized that Lockridge signed it because of hostile pressures in her work environment. But, because he could not provide any record support for this theory, this amounts to "unsupported speculation" which is insufficient to forestall summary judgment. See Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000). "there is no legally sufficient evidentiary basis for a reasonable jury to find for [a] party on [a particular] issue"). In a last gasp effort, Lockridge claims that, at the very least, the University had "mixed motives" when denying her the pay raise. To prevail on a mixed-motive theory of discrimination, Lockridge would need to establish that the decision to deny her a pay raise was at least partially motivated by her status as a woman. Sher v. U.S. Dep't of Veterans Affairs, 488 F.3d 489, 508 n.22 (1st Cir. 2007). She cannot do so as a matter of law. Although Lockridge claims that the various incidents that occurred at the University between 1985 and 2006 serve as circumstantial evidence that the decision to deny her a pay raise was motivated by her gender, the incidents she identifies have no discernible connection to that decision. B. Retaliation Title VII's anti-retaliation provision, 42 U.S.C. § 2000e-3(a), seeks to prevent employers from retaliating against an employee for attempting to enforce rights under Title VII. DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 2008). In relevant part, the retaliation provision makes it illegal "for an employer to discriminate against any of his employees . . . because he has opposed any practice made [] unlawful by [this subchapter] . . . or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under this subchapter. 42 U.S.C. § 2000e-3(a). Lockridge claims that after she filed a discrimination complaint with the MHRC, the University retaliated against her by denying her request for an office in the Chamberlain Street building. Lockridge's retaliation claim, like her gender discrimination claim, is generally governed by McDonnell Douglas' burden shifting scheme. Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25-26 (1st Cir. 2004). Accordingly, Lockridge must first establish a prima facie case of retaliation by showing that (1) she engaged in a statutorily protected activity; (2) she suffered a materially adverse employment action; and (3) the protected activity and the adverse employment action were causally connected. Marrero v. Goya of P.R., Inc., 304 F.3d 7, 22 (1st Cir. 2002). The primary dispute in this case is over the second factor, whether Lockridge suffered a materially adverse employment action. To be materially adverse, the challenged employment action must be one that could "'dissuade a reasonable worker from making or supporting a charge of discrimination.'" Dixon v. Int'l Bhd. of Police Officers, 504 F.3d 73, 81 (1st Cir. 2007) quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). This is an objective test and "'should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances.'" Burlington N. & Santa Fe Ry. Co., 548 U.S. at 71 (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998)). In its decision recommending summary judgment for the University, the magistrate judge ruled that the denial of an employee's request for office space cannot, as a categorical matter, be a materially adverse employment action. We disagree. After Burlington Northern, employment actions are less susceptible to categorical treatment when it comes to the question of whether they are or are not materially adverse. We think that, under certain circumstances, the denial of an employee's request for office space could dissuade a reasonable person from making or supporting a charge of discrimination. Indeed, we have previously concluded that "disadvantageous transfers or assignments" can be materially adverse, although in the context of conditions more severe than those attending the usual employee office space request. See Valentin-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 95 (1st Cir. 2006) (finding a totality of assignments, which included a police officer's transfer for an "unusually long" duration to a "remote and solitary" duty site that was "regarded as punishment" by officers, to constitute adverse employment action). Moving from the general to the specific, the question becomes whether the University's denial of Lockridge's particular request for office space amounted to a materially adverse employment action. In arguing that it did, Lockridge says that the Chamberlain Street office that she desired had distinct advantages over the satellite office she occupied, namely, administrative support, more opportunities for professional interaction and development, and better access to information about Department goings-ons. These allegations find some support in the record, although neither very particular nor strong. Lockridge testified during discovery that the lack of administrative support took time away from her research and writing and that being separated from faculty members in the Department hub made her feel "excluded and ostracized." She also entered into evidence an email exchange with Kivatisky in which she complained that her location in the satellite office "excluded [her] from the informal exchanges of information that occur on an impromptu basis with the result that I often feel uninformed about the structure, curriculum, and direction of the Department." Regardless, on the undisputed record, Lockridge's continued location in a satellite office was not unique. The attendant inconveniences may not have been optimal, but neither did they affect Lockridge more adversely than they did some of her colleagues. Lockridge herself observes that other faculty members within the Department, including those senior to her such as Shedletsky, were similarly located in satellite offices. So, although Lockridge's request for a better office may have been a reasonable one, the fact remains that the denial left her in no worse a position than that held by similarly situated faculty members. Under these circumstances, we cannot see how one could find that the denial of Lockridge's request could "dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington Northern, 548 U.S. at 57. C. Hostile work environment "Title VII's ban on employment practices . . . extends to sex-based discrimination that creates a hostile or abusive work environment." Billings v. Town of Grafton, 515 F.3d 39, 47 (1st Cir. 2008). This type of hostile or abusive work environment is generally referred to as "sexual harassment." Id. Lockridge claims that, beginning in 1989, she was subjected to a hostile work environment within the Department of Communications. To establish a claim of "hostile work environment sexual harassment," a plaintiff must demonstrate "that the harassment was sufficiently severe or pervasive so as to alter the conditions of the plaintiff's employment and create an abusive work environment." Forrest v. Brinker Int'l Payroll Co., LP, 511 F.3d 225, 228 (1st Cir. 2007). In support of her claim, Lockridge identifies a number of incidents that occurred between 1989 and 2008. These incidents include: (1) Shedletsky's 1989 recommendation denying her tenure after Lockridge's rejection of his alleged sexual overtures; (2) the placement of a sexual harassment article in her work inbox in 1993 after she was removed as Department Chair; (3) West's various jokes and comments about sex and sexuality that occurred between 1991 and 2006; (4) the University's decision to deny her a pay raise in 2006; and (5) the University's decision to deny her request for office space in 2008. In its defense, the University argues that Lockridge's claim fails as a matter of law because it relies predominantly on untimely acts, specifically, acts that occurred before February 22, 2006 (which is as far back as the statute of limitations reaches). Lockridge, although conceding that most of the aforementioned acts fall outside the limitations period and are integral to her claim, argues that the "continuing violation doctrine" permits her to rely on the untimely acts. This doctrine, an equitable exception to Title VII's statute of limitations, "allows an employee to seek damages for otherwise time-barred allegations if they are deemed part of an ongoing series of discriminatory acts and there is 'some violation within the statute of limitations period that anchors the earlier claims.'" O'Rourke v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001) (quoting Provencher v. CVS Pharmacy, 145 F.3d 5, 14 (1st Cir. 1998)). For the continuing violation doctrine to apply, Lockridge needs to establish that a discriminatory "anchoring act" occurred within the limitations period. Noviello v. City of Boston, 398 F.3d 76, 86 (1st Cir. 2005). To qualify as an anchoring act, the discriminatory act must "substantially relate[] to [the] earlier incidents of abuse." Id.; Sabree v. United Bhd. of Carpenters & Joiners Local No. 33, 921 F.2d 396, 401 (1st Cir. 1990).7 Lockridge purports to identify two anchoring acts: the 2006 pay raise denial and the 2008 office space denial. Neither qualifies as an anchoring act. For reasons already discussed, the identified acts are not actionable as a matter of law. Lawton v. State Mut. Life Assur. Co. of Am., 101 F.3d 218, 222 (1st Cir. 1996) ("Common sense teaches that a plaintiff cannot resuscitate time-barred acts, said to be discriminatory, by the simple expedient of linking them to a non- identical, non-discriminatory, non-time barred act.") (emphasis added). Our conclusion that Lockridge cannot avail herself of the continuing violation doctrine sounds the death knell for her hostile work environment claim. Without reliance on the untimely events, the claim fails as a matter of law. III. For the reasons provided above, we affirm the entry of summary judgment for the University on all claims. Affirmed. In O'Rourke, we explained that a court, when ascertaining whether an anchoring act is "substantially related" to an untimely act, should ask if the subject matter of the anchoring act is "sufficiently similar" to that of the untimely act. 235 F.3d at 731.

United States Court of Appeals For the First Circuit No. 08-2505 UNITED STATES OF AMERICA, Appellee, v. RICARDO MEJIA, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. William E. Smith, U.S. District Judge] Before Boudin, Stahl, and Lipez, Circuit Judges. George J. West, by Appointment of the Court, for appellant. Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, and Sandra R. Hebert, Assistant United States Attorney, were on brief for appellee. March 12, 2010 STAHL, Circuit Judge. Defendant-appellant Ricardo Mejia raises a variety of objections to his conviction for conspiring to distribute 500 grams or more of cocaine and possession of a firearm in furtherance of a drug crime. He also objects to his sentence. After careful consideration, we affirm his conviction and sentence in all respects. I. Factual Background a. The Drug Deal Mejia and his co-defendant Eudy Tejada-Pichardo ("Tejada") were arrested on December 18, 2006, immediately following the sale of two kilograms of cocaine to two government informants, Ambioris Falette and Marie Perez. Prior to the sale, the Drug Enforcement Agency (DEA) recorded two phone calls between Tejada and the informants discussing Tejada's plan to sell the informants multiple kilograms of cocaine in Providence, Rhode Island. Mejia, the appellant here, was neither a part of these conversations nor was he mentioned during them. However, according to phone records entered into evidence, in the six weeks preceding the drug deal Mejia and Tejada phoned each other over 470 times, including once on the night that the deal took place. In addition, during a third recorded phone call between Tejada and the informants on the night of the deal, Tejada stated that "we are already heading over there." (emphasis added). On the night of the deal, Tejada and Mejia arrived together at a McDonald's restaurant in Providence in a green car. Informant Perez arrived in a red car and informant Falette subsequently arrived in a car owned by the DEA. When Falette arrived in the parking lot, Tejada, Mejia, and Perez emerged from the McDonald's restaurant. Tejada then removed a suitcase from Perez's car, placed it in Falette's car and then got into the car with Falette. While Tejada was moving the suitcase, Mejia stood near Perez's car, looking back and forth and up and down the street. According to testimony from a DEA agent who observed the exchange, Mejia's actions resembled "counter-surveillance." After the suitcase was moved, Mejia got into the passenger seat of Perez's car and both cars left the parking lot. (According to the DEA recordings, the plan was to drive to another location where Falette would pick up the cash payment and give it to Tejada. Tejada's car remained unoccupied and parked in the parking lot.) Soon after, police officers stopped both cars and arrested Mejia and Tejada. The police found two kilograms of cocaine in a hidden compartment in the suitcase and a loaded .45 caliber pistol with an obliterated serial number on the floor of Perez's car, just behind the driver's seat and with the handle pointed toward the passenger's seat, where Mejia had been sitting. A search of Tejada's car, still parked at the McDonald's, turned up a small notebook containing lists of names paired with numbers. A DEA agent later testified that this was a "drug ledger."1 The notebook also bore a signature which matched the one that Mejia subsequently placed on a Miranda form. A search of Mejia's person following his arrest yielded numerous pieces of paper which bore notations that were similar to those in the notebook, were written in the same handwriting, shared several names in common with those appearing in the notebook, and contained columns and numbers that corresponded to the going rate of cocaine. b. Mejia's Admissions At the scene of the arrest, Detective Andres Perez, a native Spanish speaker, orally advised Mejia of his Miranda rights in Spanish. Once at the police station, Mejia was again advised orally, in Spanish, of his rights. Detective Perez then confirmed that Mejia could read Spanish and gave Mejia a Spanish-language form that delineated his Miranda rights. Officer Perez also read each of the rights out loud in Spanish from the text of the form and asked Mejia whether he understood his rights. Mejia indicated that he did and then placed his initials next to each of the enumerated rights and initialed a statement in Spanish that the police had made no threats or promises to him; he also checked a According to testimony at trial from a DEA agent, the notebook contained lists of customer names paired with drug quantities and amounts of money collected. The quantity of drugs listed in each section added up to around 1,000, while the paired remittance amounts added up to around $21,000. The agent testified that these values corresponded to the fact that 1,000 grams of cocaine had a market value of between $18,000 and $23,000 at that time. box indicating that he understood his rights. Finally, Detective Perez told Mejia that, if he wished, he could sign his name to the bottom of the form and Mejia elected to do so. It is uncontroverted that the form contained no language regarding waiver of rights; it only laid out the content of Mejia's Miranda rights. After signing the form, Mejia began answering questions posed to him by Detective Perez and the other officer present, Agent Michael Naylor.2 According to Perez's translation of Mejia's oral statements, Mejia told the officers that Tejada had given him the gun when they were in the McDonald's, that he had then tucked the gun into his waistband, and that he had placed the gun under the driver's seat of the informant's car when he saw police approaching. Mejia also said that his job was to "protect" Tejada and "watch his back," though when the police asked what he was protecting Tejada from, he merely stated "you know." Mejia also said that he "assumed" the transaction that took place was a drug deal. After making these statements, Mejia offered to become a government informant. When the officers attempted to commit Mejia's statements to writing, Mejia became evasive and the officers terminated the interrogation. Mejia's interaction with the police officers was not taped and no contemporaneous notes were taken. However, Agent Naylor wrote a report of the interview two days later. For the duration of the interrogation Mejia had one Agent Naylor only spoke English and Detective Perez recalled translating Mejia's answers into English for Naylor. arm handcuffed to a rail coming out from the wall, but there was no testimony or allegation that he was in any discomfort. c. Indictment, Trial, and Appeal Mejia was indicted on three counts, conspiracy to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), as well as 21 U.S.C. § 846; possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); and possession of a firearm in furtherance of a drug crime, in violation of 18 U.S.C. § 924(c). At trial and over Mejia's objection and unsuccessful motion to suppress, the government introduced the incriminating statements Mejia made during the interrogation. Also over Mejia's objection, the government introduced the recorded conversations between Tejada and the informants as well as the drug ledgers. The jury convicted Mejia on the conspiracy and gun charges but acquitted him on the charge of possession with intent to distribute. The district court sentenced him to the mandatory minimum of five years on each count, to run consecutively for a total of ten years. Several weeks after the trial concluded, the government received a "trace report" on the pistol which indicated that it was originally purchased by a man from New Hampshire and had not been reported stolen. Mejia moved for a new trial based on this new evidence and alleged discovery violations. The district court denied the motion following an evidentiary hearing. II. Discussion a. The Motion to Suppress Though Mejia raises numerous objections to his conviction and sentence, his appeal of the denial of the motion to suppress his incriminating statements is the only one of real consequence. We thus begin our analysis there. We review the district court's findings on the denial of the suppression motion for clear error and review its legal determinations de novo. See United States v. Parker, 549 F.3d 5, 8 (1st Cir. 2008). Mejia argues that the district court erred in denying his motion to suppress because the officers did not tell him what he was suspected of, did not "accurately interpret his rights into Spanish," and did not record the interrogation "in any fashion." Mejia argues that these three factors prevented the government from meeting its burden of proving that Mejia waived his rights knowingly and voluntarily. Of course, Mejia is correct that any waiver of the Miranda rights to silence and access to an attorney must be both knowing and voluntary. See, e.g., United States v. Rojas-Tapia, 446 F.3d 1, 4 (1st Cir. 2006). However, the waiver need not be expressed. In North Carolina v. Butler, the Supreme Court confirmed that, while courts must presume that a defendant did not waive his Miranda rights absent an express waiver, "[t]hat does not mean that the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights." 441 U.S. 369, 373 (1979). Thus, the Court explained, an implied waiver can be "inferred from the actions and words of the person interrogated." Id.3 To make such an inference, we must examine the "totality of the circumstances surrounding the interrogation" to determine whether the defendant made both an "uncoerced choice" and had the "requisite level of comprehension" such that a court may properly conclude "that the Miranda rights have been waived." Moran v. Burbine, 475 U.S. 412, 421 (1986). As we explained in Bui v. DiPaolo, there are "certain types of cases in which courts routinely conclude that a defendant who has professed an understanding of his right to remain silent has waived that right." 170 F.3d 232, 240 (1st Cir. 1999). These In briefing and at oral argument the government urged the court to move beyond the Butler totality-of-the-circumstances test for waiver and instead extend the Supreme Court's holding in Davis v. United States, 512 U.S. 452 (1994), to the right to remain silent. The government asks that we conclude that any statement made by a "Mirandized" suspect who has not expressly invoked his right to remain silent is admissible. This issue is currently pending before the Supreme Court in Thompkins v. Berghuis, 547 F.3d 572 (6th Cir. 2008), cert. granted, 77 U.S.L.W. 3670 (U.S. Sept. 30, 2009) (No. 08-1470). We decline to extend our jurisprudence beyond Butler in this case because doing so is not mandated by our precedent, or current Supreme Court precedent, and most importantly, the case before us can be resolved under our existing totality-of-the-circumstances test. include cases where "after receiving warnings and asserting (equivocally or unequivocally) a right to remain silent, [the defendant] spontaneously recommences the dialogue with his interviewers;" where "a defendant's incriminating statements were made either as part of a 'steady stream' of speech . . . or as part of a back-and-forth conversation with the police;" and where "having received Miranda warnings, a criminal defendant responds selectively to questions posed to him." Id. In Mejia's case, the factual scenario is comparable to these examples. He received Miranda warnings three times in his native language, twice orally and once in writing; he also attested that he understood his rights by initialing and signing the Miranda warning form. According to the district court's factual findings,4 he then began responding to questions willingly and even offered to become an informant. The totality of the circumstances indicate that this was a voluntary conversation that Mejia undertook after having been fully advised of his rights. We agree with the district court that such a scenario fits comfortably within the doctrine of implied waiver. Mejia's three objections do not undermine our conclusion. First, his argument that his waiver was not knowing because the Notwithstanding Mejia's argument in his reply brief, our review of the transcript from the suppression hearing confirms that the district court's findings as to Mejia's apparent responsiveness during the interrogation were well-grounded in the record and were not clearly erroneous. That Mejia was at times "evasive," according to the officers, does not undermine the voluntariness of the statement that he affirmatively chose to make. "suspected crime" portion of the Miranda warning form was left blank is unconvincing given that Mejia's arrest and interrogation took place immediately after the drug transaction in the McDonald's parking lot. Under the circumstances, Mejia was plainly aware of the nature of the charges that might be filed against him. See 18 U.S.C. § 3501(b) (explaining factors court must consider in determining voluntariness, including whether the defendant "knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession"). Second, his argument that his Miranda rights were not accurately interpreted into Spanish is a red herring. Mejia does not contest the accuracy of the text of the written Miranda warning form itself; he only argues that Detective Perez was not formally trained in Spanish translation. The facts are that Mejia acknowledged that he could read Spanish, his rights were presented to him in writing in Spanish, he acknowledged understanding those rights, and Mejia does not question the accuracy of the form. Given this context, and without more, Detective Perez's Spanish- language abilities are not relevant to whether Mejia comprehended his rights as presented on the written form. Third, Mejia's argument regarding the absence of contemporaneous notes of the interrogation or a video or tape recording is not properly before this court as it was not raised below.5 See, e.g., United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998) (waiver applies where "a defendant has failed altogether to make a suppression motion but also when, having made one, he has neglected to include the particular ground that he later seeks to argue"). We thus affirm the district court's denial of Mejia's motion to suppress the statements he made during the interrogation. b. Mejia's Remaining Claims Mejia raises several additional claims on appeal, none of which need detain us long. First, he contests the admission by the district court of three additional pieces of evidence, the recorded conversations between Tejada and the two informants, the drug ledgers, and the testimony of Detective Perez as to the content of Mejia's incriminating statements. As to the recorded conversations, which were admitted by the district court under a Petroziello analysis, we affirm, finding no abuse of discretion. Under Federal Rule of Evidence 801(d)(2)(E), the statements of a co-conspirator may be admitted against another co-conspirator if the statements were made during the course and in furtherance of the conspiracy. Mejia's objection on appeal is that there was not sufficient evidence for the district court to determine that a conspiracy existed at the time the statements were made, as Mejia cross-examined the officers at the suppression hearing about the lack of contemporaneous documentation of the interrogation, but as the district court noted in its suppression order, Mejia neither raised this as a grounds for suppression in his memorandum to the court, nor did he claim that he did not make the statements attributed to him. required by United States v. Petroziello, 548 F.2d 20, 23 (1st Cir. 1977). We disagree. The recorded conversations took place on December 11 and 12, while the drug deal and subsequent arrest occurred just a week later, on December 18. Significant evidence supports the district court's conclusion that the conspiracy existed at the time of the calls, including the drug ledgers in Mejia's handwriting that depicted an on-going, long-term business of cocaine sales; the high volume of phone calls (over 470 in a six week span leading up to the drug sale) between Tejada and Mejia; and Mejia's own incriminating statements. As to the district court's admission of the drug ledgers, we similarly find no abuse of discretion. Mejia argues that the drug ledgers were more prejudicial than probative, violating Federal Rule of Evidence 403, and were admitted to show propensity, in violation of Federal Rule of Evidence 404(b). Mejia also argues that there was insufficient evidence to support the conclusion that the papers were indeed drug ledgers. We are unpersuaded. We have frequently allowed admission of just this sort of evidence -- notebooks and slips of paper containing names, quantities and amounts that correspond to the market rate for drugs -- for proof of the existence of a drug conspiracy. See, e.g., United States v. Casas, 356 F.3d 104, 125 (1st Cir. 2004). The testimony of the DEA agent laid a proper foundation for the admission of the evidence and the jury was free to infer that the evidence supported the conspiracy charge against Mejia. In addition, the evidence was highly probative given Mejia's central defense, which was that he was "merely present" at the drug deal and otherwise uninvolved in the conspiracy. We thus affirm. Mejia's final evidentiary objection is that the district court improperly allowed Detective Perez to testify as to the content of Mejia's incriminating statements given that Perez lacked formal training in English-Spanish translation. We again find no abuse of discretion. The district court permitted the defense to probe Detective Perez's translation ability at the suppression hearing and again at trial and allowed an expert witness for the defendant to testify as to the reliability and benefits of certified interpreters. Mejia's proof of Perez's supposed inadequacy is that at the suppression hearing Perez partially mistranslated one phrase (he translated "I am a suspect in the crime of . . . " to "I am suspicious of the crime of . . . ") and he lacked official training in translation. We find no abuse of discretion in admitting his testimony given that Perez testified that he is a native Spanish speaker (born in Colombia), regularly speaks both English and Spanish at home and work, and has served as a translator in several law enforcement contexts. See United States v. Gonzalez-Ramirez, 561 F.3d 22, 29 (1st Cir. 2009). In addition, "we see this argument as one more properly directed to the weight of the evidence, not its admissibility." Id. We therefore affirm admission of the testimony. Having affirmed the district court's evidentiary determinations, we address Mejia's sufficiency of the evidence claim.6 Reviewing the evidence in the light most favorable to the verdict, see United States v. Baltas, 236 F.3d 27, 35 (1st Cir. 2001), and giving particular attention to Mejia's confession, his conduct at the drug deal, his frequent telephone contact with Tejada leading up to the deal, and the various recovered drug ledgers, we easily conclude that sufficient evidence supported Mejia's conviction on the conspiracy and gun charges. We also deny Mejia's appeal of the denial of his motion for a new trial on the basis of the gun "trace report." The report was received by the government after the verdict was returned and was then turned over to defense counsel. The report showed that the gun in question was originally purchased by a New Hampshire man and had not been reported missing. Mejia argues that this was "newly discovered evidence" necessitating a new trial and, further, that the government suppressed evidence of the report in violation of Brady v. Maryland, 373 U.S. 83 (1963). The district court held an evidentiary hearing on the new trial motion and concluded that there was no Brady violation because the government did not receive Mejia's brief also seems to raise the district court's denial of his motion for acquittal and for a new trial on the same sufficiency grounds. We deny those grounds of appeal given our conclusion that sufficient evidence supported his conviction. the report until after trial and, further, that the report was in no way exculpatory. Like the district court, we fail to see the relevance of the trace report to the charge that Mejia possessed the gun in furtherance of a drug crime. See United States v. Maldonado-Rivera, 489 F.3d 60, 66-67 (1st Cir. 2007) (explaining materiality requirement for new trial). After all, the gun was found in the car Mejia was riding in, had an obliterated serial number, and he confessed to having possessed the gun during the drug deal in order to protect Tejada. The "trace report" information regarding the original purchaser of the gun, without more, is not material or exculpatory given the charge. We therefore find no abuse of discretion and affirm denial of the new trial motion. Finally, Mejia makes a sentencing argument regarding the "except" clause in 18 U.S.C. § 924(c)(1)(A), arguing that it was legal error for the district court to impose a consecutive five- year term for his gun conviction. Mejia concedes in his reply brief that a favorable result on this claim would require us to reverse this court's recent decision in United States v. Parker, 549 F.3d 5 (1st Cir. 2008), cert. denied, 129 S. Ct. 1688 (2009), something that a three-judge panel may not do. We therefore affirm his sentencing. III. Conclusion For the above reasons, we affirm in all respects.

United States Court of Appeals For the First Circuit No. 09-1302 ROBERT GRANFIELD, Plaintiff, Appellee, v. CSX TRANSPORTATION, INC., Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Michael A. Ponsor, U.S. District Judge] Before Lynch, Chief Judge, Torruella and Boudin, Circuit Judges. Michael B. Flynn, with whom Carolyn M. Blake, Seth C. Turner, and Flynn & Wirkus, P.C., were on brief for appellant. Patrick J. Donoghue, with whom Collins, Collins & Donoghue, P.C., was on brief for appellee. March 12, 2010 TORRUELLA, Circuit Judge. Defendant-appellant CSX Transportation, Inc. ("CSXT") is appealing from the district court's denial of its motion for judgment as a matter of law or a new trial, after a jury awarded $250,000 to plaintiff-appellee Robert Granfield ("Granfield"), based on a finding that CSXT violated both the Federal Employer's Liability Act ("FELA"), 45 U.S.C. § 51 et seq., and the Locomotive Inspection Act ("LIA"), 49 U.S.C. § 20701 et seq. Granfield, a locomotive engineer employed by CSXT, claimed he developed lateral epicondylitis,1 or "tennis elbow," as a result of having to manipulate defective controls found in the cabin of his locomotive. After a ten-day trial and the district court's denial of several dispositive motions by CSXT, the jury returned a verdict in favor of Granfield. CSXT appeals from the judgment and claims the district court erred in: (1) not dismissing the case under the FELA statute of limitations; (2) allowing Granfield's medical expert witness to testify on causation; (3) admitting a letter containing irrelevant and prejudicial statements, even though the district court overruled itself and eventually held the letter inadmissible; (4) refusing to order a new trial despite Granfield's counsel's allegedly improper statements at closing argument; and (5) denial Lateral epicondylitis is defined as inflammation and pain over the outer side of the elbow involving the lateral epicondyle of the humerus usually resulting from excessive or violent twisting movements of the hand. Webster's Third New International Dictionary Unabridged 2356 (2002). of its motions for a new trial or judgment notwithstanding the verdict based on the cumulative error doctrine. After careful review of each issue in this highly contested case, we find no error by the district court and therefore affirm the jury verdict. I. Background2 We begin by briefly describing Granfield's work history, the alleged condition of the equipment he was required to operate, and the statutory framework that governs this case. Granfield was a railroad worker for over thirty years. From 1978 until April 2000, he worked as a locomotive engineer, road foreman, and trainmaster for Consolidated Rail Corporation and the Massachusetts Bay Transportation Authority. On April 1, 2000, he began working for CSXT as a locomotive engineer, primarily based out of Framingham, Massachusetts. On March 6, 2006, he underwent surgery in his right elbow, and has been unemployed since.3 While employed by CSXT, Granfield was required to operate almost exclusively the GP40 6200 series locomotives. As part of the normal operation of these locomotives, he manipulated an array of controls, among them the alerter buttons, brake levers, reverser, sander, throttle, and whistle. Of concern to us here are We present these facts in the light most favorable to the verdict. Granfield testified at trial that he was currently unemployed and that the last time he worked was on March 5, 2006. the alerter buttons and throttles, which Granfield claims were defective and the cause of his injuries.4 The alerter is a device that triggers an audible warning that automatically sounds at various intervals while the locomotive is being operated, in order to prevent an engineer from falling asleep at the controls. This mechanism is reset by simply pressing a button. The throttle is important for locomotive engineers as it helps them adjust the speed of the locomotive. It works by regulating the output horsepower generated by the engine, which in turn influences the train's speed. The throttle is controlled by sliding its handle with no more force than is required to turn a door handle.5 Granfield testified that he had experienced problems with the throttles in the GP40 6200 locomotives since beginning to work for CSXT in 2000. Mainly, he complained that the placement of the throttle would not correspond with engine output, and as a result he had to "jiggle" the throttle handle back and forth until the desired speed was achieved. Although in his complaint Granfield cited other deficiencies with the locomotives he operated, at trial the weight of the evidence Granfield presented was aimed at proving that only the throttles and alerter buttons malfunctioned and caused his injuries. When functioning properly, which Granfield contends they were not. Granfield also complained that the alerter was sounding too frequently, which caused him to push the alerter button more often than would normally be required. Depending on the model of the locomotive, these buttons were sometimes located in uncomfortable locations in the cabin and sometimes had to be "smacked" in order for them to deactivate the alerter. It is unclear exactly when Granfield began to experience symptoms in his elbows. At his deposition, he stated that he had experienced pain in his left elbow in April 2003. During the trial, he testified that he began feeling pain in his left elbow around February or March 2003. He testified that his arm was aching and sore to the touch. He also testified at trial that his arm felt swollen and his little finger in both hands tingled, resembling a numbing sensation. On May 28, 2003, due to the pain in his elbow and tingling of his little fingers, Granfield visited Dr. Chakraborty, a cardiologist who had treated him in the past for a heart condition. Granfield complained of pain, stiffness, aching, burning, tightness of the arm, and tingling in his small finger. Dr. Chakraborty examined Granfield's elbow and noticed "some kind of inflammation," but testified that he did not know what was causing the inflammation. Dr. Chakraborty then referred Granfield to an orthopedic surgeon -- Dr. Carl Spector -- for further treatment. Dr. Chakraborty testified at that he did not remember whether Granfield mentioned that he thought his pain was related to his work at the time. On July 8, 2003 Granfield paid a visit to Dr. Spector. During this visit, Dr. Spector noted that Granfield reported he had been experiencing symptoms in his left elbow for approximately eight months (i.e., since December 2002, which was inconsistent with Granfield's testimony). Granfield also informed Dr. Spector that his symptoms manifested themselves gradually and progressively worsened. After an examination and long discussion with Granfield, Dr. Spector diagnosed him with lateral epicondylitis in the left elbow. Dr. Spector determined that Granfield's lateral epicondylitis was being caused by the repetitive back and forth manipulation of what he deemed to be "levers" inside the locomotive cabin. Granfield maintained throughout the trial that it was during this visit that he first became aware of the connection between his work activities and his injury. After his July 8, 2003 visit, Granfield continued seeing Dr. Spector for followup treatment. During one of these visits, on January 21, 2005, Dr. Spector diagnosed Granfield with bilateral epicondylitis of the left and right elbows. In his report concerning this visit, Dr. Spector noted that Granfield should not continue working, and recommended physical therapy. After finishing his physical therapy course, Granfield was reevaluated by Dr. Spector on March 4, 2005, and was found to be in good condition and suffering no pain. By October 2005, however, Granfield's condition had deteriorated and he was suffering from significant pain rising from his right lateral epicondyle (right elbow). During his October 28, 2005 visit, Dr. Spector noted that Granfield had re-injured himself at work, and diagnosed him with recurrent severe lateral epicondylitis of the right elbow. On March 6, 2006, Dr. Spector operated on Granfield's right elbow. Following the operation, Granfield's condition improved, although he still suffered from epicondylitis in his left elbow. In his notes concerning Granfield's visit on November 9, 2006, Dr. Spector mentioned that Granfield would be unable to continue to work as a locomotive engineer. On June 19, 2006, Granfield filed a complaint against CSXT in the U.S. District Court for the Western District of New York. In it, he charged that CSXT required him to operate locomotives with malfunctioning equipment, including the alerters and throttles, which caused him to suffer his injuries. Granfield also averred that CSXT's failure to adequately maintain its locomotives was a violation of both FELA, 45 U.S.C. § 51 et seq., and LIA, 49 U.S.C. § 20701 et seq. FELA regulates the liability of railroad common carriers who engage in interstate or foreign commerce, for injuries sustained by their employees due to the carrier's negligence. Section 1 of the statute states that these interstate railroad carriers will be liable in damages "to any person suffering injury while he is employed by such carrier in such commerce." 45 U.S.C. § 51. In a FELA liability action by an employee against a railroad carrier, the principle of contributory negligence and diminution of damages applies. 45 U.S.C. § 53. Therefore, if an employee's injuries not only result from the carrier's negligence, but also from his own, the employee's damages "shall be diminished by the jury in proportion to the amount of negligence attributable to such employee." Id. This principle, however, will not apply if the employee's injury is found to have been contributed to by the carrier's violation of any statute enacted for the safety of its employees. Id.6 "Federal decisional law formulating and applying the concept [of negligence] governs" FELA actions. Urie v. Thompson, 337 U.S. 163, 174 (1949). Section 6 of FELA creates a three-year statute of limitations for all actions under section 1 of the statute, counted from the day the cause of action accrued. 45 U.S.C. § 56. In this case, the jury found CSXT 60% negligent under FELA. However, since the jury also found CSXT had violated the LIA, a "statute enacted for the safety of its employees," CSXT was required to pay 100% of Granfield's damages. Granfield also sued under LIA, formerly known as the Boiler Inspection Act.7 By its own terms, the LIA does not purport to confer any right of action upon injured employees. Urie, 337 U.S. at 188 (1949). Its role, rather, is to supplement the FELA by imposing on interstate railroad carriers an absolute and continuing duty to provide safe equipment. Id. (citing Lilly v. Grand Trunk W. R. Co., 317 U.S. 481, 485 (1943)). The Urie court concluded that the legislative intent behind section 1 of FELA was to treat a violation of the safety standards under the LIA as negligence -- what is sometimes called negligence per se. Urie, 337 U.S. at 188- 89. Therefore, the LIA, when read in conjunction with section 3 of FELA, fastens strict liability on railroad carriers who violate its safety standards. In this case, the jury determined that CSXT had violated the LIA, which liberated Granfield from the burden of having to prove negligence. He did, however, have to prove that the condition of the throttles and alerters were causally related to his injuries. As we discuss below, these points were highly contested by CSXT. On August 17, 2006, the case was transferred to the District of Massachusetts, Western Division. CSXT then filed a Motion for Summary Judgment dated May 2, 2008, where it argued, The BIA, 45 U.S.C. § 23, was recodified in 1994 as the Federal Locomotive Inspection Act. See Pub. L. No. 103-272, § 1(a). inter alia, that Granfield's claim of bilateral epicondylitis was time-barred under the FELA three-year statute of limitations. See 45 U.S.C. § 56. After hearing oral arguments on the motion, the district judge denied CSXT's motion and scheduled the case for trial. On October 20, 2008, trial commenced and ten days later, on October 30, the jury rendered its verdict in favor of Granfield. In the Special Verdict form issued to the jury, the Court asked it to find whether or not CSXT was negligent under FELA, and whether or not CSXT violated the LIA. The jury answered "yes" to both questions and awarded $250,000 to Granfield. On October 29, before the jury had returned its verdict, CSXT had filed a Supplemental Renewed Motion for Judgment as a Matter of Law, where it basically reargued its statute of limitations defense. The motion was denied by the district court on October 31. In its short Endorsed Order denying the motion, the Court noted that CSXT failed to present its arguments on the statute of limitations defense to the jury, and never offered them as part of a proposed special verdict either. CSXT again filed a Post-Trial Renewed Motion for Judgment as a Matter of Law, along with a supporting Memorandum of Law on November 17, 2008. In these documents, CSXT rehashed its statute of limitations arguments from its previous motions and added others, based on the arguments adopted by Granfield's counsel during closing statements. The district court again denied CSXT's Motion on February 2, 2009. On March 3, 2009, CSXT entered a Notice of Appeal. CSXT now maintains that the district court erred in rejecting its statute of limitations arguments. Specifically, CSXT appeals from the denial of its May 2, 2008 Motion for Summary Judgment and its November 17, 2008 Post-Trial Renewed Motion for Judgment as a Matter of Law.8 II. Discussion A. Statute of Limitations i. Applicable Law For cases where an employee has been injured over a period of time as the result of continued exposure to unsafe conditions, rather than as a result of a single traumatic event, the Supreme Court adopted the discovery rule, thereby recognizing that a cause of action accrues "only when the accumulated effects of the deleterious substances manifest themselves." Urie, 337 U.S. at 170 (citation omitted). Later, in United States v. Kubrick, the Court rejected "the notion that tort claims in general or malpractice claims in particular do not accrue until a plaintiff learns his injury was negligently inflicted," although it left open the question of whether a plaintiff needs to know the injury's We only review the motion for judgment as a matter of law since "defendant's motion for summary judgment has been overtaken by subsequent events, namely, a full-dress trial and an adverse jury verdict." See Rivera-Torres v. Ortiz Vélez, 341 F.3d 86, 92 (1st Cir. 2003). cause for the purpose of determining accrual. 444 U.S. 111, 119- 20 (1979) (emphasis added). FELA states that "[n]o action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued." 45 U.S.C.A. § 56. We have previously interpreted this part of FELA to mean that "plaintiff has the duty of alleging that he has brought his action in due time." Brassard v. Boston & Maine R.R., 240 F.2d 138, 141 (1st Cir. 1957) (citing Am. R. Co. of Porto Rico v. Coronas, 230 F. 545, 547 (1st Cir. 1916) (commenting in dicta that "it was incumbent upon the plaintiff to allege and prove that his [FELA] cause of action was brought within the time limited"), overruled on other grounds by Reading Co. v. Koons, 271 U.S. 58, 60-64 (1926) (additional citation omitted). Cf. Emmons v. S. Pac. Transp. Co., 701 F.2d 1112, 1118 (5th Cir. 1983) (holding that burden is on claimant to allege and prove that his cause of action was commenced within the three-year statute of limitations period); Carpenter v. Erie R. Co., 132 F.2d 362, 362 (3d Cir. 1942) (dismissing FELA complaint where it "appear[ed] from the face of the complaint that the plaintiff's cause of action arose more than fourteen years before the suit was commenced," because it is "incumbent upon one suing under the act to allege and prove that his cause of action was brought within the time limited") (citation omitted); but see Campbell v. Grand Trunk W. R.R. Co., 238 F.3d 772, 775 (6th Cir. 2001)(finding that in a FELA case the statute of limitations is an affirmative defense). Several courts of appeals, as well as our own, have interpreted both Urie and Kubrick to mean that the three- year statute of limitations period begins to run when a plaintiff knows, or should know, of her injury and its cause. Albert v. Maine Cent. Ry. Co., 905 F.2d 541, 543-44 (1st Cir. 1990); see e.g., Townley v. Norfolk & W. Ry. Co., 887 F.2d 498, 501 (4th Cir. 1989); Kichline v. Consol. Rail Corp., 800 F.2d 356, 360-61 (3d Cir. 1986); DuBose v. Kansas City So. Ry. Co., 729 F.2d 1026, 1030- 31 (5th Cir. 1984). In Albert, we also held that once a plaintiff reaches the conclusion that she has an injury, and that such injury was caused by her employment, she has a duty to investigate the situation in order to confirm or deny her belief. Albert, 905 F.2d at 544. ii. Scope of Review We review de novo the district court's denial of CSXT's motion for judgment as a matter of law, examining "the evidence presented to the jury, and all reasonable inferences that may be drawn from such evidence, in the light most favorable to the jury verdict." Cigna Ins. Co. v. Oy Saunatec, Ltd., 241 F.3d 1, 8 (1st Cir. 2001) (citation omitted). We will reverse denial of said motion "only if reasonable persons could not have reached the conclusion that the jury embraced." Sánchez v. Puerto Rico Oil Co., 37 F.3d 712, 716 (1st Cir. 1994). iii. Analysis CSXT contends that Granfield had the burden of proving his suit was filed in compliance with the FELA statute of limitations and that Granfield failed to do so, requiring judgment as a matter of law for CSXT. In its briefs, CSXT essentially rehashes the arguments it made in its motions for summary judgment and judgment as a matter of law. Both motions were denied by the district court, which found that the question of whether Granfield had complied with the three-year statute of limitations was one for the trier of fact to decide. We agree. We have reiterated that [a]pplication of the discovery rule ordinarily involves questions of fact and therefore in most instances will be decided by the trier of fact. In particular, application of the discovery rule involves determining what the plaintiff knew or should have known, which is a factual question that is appropriate for the trier of fact. Determining when a plaintiff had notice of the likely cause of her injury is one example of such a determination. Genereux v. Am. Beryllia Corp., 577 F.3d 350, 360 (1st Cir. 2009) (internal citations and quotation marks omitted). In this case, CSXT failed to argue to the jury, the trier of fact, that Granfield did not meet the FELA statute of limitations. Indeed, CSXT failed to make this an issue at trial at all, and failed to request a question on the statute of limitations in the special verdict form. At oral argument, CSXT's counsel explained this was a strategic decision. CSXT now points to circumstantial evidence presented at trial which it argues should have led the district court to conclude as a matter of law that Granfield knew or should have known of his injury and its cause more than three years before filing his complaint. However, as the district court explained when it rejected CSXT's statute of limitations arguments on the papers, the question of when plaintiff's claim arose was a factual one, and plaintiff put forth sufficient evidence to support its theory that the claim arose within the limitations period. On review, we view the evidence in the light most favorable to the nonmovant, Granfield. In his notes from Granfield's visit to him on July 8, 2003, Dr. Spector noted that Granfield had complained to him of feeling "symptoms" in his left elbow since December 2002. However, the record is unclear as to what these symptoms were, and whether they rose to the magnitude to lead Granfield to consider himself "injured." Generally, de minimis aches and pains are not considered to be an injury for the purposes of the FELA statute of limitations. Green v. CSX Transp., Inc., 414 F.3d 758 (7th Cir. 2005); see also Lancaster v. Norfolk & W. Ry. Co., 773 F.2d 807, 821 (7th Cir. 1985) (rejected on other grounds by Teague v. Nat'l R.R. Passenger Corp., 708 F. Supp. 1344 (D. Mass. 1989)). At trial, Granfield specifically testified that he was feeling pain in his left elbow; aching, soreness, and swelling in his arm; and tingling in his little finger "around February or March 2003." A few months later, in late May 2003, Granfield went to see his cardiologist, Dr. Chakraborty, who, after examining Granfield, was unable to diagnose him and thus referred him to Dr. Spector. Although at this point there may have been enough evidence presented to the jury to support a finding that Granfield knew he was injured as of May 2003, the same cannot be said for Granfield's knowledge of the cause of his injury. During the visit to Dr. Chakraborty, there apparently was no discussion of Granfield's work. The first time we know for certain that Granfield became aware of the possible connection between his work and his injury was during his visit to Dr. Spector on July 2003, when Dr. Spector informed him of the connection. Granfield filed his complaint on June 19, 2006. In order to find for CSXT, the jury would have to find that Granfield knew or should have known, before seeing Dr. Spector, that he was injured and that his employment was the cause of his injuries. We cannot say, as CSXT requests, that as a matter of law Granfield should have been able to diagnose himself with epicondylities, or have known that his condition was caused by his work as a locomotive engineer. Given all of the evidence presented by Granfield on this issue, we find that a reasonable jury could have concluded that Granfield's claim was not time barred, had CSXT chosen to contest this showing by asking for jury instruction and arguing the matter to the jury. B. Dr. Spector's Testimony At trial, Dr. Spector was Granfield's sole medical causation witness. CSXT first challenged Dr. Spector's testimony in its May 2, 2008 Motion for Summary Judgment. In its motion, CSXT argued that Dr. Spector's opinions were inadmissible under the Federal Rule of Evidence 702 and the seminal case of Daubert v. Merrell Dow Pharmacy, Inc., 509 U.S. 579 (1993), and its progeny. The inadmissibility of Dr. Spector's opinions, CSXT argued, would leave Granfield without any proof as to the element of causation. This in turn would warrant summary judgment in favor of CSXT. On June 25, 2008, the district judge heard oral arguments on the matter, and afterwards entered an oral order denying the Motion for Summary Judgment. The district judge determined that [a]s far as causation goes, I think Doctor Spector's enough to get over the hurdle. He might not clear it by two feet, but he's over it, and we'll have an interesting conflict between the experts on the question of whether the failure to use reasonable care is casually related to the tennis elbow. Prior to trial, on August 18, 2008, CSXT filed a Motion in Limine to Exclude Plaintiff's Expert, Dr. Carl Spector, from Testifying. CSXT reargued its position that Dr. Spector's opinions were not based on sufficient facts or data, or on reliable scientific methodology. At the Pretrial Conference Hearing on October 8, 2008, the district court denied CSXT's Motion in Limine without prejudice. i. Scope of Review At the time of trial, Dr. Spector had been licensed to practice orthopedic medicine and surgery in the Commonwealth of Massachusetts for approximately thirty-five years. He was also a board certified orthopedic surgeon. Dr. Spector estimated that every year he treated over a hundred patients with lateral epicondylitis. During his testimony at trial, Dr. Spector stated that the first time he saw Granfield was on July 8, 2003, when he was referred to his office by Dr. Chakraborty. Dr. Spector also testified that at this meeting he had a long discussion with Granfield about the symptoms he was having, as well as Granfield's work as a locomotive engineer. The following exchange took place when Granfield's attorney conducted the direct examination of Dr. Spector: Q. Did you gain an understanding of basically what [Granfield] did for work? A. Yes. Q. And what was the understanding that you gained? A. Well, the thing is he has a problem with his elbow. The thing is he has lateral epicondylitis. So I then –- most people when they have lateral epicondylitis, they don't know what they have, one. Two, they don't know what causes it. So the main thing is to explain what they have and what causes it. So once I went over what it is, then you drive as an engineer and you're using levers so I explained to him what is causing it. So it's important for me to know what he does. So he has these levers that he uses and we discussed it. Q. And the fact that he -- A. Why you explain it to the patient is so they can avoid doing what aggravates it or do something to compensate for it. Dr. Spector referred to the instruments Granfield was required to operate as "levers." When asked to demonstrate the motion that caused Granfield's epicondylitis, Dr. Spector demonstrated a "back and forth" movement of a "lever," which he maintained caused Granfield to use the dorsal muscles of his forearm. Later on, Granfield's counsel asked Dr. Spector to assume that the throttles and alerter buttons were defective, and that the throttle was a lever, while the alerter was a button. The following question was then asked, over CSXT's objection: Q. ... Doctor, assuming those facts do you have an opinion within a reasonable degree of medical certainty whether or not Mr. Granfield's lateral epicondylitis in his right elbow was caused by these repetitive movements associated with manipulating these defective controls? ... A. I can state with a degree of medical certainty that what you said is true. That having to increase these motions because of the defective working of these levers caused him to have this condition. Q. Why do you believe that? A. It's well known that this type of repetitive injury causes this condition, lateral epicondylitis, and by having to do these extra repetitive motions would have caused this injury. During his cross-examination, Dr. Spector admitted that he could not quantify the amount of force nor the number of repetitions that Granfield had to carry out in order to manipulate the throttles and alerters. After Dr. Spector's direct examination concluded, CSXT moved to have his testimony stricken. CSXT reiterated the lack of a Daubert hearing, and argued that Dr. Spector failed to testify on the standards of repetition, force, and posture accepted in the medical community. The district court denied the Motion. CSXT again maintained that Dr. Spector's opinions were inadmissible in its November 17, 2008 Post-Trial Renewed Motion for Judgment as a Matter of Law. In addition, in its Motion for New Trial filed on the same day, CSXT also claimed that the jury should have been instructed by the district court that expert testimony was necessary to prove causation. The district court denied both motions. CSXT now appeals from the district court's denial of its Motion in Limine to Exclude Plaintiff's Expert, dated August 18, 2008; its Post-Trial Renewed Motion for Judgment as a Matter of Law; and its Motion for New Trial, both dated November 17, 2008. CSXT argues that Plaintiff's causation expert, Dr. Spector, should have been precluded from qualifying as an expert on the cause of Plaintiff's injuries because Dr. Spector's testimony was not based upon sufficient facts or data, and also that it was not based on reliable scientific methodology. In the alternative, CSXT contends that Dr. Spector's opinion at trial did not provide sufficient evidence for a rational jury to find for Plaintiff on the issue of causation. We disagree. As to CSXT's first contention, we review a district court's ruling admitting or excluding expert testimony under the Federal Rules of Evidence for abuse of discretion, Forrestal v. Magendantz, 848 F.2d 303, 305 (1st Cir. 1988), giving broad deference to the determination made by the district court as to the reliability and relevance of expert testimony. Beaudette v. Louisville Ladder, Inc., 462 F.3d 22, 25 (1st Cir. 2006) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997)); see also United States v. 33.92356 Acres Of Land, 585 F.3d 1, 7 (1st Cir. 2009).9 CSXT's second argument requires us to review the denial of the motion for judgment as a matter of law, which we do de novo. Butynski v. Springfield Terminal R. Co., 592 F.3d 272, 276 (1st Cir. 2010). In Daubert, the Court outlined a flexible, non-exclusive set of criteria for admitting expert testimony. 509 U.S. 593-95. In its brief in chief, CSXT argued that the proper standard of review was clear error since CSXT had filed a motion in limine to exclude Dr. Spector's testimony and the district court denied it without prejudice. We continue to assert that the proper standard of review of a denial of admission of expert testimony is abuse of discretion. The Court considered (1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) and general acceptance in the relevant scientific community. Id. at 593-95. "The inquiry envisioned by Rule 702 is, [the Court] emphasize[d], a flexible one." Id. at 594. Since Daubert, courts have expanded that criteria to include, for example, whether the testimony was prepared for the purpose of the litigation or whether it was something that the expert did in her ordinary practice. See Johnson v. Manitowoc Boom Trucks, Inc., 406 F. Supp. 2d 852, 865 (M.D. Tenn. 2005) (noting that an important factor is whether the expert is testifying about matters arising naturally and independently of litigation or whether opinions are developed solely for the purpose of testifying); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1319-21 (11th Cir. 1999) (affirming trial court's decision to exclude expert testimony based, in part, on the fact that the expert created his testimony solely in preparation for trial). Applying the law to these facts, we first find that CSXT has failed to clear these hurdles, and that the district court did not abuse its discretion in admitting Dr. Spector's testimony. Dr. Spector is an orthopedic surgeon who specializes in repetitive stress injuries. Dr. Spector regularly diagnoses repetitive stress injuries, and treats 100 to 150 patients per year for lateral epicondylitis. At the time of the trial, Dr. Spector had seen more than 2,000 cases of epicondylitis. We agree with the district court that CSXT is "making something which is relatively simple more complicated." Dr. Spector testified that repetition causes epicodylitis, and that more repetition makes it more likely that a patient will develop lateral epicondylitis. The district court explained: We have testimony that because of the defect there was more repetition. Now the jury may not accept the doctor's testimony on that. They may believe somebody that says that this type of repetition can never cause epicondylitis whether it's a little bit or a lot, but the essence of the doctor's testimony, the jury may find, is that he says this type of movement will cause epicondylitis and the risk of epicondylitis increases the more that you have to make that kind of movement. CSXT makes much of the fact that Dr. Spector did not rely on peer-reviewed studies in his causation diagnosis. The mere fact of publication, or lack thereof, in a peer-reviewed journal is not a determinative factor in assessing the scientific validity of a technique or methodology on which an opinion is premised. Daubert, 509 U.S. at 593 ("Publication (which is but one element of peer review) is not a sine qua non of admissibility . . . ."). CSXT also takes issue with Dr. Spector's method of analysis, differential diagnosis (a determination of which of two or more diseases, presenting with similar symptoms, had caused a patient's ailments). We have previously agreed that a differential diagnosis is a proper scientific technique for medical doctor expert testimony. See Feliciano-Hill v. Principi, 439 F.3d 18, 25 (1st Cir. 2006); see also Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1123 (10th Cir. 2004) (collecting cases holding that qualified doctor's differential diagnosis of patient was sufficiently reliable for Rule 702 and Daubert purposes). Given the above, and the fact that Dr. Spector's opinion was formed before litigation was contemplated, we find that the district court did not abuse its discretion in admitting Dr. Spector as an expert on the issue of causation. The remainder of CSXT's objections to Dr. Spector, even while cloaked as objections to his qualifications under Rule 702, are actually objections about the weight of the evidence. Cf. McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995) (holding that "[d]isputes as to the strength of [expert'] credentials, faults in his use of differential etiology as a methodology, or lack of textual authority for his opinion, go to the weight, not the admissibility, of his testimony."). Here we also find that CSXT has failed to satisfy its burden of proving that Dr. Spector's testimony was insufficient to establish causation. This argument properly relates to CSXT's appeals from the district court's denial of its motion for judgment as a matter of law and for a new trial and is thus reviewed, respectively, de novo and for abuse of discretion. Dr. Spector testified at trial that the "force [used] is not the important part. It's the repetition . . . that causes scar tissue and bilateral epicondylitis and that having to increase these motions because of the defective working of these levers caused [Granfield] to have this condition." CSXT did not present their own expert to rebut Dr. Spector's testimony, although it has listed one on the witness list. CSXT also did not offer any medical expert testimony on the causation issue. Considering the above, we find that a reasonable jury could have found Dr. Spector presented sufficient evidence to find that CSXT caused Granfield's injuries. C. The Roberts Letter The Brotherhood of Locomotive Engineers ("BLE"), of which Granfield was a member, collected locomotive work reports, or "5001B reports," between 2000 and 2006. Engineers were required by a BLE directive to fill out these reports periodically, annotating any defects they encountered while operating the locomotives. William Munger, then local chairman of BLE, was in charge of collecting the reports. According to the testimony of its General Chairman, Thomas Roberts, the BLE wanted to perform a "comprehensive study" on these reports. Roberts conducted a review of the reports gathered by Munger, and subsequently sent a letter to Richard Regan, CSXT's Chief Mechanical Officer, concerning the condition of the locomotives. In this letter, dated January 20, 2004, Roberts stated, inter alia, the following: This is in reference to a number of CSX locomotives . . . and their potential danger to the health of CSX Engineers . . . due to their degenerated condition. [B]ill Munger, has made a comprehensive study of the dangerous disrepair of these locomotives . . . . [H]is color photo study of the neglected locomotives is attached . . . . [H]is efforts have yet to result in a safe workplace CSX Northern District Engineers in Framingham. Thus and therefore, I request immediate relief from your office to fix or replace these dangerous locomotives before serious injury strikes, and irreparable damage is done. During Roberts' cross-examination at trial, CSXT questioned him as to the comprehensiveness of Munger's study. When Roberts answered that he did not know, CSXT's counsel approached him and used the above letter to refresh his memory.10 Afterwards, during the redirect examination of Roberts, Granfield's counsel sought to introduce the letter into evidence. The district court admitted the letter into evidence, over CSXT's Roberts had previously been precluded from testifying on the state of the locomotives. objection, reasoning that as CSXT used the letter to refresh a witness' memory, Granfield had the right to offer it into evidence. During the marshaling of evidence, at the time when the jury was about to commence its deliberations, the district court overruled its original admission of the letter. The court struck the whole letter and determined that it should not be provided to the jury for its deliberations. The contents of the letter were not read to the jury, nor were they admitted into evidence. In its November 17, 2008 Motion for New Trial and supporting Memorandum of Law, CSXT argued, inter alia, that it was unfairly prejudiced by the Court's initial admission of the letter. CSXT now appeals from the denial of this motion by the district court on February 2, 2009. i. Standard/Scope of Review We review a denial of a Motion for a New Trial under an abuse of discretion standard. Simon v. Navon, 71 F.3d 9, 13 (1st Cir. 1995). We have sent cases back for a new trial when we have found the trial court abused its discretion in not granting a new trial where it had admitted irrelevant and highly prejudicial damages evidence which tainted the award. Soto Lebrón v. Fed. Express Corp., 538 F.3d 45 (1st Cir. 2008). This court's standard for determining whether the admission of such evidence resulted in harmless error is "whether we can say 'with fair assurance . . . that the judgment was not substantially swayed by the error . . . .'" Stacey Marie Vincent v. Louis Marx & Co., 874 F.2d 36, 41 (1st Cir. 1989). "The centrality of the evidence, its prejudicial effect, whether it is cumulative, the use of the evidence by counsel, and the closeness of the case are all factors which bear on this determination." Id. ii. Analysis Typically, when a party uses a writing to refresh a witness's memory, the opposing party has the right to offer "those portions [of the writing] which relate to the testimony of the witness" into evidence. Fed. R. Evidence 612. Rule 612 also states that "[i]f it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto." Id. Rule 612 has never been construed to require that a writing used to refresh a witness' recollection must be independently admissible into evidence. United States v. Shinderman, 515 F.3d 5, 18 (1st Cir. 2008). Here, the letter impeached by CSXT contained general and possibly prejudicial language on the state of the locomotives, mainly that they were in "degenerated condition," "dangerous disrepair," and presented an unsafe workplace for CSXT engineers. During cross-examination, CSXT's counsel used the letter to refresh Robert's recollection as to the "comprehensiveness" of the study carried out by Munger. At re-direct, Granfield's counsel introduced the letter into evidence, over CSXT's objection, and asked Roberts what the letter said. The district court refused to allow Roberts to read the letter aloud, reasoning that the jury would be able to read it on their own later. Granfield's counsel then asked Roberts four questions relating to the letter. In response to these questions, Roberts testified that he thought the locomotives provided a risk of serious injury and had slipped into a state of disrepair, due to holes being present on the floor, among other things. CSXT maintains that the testimony elicited from Roberts through the use of the letter was highly prejudicial and substantially swayed the jury. Furthermore, CSXT contends the letter undermined its efforts to prove it employed reasonable care in the maintenance of its locomotives. We ultimately find that this testimony, even assuming its admission was error, was harmless. Several reasons guide us in this determination. First, the letter was never read out loud to the jury, so any prejudice came from Roberts' testimony on the state of the locomotives. This testimony, including the phrases "state of disrepair" and "risk of serious injury," was brief and was cumulative with the other evidence presented relating to the state of the locomotives. Second, during the re-cross CSXT's counsel was able to confront Roberts on the contents of the letter. During this confrontation, Roberts admitted that the Munger study referenced in the letter only concerned the floors of the locomotives, which were apparently plagued by holes. Roberts further admitted that nothing in the letter had any relevancy to the state of the throttles and alerters, the main issue at trial. At this point, any prejudicial effect on the jury was neutralized by CSXT's counsel. CSXT's counsel adequately established that the letter was irrelevant to the condition of the throttles and alerters and was instead only relevant to the condition of the floors of the locomotives.11 Finally, the letter never actually reached the jury. Considering the above, we find that the brief statements by Roberts as to the contents of the letter was harmless error. D. Closing Arguments After the conclusion of closing arguments, CSXT counsel objected, arguing that Granfield's counsel had twice attacked him personally and also misstated what the evidence was concerning other engineers who had developed epicondylitis from operating the same locomotives Granfield was required to operate. In particular, CSXT objected to the following statement made by Granfield's counsel during his closing argument: No evidence was presented at trial and no argument has been offered that the condition on the locomotives' floor was related to Granfield's lateral epicondylitis. Mr. Flynn is the one who says nobody else got it. What witness came in and said, "Yeah, there's been no other claims by other engineers saying that they have lateral epicondylitis due to the throttles and alerters." What witness said that? I didn't hear that witness. Maybe I wasn't there that day. I'm pretty sure I was here every day. The only one who said that was Mr. Flynn. And what Mr. Flynn says isn't evidence. CSXT pointed out that John O'Neill, a trainmaster working for CSXT and one of its witnesses, testified at trial that no engineer, other than Granfield, had ever complained of developing epicondylitis as a result of the condition of the throttles and alerters in the locomotives Granfield was required to operate.12 The district judge heard the objection and decided to give a general curative instruction to the jury before its general instructions. The judge stated: I wanted to remind you that although the attorneys would not deliberately mislead you, it may be, as you review your own notes or the recollection of the testimony, that there's some inconsistencies or an inconsistency or two, or whatever, between what the attorney said in their closings as to what they thought the evidence showed and what your recollection of the evidence was. Please remember to be guided by your own recollection The following exchange took place during O'Neill's direct examination by CSXT: Q. Has any engineer, other than Mr. Granfield, ever complained they have developed tennis elbow as a result of the condition of throttles or alerters in the 6200 series locomotives between 2000 and 2006? A. No. of the evidence, your collective recollection, as you go through your deliberations and that if there are inconsistencies, of course follow your own recollections and not follow the attorneys' representations. After the trial ended, CSXT again made the argument that Granfield's counsel's comments were inappropriate and warranted a new trial in its November 17, 2008 Motion for New Trial. This time, however, CSXT enumerated a litany of additional statements made by Granfield's counsel during closing arguments which it considered also to be improper and warranted a new trial. CSXT argued that the statements unfairly prejudiced the jury and that the curative instructions from the district judge were not enough to overcome their prejudicial effect. Specifically, CSXT alleged that Granfield's counsel made improper remarks as he: (1) asked the jury to walk in Granfield's shoes; (2) misstated facts and evidence presented at trial; (3) interjected his personal opinions and beliefs regarding the credibility of witnesses; and (4) interjected emotional, inflammatory, and prejudicial elements into jury deliberations. CSXT also argued that the district court's curative instruction was insufficient to counter the alleged prejudice caused on the jury by Granfield's counsel's improper remarks. As stated previously, CSXT's Motion for New Trial was denied on February 2, 2009, and CSXT now appeals from this decision. i. Standard/Scope of Review We review the comments timely objected to under an abuse of discretion standard.13 "Absent an abuse of discretion, we will defer to the district court's denial of a motion for a new trial on the basis of improper argument or conduct of counsel." P.R. Aqueduct & Sewer Auth. v. Constructora Lluch, Inc., 169 F.3d 68, 81-82 (1st Cir. 1999); see also Johnson v. Nat'l Sea Prods., Ltd., 35 F.3d 626, 631 (1st Cir. 1994). In assessing the effect of allegedly improper conduct by counsel, the Court must examine the totality of the circumstances, including (1) the nature of the comments; (2) their frequency; (3) their possible relevance to the real issues before the jury; (4) the manner in which the parties and the court treated the comments; (5) the strength of the case; and (6) the verdict itself. See Forrestal, 848 F.2d at 309; see also González Marín v. Equitable Life Assurance Soc'y, 845 F.2d 1140, 1147 (1st Cir. 1988). On the other hand, untimely objections, which a party fails to make immediately after closing arguments, are reviewed for plain error. Smith v. Kmart Corp., 177 F.3d 19, 25 (1st Cir. 1999). Thus CSXT must establish that (1) an error was committed; (2) the error was "plain" (i.e. obvious and clear under current law); (3) the error was prejudicial (i.e. affected substantial Namely, the comment on what the evidence was on other engineers who had developed epicondylitis from operating the alerters and throttles on the 6200 series locomotives. rights); and (4) review is needed to prevent "a miscarriage of justice or [if the error has] seriously affected the fairness, integrity or public reputation of the judicial proceedings." Coastal Fuels of P.R., Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 189 (1st Cir. 1996). See also Chute v. Sears Roebuck & Co., 143 F.3d 629, 631 (1st Cir. 1998); United States v. Bartelho, 129 F.3d 663, 673 (1st Cir. 1997); Cambridge Plating Co., Inc. v. Napco, Inc., 85 F.3d 752, 767 (1st Cir. 1996) ("Plain error is a rare species in civil litigation, encompassing only those errors that reach the pinnacle of fault.") (internal quotations omitted). ii. Analysis We begin first by addressing the comment timely objected to by CSXT. CSXT argues that, during closing argument, Granfield's counsel misstated what the evidence was concerning other engineers who had developed epicondylitis, as a result of operating the GP40 6200 series locomotives. CSXT pointed out that one of its witnesses, O'Neill, had testified that no engineer, other than Granfield, had complained of developing the injury as a result of the condition of the throttles and alerters in the 6200 series locomotives. After CSXT objected to Granfield's counsel's remarks, Granfield's counsel countered that O'Neill did not possess the requisite knowledge and information from which to testify on the amount of engineers, if any, who had complained of developing lateral epicondylitis. The jury heard O'Neil's testimony and even if counsel's remarks had a tendency to mislead, we believe the brief comments were sufficiently neutralized by the district judge's curative instructions. See Hatfield-Bermúdez v. Aldanondo-Rivera, 496 F.3d 51, 64 (1st Cir. 2007). As to the unobjected-to alleged errors, CSXT contends that Granfield's counsel made an improper statement when he asked the jury to walk in Granfield's shoes "for just a couple of hours while you're thinking about his case." There can be little doubt that suggesting to the jury that it put itself in the shoes of a plaintiff is improper. Forrestal, 848 F.2d at 309. The walking in plaintiff's shoes argument, or as it is sometimes called, the Golden Rule argument, has been "universally condemned because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on evidence." Id. (internal quotations omitted); see also Ivy v. Sec. Barge Lines, Inc., 585 F.2d 732 (5th Cir. 1978) rev'd en banc on other grounds, 606 F.2d 524 (5th Cir. 1979) (en banc), cert. denied, 446 U.S. 956 (1980). Nonetheless, we have never held that the use of such language is per se reversible error. To the contrary, we have held that we will engage in a totality of the circumstances analysis which "[f]irst and foremost [recognizes] the deference due the district court's judgment." Forrestal, 848 F.2d at 309. Nevertheless, we believe that these sorts of remarks by were adequately dealt with by the district judge's instructions, and conclude that no plain error occurred. See Forrestal, 848 F.2d at 310; see also Blevins v. Cessna Aircraft Co., 728 F.2d 1576 (10th Cir. 1984). Second, CSXT objects to several statements made by Granfield's counsel during closing argument, arguing that such statements misstated the facts and evidence presented at trial. Two examples of these statements are: (1) "the plaintiff had no ability to take a locomotive out of service;" and (2) "Mr. Granfield, this is his only opportunity to get compensation in this case for his injuries." As to the first statement, federal regulations require that a locomotive engineer take the locomotive out of service if it is unsafe. The second statement, according to CSXT, ignored the fact that Granfield was then receiving $38,000 a year in Railroad Retirement Board Benefits. Again, we believe that individually and cumulatively, the statements cited failed to raise to the level of plain error. The same can be said for the other statements CSXT is objecting to: the statements attacking the credibility of CSXT's witnesses and the remarks allegedly interjecting "emotional, inflammatory and prejudicial elements" into jury deliberations. The district judge properly dealt with these by instructing the jury to only consider the evidence, and not be swayed by emotions or sympathy. Thus, no plain error was committed.14 For the reasons stated above, we affirm the judgment. Affirmed. CSXT also requests that we enter judgment in its favor, or in the alternative order a new trial, based on the cumulative error doctrine outlined in United States v. Sepúlveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993). Given that we have found the district court committed no errors, we decline to do so.

United States Court of Appeals For the First Circuit No. 09-1832 ANA MARGARITA VILLA-LONDONO, Petitioner, v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Lynch, Chief Judge, Selya and Boudin, Circuit Judges. Carlos E. Estrada on brief for petitioner. Tony West, Assistant Attorney General, Civil Division, United States Department of Justice, John S. Hogan, Senior Litigation Counsel, and Michael C. Heyse, Attorney, Office of Immigration Litigation, on brief for respondent. March 12, 2010 SELYA, Circuit Judge. The petitioner, Ana Margarita Villa-Londono, is a Colombian national who seeks judicial review of a final order of the Board of Immigration Appeals (BIA) affirming the decision of an immigration judge (IJ). That decision rejected her claims for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). After careful consideration, we deny the petition. The facts are uncomplicated. On June 30, 2002, the petitioner arrived in Miami and sought to enter the United States by means of a doctored Colombian passport. Customs agents detected the ruse and detained her. While in custody, the petitioner proclaimed that she had come to the United States in search of political asylum. She explained that she had left behind a menacing boyfriend, who was in drug rehabilitation. She attributed her flight both to her boyfriend's threats and to her vulnerability to guerilla violence. The claim of vulnerability was based on her employment as a secretary to the mayor of Copacabana, Colombia, coupled with an assertion that the guerillas tended to target public employees. Several days after her initial debriefing, the petitioner participated in a so-called "credible fear" interview. At that time, she reiterated the fears that she previously had articulated. When asked whether she, personally, had encountered any problems with the guerillas, she answered "no." On July 9, 2002, federal authorities charged the petitioner in the immigration court with (i) inadmissibility by reason of her failed attempt to employ fraud or misrepresentation and (ii) lack of a valid entry document at the time of her application for admission. See 8 U.S.C. §§ 1182(a)(6)(C)(i), 1182(a)(7)(A)(i)(i). The petitioner admitted the government's allegations and cross-applied for asylum, withholding of removal, and protection under the CAT. In this cross-application, the petitioner for the first time related a harrowing story involving a dangerous encounter with guerillas who, in the months leading up to her flight from Colombia, had been harassing her. In April of 2005, the case was transferred to Boston at the petitioner's request. The petitioner conceded removability and testified in support of her cross-application. In her testimony, she elaborated on her nascent allegations of guerilla harassment. The tale began in October of 2001. The petitioner averred that she was riding in a bus that was stopped by armed guerillas. One passenger was executed on the spot. The petitioner was not harmed, but the guerillas called her "a medium sized fish . . . the secretary of the mayor." She was spared only because she was not on the guerillas' list of current targets. The horrors of that incident were reinforced by her later receipt of threatening telephone calls from the guerillas. The IJ inquired why the petitioner had failed to relate this tale in her credible fear interview. The petitioner blamed that omission on a combination of nerves, hypertension, and poorly controlled diabetes, which had compromised her responsiveness at that moment. The petitioner introduced no medical evidence in support of this averment. In a bench decision, the IJ determined that the petitioner's testimony was not credible. He specifically referenced the glaring discrepancies between the petitioner's statements during her credible fear interview and her testimony at the merits hearing. Those versions were irreconcilable and, as such, the latter version was unworthy of belief. The other evidence in the record pertained almost entirely to country conditions. Beyond that, there were two petitioner-specific affidavits; nevertheless, neither compelled a conclusion favorable to the petitioner. In all events, the IJ, having discounted the petitioner's testimony, found insufficient evidence to warrant granting any of the requested relief. The BIA affirmed the IJ's decision. In its view, the IJ had "supported his adverse credibility finding with specific and cogent reasons based on the record." Accordingly, it held that the petitioner had failed to make out a case for either asylum or withholding of removal. By the same token, there was no credible evidence that, if the petitioner were repatriated, any official of the Colombian government would more likely than not torture her or acquiesce in her torture by others. Thus, the petitioner's CAT claim also failed. This timely petition for judicial review followed. In such matters, we typically review only the BIA's decision. See, e.g., Seng v. Holder, 584 F.3d 13, 17 (1st Cir. 2009). But where, as here, the BIA adopts portions of the IJ's opinion while adding its own comments, we review both the IJ's opinion and the BIA's decision. Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 5 (1st Cir. 2008). We undertake that sort of hybrid review in this case. Our standard of review is familiar. Factual findings, including credibility determinations, are evaluated under the substantial evidence rubric. That standard demands that we accept factual findings as long as they are "supported by reasonable, substantial and probative evidence on the record considered as a whole." Seng, 584 F.3d at 17 (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). Refined to bare essence, this means that in the absence of an error of law, we will set aside the agency's fact-based resolution of a claim only if "the evidence is such as would compel a reasonable factfinder to reach a contrary conclusion." Id. In the case at hand, the petitioner advances three arguments. First, she argues that the adverse credibility determination is insupportable. Second, she argues that she made out a compelling case for asylum and/or withholding of removal. Third, she argues that the BIA employed an incorrect legal rule in rejecting her CAT claim. We address the first two arguments together and then proceed to the third.1 In order to warrant asylum, an alien bears the burden of demonstrating that she is a "refugee." 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1); Seng, 584 F.3d at 18. To come within this category, an alien must demonstrate either past persecution or a well-founded fear of future persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion." Seng, 584 F.3d at 18 (quoting 8 U.S.C. § 1101(a)(42)(A)). The alien's credible testimony alone may suffice to carry this burden. Id. But the agency is not required to take such testimony at face value; it may discount or disregard the testimony if the trier "reasonably deems it to be 'speculative or unworthy of credence.'" Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st Cir. 2009) (quoting Bebri v. Mukasey, 545 F.3d 47, 50 (1st Cir. 2008)). In the absence of other compelling evidence, "an adverse credibility determination can prove fatal to a claim for In discussing the first two arguments, we need do so only in terms of the petitioner's claim for asylum. After all, claims for withholding of removal require a higher level of proof than claims for asylum. It follows that if a claim for asylum is rejected on the merits, a counterpart claim for withholding of removal must necessarily fail. See Orelien v. Gonzales, 467 F.3d 67, 73 (1st Cir. 2006); Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir. 2005). either asylum or withholding of removal." Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir. 2007). Here, the petitioner filed for asylum in 2002. That was before the effective date of the REAL ID Act of 2005, Pub. L. No. 109-13, § 101(h)(2), 119 Stat. 302, 303 (effective May 11, 2005). Thus, the bona fides of the adverse credibility determination in this case are governed by the preexisting "heart of the matter" rule. Seng, 584 F.3d at 18 & n.2. Under this rule, "an adverse credibility determination may not rest on discrepancies or inconsistencies that are merely peripheral to the alien's claim; instead, the determination must rest on discrepancies or inconsistencies that are central to the claim." Id. In mounting her attack on the adverse credibility determination here at issue, the petitioner assails the IJ's reliance on the credible fear interview. She views the omission of the 2001 bus incident from that account as fully explained and, thus, insufficient to ground an inference of incredibility.2 We disagree. "[W]hen an alien's earlier statements omit any mention of a particularly significant event or datum, an IJ is justified — at least in the absence of a compelling explanation — in doubting the petitioner's veracity." Muñoz-Monsolve, 551 F.3d The petitioner's brief seems to suggest that she was under some unspecified duress during the credible fear interview. To the extent that this argument is raised, it was not exhausted before the agency. Thus, we lack jurisdiction to consider it. Olujoke v. Gonzales, 411 F.3d 16, 22-23 (1st Cir. 2005). at 8. That precept applies here. The petitioner's explanation was hardly compelling, and the IJ was free to credit it or not, as he thought best. It makes especially good sense to apply this precept here. A credible fear interview is designed to "elicit all relevant and useful information bearing on" the alien's asylum claim. 8 C.F.R. § 208.30(d). Given that emphasis, the failure to mention either the bus incident or its sequella is virtually inexplicable. What we have here is not a simple failure to recollect a trivial detail. The omitted material comprises the centerpiece of the petitioner's case. To cinch matters, the omission at issue here is glaring. It occurred not only in the credible fear interview, but also in the petitioner's earlier debriefing. And, finally, it is impossible to reconcile the late-emerging account of the guerilla encounter with the petitioner's explicit assurance that she, personally, had not been involved in any encounters with the guerillas. Under these circumstances, we think it clear that the IJ acted within his proper purview in relying on the omission — which went to the heart of the petitioner's case — in making an adverse credibility determination. See, e.g., Lumaj v. Gonzales, 446 F.3d 194, 199 n.6 (1st Cir. 2006) (upholding adverse credibility determination that rested, in part, on a material omission during a credible fear interview). In an effort to blunt the force of this reasoning, the petitioner suggests that, at the time of the credible fear interview, she thought that she would have another opportunity to give more specific information. She offers no basis for this belief and, in any event, her suggestion does not explain why, in reply to a direct question, she denied any personal contact with the guerillas. On these facts, the IJ was not obligated to credit this possibility. In sum, the IJ, who saw and heard the petitioner's testimony and explanation at first hand, did not believe her. This adverse credibility determination is supported by specific and persuasive findings. Consequently, we must honor it. See Olujoke v. Gonzales, 411 F.3d 16, 21-22 (1st Cir. 2005). This holding has a domino effect. With the petitioner's testimony discredited, there is very little other evidence in the record to support her asylum claim. Certainly, a generalized threat of violence in a troubled land, fears of reprisal from a quondam boyfriend, and two affidavits (one stating that she was a good employee and the other confirming the occurrence of the bus incident) do not compel a grant of asylum. See, e.g., Amouri v. Holder, 572 F.3d 29, 34-35 (1st Cir. 2009). Accordingly, we reject the petitioner's second argument out of hand. This brings us to the petitioner's final plaint: that the BIA impermissibly required governmental action or acquiescence as a precondition to CAT protection. This argument presents an uphill climb for the petitioner; the regulation defining "torture" for CAT purposes appears to require a governmental nexus. See 8 C.F.R. § 1208.18(a)(1); see also Amouri, 572 F.3d at 35. But we need not and do not decide the question. The argument is raised for the first time in this court and is, therefore, unexhausted. Thus, we lack jurisdiction to consider it. See Sela v. Mukasey, 520 F.3d 44, 47 (1st Cir. 2008); Olujoke, 411 F.3d at 22-23. We need go no further. For the reasons elucidated above, we deny the petition for judicial review. So Ordered.

Not for Publication in West's Federal Reporter United States Court of Appeals For the First Circuit No. 09-2360 RAYMOND HERNANDEZ-ALBINO, Petitioner, Appellant, v. ANTHONY HAYNES, Warden, Respondent, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Aida M. Delgado-Colón, U.S. District Judge] Before Torruella, Selya and Howard, Circuit Judges. Raymond Hernández-Albino on brief pro se. Thomas F. Klumper, Assistant U.S. Attorney, Nelson Pérez-Sosa, Assistant U.S. Attorney, and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief for appellee. March 12, 2010 Per Curiam. We have reviewed the record and the parties' submissions, and we affirm. Despite appellant Raymond Hernández- Albino's (Hernández's) attempt to characterize his most recent filing as a motion pursuant to 28 U.S.C. § 2241, rather than a motion filed pursuant to 28 U.S.C. § 2255, this court must look to the substance of the motion to determine whether it is governed by the statutory framework set out in 28 U.S.C. § 2255. Trenkler v. United States, 536 F.3d 85, 97 (1st Cir. 2008), cert. denied, 129 S. Ct. 1363 (2009). Hernández argues that the evidence presented at trial was insufficient to support his conviction. This claim falls squarely within the ambit of section 2255. Cf. Rogers v. United States, 180 F.3d 349, 357 n. 15 (1st Cir. 1999). Moreover, the "savings clause" of section 2255 does not help Hernández. Only if the remedy available under section 2255 is inadequate or ineffective will a prisoner be allowed to file a section 2241 motion to challenge the legality of his conviction. See Sustache-Rivera v. United States, 221 F.3d 8, 15 (1st Cir. 2000). The remedy in section 2255 does not become "inadequate or ineffective" simply by virtue of the fact that the prisoner is not able to meet the gate-keeping requirements for second or successive petitions. See United States v. Barrett, 178 F.3d 34, 50 (1st Cir. 1999). Even if the court were to treat Hernández's submissions here as a request for permission to file a second or successive motion pursuant to section 2255, we would deny the request. Hernández does not cite any new evidence; rather, he only argues that the evidence presented at trial did not establish his guilt. See 28 U.S.C. § 2255(h)(1). Moreover, he does not cite to a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. See 28 U.S.C. § 2255(h)(2). Affirmed. See 1st Cir. R. 27.0(c).

United States Court of Appeals For the First Circuit No. 09-2634 ANSYS, INC., Plaintiff, Appellant, v. COMPUTATIONAL DYNAMICS NORTH AMERICA, LTD.; DORU A. CARAENI, PH.D., Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Steven J. McAuliffe, District Judge] Before Lynch, Chief Judge, Howard, Circuit Judge, and Woodlock,* District Judge. Wilbur A. Glahn, III with whom Cameron G. Shilling, Cathryn E. Vaughn, and McLane, Graf, Raulerson & Middleton, Professional Association were on brief for appellant. Geoffrey J. Vitt with whom Elizabeth K. Rattigan, Vitt & Ratigan, PLC, Michael A. Schlanger, Shelli L. Calland, and Covington & Burling LLP were on brief for appellees. February 12, 2010 * Of the District of Massachusetts, sitting by designation. LYNCH, Chief Judge. ANSYS, Inc. ("ANSYS") is a company that produces propriety software in the field of computational fluid dynamics ("CFD"). In August 2009, ANSYS sued its former employee, Dr. Doru Caraeni, and his new employer, Computational Dynamics North America, Ltd. ("CDNA"), in the federal district court for the district of New Hampshire, alleging breach by Dr. Caraeni of the noncompetition and confidentiality clauses in his ANSYS employment contract, interference with contractual relations, misappropriation of trade secrets, and unfair trade practices. CDNA and ANSYS are competitors; together they occupy approximately 80 percent of the market for CFD software, which is used for modeling and simulating fluid and gas flows. ANSYS had employed Dr. Caraeni from January 2002 to May 2009 to develop code for CFD simulation software. ANSYS sought a preliminary injunction to enforce the provisions of a one-year noncompetition clause in Dr. Caraeni's employment agreement. The district court denied the request, finding that ANSYS had not met the requirements for injunctive relief. See ANSYS, Inc. v. Computational Dynamics N. Am., Ltd., Civ. No. 09-cv-284-SM, 2009 WL 4403745 (D.N.H. Nov. 25, 2009). We expedited the appeal. After oral argument this court issued an order affirming the denial of preliminary injunctive relief. We also said we would later issue our opinion in this case, as we do now, and judgment would not enter until we had done so. I. Our standard of review for denials of injunctive relief is strict: "we will reverse such a denial only if the district court mistook the law, clearly erred in its factual assessments, or otherwise abused its discretion in granting the preliminary injunction." McClure v. Galvin, 386 F.3d 36, 41 (1st Cir. 2004) (internal quotation marks omitted). While we think this case is close, we cannot say the court abused its discretion. When deciding whether to grant ANSYS preliminary injunctive relief, the district court was required to weigh four factors: (1) whether ANSYS had shown a likelihood of success on the merits, (2) whether ANSYS had shown that it would suffer irreparable harm if the injunction was denied, (3) the balance of the relevant hardships, and (4) any impact that the court's ruling may have on the public interest. See Wine & Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36, 46 (1st Cir. 2005). The first factor, likelihood of success, is usually given particularly heavy weight. Waldron v. George Weston Bakeries Inc., 570 F.3d 5, 8 (1st Cir. 2009). The district court denied ANSYS's motion on the grounds that the company had failed to demonstrate likely success on the merits and also failed to show that it would suffer irreparable harm absent injunctive relief. ANSYS, Inc., 2009 WL 4403745, at *5-7. We begin our review of the district court's decision with the contract clause in question, which Dr. Caraeni had signed in September 2001. It reads, in relevant part, "I agree that for a period of one (1) year following termination of my employment with [ANSYS], I will not become an employee . . . or in any way engage in or contribute my knowledge to a competitor of [ANSYS]." Perhaps recognizing how poorly drafted this clause is, ANSYS offers two pertinent narrowing constructions: (1) the clause only applies to those employees who have access to confidential information or trade secrets--thus, the clause would not apply to, for instance, a maintenance worker; and (2) the clause only applies to employees who are in a position to use that information at their new employer. This interpretation, of course, requires judicial reconstruction of the broadly drafted contract language. Against the backdrop of these constructions, ANSYS argues it has to show two things, and no more, to establish breach of contract: that Dr. Caraeni had access to confidential information while at ANSYS and that he is in a position to use this knowledge at CDNA. ANSYS asserts it met this burden on the evidence produced at the one-day evidentiary hearing before the district court. As a result, ANSYS argues, it has shown Dr. Caraeni was in breach of his contract and that it will succeed on the merits of its claims. Since likelihood of success on the merits normally weighs heavily in the preliminary injunction calculus, ANSYS urges this showing is sufficient to merit preliminary injunctive relief. ANSYS also argues that proving breach, and no more, was sufficient to demonstrate irreparable harm and further support its request for the preliminary injunction. ANSYS asserts that holding it to any greater showing on the likelihood of success or irreparable harm would effectively eliminate the noncompete clause from the contract. ANSYS says that for the noncompete clause to have any meaning, the clause must be read to give ANSYS some greater benefit than the protection it enjoys under common law for its trade secrets and confidential information. ANSYS urges that the district court erred by analyzing this case as though it was simply a trade secrets case. After all, ANSYS notes, it did not seek a preliminary injunction on its trade secrets claim. ANSYS's argument about the import of its contract clause is not irrational and one might well be sympathetic to it. See Cont'l Group, Inc. v. Kinsley, 422 F. Supp. 838, 843 (D. Conn. 1976) (finding a covenant not to compete for eighteen months reasonable under New York law to the extent that it barred similar employment at a direct competitor working to develop an identical product). As Judge Newman observed in that case, it is unclear that the test for enforcing a noncompetition covenant should be the same as would be used in obtaining an injunction to bar disclosure of trade secrets or an injunction to enforce a covenant not to disclose trade secrets. The court explained, "[t]he non-competition covenant adds something to the protection available to the employer beyond what he would expect from the normal incidents of the employer-employee relationship or from a secrecy agreement." Id. at 844. Here, the contract clause could be justified as a prophylaxis, protecting ANSYS in a situation that created a high risk of disclosure of its confidential information to a competitor. See id. at 845. Whether New Hampshire law would enforce an agreement so construed is quite a different matter. ANSYS's arguments presume its noncompetition clause is enforceable. However, New Hampshire's public policy discourages covenants not to compete, allowing them only "if the restraint is reasonable, given the particular circumstances of the case." Merrimack Valley Wood Prods., Inc. v. Near, 876 A.2d 757, 762 (N.H. 2005). No New Hampshire cases are directly on point, as the vast majority of noncompetition agreement cases considered by the state's supreme court have turned on other issues, such as the protection of employers' interest in customer good will. See, e.g., Concord Orthopaedics Prof'l Ass'n v. Forbes, 702 A.2d 1273, 1276 (N.H. 1997); Technical Aid Corp. v. Allen, 591 A.2d 262, 266-67 (N.H. 1991).1 Both parties note a single case in which the New Hampshire Supreme Court addressed a superficially similar attempt by an employer to enforce a covenant not to compete to prevent an employee from working for a competitor in a narrow field, upholding a district court's determination that the noncompetition agreement New Hampshire courts have, however, articulated general criteria by which we may assess ANSYS's claims: To determine whether a restrictive covenant ancillary to an employment contract is reasonable, we engage in a three-part inquiry: first, whether the restriction is greater than necessary to protect the legitimate interests of the employer; second, whether the restriction imposes an undue hardship upon the employee; and third, whether the restriction is injurious to the public interest. ACAS Acquisitions (Precitech) Inc. v. Hobert, 923 A.2d 1076, 1084 (N.H. 2007). A covenant that fails any one of these criteria "is unreasonable and unenforceable." Merrimack Valley Wood Prods., Inc., 876 A.2d at 762; see also id. at 763-64 (affirming that an agreement that broadly barred an employee from working with any client who had transacted business with his employer in the past year was unenforceable, reasoning that it went "far beyond the defendant's sphere of customer goodwill, and was more restrictive than necessary to protect the plaintiffs' legitimate interests"). New Hampshire courts have further clarified that employers' at issue was enforceable. See ACAS Acquisitions (Precitech) Inc. v. Hobert, 923 A.2d 1076, 1089 (N.H. 2007). However, ACAS relied on a variety of facts not presented by this case. Id. at 1087-89. Moreover, to the limited extent that ANSYS relies on ACAS, it mischaracterizes the court's holding. The court did not, as ANSYS suggests, "presume[] irreparable harm from the presumed use of . . . information." Instead, it cited specific evidence "that the defendant intended to use his knowledge learned at [plaintiff's company] to help" his new employer, id. at 1083, 1085 (internal quotation marks omitted), and affirmed the district court's holding that the defendant's "use and disclosure of . . . information to or for the benefit of [his new employer] has caused, and will continue to cause," the plaintiff harm, id. 1087. "legitimate interests" include "trade secrets that have been communicated to the employee during the course of employment" and "confidential information communicated by the employer to the employee, but not involving trade secrets." Syncom Indus., Inc. v. Wood, 920 A.2d 1178, 1185 (N.H. 2007). Whether ANSYS's construction of the noncompete clause was reasonable–-that is, whether it went no further than was necessary to protect its legitimate interests, imposed no undue hardship on Dr. Caraeni, and was not inconsistent with the public interest--all involve policy choices that have not been explicitly decided in this context by the New Hampshire courts or legislature. Absent such guidance, we cannot say ANSYS has clearly demonstrated its likelihood of success on the breach of contract claim, nor can we conclude that the district court abused its discretion by finding that ANSYS had failed to make this showing. We also cannot say that the district court abused its discretion when it found ANSYS had not shown the likelihood of irreparable injury. ANSYS's claim that its showing of breach was sufficient to show irreparable harm again assumes that the covenant not to compete is enforceable. In any event, we reject ANSYS's suggestion at oral argument that because of the difficulty of proving damages from breach of the covenant, as opposed to damages from the actual use of confidential material, we should deem its remedy at law inadequate. We further reject its related claim that this alleged inadequacy would justify equitable relief for breach of the covenant without any showing of injury. New Hampshire law has not adopted that approach. As to the district court's analysis of ANSYS's injury, we will accept arguendo that Dr. Caraeni had access to confidential proprietary information. The district court concluded that even were that so, "Ansys has failed to demonstrate that [Dr. Caraeni] is likely to use that [confidential] information during the course of his employment at CDNA." This conclusion was based on factual findings, which we cannot set aside unless they constituted clear error. E.g., McClure, 386 F.3d at 41. The district court explained that it found credible the testimony of Dr. Wayne Smith, who is the general manager of CDNA. In particular, the court accepted three aspects of Dr. Smith's testimony: (1) "that CDNA maintains and enforces a strict policy preventing its employees from using confidential and trade secret information they may have acquired from prior employers;" (2) that Dr. Caraeni had not been assigned and, in the near term (that is, to the May 2010 date for expiration of the one-year period since his departure from ANSYS), will not be assigned "to perform any work at CDNA that might allow him to use any of ANSYS's confidential or trade secret information;" and (3) that any trade secret or confidential information Dr. Caraeni had acquired at ANSYS would not be useful to work on CDNA's CFD software because of the different architecture of the two companies' respective software codes. ANSYS, Inc., 2009 WL 4403745, at *6. ANSYS emphatically attacks the third of these findings in particular and urges that it constitutes clear error.2 Even if there were reason to be skeptical of the third finding--after all, CDNA chose to hire Dr. Caraeni for reasons that may have included what he learned in his prior employment--that would not make the finding clear error. More pertinently, the district court reasoned Dr. Caraeni would not perform any tasks that might require confidential information he had obtained at ANSYS. The court's first two factual findings support its conclusion, and we cannot say that they were clearly erroneous. There is no need to discuss the myriad other arguments the parties have pressed. II. The district court's denial of the preliminary injunction is affirmed. So ordered. ANSYS also argues that the district court erred in crediting Dr. Smith's testimony, urging that his statements were self-serving and speculative. Given our traditional deference to district court credibility determinations, e.g., Jennings v. Jones, 587 F.3d 430, 444 (1st Cir. 2009), we cannot say the court's decision was an abuse of discretion.

United States Court of Appeals For the First Circuit No. 09-1011 SCOTT FORSYTH, Petitioner, Appellant, v. LUIS SPENCER, SUPERINTENDENT AT MCI NORFOLK, Respondent, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge] Before Boudin, Stahl and Lipez, Circuit Judges. Victoria L. Nadel for appellant. Jessica V. Barnett, Assistant Attorney General, Criminal Bureau, Appeals Division, with whom Martha Coakley, Attorney General, was on brief for appellee. February 16, 2010 BOUDIN, Circuit Judge. Scott Forsyth, appealing after a denial of his petition for habeas corpus, is serving eight to ten years in state prison for assault and battery with a dangerous weapon, malicious destruction of property, and attempted arson. His conviction stemmed from an incident at his mother's home in the pre-dawn hours of September 10, 2000. During an argument, Forsyth took a nearby can of gasoline and chased his mother into the kitchen with it; spilled gasoline all over the kitchen floor and splashed it onto her head and shoulders; and threatened to set fire to his mother, himself, and the house. When Forsyth's mother attempted a 911 call, Forsyth pulled the phone from the wall, but police responded to the interrupted call. Forsyth was thereafter charged in the Massachusetts Superior Court with assault with intent to murder and the three lesser offenses listed above. Just prior to proceedings on December 19, 2000, an unrecorded lobby conference with the presiding judge occurred to discuss a possible guilty plea and sentence. What was said in the conference is evidenced by later affidavits submitted by the three individuals who attended it (in addition to the judge): the prosecutor, Forsyth's plea counsel, and a probation officer. From these affidavits and the later proceedings, it is clear the parties at the conference could not agree upon a recommended sentence; but they agreed that Forsyth would aim to plead guilty to the three less serious charges in exchange for the Commonwealth's dismissal of the assault with intent to murder charge; and they discussed obtaining for his sentencing a mental health evaluation based on Forsyth's history of mental illness, including bipolar disorder. None of the three affiants claims that a specific sentence recommendation was promised by the prosecutor, but recollections differ on what if anything was said as to possible numbers. In her affidavit, Forsyth's plea counsel said that her "memory [was] that the Commonwealth was willing to request a three to five year term if the defendant was in agreement"; that absent such an agreement the prosecutor did not commit to any recommendation; but that plea counsel thought the Commonwealth would still recommend and the judge would accept a term in that range. The prosecutor and probation officer had no memory that a three to five year term was mentioned, and the probation officer remembered only that the prosecutor had said in the conference that she "was going to recommend a lengthy period of incarceration."1 The prosecutor said the following: Although I have no specific memory of ever mentioning three to five years as a possible sentence, during preliminary negotiations I may have offered to try to get a three to five year sentence on an agreed plea. I never secured this recommendation by my office because the defendant made clear that he would not join in a sentencing recommendation. After the lobby conference, Forsyth's plea counsel conferred with Forsyth. Forsyth averred (in a 2003 affidavit) that his plea counsel told him that "the lawyer for the government said she would ask for three to five years of incarceration in the House of Correction," but his plea counsel's affidavit states that she "never told Mr. Forsyth that the Commonwealth would recommend at most three to five years." Instead, her affidavit says, she told him only that a "three to five year term had been discussed, [but] the Commonwealth had not guaranteed what its recommendation was going to be." Forsyth then pled guilty to the three lesser charges already listed and the Commonwealth dismissed the assault with intent to murder charge. The court made the usual inquiries to assure that the plea was being entered voluntarily and with a basis in fact. The court also invited the prosecutor to list the maximum penalties for each of the charges to which Forsyth was pleading guilty and confirmed that Forsyth understood that the court could impose the maximum sentence for each charge and do so consecutively. Both in a signed, written waiver of rights and in court, Forsyth confirmed that no promises had been made to induce his plea. After a psychiatric evaluation, a sentencing hearing was held on June 4, 2001. The Commonwealth recommended that Forsyth be sentenced to eight to ten years in prison for assault and battery with a dangerous weapon. The court accepted the Commonwealth's recommendation, taking note of the seriousness of Forsyth's prior criminal history, which included a previous attempt on his mother's life in which he had stabbed her with a screwdriver. Forsyth reacted angrily to the sentence but, at the time, did not assert that he had been promised or assured of either a different recommendation by the prosecutor or a different sentence. In July 2001, Forsyth filed motions to revise and revoke his sentence. That fall, he filed pro se a motion to withdraw his plea, asserting in an affidavit that he "had a deal and copped out to house time split with probation." Thereafter, in 2003, Forsyth (now aided by successor counsel) claimed in a new motion to withdraw the plea that his plea counsel either "misunderstood the Commonwealth's proposed recommendation or . . . misinformed Mr. Forsyth of what that recommendation would be," and that Forsyth "acted in reliance upon [his] attorney's representation of the government's position." It was at this point that Forsyth filed the 2003 affidavit earlier quoted.2 In response, the Commonwealth submitted the affidavits (discussed above) of the prosecutor, Forsyth's plea counsel, and Forsyth's new counsel had no personal knowledge of what happened incident to the guilty plea but she stated, in an accompanying affidavit of her own, that Forsyth's plea counsel had told her that in the December 19 lobby conference "the Commonwealth recommended a three to five year term and that the Court appeared amenable to a House of Correction term followed by probation." the probation officer regarding the December 19 lobby conference and Forsyth's conversation with plea counsel prior to entering his guilty plea. The trial judge denied the motions to revise the sentence and to withdraw the guilty plea and denied a request for an evidentiary hearing, saying that Forsyth's affidavit was "self- serving," that he (the judge) "credit[ed] the affidavits" of the prosecutor and Forsyth's plea counsel, and that the Commonwealth had in fact told Forsyth's counsel that it intended to recommend "a lengthy sentence." The Massachusetts Appeals Court affirmed, Commonwealth v. Forsyth, 868 N.E.2d 953, 2007 WL 1775200 (Mass. App. Ct. 2007), and further review was denied, Commonwealth v. Forsyth, 873 N.E.2d 247 (Mass. 2007). Forsyth then filed a federal habeas corpus petition, arguing that his plea was based upon inaccurate and incomplete information and therefore involuntary and that he had received ineffective assistance of counsel. A flawed plea may sometimes comprise a due process violation, Boykin v. Alabama, 395 U.S. 238, 243 & n.5 (1969); inadequate counseling can also undermine due process and Sixth Amendment rights where counsel's efforts do not meet minimum standards and where the outcome was thereby affected. Strickland v. Washington, 466 U.S. 668, 684-85, 687-96 (1984). Adopting a magistrate judge's report and recommendation, the district court dismissed the petition. Granted a certificate of appealability, Forsyth has now renewed his constitutional claims in this court: mainly he contends that his plea counsel misled him into thinking that the prosecutor had promised to recommend a three to five year prison sentence or at least predicted ineptly that the Commonwealth would make such a recommendation. Our review of the district court's decision is de novo. Pina v. Maloney, 565 F.3d 48, 52 (1st Cir. 2009). The governing federal habeas statute provides that a state decision may be overturned--so far as it resolves factual issues--only if it is "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."3 28 U.S.C. § 2254(d)(2) (2006). As for federal legal issues decided by the state court, they may be set aside only if the decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." Id. § 2254(d)(1). The state courts credited the affidavit of Forsyth's plea counsel; the key pertinent content amounted to this: that plea counsel had told Forsyth that the prosecutor had not promised a The petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Rashad v. Walsh, 300 F.3d 27, 34 (1st Cir. 2002). A different provision of the statute requires clear and convincing evidence from the petitioner in order to defeat a state court factual finding, 28 U.S.C. § 2254(e)(1), but we need not consider whether this standard applies because we find that Forsyth cannot prevail even under the arguably less deferential section 2254(d)(2) standard. Wood v. Allen, No. 08- 9156, 2010 WL 173369, at *6 & n.2 (U.S. Jan. 20, 2010); see John v. Russo, 561 F.3d 88, 92 (1st Cir. 2009); Teti v. Bender, 507 F.3d 50, 56-60 (1st Cir. 2007), cert. denied, 128 S. Ct. 1719 (2008). specific recommendation and that plea counsel had never told him that the recommended sentence would not exceed three to five years. There is ample independent support in the record for plea counsel's sworn statements and, while no single element is conclusive, the collective evidence is powerfully supportive: Cthe prosecutor swore that no such recommendation or commitment had been made to plea counsel; Cthe probation officer recalled only that the prosecutor had said in the lobby conference that she was going to recommend a lengthy period of incarceration; Cpetitioner represented both in the written waiver of rights and in open court that no promises had been made to secure his guilty plea; Cwhen the prosecutor at sentencing later recommended the eight to ten year term, neither plea counsel nor petitioner responded that this was contrary to a commitment; and Con pronouncement of the sentence, petitioner became quite angry, but did not say that he had been told of any commitment by the prosecutor to recommend a shorter sentence. True, Forsyth later asserted that he was told that the prosecutor would recommend the three to five year sentence, but such professions are not uncommon when a tough sentence is imposed, and in this case they were belated. True, his successor defense counsel attested to a supposed admission by plea counsel (see note 2, above); but assuming plea counsel said what is recounted, it looks to be little more than a reference to a possible proposed deal--a joint recommendation for three to five years--that was never pursued. In all events, the state court credited plea counsel and the prosecutor and declined to credit Forsyth. Certainly Forsyth fails to establish that the state court erred in finding no promise or commitment by the prosecutor existed and in finding plea counsel did not lead Forsyth to believe the contrary, still less that the state court's decision was "based on an unreasonable determination of the facts." 28 U.S.C. § 2254(d)(2). His due process claim thus fails insofar as it rests on the premise that plea counsel provided false information about the prosecutor's commitments or intentions. Nor was the district court required to hold an independent evidentiary hearing to try the issues already determined by the state courts. Pina, 565 F.3d at 54; Teti, 507 F.3d at 60-63. Forsyth has offered no reason to believe that, "with the benefit of an evidentiary hearing, [he could] develop a factual record that would entitle him to habeas relief." Schriro v. Landrigan, 550 U.S. 465, 475 (2007). The district court did not abuse its discretion in declining to hold an evidentiary hearing. Forsyth presses on appeal a separate claim that plea counsel advised Forsyth that a three to five year sentence was the maximum likely sentence that would be recommended or that the judge would impose, thereby offering advice that was incompetent and depriving Forsyth of the constitutionally required effective assistance of counsel. The factual premise for this claim is not well developed and the claim itself may not have been preserved. But the short answer is that if plea counsel did prophesy that the term of three to five years would likely be recommended, imposed or both, it was hardly an incompetent conjecture. A defense counsel is entitled to offer to a client pondering a plea counsel's reasonable best guess as to a likely sentence.4 Here, the possibility of a joint three to five year recommendation as part of the plea package may well have been discussed between counsel; Forsyth's medical history offered some prospect that the judge might be sympathetic; his mother, the victim, opposed incarceration; and the Commonwealth's non-binding proposed sentencing guidelines were favorable to Forsyth. If counsel offered such a prediction, she was not incompetent in doing so. Strickland, 466 U.S. at 687-91. Forsyth separately argues that his plea counsel should have alerted the court to the pre-plea negotiations as a mitigation factor at sentencing, but he offers no legal analysis or reason why this would have affected his sentence; indeed, the judge was already See Knight v. United States, 37 F.3d 769, 775 (1st Cir. 1994) ("[A]n inaccurate prediction about sentencing will generally not alone be sufficient to sustain a claim of ineffective assistance of counsel."); United States v. Pallotta, 433 F.2d 594, 595 (1st Cir. 1970) ("[A] mere prediction by counsel of the court's likely attitude on sentence, short of some implication of an agreement or understanding, is not ground for attacking a plea." (internal quotation marks omitted)). aware of negotiations, having attended the lobby conference at which they occurred. Forsyth has also moved to supplement the record, but the documents to which he refers are already in the record and have been considered. We affirm the district court's judgment and dismiss the motion to supplement as moot. It is so ordered.

Not for Publication in West's Federal Reporter United States Court of Appeals For the First Circuit No. 08-2433 UNITED STATES OF AMERICA, Appellee, v. AMADO DE LA ROSA-RAMOS, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Aida M. Delgado-Colón, U.S. District Judge] Before Selya, Lipez and Howard, Circuit Judges. Linda Backiel on brief for appellant. Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, on brief for appellee. February 17, 2010 Per Curiam. Defendant-appellant Amado De La Rosa-Ramos pleaded guilty to charges involving his attempted illegal reentry into the United States. The district court sentenced him to two concurrent 51-month terms of immurement. On appeal, he challenges his sentence. We direct a slight modification in the sentence but otherwise affirm. The facts, which we glean from the plea colloquy, the presentence investigation report (PSI Report), and the transcript of the disposition hearing, are uncomplicated. On March 25, 2008, Puerto Rico maritime police called the U.S. Border Patrol to a locus roughly 200 yards off the coast of Parque de Colón. Upon arrival, the border patrol agents observed a number of persons jumping from a detained vessel into the surrounding waters. The agents apprehended the defendant and thirteen other individuals. In due course, a federal grand jury handed up a two-count indictment against four persons. The indictment charged the defendant with plotting to effect his own illegal entry and aiding and abetting the illegal entry of others, in violation of 8 U.S.C. § 1325(a)(1) (count 1), and attempted reentry into the United States without proper authorization after having been deported following the commission of an aggravated felony, in violation of 8 U.S.C. § 1326(a)(2), (b)(2) (count 2). The defendant entered a straight guilty plea to both counts. A probation officer proceeded to prepare the PSI Report. Using the November 2007 edition of the guidelines manual, she grouped the counts of conviction because they arose out of the same plan, scheme, or course of conduct. See USSG §3D1.2(b). Inasmuch as count 2 carried the higher total offense level — 21 — the probation officer used it to calculate the guideline sentencing range (GSR).1 See id. §3D1.3(a). To complete this calculation, the probation officer needed to determine the defendant's criminal history category (CHC). Because certain details of the defendant's criminal record are pertinent to an issue on appeal, we note the relevant particulars. The first conviction with which we are concerned led to sentencing by a local Puerto Rico court on November 27, 1995. The charges were for aggravated assault and related weapons violations. The Puerto Rico court imposed a two-year prison sentence. The PSI Report assigned three criminal history points in respect to this sentence. See id. §4A1.1(a). Following service of this sentence, the government deported the defendant.2 This total offense level resulted from a base offense level of 8, see USSG §2L1.2, plus 16 levels because the defendant's earlier deportation followed his conviction for a crime of violence, see id. §2L1.2(b)(1)(A)(ii), less 3 levels for acceptance of responsibility, see id. §3E1.1. At sentencing in the instant case, the parties disagreed about the date of deportation. We need not resolve this dispute as the exact date is immaterial to the issues presented on appeal. The defendant's other brushes with the law arose out of activities that led to his arrest by the Coast Guard on or about October 25, 2003. This arrest followed the Coast Guard's seizure of a wooden yawl off the coast of San Juan. Federal authorities detained several persons (including the defendant). They subsequently charged the defendant with illegal reentry into the United States after having been deported for commission of an aggravated felony. See 8 U.S.C. § 1326(b)(2). The defendant entered a guilty plea on July 20, 2004, and a federal judge sentenced him to 41 months in prison (subsequently reduced to 30 months) and three years of supervised release. The PSI Report assigned three criminal history points to this sentence. See USSG §4A1.1(a). On March 24, 2004, the defendant (along with other persons arrested on October 25, 2003) was charged with smuggling and harboring illegal aliens. As part of a plea bargain, the government later dropped these charges and, instead, filed an information that charged the defendant with misprision of a felony. See 18 U.S.C. § 4. On June 9, 2005, the defendant entered a guilty plea to this charge. The court sentenced him the same day to twelve months and one day in prison, to run concurrently with the unserved portion of his 41-month sentence (described above). The PSI Report assigned three criminal history points to this sentence. See USSG §4A1.1. After his release, the government again deported the defendant. In addition to the foregoing, the PSI Report assigned two points because the defendant committed the offenses of conviction (that is, the offenses underlying this appeal) while serving a term of supervised release. See id. §4A1.1(d). In the aggregate, these allocations produced a total of eleven criminal history points, which placed the defendant in CHC V. See id. Ch. 5, Pt. A (sentencing table). As a further data point, the PSI Report noted that the statutory maximum sentences for the offenses of conviction were two years for count 1 and twenty years for count 2. Neither side filed objections to the PSI Report. See D.P.R.R. 132(b)(3). At the disposition hearing, however, the defendant disputed certain dates, see, e.g., supra note 2, and sought to "clarify" his prior convictions. Despite this clarification, the sentencing court ruled that the prior convictions were appropriately scored in the PSI Report. Then, the court cited a variety of mitigating factors and adjusted the defendant's total offense level downward by three levels (to 18). Accepting all the other recommendations contained in the PSI Report and retaining the defendant's classification in CHC V, the court computed the GSR at 51-63 months. The government recommended a sentence at the low end of the GSR. The court obliged, sentencing the defendant to two concurrent 51-month terms of imprisonment. This timely appeal followed. Before us, the defendant advances two claims of error. First, he argues that his sentence on count 1 exceeds the statutory maximum. Second, he argues that the court below erred in determining his CHC. Since his second claim requires more analysis, we start there. The defendant's challenge to his CHC comprises an attack on two of the district court's intermediate calculations. Because no part of this attack was adumbrated in the district court, the government asserts that the defendant has waived these claims of error. For his part, the appellant concedes that these claims are unpreserved — he is raising them for the first time on appeal — but says that they are forfeited, not waived. The characterization question is not free from doubt. See, e.g., United States v. Turbides-Leonardo, 468 F.3d 34, 38 (1st Cir. 2006) (suggesting, on analogous facts, that claims of sentencing error were waived). A party waives a right when he intentionally relinquishes or abandons it. United States v. Olano, 507 U.S. 725, 733 (1993); United States v. Eisom, 585 F.3d 552, 556 (1st Cir. 2009). In contrast, a party who merely fails to make a timely assertion of a right forfeits that right, but does not waive it. United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002). The distinction is consequential from the standpoint of possible appellate review; "a waived issue ordinarily cannot be resurrected on appeal, whereas a forfeited issue may be reviewed for plain error." Id. (citations omitted). It is not necessary for us to decide this characterization question here. The merits of the claims in question are easily dispatched, so it is unnecessary for us to address the waiver issue head-on. Therefore, we assume, favorably to the defendant, that what transpired here was simply a forfeiture. This means, of course, that we may review the claims, but only for plain error. Under that standard, the defendant must show "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). The defendant assigns error to the lower court's compilation of his criminal history score. The nub of his complaint is that the court counted the two sentences arising out of the October 2003 incident separately. In his view, the underlying charges were "related cases" and, thus, should have been treated as a single unit (carrying fewer criminal history points). This argument fails. Without objection, both the probation officer and the district court used the November 2007 edition of the guidelines for all purposes relevant to sentencing. Even on appeal, no one has suggested that some other edition of the guidelines should have been employed. In all events, the November 2007 edition of the guidelines plainly applies here. Unless doing so would cause an ex post facto problem, a sentencing court should use the version of the guidelines in effect on the date of sentencing. See 18 U.S.C. § 3553(a)(4)(A)(ii); USSG §1B1.11(a); United States v. Silva, 554 F.3d 13, 22 (1st Cir. 2009); United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990). The district court sentenced the defendant on September 26, 2008, for offenses that arose out of events that occurred on March 25, 2008. The November 2007 edition of the guidelines was in force on both dates. A fortiori, using that version of the guidelines did not pose an ex post facto problem. These guidelines instruct that when multiple prior sentences are in play, separate sentences sometimes may be counted as a unit for the purpose of calculating a defendant's criminal history score. See USSG §4A1.2(a). But in that regard, the guidelines make no reference to a "related cases" standard. Instead, they provide in pertinent part that: . . . prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Count any prior sentence covered by (A) or (B) as a single sentence. USSG §4A1.2(a)(2). Under this standard, whether or not the prior convictions are "related" is irrelevant.3 In this case, the record makes manifest that the challenged convictions were not for offenses described in the same charging document, nor were the sentences for them imposed on the same day. Thus, the district court correctly counted the two convictions as separate offenses for the purpose of tabulating the defendant's criminal history score. The defendant has a fallback position. He argues that the district court blundered by awarding three criminal history points for the misprision of felony sentence and that, therefore, the sentence on count 2 must be vacated. His premise is correct, but the conclusion that he reaches is not. The district court erred in assigning three criminal history points to this sentence. The sentence for the misprision of felony conviction was for one year and one day. Thus, only two points should have been assigned for that sentence. See USSG §4A1.1(a) (requiring three criminal history points be added for sentences "exceeding one year and one month"); id. §4A1.1(b) A "related cases" provision was contained in the immediately preceding edition of the guidelines: whether convictions were counted separately turned, in some circumstances, on whether the cases were "related." See USSG §4A1.2 (2006). But this provision was deleted in 2007, see USSG Supp. to App. C, amend. 709 (2007), and it has no bearing here. (requiring two criminal history points be added for sentences of at least 60 days). Although the defendant is correct in insisting that the court should have assigned two, not three, criminal history points for this sentence, the error was harmless. Subtracting one criminal history point would not have shifted the defendant into a different CHC and, thus, would not have changed the GSR. Consequently, the counting error did not impugn the defendant's substantial rights. See Fed. R. Crim. P. 52(a); United States v. Jimenez, 512 F.3d 1, 8 (1st Cir. 2007). It follows that this claim cannot survive scrutiny under the third prong of the test for plain error. The sentence imposed on count 2 must stand. This leaves the defendant's sentence on count 1. He maintains that this sentence exceeds the statutory maximum. We agree. The facts are these. With respect to count 1, the defendant pleaded guilty to violating 8 U.S.C. § 1325. The district court sentenced him to 51 months' imprisonment. The conviction, however, is for a first offense and, thus, is subject to a six-month maximum term of imprisonment.4 See 8 U.S.C. § 1325(a). Thus, the sentence imposed on count 1 was in excess of the statutory maximum. We deem that error plain, and find the Although the PSI Report described the maximum term of imprisonment as two years for the section 1325 offense, that maximum is only available for a subsequent section 1325 conviction. remaining elements of the plain error test satisfied. See, e.g., United States v. Hilario-Hilario, 529 F.3d 65, 76 (1st Cir. 2008). This does not mean, however, that resentencing is required. The reduction of a sentence to conform to a statutory maximum ordinarily may be accomplished without a new sentencing hearing. See, e.g., United States v. Barnes, 244 F.3d 172, 178 (1st Cir. 2001). In this case, an instruction to the sentencing court is all that is needed to repair the defect. We need go no further. For the reasons elucidated above, we uphold the sentence on count 2. However, we remand count 1, with directions to the district court to amend that sentence to a sentence of six months' imprisonment, to run concurrently with the sentence imposed on count 2. As amended, the sentence on count 1 is also affirmed. So Ordered.

United States Court of Appeals For the First Circuit No. 09-1239 HEIDI M. BAKER, Plaintiff, Appellant, v. ST. PAUL TRAVELERS INSURANCE COMPANY, Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Mary M. Lisi, U.S. District Judge] Before Lipez, Stahl and Howard, Circuit Judges. Merrill Friedemann with whom Anthony Gianfrancesco and William F. Warren were on brief for appellant. Paul V. Sullivan for appellee. February 17, 2010 STAHL, Circuit Judge. This case arises out of a car accident on December 17, 2002, in Boston, Massachusetts. On that day, Heidi M. Baker, the plaintiff-appellant and a resident of Rhode Island, was driving a vehicle owned by her employer, Safety Source Northeast1 ("Safety"), as part of her job duties. Baker was seriously injured in the car accident, which was caused by the other driver. Baker filed a third-party claim against the tortfeasor, but the other driver's insurance coverage was insufficient to cover Baker's damages. Baker also filed for and received workers' compensation ("WC") benefits through the Rhode Island workers' compensation system. Finally, Baker sought to recover under the Underinsured Motorist (UIM) provision of her employer's automobile insurance policy,2 which was provided by St. Paul Travelers Insurance Company ("St. Paul"), the defendant- appellee in this case. St. Paul denied Baker's attempt to recover under the UIM provision, citing Massachusetts law for the proposition that an employee cannot recover for work-related injuries under both workers' compensation and her employer's UIM coverage. Safety Source Northeast is a Massachusetts corporation with its principal place of business in Massachusetts. According to Baker, Safety is licensed to do business in Rhode Island and Baker was hired by Safety in Rhode Island and exclusively worked out of Safety's Rhode Island office, in Warwick, Rhode Island. The insurance policy was executed and delivered in Massachusetts. In response to the denial, Baker filed a complaint in Rhode Island state court seeking a declaratory judgment regarding her eligibility for coverage under St. Paul's UIM coverage.3 St. Paul removed the case to Rhode Island District Court and Baker and St. Paul both moved for summary judgment. A magistrate judge recommended granting St. Paul's motion and denying Baker's, on the grounds that Massachusetts law governed the matter and Massachusetts case law prohibited recovery by an injured employee under both workers' compensation and her employer's UIM coverage. Baker filed a written objection to the report and recommendation, arguing that Rhode Island law should apply, but that even under Massachusetts law the bar on recovery under both workers' compensation and the employer's UIM coverage did not apply where the UIM coverage was a bargained-for provision. Nonetheless, the district court adopted the magistrate's report and recommendation in full, writing additionally only to correct an error in the magistrate's report. See Baker v. Safety Source Northeast, No. 07- 314 ML, 2009 WL 211865 (D.R.I. January 28, 2009). This appeal followed. For the following reasons, we disagree with the conclusion reached by the district court and will remand this case for further proceedings consistent with this opinion. Baker also brought suit in state court against her employer, Safety. After removal by Safety to federal court, Baker voluntarily dismissed her claim against Safety. As a preliminary matter, we must determine what law governs the question before us. Because this court is sitting in diversity, we apply the choice of law rules of the forum state, here, Rhode Island. See Montalvo v. Gonzalez-Amparo, 587 F.3d 43, 46 (1st Cir. 2009). Under Rhode Island law, "[W]hen the insured is a Massachusetts corporation doing business in Massachusetts, and the contract is executed and delivered in Massachusetts, Massachusetts law governs the interpretation of the contract." Hartford Cas. Ins. Co. v. A & M Assoc., Ltd., 200 F. Supp. 2d 84, 87 (D.R.I. 2002) (citing Baker v. Hanover Ins. Co., 568 A.2d 1023, 1025 (R.I. 1990)). Thus, in this case, Massachusetts law applies.4 The district court concluded that two decisions from the Massachusetts Supreme Judicial Court (SJC), Berger v. H.P. Hood, Baker argues that Rhode Island law should apply under the interest-weighing approach adopted in Woodward v. Stewart, 243 A.2d 917, 923 (R.I. 1968). Such a conclusion would clearly advantage Baker because Rhode Island law seems to permit an injured employee to recover under both workers' compensation and her employer's UIM coverage, provided the WC payment is reduced by the amount of the UIM recovery (an "offset"). Though the parties cite to no definitive Rhode Island case so holding, there are numerous cases that suggest this result. See, e.g., Poulos v. Aetna Cas. & Sur. Co., 379 A.2d 362, 365 (R.I. 1977) (where an injured employee's personal UIM coverage includes an offset provision regarding workers' compensation, such clause is enforceable only to the extent that it prevents a double recovery by the injured employee); Cruz v. Wausau Ins., 866 A.2d 1238, 1239-40 (R.I. 2005) (court only decided a procedural matter and raised no objection to injured employee's recovery from both WC and his employer's UIM coverage); Charest v. Pawtucket Mut. Ins. Co., 1996 WL 936921 (R.I. Super. April 23, 1996) (an injured employee who recovered on his employer's UIM coverage and received WC payments was required to offset those two amounts when he sought coverage from a third source, his personal UIM coverage). Inc., 416 Mass. 652 (1993), and Nat'l Union Fire Ins. Co. v. Figaratto, 423 Mass. 346 (1996), squarely foreclosed Baker's claim. We do not agree. Berger and National Union only address whether the exclusivity provision of the Massachusetts workers' compensation statute permits an injured employee to recover under both WC and her employer's UIM coverage. See Berger, 416 Mass. at 652 ("At issue is whether the exclusivity provision of the Workers' Compensation Act, G.L. c. 152, § 23 (1992 ed.), bars an employee's claim against the owner and the insurer of the employer's motor vehicles, for underinsurance benefits."); Nat'l Union, 423 Mass. at 348 (explaining that the court was bound to follow its recent decision in Berger, which held that "the exclusivity provision of the Workers' Compensation Act . . . barred the employee's claim against the employer's insurers."). In contrast, in Baker's case, she has recovered workers' compensation benefits under the Rhode Island workers' compensation statute, rather than the Massachusetts statute. Therefore, in our view, Berger and National Union are not dispositive.5 Thus, because the SJC has not "spoken directly to the precise question that confronts us," we are tasked with predicting "how that court likely would decide the issue." Gonzalez Figueroa It is also worth noting that the SJC acknowledged in Berger that state courts have reached a variety of conclusions on this question depending on how they have interpreted the exclusivity provisions of their own workers' compensation statutes. See Berger, 416 Mass. at 655 and n.8. v. J.C. Penney Puerto Rico, Inc., 568 F.3d 313, 318 (1st Cir. 2009). We are persuaded that the SJC's decisions in Berger and National Union were largely governed by the court's policy concerns regarding providing Massachusetts companies with a predictable and reliable scheme concerning the interplay of workers' compensation and underinsured motorist coverage, and holding down insurance costs for Massachusetts companies.6 Because this case concerns a Massachusetts company doing business in Massachusetts, and carrying an auto insurance policy executed and delivered in Massachusetts, we expect these policy concerns would lead the SJC to apply the conclusions of Berger and National Union to this case, even though In Berger the court noted that the Massachusetts uninsured motorist provision was intended to "minimize the possibility of . . . catastrophic financial loss [to] the victims of an automobile accident," while in the case of a workplace injury, "the employee is protected from the risk of catastrophic financial loss through workers' compensation." 416 Mass. at 656 (internal citations and quotations omitted). In National Union, the court expanded on this policy concern: As a matter of fair and equal treatment, a person injured in the course of employment while in a motor vehicle of the employer need not obtain any greater insurance benefits than another person sustaining a similar injury in the course of employment but not in a motor vehicle of the employer. The cost of UM coverage for employers would be substantially higher than otherwise if that coverage in a standard policy applied to employees' on-the-job motor vehicle injuries. That increase would not be accompanied by a corresponding reduction in the cost of workers' compensation coverage. 423 Mass. at 349-50. those cases concerned collection of WC payments under the Massachusetts worker's compensation scheme. However, that conclusion does not end our analysis. In National Union, decided three years after Berger, the SJC carved out an exception to the general bar on an employee's recovery under both WC and her employer's UIM coverage. "[W]e would not extend the bar imposed by the exclusivity provision of the Workers' Compensation Act to make ineffective [UIM] coverage (or any other coverage) that an employer explicitly purchased for the purpose of providing [UIM] coverage (or any other coverage) to employees injured in the course of their employment." 423 Mass. at 350-51. Below, the district court granted summary judgment to St. Paul without addressing the carve-out language in National Union, and therefore it did not reach the factual question of whether the underinsurance coverage purchased by Safety was indeed a bargained- for provision intended to provide Safety's employees with additional protection from damages caused by underinsured motorists.7 St. Paul argues that the National Union carve-out only applies to "non-standard" policies, which St. Paul appears to define as policies that do not use the standard forms issued by the Massachusetts Insurance Commissioner. The plain language of the National Union carve-out, however, suggests a broader exclusion of any coverage explicitly purchased in order to provide additional protection to the employer's workers. This exception requires a factual determination as to whether the UIM coverage was elected and paid for by the employer in order to protect his employees from the harm of underinsured motorists. Our review of the contract shows that at the time of the accident Safety carried underinsured motorist coverage in the amount of $100,000 per person and $300,000 per accident. The contract also shows that Safety paid a premium of $79.00 in order to receive this coverage during the policy year. Further, we take judicial notice of the Massachusetts Commercial Automobile Insurance Manual for 2002, the year the policy was issued.8 According to the Manual, it appears that in 2002 there was no compulsory underinsured motorist coverage requirement for commercial automobile policies and insurers were only required to offer underinsured motorist coverage at limits up to $35,000 per person/$80,000 per accident. In addition, the Manual set the "basic limit" for underinsured motorist coverage at $20,000 per person/$40,000 per accident. The limited facts available to us suggest that perhaps Safety purchased and paid for additional UIM coverage above and beyond what was required by law in force at the time. However, without the benefit of discovery, we are unable to conclusively determine whether Safety indeed bargained for the UIM The manual is available in PDF form on the public website of the Automobile Insurers Bureau of Massachusetts (AIB). See http://www.aib.org/ContentPages/DocumentView.aspx?DocId=559. The AIB is a non-profit association of Massachusetts insurers that is subject to the "visitation, supervision and examination" of the Massachusetts Commissioner of Insurance. See Constitution of Automobile Insurers Bureau of Massachusetts, at http://www.aib.org/ContentPages/DocumentView.aspx?DocId=447. coverage contained in its policy with the intention of protecting its workers from damage caused by uninsured motorists. We therefore vacate the district court's entry of summary judgment and remand for appropriate discovery on the question of whether the National Union carve-out applies, namely whether Safety "explicitly purchased" its underinsured motorist coverage "for the purpose of providing [UIM] coverage . . . to employees injured in the course of their employment." 423 Mass. at 350-51. If the court concludes in the affirmative, the terms of the contract would require that any recovery by Baker under the underinsured motorist provision would be reduced by "[t]he amount paid under a workers' compensation law." In other words, an offset would be required. Vacated and remanded for further proceedings consistent with this opinion. Costs are taxed in favor of Heidi M. Baker.

United States Court of Appeals For the First Circuit No. 09-1705 UNITED STATES, Appellee, v. JAMES DAMON, Defendant, Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. John A. Woodcock, Jr., U.S. District Judge] Before Lynch, Chief Judge, Souter, Associate Justice,* and Selya, Circuit Judge. Virginia G. Villa, Assistant Public Defender, for appellant. Margaret D. McGaughey, Appellate Chief with whom Paula D. Silsby, United States Attorney, was on brief for appellee. February 18, 2010 * The Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. LYNCH, Chief Judge. Defendant James Damon pleaded guilty to the underlying offense of felon firearm possession in violation of a provision of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 922(g)(1). He appeals his sentence of seventy months' imprisonment and three years of supervised release. Damon received two sentencing enhancements under U.S.S.G. § 2K2.1, the sentencing guideline applicable to firearm offenses. The district court held that under U.S.S.G. § 2K2.1(a)(1), Damon had two prior felony convictions for either controlled substance offenses or crimes of violence. Damon received another enhancement under U.S.S.G. § 2K2.1(a)(1) because his offense involved three or more firearms. He challenges both enhancements. We affirm the sentence. As to the first enhancement, Damon argues that when the Sentencing Commission used the phrase "punishable by imprisonment by a term of one year or more" to define the Sentencing Guidelines terms "felony conviction" and "controlled substance offense," U.S.S.G. § 2K2.1 cmt. n.1, it intended to incorporate the definition of that phrase in 18 U.S.C. § 921(a)(20)(B), a provision of the ACCA. The ACCA definition excludes state convictions that the state classifies as misdemeanors if they are punishable by less than two years' imprisonment. Had the ACCA definition applied, Damon would have only been sentenced based on a single prior felony conviction for a crime of violence. We hold that the Commission did not intend to use the ACCA's definition and that Damon's second conviction was clearly a "felony conviction" for a "controlled substance offense" based on the definitions of those terms the Commission adopted. As to the second enhancement, Damon argues that his offense did not "involve" three or more firearms, as U.S.S.G. § 2K2.1(b)(1)(A) requires, because he "possessed" only the firearm that a proxy purchased for him. He did not "possess" the other two firearms the proxy obtained for his associates, he says, because he only handled those guns briefly while he considered which gun he wanted the proxy to buy. He claims that this kind of fleeting contact does not meet the definition of "possession" under the Guideline. That, however, is the wrong question, since this enhancement does not merely apply to possession. The relevant question under the Guideline is whether, on the basis of Damon's own actions and other relevant conduct, his offense involved efforts to unlawfully obtain, distribute, or possess other firearms. Damon's involvement in his associates' simultaneous attempts to obtain the other two guns from the same pawnbroker, at the same time, and through the same proxy, is relevant conduct. We hold that Damon's offense "involved" these other two guns as well as the one he sought to obtain for himself and that the enhancement therefore applied. I. The uncontested facts are as follows. On October 11, 2007, Damon and two male associates, Christopher Riley and Levar Carey, all residents of Massachusetts, traveled to Frati the Pawnbrokers, a pawnshop in Bangor, Maine, to look at guns. All three men arrived at the same time, along with Katrina Wickett, a Maine resident, and another woman. The store videotape showed that Damon handled at least three guns himself, including a Springfield Armory .45 caliber pistol, an Israel Military Industries Desert Eagle 9mm caliber pistol, and a Glock .45 caliber pistol. The three men talked with one another frequently as they considered the guns and passed them around to each other. Damon and Riley had also handled firearms on a previous trip the two had made to Frati the Pawnbrokers in September 2007. Katrina Wickett then purchased all three pistols for the men. She filled out the relevant forms while the three men looked on and paid with $400 that Damon gave her for the Springfield pistol, money from the other men, and an additional sum that Riley gave her inside the shop when the total bill exceeded the cash she had on hand. The plan was for Wickett and the men to return to her house in separate cars. Wickett kept the guns in her car. The pawnbroker, suspicious of the sale, asked Wickett to come back in forty-five minutes, saying that she would need to address a paperwork issue before she could take the guns with her. Wickett then left the store with Damon, Riley, Carey, and the other woman. The pawnbroker called a U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") Task Force officer, who arrived at the pawnshop in time to conduct surveillance of the store when Wickett returned, this time with only the other female accompanying her. The pawnbroker handed Wickett the three guns and she left; the ATF officer then approached and interviewed her at her home. Wickett turned the guns over to the officer and explained to both the officer and police that Damon and his two associates had arranged for her to buy these three guns for them. Damon was arrested on August 15, 2008. He, Carey, and Riley were charged together with various firearms offenses.1 All three men were felons. At this point, Damon had two relevant prior convictions. In 2005, he had been convicted in Massachusetts of possessing a Class D controlled substance with intent to distribute, which carried a potential sentence of two years' imprisonment under Massachusetts law. In 2006, he had also been The three men were charged in a five-count indictment. Count One charged all three men with conspiracy to make false statements to licensed federal firearms dealers in connection with an attempted firearms purchase. Count Two charged all three men with aiding and abetting the making of a false statement on a federal firearms form. Counts Three and Four charged Riley and Carey, respectively, with felon firearm possession. Count Five, the count at issue here, charged Damon with felon firearm possession. Counts One and Two were dismissed on the government's motion at Damon's sentencing as part of the plea agreement. convicted of assault and battery, which carried a potential sentence of thirty months' imprisonment under Massachusetts law. On December 1, 2008, Damon pleaded guilty to felon firearm possession. The pre-sentence report (PSR) used the 2008 version of the Guidelines and recommended a base offense level of 24 by applying U.S.S.G. § 2K2.1(a)(2), the guideline applicable to defendants who already have at least two previous felony convictions involving either a crime of violence or a controlled substance. The PSR also recommended a two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A), for offenses involving between three and seven firearms. The PSR then applied a two-level downward adjustment for acceptance of responsibility and an additional one- level downward adjustment at the government's request. The PSR recommended a total offense level of 23, which, in conjunction with Damon's criminal history category, corresponded to a Guidelines sentencing range of seventy to eighty-seven months' imprisonment. The district court adopted these recommendations at sentencing and sentenced Damon to seventy months' imprisonment, the lowest Guidelines sentence, and three years' supervised release. II. We review questions regarding the legal interpretation of the Guidelines de novo and review challenges to the application of the Guidelines based on a sliding scale. United States v. Sicher, 576 F.3d 64, 70 & n.6 (1st Cir. 2009). The Government must show the facts supporting an enhancement by a preponderance of the evidence. Id. at 70. A. Sentencing under U.S.S.G. § 2K2.1(a)(1) for Commission of the Offense Following Two Prior Felony Convictions Section 2K2.1(a)(2) of the Guidelines applies if "the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). Application Note 1 defines a "felony conviction" as a "prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed." U.S.S.G. § 2K2.1 cmt. n.1. It also defines a "controlled substance offense" as "an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits," inter alia, "the possession of a controlled substance . . . with intent to . . . distribute." Id. (giving this term its definition under U.S.S.G. § 4B1.2(b)). The meaning of this guideline is a question of law, and our review is de novo. Damon argues that the Sentencing Commission deliberately used the term "offense punishable by imprisonment for a term exceeding one year" in the commentary to incorporate the statutory definition of that term in 18 U.S.C. § 921(a)(20)(B), a provision of the ACCA.2 Section 921(a)(20)(B) defines that term to exclude "any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less." 18 U.S.C. § 921(a)(20)(B). Damon's 2006 conviction for possessing a Class D controlled substance with intent to distribute was a misdemeanor with a maximum two-year sentence under Massachusetts law. Under Damon's interpretation of U.S.S.G. § 2K2.1(a)(2), this conviction would not count as a felony. We reject this argument. Congress has not required the Commission to adopt the ACCA's definition of an offense "punishable by imprisonment for a term exceeding one year" for purposes of defining a "felony conviction" or a "controlled substance offense" in U.S.S.G. § 2K2.1, nor does Damon so argue. The plain language, context, and history of this guideline demonstrate that the Commission did not intend to adopt the ACCA definition. Rather, the Commission used the phrase "punishable by imprisonment for a term exceeding one year" without any hidden limitations when defining a "felony conviction" and a "controlled substance offense" in the commentary to U.S.S.G. § 2K2.1. The Commission had no Damon does not distinguish between the way this language is used in the commentary definitions of a "felony conviction" and a "controlled substance offense," even though the commentary definition of a "felony conviction" does not use this phrase precisely. Nonetheless, Damon seems to assume the phrasing is close enough that the statutory exceptions in § 921(a)(20)(B) would limit both a "felony conviction" and a "controlled substance offense." intention to so limit these categories of offenses; when it did intend limits, it said so explicitly elsewhere in the commentary. Damon's argument rests on the erroneous premise that when any portion of the Sentencing Guidelines uses a term that appears in a related statute defining elements of a crime, the Sentencing Commission necessarily intended to adopt that definition at sentencing. That is not the law; "similar language used in different sources of law may be interpreted differently." United States v. Giggey, 551 F.3d 27, 36 (1st Cir. 2008) (en banc). In Giggey, for instance, we held that the Sentencing Commission intended to define a "crime of violence" in U.S.S.G. § 4B1.4 differently from the way the ACCA defined a "violent felony." We so held even though the Commission modeled its definition of a "crime of violence" after the ACCA's definition of a "violent felony" and used identical language to the ACCA in part of its definition. Id. at 36. We determine the meaning the Sentencing Commission intended to give to Guidelines terms, including whether it intended to adopt a statutory definition, by applying familiar principles of statutory construction. See United States v. Dyer, 589 F.3d 520, 524 (1st Cir. 2009).3 Guidelines commentary is "akin to an agency's interpretation of its own legislative rule." Stinson v. United States, 508 U.S. 36, 45 (1993). Like the text of a Guideline, we interpret its meaning using conventional methods of statutory construction. See United States v. Almenas, 553 F.3d 27, 31-32 The plain language of the Commission's definition of a "felony conviction" in Application Note 1 clearly excludes the statutory exceptions in § 921(a)(20)(B). Application Note 1 sets three criteria for an offense to be a "felony conviction": the offender must have been an adult when the offense was committed; the conviction must be for a violation of federal or state law; and the offense must be "punishable by death or imprisonment for a term exceeding one year." U.S.S.G. § 2K2.1, cmt. n.1. Application Note 10 lists the only textual limitations to the definition of "prior felony convictions." For purposes of applying provisions including § 2K2.1(a)(2), a court can "use only those felony convictions that receive criminal history points under § 4A1.1(a), (b), or (c)" of the Guidelines and that are counted separately under those provisions. Id. cmt. n.10. These textual limitations support our view that the Commission did not intend to include any further, implied limitations on the term. The definition of a "felony conviction" in the commentary to U.S.S.G. § 2K2.1 also unambiguously rejects the exceptions to the term "punishable by imprisonment by a term exceeding one year" in 18 U.S.C. § 921(a)(20)(B). Section 921(a)(20)(B) exempts an offense depending on whether state law defines it as a "misdemeanor," whereas the definition of a "felony conviction" in (1st Cir. 2009); see also United States v. McKinney, 520 F.3d 425, 429 (5th Cir. 2008). U.S.S.G. § 2K2.1's Application Note 1 states that it is irrelevant whether state law "specifically designated" the offense as a felony or as something else. Nor is there any indication in the language of U.S.S.G. § 2K2.1 that the Commission's definition of a "controlled substance offense" as, inter alia, an offense involving "imprisonment by a term exceeding one year" was meant to incorporate § 921(a)(20)(B)'s statutory exceptions. See U.S.S.G. § 2K2.1 cmt. n.1. Damon has not made any argument as to why the Commission would have intended to apply 18 U.S.C. § 921(a)(20)(B)'s exceptions only to controlled substance offenses, and there is no logical reason why that would be so. Further, it is clear from a comparison of the Guidelines language and statutory text that the term "punishable by imprisonment for a term exceeding one year" is used differently in these contexts. The commentary to U.S.S.G. § 2K2.1 uses the phrase "punishable by imprisonment for a term exceeding one year" to define two terms used in the text of the guideline, "felony conviction" and "controlled substance offense." See U.S.S.G. § 2K2.1(a)(2). In contrast, 18 U.S.C. § 922, which sets out the elements of offenses prohibited under the ACCA, uses the phrase "crime punishable by imprisonment for a term exceeding one year" as a prerequisite for particular offenses, not to explain other terms. See 18 U.S.C. §§ 922(d)(1), (g)(1), (n). Section 921(a)(20) then defines this phrase as a primary term used in the statute. 18 U.S.C. § 921(a)(20). These differences in usage make it implausible to assume that the Commission and Congress intended to give this phrase the same meaning.4 We likewise reject Damon's argument that the rule of lenity requires us to adopt his definition. The rule of lenity weighs in favor of a defendant's guideline interpretation only when substantial ambiguity as to the guideline's meaning persists even after a court looks to its text, structure, context, and purposes. See United States v. Stepanian, 570 F.3d 51, 57 (1st Cir. 2009). We have found no such ambiguity here. B. The Two-Level Enhancement for Offenses Involving Three to Seven Firearms under § 2K2.1(b)(1)(A) Section 2K2.1(b)(1)(A) imposes a two-level sentence enhancement "[i]f the offense involved three or more firearms" but no more than seven. U.S.S.G. § 2K2.1(b)(1)(A). The guideline counts "only those firearms that were unlawfully sought to be While we rely on text and context, U.S.S.G. § 2K2.1's history also does not support Damon's argument. Damon claims that in 1991, the Commission increased base offense levels in U.S.S.G. § 2K2.1 in response to parallel changes in the ACCA, that the Commission was well aware of the ACCA's definitions, and that the Commission therefore intended not to count any crimes that the ACCA excluded. But even assuming that the ACCA was the impetus for the 1991 amendments, Damon's argument cuts too broadly. Nothing in the history of the amendments suggests that the Commission intended § 2K2.1 to operate in perfect lockstep with the ACCA. Moreover, § 2K2.1 did not, at the time, define the term "felony conviction" in the commentary, nor did it mention "crimes of violence" and "controlled substance offenses." See U.S.S.G. appx. C, amend. 374, at 186 (1997). obtained, unlawfully possessed, or unlawfully distributed." Id. § 2K2.1 cmt. n.5. A defendant is not only responsible for the firearms he personally and unlawfully sought to obtain, possess, or distribute; he is also responsible for his relevant conduct. See id. § 1B1.3(a). "[I]n the case of a jointly undertaken criminal activity," this conduct includes "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." Id. § 1B1.3(a)(1)(B). Because an offense "involving" three or more firearms is not limited to situations where the defendant personally possessed at least three firearms, we need not decide whether Damon's fleeting contact with the other two guns while in the pawnshop qualifies as "possession." That is a much thornier question. Instead, Damon was engaged in a joint criminal undertaking with Carey, Riley, and Wickett to unlawfully obtain all three guns and the effort to obtain all three guns was "relevant conduct." Damon denies this and says there was no evidence of a common connection between his efforts to obtain a gun and Carey's and Riley's arrangements with Wickett.5 He concedes that he and Wickett agreed to unlawfully obtain a gun for him, but says the other two men made separate agreements with Wickett. Damon claims Damon also points out that the government dropped conspiracy charges against Damon and his associates. This is irrelevant; at sentencing, "relevant conduct" can include "[c]onduct that is not formally charged or is not an element of the offense of conviction." U.S.S.G. § 1B1.3 cmt. background. he only gave Wickett money to purchase a gun for him, and that he therefore had no stake in the other men's efforts to unlawfully obtain guns for themselves. We reject this argument. A "jointly undertaken criminal activity" means "a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others." Id. § 1B1.3(a)(1)(A). Courts can look to "any explicit agreement or implicit agreement fairly inferred from the conduct of the defendant and others" to define the scope of the joint criminal activity. Id. cmt. n.2; see also United States v. Carrozza, 4 F.3d 70, 75-76 (1st Cir. 1993). On this record, the district court could supportably have found by a preponderance of the evidence that Damon, Carey, and Riley, all of whom were felons, were engaged in a "jointly undertaken criminal activity" to attempt to illegally obtain guns from the same pawnshop, at the same time, and through the same proxy, Wickett. The three men, all Massachusetts residents, were captured on video arriving at a pawnshop in Maine with Wickett. They talked with each other and considered guns together as Wickett stood beside them. Damon and Riley had considered these same guns together the previous month but had been unable to buy the guns themselves. Wickett purchased guns for all three men at the same time, and they all left the store together. It is easy to infer an implicit agreement between the three men and Wickett to unlawfully seek to obtain guns, irrespective of the amount of money each man gave to Wickett toward the purchase. All three men had a common stake in using Wickett to attempt to unlawfully obtain guns for themselves. Carey's and Riley's unlawful attempts to obtain guns at the pawnshop through Wickett were not only "reasonably foreseeable" and "in furtherance" of this scheme but were the essence of the common plan with Damon. The sentence is affirmed. So ordered.

United States Court of Appeals For the First Circuit No. 08-2388 PLEASURES OF SAN PATRICIO, INC., Plaintiff, Appellant, IVÁN R. ROCAFORT, Plaintiff, v. JUAN C. MÉNDEZ-TORRES; DEPARTAMENTO DE HACIENDA DE PUERTO RICO, Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District Judge] Before Torruella, Baldock,* and Howard, Circuit Judges. Frank E. Guerra-Pujol, for appellant. Susana I. Peñagarícano-Brown, Assistant Solicitor General, Department of Justice, Commonwealth of Puerto Rico, with whom Irene S. Soroeta-Kodesh, Solicitor General, Leticia Casalduc-Rabell, Deputy Solicitor General, and Zaira Z. Girón-Anadón, Deputy Solicitor General, were on brief for appellees. February 22, 2010 * Of the Tenth Circuit, sitting by designation. BALDOCK, Circuit Judge. Plaintiff Iván Rocafort is the president and primary shareholder of Plaintiff-Appellant Pleasures of San Patricio, Inc. (PSP), a tobacco and wine shop in Puerto Rico.1 PSP regularly imports and sells little cigars made in the mainland United States and is the exclusive distributor of Cheyenne Little Cigars in Puerto Rico. The United States Department of the Treasury has classified little cigars as a different tobacco product from cigarettes. Section 2009 of the 1994 Puerto Rico Internal Revenue Code imposes an excise tax on cigarettes but not on little cigars. Prior to 2007, PSP had never been required to pay Puerto Rico’s cigarette excise tax on its imported little cigars. In 2007, PSP ordered $40,000 worth of Cheyenne Little Cigars from a manufacturer in North Carolina. Defendant Secretary of the Puerto Rico Department of the Treasury, Juan Méndez-Torres, for the first time refused to release PSP’s shipment of Cheyenne Little Cigars until PSP paid the cigarette excise tax. PSP alleges Defendant acted pursuant to Circular Letter of Internal Revenue No. 05-08 dated August 17, 2005 (Circular Letter) which PSP claims imposes Puerto Rico’s cigarette tax only on little cigars produced in the United States. In October 2007, PSP filed suit in Puerto Rico federal district court requesting "the immediate release of [PSP’s] Though both Plaintiff Rocafort and Plaintiff-Appellant PSP sued in federal court and later in the Commonwealth courts, for simplicity’s sake we refer only to PSP. shipment of Cheyenne Little Cigars . . .,” “a permanent injunction against the selective and discriminatory imposition of the cigarette excise [tax] upon Cheyenne Little Cigars” and a declaration “that the excise tax of the 1994 Internal Revenue Code of Puerto Rico Section 2009 [is] not applicable to Cheyenne Little Cigars.” PSP asserted Defendant’s application of the cigarette excise tax solely to mainland-made little cigars constitutes unconstitutional interference with and discrimination against interstate commerce, in violation of the Commerce Clause, Article I, Section 8 of the United States Constitution. The district court granted Defendant’s motion to dismiss for lack of jurisdiction in August 2008. The district court concluded the Butler Act, 48 U.S.C. § 872, prevented it from hearing the suit because the Act prohibits the filing of suits in federal courts “‘for the purpose of restraining the assessment or collection of any tax imposed by the laws of Puerto Rico.’" Pleasures of San Patricio, Inc. v. Méndez-Torres, 2008 WL 4191251, at *1 (D.P.R. Aug. 29, 2008) (quoting 48 U.S.C. § 872). The court was "firmly convinced that this is a prototypical Butler Act case as [PSP] is explicitly challenging the validity of a tax and [Defendant]’s authority to assess it." Id. Consequently, the district court declared it did not have jurisdiction to entertain the suit. Id. at *2. PSP’s timely appeal to our Court followed. At oral argument, counsel for both parties revealed that while this appeal was pending, PSP filed an action in a Commonwealth of Puerto Rico trial court and received a partial summary judgment, which was at that time on appeal to the Commonwealth appellate court. We, therefore, ordered both parties to file English translations of the proceedings and associated complaints, pleadings, motions and briefs in PSP’s related case before the Commonwealth trial and appellate courts. Defendant responded to our order by filing 436 pages in no apparent order without a uniform page numbering system (some page numbers are handwritten, others are typed in various fonts and sizes, and some placed over the page’s text). Defendant evidently thought it appropriate to divide the documents into six parts but failed to label any of these six parts. Defendant provides an “Addendum Index” which does not appear to correspond to what it actually filed. Looking at the first page and last page of each part, Part II allegedly contains pages 36 through 235; Part III allegedly contains pages 236 through 260; Part IV allegedly contains pages 54 through 123; Part V allegedly contains pages 124 through 226; and Part VI allegedly contains pages 180 through 226. As for pages 260 through 436, we are left to assume they are somewhere in those six parts; although, we have only been able to locate pages numbered through 338 scattered throughout the six parts because many of the pages lack page numbers altogether. Under 28 U.S.C. § 1291, we review the district court’s final order of dismissal for lack of jurisdiction de novo. Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995). In light of the proceedings in the Commonwealth courts, we suspect this case is moot. The parties’ inadequate compliance with our order, however, prevents us from definitively reaching a conclusion as to mootness. Regardless, we can definitively conclude based upon the submissions that we lack subject matter jurisdiction pursuant to the Butler Act because Commonwealth of Puerto Rico courts have provided a plain, speedy, and efficient remedy. We, consequently, affirm the district court’s dismissal for lack of jurisdiction. I. From what we can decipher, PSP apparently filed a lawsuit in the Commonwealth of Puerto Rico in February 2009, after the federal district court dismissed the instant case, against the Puerto Rico Department of the Treasury and Department of Justice challenging the Circular Letter, requesting an injunction, and demanding damages for the unlawful detention of its shipment. See Rocafort v. Dep’t of the Treasury, No. E PE2009-0057 (Court of First Instance, Caguas Superior Court, filed February 20, 2009). PSP alleged Defendant Méndez-Torres implemented the Circular Letter in contravention of Puerto Rico’s Small Business Administrative and Regulatory Flexibility Act (SBARFA), 3 L.P.R.A. §§ 2251–2262. The Court of First Instance granted partial summary judgment and entered a judgment in PSP’s favor. The court considered whether Defendant Méndez-Torres acted in conformity with the SBARFA in issuing the Circular Letter and, if properly issued, whether the Circular Letter promulgates an invalid administrative interpretation of Section 2009 of the Internal Revenue Code. PSP does not appear to have raised Commerce Clause arguments before the Court of First Instance. Ultimately, the court concluded Defendant Méndez-Torres acted in contravention of the SBARFA in issuing the Circular Letter and relied upon an invalid regulatory interpretation in seizing the shipment of little cigars. The court, therefore, granted PSP’s motion for partial summary judgment and ordered the Department of the Treasury to release the shipment immediately. Defendants then filed a petition for certiorari before the Commonwealth of Puerto Rico Appellate Court. See Rocafort v. Dep’t of the Treasury, No. KLCE2009-01542, Petition for Certiorari (Appellate Court, Judicial Region of Caguas, filed October 26, 2009). That is the last documentation we have of this case in the Commonwealth courts. Neither party has supplemented the record pursuant to Fed. R. App. P. 28(j) to inform us whether the Appellate Court has granted the petition for certiorari, let alone whether it has affirmed the Court of First Instance’s partial summary judgment in favor of PSP. The parties have also not informed us whether the Department of the Treasury has complied with the Court of First Instance’s September 2009 order by releasing the shipment. As a result, we cannot conclusively determine that the Commonwealth proceedings render the case before us moot. We, therefore, proceed to determine whether the Butler Act deprives us of subject matter jurisdiction. II. The Butler Act states, in relevant part: "No suit for the purpose of restraining the assessment or collection of any tax imposed by the laws of Puerto Rico shall be maintained in the United States District Court for the District of Puerto Rico." 48 U.S.C. § 872. The Act is “a close analogue to the Tax Injunction Act (‘TIA’) applicable to Puerto Rico." Coors Brewing Co. v. Méndez-Torres, 562 F.3d 3, 13 (1st Cir. 2009). "The two statutes employ different language (i.e. the [TIA] includes an express exception that the Butler Act lacks), but ‘have been construed in pari materia.’" United Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d 323, 330 n.11 (1st Cir. 2003)(quoting Trailer Marine Transp. Corp. v. Rivera Vazquez, 977 F.2d 1, 5 (1st Cir. 1992)). For this reason, we apply the Butler Act in the same manner as the TIA. Carrier Corp. v. Perez, 677 F.2d 162, 164 (1st Cir. 1982). The TIA limits the jurisdiction of a federal court to entertain a suit seeking to enjoin the levying or collection of a state tax where "a plain, speedy and efficient remedy" exists in state court. Id. at 164; see also United Parcel Serv., 318 F.3d at 330 n.11. Two conditions must, therefore, be satisfied before the Butler Act will deprive a federal court of jurisdiction: first, the suit must attempt to restrain the assessment or collection of a Puerto Rico tax; and second, local courts must provide the plaintiff a plain, speedy, and efficient remedy. Carrier, 677 F.2d at 164. A. As to the first condition, similar to the TIA, "[n]ot every statutory or regulatory obligation that may aid the Secretary [of the Treasury]’s ability to collect a tax is immune from attack in federal court by virtue of the Butler Act’s jurisdictional bar." United Parcel Serv., 318 F.3d at 331. The Act’s jurisdictional bar only extends to: "[C]ases where taxpayers were repeatedly using the federal courts to raise questions of state or federal law going to the validity of the particular taxes imposed upon them—not to a case where a taxpayer contended that an unusual sanction for non-payment of a tax admittedly due violated his constitutional rights . . . ." Id. (quoting Wells v. Malloy, 510 F.2d 74, 77 (2d Cir. 1975)). In Coors Brewing Co. v. Méndez-Torres, we further clarified the scope of the Butler Act in the wake of the Supreme Court’s decision in Hibbs v. Winn, 542 U.S. 88 (2004). Hibbs v. Winn dealt with the scope of the TIA, but we concluded in Coors: [S]ince the Butler Act is read in parallel to the TIA, and since it similarly only restricts the district courts from entertaining suits “for the purpose of restraining the assessment or collection” of taxes of Puerto Rico, we read it, according to Hibbs, to only apply where plaintiffs seek to challenge taxes in a way that would reduce the flow of state tax revenue. Coors, 562 F.3d at 14. For this reason, we concluded that despite the Butler Act the district court had jurisdiction to entertain Coors’s suit challenging an exemption in Puerto Rico’s taxing scheme which specified a lower tax rate for small brewers (generally local brewers). Id. at 16. Coors sought a declaration that the exemption was unconstitutional under the Commerce Clause as well as an injunction prohibiting the Puerto Rico Secretary of the Treasury from allowing any taxpayer to pay only the reduced tax rate provided by the small brewers exemption and requiring the Secretary to impose the higher tax rate on all brewers. Id. at 5. Because Coors did not seek to lower the tax rate on itself, "rather than eliminat[ing] a potential source of revenue, the relief Coors request[ed] would simply eliminate a tax law affording preferential tax treatment to certain taxpayers." Id. at 16. Accordingly, we concluded that under Hibbs, Coors’s action was not barred by the Butler Act. Id. At first blush, PSP’s suit appears similar to the one we determined fell beyond the scope of the Butler Act in Coors. PSP raised a Commerce Clause objection to Defendant placing a higher tax on mainland-made little cigars than locally-made little cigars. Similarly, Coors raised a Commerce Clause challenge to the Secretary’s imposing a higher tax on large brewers than on small brewers. But, critically, the two suits differ in the relief requested. Coors requested an injunction requiring all brewers, large and small, to pay the higher large-brewer tax, thereby increasing the revenue flowing to Puerto Rico. In contrast, PSP requested in its amended complaint that the federal district court "order the immediate release of [PSP’s] shipment of Cheyenne Little Cigars . . ., . . . issue a permanent injunction against the selective and discriminatory imposition of the cigarette excise [tax] upon Cheyenne Little Cigars, [and]. . . declare that the excise tax of the 1994 Internal Revenue Code of Puerto Rico Section 2009 [is] not applicable to Cheyenne Little Cigars." PSP did not request an injunction requiring Defendant to apply the cigarette excise tax to all little cigars, including those made in Puerto Rico. Consequently, rather than increase the revenue generated by Puerto Rico’s tax laws, PSP’s requested relief "would reduce the flow of [Puerto Rico] tax revenue." Coors, 562 F.3d at 14. We must, therefore, conclude PSP’s suit does fall within the ambit of suits barred by the Butler Act. B. Now that we have determined PSP’s suit is within the scope of suits barred by the Butler Act, we must decide whether Puerto Rico local courts provide a plain, speedy, and efficient remedy. Carrier, 677 F.2d at 164. PSP argues in its briefs that it lacks such a remedy for two reasons: first, Puerto Rico tax procedure requires it to sell its little cigars at a loss; second, the Supreme Court of Puerto Rico does not recognize the applicability of the Commerce Clause to Puerto Rico.2 The Supreme Court has clarified that the requirement of a plain, speedy, and efficient remedy in state court is only a procedural one and is, therefore, satisfied merely when “certain procedural criteria” are met. Rosewell v. LaSalle National Bank, 450 U.S. 503, 522 (1981); Carrier, 677 F.2d at 165. A state remedy meets these minimal procedural criteria so long as it “provides a taxpayer with a ‘full hearing and judicial determination’ at which she may raise all constitutional objections to the tax” and may therefrom seek review before the Supreme Court. Rosewell, 450 U.S. at 515 n.19. 1. Puerto Rico law evidently requires individuals contesting an imposed tax to pay the tax and then apply to the Secretary of the Treasury for a refund. See 13 L.P.R.A. § 261 (“[N]o credit or reimbursement of any tax covered by §§ 261 and 262 of this title shall be granted unless the taxpayer shows . . . he has sustained PSP also suggested at oral argument that it lacked a plain, speedy, and efficient remedy in the Commonwealth Courts because such an action is time barred. First, we note we have no way of knowing if the Commonwealth courts have determined PSP’s suit is time barred because the parties’ addendum does not indicate any Commonwealth court has ruled on the issue yet. Second, because PSP raised this argument for the first time at oral argument, we refuse to consider it. See Nieves-Vega v. Ortiz-Quiñones, 443 F.3d 134, 138 (1st Cir. 2006); Surprenant v. Rivas, 424 F.3d 5, 16 (1st Cir. 2005). the burden of the payment of the tax.”); Carrier, 677 F.2d at 164.3 State refund actions that allow protesting taxpayers the opportunity for state judicial review of their constitutional and federal claims generally constitute a plain, speedy, and efficient remedy. See California v. Grace Brethren Church, 457 U.S. 393, 416–17 (1982); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 300 (1943). But Puerto Rico requires taxpayers not only to pay the tax before seeking redress, but also to in fact have suffered the economic burden of the tax. 13 L.P.R.A. § 261; see also Venrod Corp. v. Sec’y of the Treasury of the Commw. of Puerto Rico, 704 F. Supp. 21, 23 (D.P.R. 1989)("[N]ot only must the plaintiff have paid the tax, but . . . it ‘must have in fact suffered the economic burden of the tax.’" (quoting Pedro A. Pizá, Inc. v. Tax Court, 72 P.R.R. 302, 304 (1951))). If the Secretary At oral argument, Plaintiff stated that PSP would have to pay the imposed tax in order to request injunctive or declaratory relief in the Commonwealth courts. Defendant’s counsel took contradictory positions on the matter. The addendum submitted by the parties does not clarify this confusion, nor does it establish whether PSP has already paid the tax or posted a bond as part of the litigation in the Commonwealth courts. Although, seemingly if PSP had paid the tax prior to filing suit in the Commonwealth courts, Defendant would have released the shipment, and PSP would not have requested the Commonwealth court to order Defendant to release the shipment but would have instead requested a tax refund. Since PSP did request the release of the shipment in the suit before the Commonwealth trial court, PSP, in theory, has not yet been made to pay the tax. But for reasons discussed herein the answer to those questions does not affect our plain, speedy, and efficient remedy analysis in this case. We, therefore, take PSP’s claim in its briefs and at oral argument that it must first pay the tax to challenge it in the Commonwealth courts as true. decides against the taxpayer, he may appeal the decision in the local Puerto Rico courts and, thereafter, seek review of any final Commonwealth court decision with the Supreme Court of the United States. Carrier, 677 F.2d at 164. This means only taxpayers who have absorbed the challenged taxes and not passed them on to their vendees may sue for a refund in Commonwealth courts. Venrod, 704 F. Supp. at 23. Quoting Venrod, PSP asserts: This puts [a] plaintiff in a catch-22 situation anent the state remedy: it can either pass the burden of the tax on to the ultimate purchaser, which will make [the taxed product] uncompetitive, and thereby forego any remedy for an allegedly illegal tax, or it can absorb the tax, sell the [taxed product] at a loss, and attempt to obtain a refund. Id. at 24. In Venrod, the United States District Court for the District of Puerto Rico reasoned that while we had previously determined in Carrier that Puerto Rico’s refund procedure constituted a plain, speedy, and efficient remedy, we did not encounter the catch-22 scenario described. Id. As a result, the Venrod district court proceeded to conclude "a remedy which requires for its availability the selling of the [taxed product] at a loss is not plain, speedy, and efficient." Id. In Carrier, we reviewed the exact same Puerto Rico tax refund procedure under 13 L.P.R.A. § 261 that the district court in Venrod discussed; we just did so seven years earlier.4 Carrier, 677 F.2d at 164. At that From what we can discover, 13 L.P.R.A. § 261 has only been altered once since 1954. In 2003, “Superior Court” was changed to time, we concluded that Section 261 provided plaintiffs challenging Puerto Rico taxes a plain, speedy and efficient remedy. Id. The district court in Venrod correctly noted that the Carrier court did not expressly pass on the catch-22 scenario Section 261 creates by requiring plaintiffs to suffer the challenged tax. Venrod, 704 F. Supp. at 24. However, we must assume that when the Carrier court stated it had evaluated the Puerto Rico refund procedure in Section 261, the court reviewed it in its brief entirety (only two paragraphs long). We, therefore, have good reason to conclude we have already passed on Section 261's burden-bearing requirement. Moreover, we independently fail to see how requiring a taxpayer to sell taxed goods at a loss before suing for a refund fails to provide him an adequate remedy. First, if the taxpayer prevails in his challenge of the tax, he obtains a refund, reversing the detriment the tax imposed upon him. Second, requiring a taxpayer to bear the burden of the tax does not diminish Puerto Rico’s satisfaction of the Butler Act’s minimal procedural requirements. Puerto Rico continues to satisfy those minimal procedural requirements by providing a taxpayer a “full hearing and judicial determination” of all of her constitutional objections to the tax, with review thereafter possible before the United States Supreme Court, regardless of its burden-bearing “Court of First Instance.” See P.R. Laws Ann. tit. 13 § 261 (LexisNexis 2006). Otherwise, the text of the statute has remained the same. requirement. Third, Congress, and later the Supreme Court when asked to review state refund procedures, surely understood a taxpayer might have to bear the economic burden of a tax in order to contest it in state courts. When Congress first passed the Butler Act’s cousin, the TIA, “Congress knew that state tax systems commonly provided for payment of taxes under protest with subsequent refund as their exclusive remedy.” Rosewell, 450 U.S. at 523. Then and now, a significant portion of taxpayers are not businesses or entities that can pass on their tax liabilities to their consumers or employees, but instead are families and individuals who must bear the burden of their state tax liability rather than pass it on to someone else. Consequently, Congress and the Court must have realized many taxpayers would have to absorb the burden of a tax in order to contest it in state court. Thus, on the facts presented, we must conclude Puerto Rico’s requirement that PSP absorb the burden of the tax prior to contesting it does not deprive PSP of a plain, speedy, and efficient remedy in Puerto Rico courts.5 We note, however, some sister circuits have indicated that while generally a state refund procedure constitutes a plain, speedy, and efficient remedy, requiring a taxpayer to pay an exorbitant or effectively punitive tax in order to challenge it may present “such a heavy burden that to decline [federal] equitable relief would be to deny judicial review altogether.” H.W. Denton v. City of Carrollton, Georgia, 235 F.2d 481, 485 (5th Cir. 1956); see also Capitol Indus.-EMI, Inc. v. Bennett, 681 F.2d 1107, 1114 n. 20 (9th Cir. 1982)(explaining that a state refund action may not constitute an adequate remedy in special circumstances, such as when a taxpayer is unable to pay a proposed assessment); Sterling Furthermore, in this case, the Commonwealth courts (even assuming contrary to logic that PSP has paid the contested tax) have certainly provided PSP a plain, speedy, and efficient remedy. PSP has already received a favorable partial judgment from the Commonwealth trial court ordering Defendant to release its shipment. Even if the Commonwealth Appellate Court reverses the partial judgment, "[t]he Butler Act, at most, requires assurance that a plaintiff will have an opportunity to make an argument in [local] court, not that he will win." Id. at 165. As Defendant’s addendum indicates, PSP has clearly had such an opportunity. 2. We have also reviewed the Supreme Court of Puerto Rico’s interpretation of the Commerce Clause’s application to Puerto Rico, finding it far less definitive than PSP asserts. See Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 143 (1st Cir. 2001) (concluding after reviewing circuit and Puerto Rico Supreme Court precedent that the Commerce Clause in the view of Puerto Rico courts may have “‘contours which are different’ from those when applied to the Shoe Co. v. Norberg, 411 F. Supp. 128, 131 (D.R.I. 1976) (noting that “it is settled law that prepayment as a prerequisite to judicial review does not prevent application of” the TIA, but that “[t]here is a qualification, however, where there is a factual showing . . . that prepayment in order to secure judicial review ‘poses such a heavy burden that to deny equitable relief is to deny judicial review entirely’” (quoting Denton, 235 F.2d at 485)). PSP has never contended it is unable to pay the “six dollars and fifteen cents” excise tax allegedly imposed by Puerto Rico upon its shipment of little cigars. As a result, we have no reason to believe that special circumstances of the nature other circuits have discussed exist here to justify jurisdiction. States.” (quoting R.C.A. v. Gov’t of the Capital, 91 P.R.R. 404, 419 (P.R. 1964))); Carrier, 677 F.2d at 165 (explaining that the position taken by the Supreme Court of Puerto Rico on the applicability of the Commerce Clause to Puerto Rico was far more flexible in R.C.A than the plaintiff suggested). Regardless, as we have previously recognized, we need not address the precise contours of Puerto Rico’s Commerce Clause jurisprudence in order to find PSP has an adequate remedy under Puerto Rico law. Carrier, 677 F.2d at 165. Rather, we have concluded it is sufficient that plaintiffs are “free to make a Commerce Clause-based argument in the courts of Puerto Rico, and to pursue those arguments to the Supreme Court of the United States if necessary.” Id. The Butler Act only requires that local courts provide a plaintiff the opportunity to make an argument, not that they guarantee the plaintiff’s success. Id. Given this reasoning and the fact that PSP has already availed itself of such an opportunity to make this argument by challenging the tax in the Commonwealth courts (though it evidently chose not to make Commerce Clause arguments), PSP’s contention that the local courts do not provide a plain, speedy, and efficient remedy is meritless. III. For the foregoing reasons, the judgment of the district court is affirmed.

FILED United States Court of Appeals Tenth Circuit March 11, 2010 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 10-4016 (D.C. No. 2:08-CR-00808-TS-1) DOUGLAS LEE FROWNFELTER, (D. Utah) Defendant-Appellant. ORDER AND JUDGMENT * Before KELLY, EBEL, and GORSUCH, Circuit Judges. Defendant Douglas Lee Frownfelter appeals the district court’s denial of his 18 U.S.C. § 3143(b) motion for release pending appeal. The Government opposed the motion in the district court and has filed an opposition brief on appeal. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3145, and we reverse. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. The case against Frownfelter stems from his receipt of adoption subsidy payments through the Utah Division of Child and Family Services (“DCFS”) that were funded in part by the United States Department of Health and Human Services. In 1995, Frownfelter and his wife adopted a son with special needs. Three years later, the couple divorced, sharing joint-custody of their son. In March 2001, however, the son began living primarily with Frownfelter. Based on this arrangement, in September 2002, Frownfelter applied for and was granted adoption subsidy assistance through DCFS. In December 2002, he began receiving monthly payments in the amount of $559. In January 2003, the child went to live with his mother, but Frownfelter did not notify DCFS of this fact and continued to receive the monthly adoption subsidy. As a result, from February 2003 to October 2006, when DCFS discovered the situation and terminated the payments, Frownfelter received over $24,000 in adoption subsidy payments to which he was not entitled. On December 3, 2008, Frownfelter was charged in an eleven-count indictment of stealing government funds in violation of 18 U.S.C. § 641. The background section of the indictment detailed the scheme and explicitly stated that Frownfelter ultimately stole over $24,000. The counts comprised a separate section, which, in an opening paragraph, putatively incorporated the background allegations. The next paragraph recited the language of § 641; accused Frownfelter of failing to notify DCFS of his changed circumstances; and alleged that the total amount stolen exceeded $1,000. Finally, the indictment set forth a chart enumerating eleven separate counts. Each count corresponded to the date of a specific adoption subsidy payment and the amount of that particular payment. Count Eleven charged Frownfelter with receiving $559 on October 2, 2006. Frownfelter pled guilty to Count Eleven, and the remaining counts were dismissed. He later argued to the district court that based on the amount charged in Count Eleven, he had pled guilty only to a misdemeanor and should be sentenced as such. The court rejected that argument, however, concluding at sentencing that Count Eleven incorporated the introductory paragraphs of the indictment, including its allegation that Frownfelter had unlawfully obtained over $24,000. Thus, it found the indictment was sufficient to allege a felony under § 641, and that Frownfelter had knowingly pled guilty to the felony in his Statement in Advance of Plea. The court imposed a sentence of one year plus one day. Frownfelter filed an appeal in this court challenging the legality of his sentence on the grounds that he pled guilty to a misdemeanor rather than a felony. Based on the same grounds, he also filed a motion in the district court seeking release during the pendency of his appeal. It is the district court’s denial of that motion that is presently under review. II. Under § 641, theft of government property with a value in excess of $1,000 is a felony punishable by a maximum term of imprisonment of ten years. “[B]ut if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000,” the violation is a misdemeanor, punishable with a fine or a term of imprisonment not to exceed one year, or both. 18 U.S.C. § 641. The district court concluded Frownfelter had pled guilty to a felony because it found that the value of the property he took “in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, in this case Count 11, was over $1,000.” App. at 111 (internal quotation marks omitted). This is confusing because Frownfelter was only convicted on Count Eleven, which alleged a theft of $559. As the district court construed the indictment, however, Count Eleven incorporated by reference the background allegation charging Frownfelter with stealing over $24,000. The court cited Federal Rule of Criminal Procedure 7(c), which states that “[a] count may incorporate by reference an allegation made in another count.” It acknowledged that this rule does not explicitly authorize incorporation of language contained in introductory paragraphs of the indictment, but it pointed out that at least two circuits have allowed such practice. See United States v. Vanderpool, 528 F.2d 1205, 1206 (4th Cir. 1975) (permitting incorporation by reference of matter set forth in indictment’s introduction); United States v. McGuire, 381 F.2d 306, 319 (2d Cir. 1967) (holding that “introductory paragraphs not part of another count and specifically referring to the counts involved are considered part of the numbered counts following them”). Based on these cases and the lack of contrary Tenth Circuit authority, the court concluded Frownfelter had pled guilty to stealing over $1,000 in government funds, a felony under § 641. It further concluded that Frownfelter’s appeal failed to raise a substantial question as to this issue, thereby precluding relief under § 3143(b). We review the court’s decision de novo, giving due deference to its purely factual findings. United States v. Kinslow, 105 F.3d 555, 557 (10th Cir. 1997). Requests for relief under § 3143(b) should be granted only if the court finds, in addition to factors not relevant here, that the appeal “raises a substantial question of law or fact likely to result in (i) a reversal; (ii) an order for a new trial; (iii) a sentence that does not include a term of imprisonment; or (iv) a reduced sentence to a term of imprisonment less that the total of the time already served plus the expected duration of the appeal process.” 18 U.S.C. § 3143(b)(1)(B). “[A] ‘substantial question’ is one of more substance than would be necessary to a finding that it was not frivolous. It is a ‘close’ question or one that very well could be decided the other way.” United States v. Affleck, 765 F.2d 944, 952 (10th Cir. 1985) (internal quotation marks omitted). In our view, whether Frownfelter pled guilty to a felony or a misdemeanor is such a close question. That is not to say we disagree with the holdings of Vanderpool and McGuire. But in those cases the only issue was whether the indictments contained sufficient details of the alleged crimes. Those courts did not consider the propriety of sentencing a defendant based on aggregating amounts stolen at different times, as alleged in separate counts, or based on an amount referred to only in an introductory paragraph of the indictment. More importantly, the background allegations in those cases did not independently determine the level of the offense charged. By contrast, if we were to ignore the background allegations in the indictment against Frownfelter, we would be left with an indictment charging eleven separate misdemeanors, ten of which were ultimately dismissed. Accordingly, it is not clear to us from the four corners of this indictment that each individual count constituted a felony charge, which must be the case if Frownfelter’s sentence is to be sustained. III. For the foregoing reasons, we conclude that Frownfelter’s appeal raises a substantial question of law that is likely to result in a reduced sentence as set forth in § 3143(b)(1)(B). We therefore REVERSE the district court’s order of January 7, 2010, and return this matter to the district court on a limited REMAND with instructions to set appropriate conditions for Frownfelter’s release pending resolution of his appeal. Entered for the Court Per Curiam

[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 08-16013 ELEVENTH CIRCUIT MARCH 10, 2010 ________________________ JOHN LEY CLERK Agency No. A029-356-681 CARLOS ROBERTO VILA, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals _________________________ (March 10, 2010) Before EDMONDSON and PRYOR, Circuit Judges, and CAMP,* District Judge. PRYOR, Circuit Judge: * Honorable Jack T. Camp, United States District Judge for the Northern District of Georgia, sitting by designation. This petition presents the question whether an alien living in the United States with an approved I-140 visa petition is “lawfully resid[ing] . . . in the United States” under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h), which grants the Attorney General the discretion to waive the removal of an alien who has been convicted of a crime of moral turpitude. The Attorney General lacks the authority for an alien who has not “lawfully resided continuously” in the United States for the seven years before the initiation of his removal proceeding. Carlos Roberto Vila, who was convicted of burglary in 2000, petitions for review of a decision of the Board of Immigration Appeals that vacated an immigration judge’s decision that Vila is eligible for relief under section 212(h). The immigration judge determined that Vila is statutorily eligible for a waiver of inadmissibility because he had lived in the United States with an approved I-140 visa petition from September 12, 1994, until he became a lawful permanent resident on June 21, 2000. Because Vila’s approved I-140 visa petition did not make him a lawful resident under section 212(h), we deny his petition for review. I. BACKGROUND Carlos Roberto Vila, a native and citizen of Peru, entered the United States without inspection on October 25, 1988. On October 4, 1989, the Immigration and Naturalization Service initiated removal proceedings against Vila. Because Vila did not appear at his removal hearing, the government administratively closed the proceedings. In 1994, an employer filed on Vila’s behalf an I-140 visa petition for an alien worker, and the Immigration and Naturalization Service approved the petition on September 12, 1994. On November 7, 1994, Vila filed an I-485 application to register as a permanent resident or adjust status. Although Vila had not obtained an immigration visa abroad, section 245(i) of the Immigration and Nationality Act permitted him to apply to adjust his status because he was physically present in the United States and held an approved I-140 visa petition. See 8 U.S.C. § 1255(i). On August 21, 1996, the government reopened Vila’s removal proceedings to allow him to pursue his I-485 application for permanent resident status under section 245(i). The Immigration and Naturalization Service approved Vila’s I-485 application, and he became a lawful permanent resident on June 21, 2000. On July 22, 2003, upon return from a trip abroad, Vila sought admission to the United States at Miami International Airport as a returning lawful permanent resident. On October 28, 2003, the Department of Homeland Security issued Vila a notice to appear that charged him with inadmissibility because of a prior conviction for a crime of moral turpitude. The government determined that Vila was inadmissible because on September 14, 2000, Vila pleaded no lo contendere to a charge of burglary in Dade County Florida. Vila conceded inadmissibility absent a waiver under section 212(h) of the Act, which grants the Attorney General of the United States discretion to waive the removal of an alien who has been convicted of a crime of moral turpitude, 8 U.S.C. § 1182(h)(1)(B). The Attorney General lacks that discretion for an alien who has not “lawfully resided continuously” in the United States for the seven years before the filing of his removal proceedings. Id. § 1182(h). Vila argued that he is eligible for a waiver, under section 212(h), because he had lawfully resided in the United States for at least the seven years before the initiation of his removal proceedings on October 25, 2003. An immigration judge found that Vila is eligible for a section 212(h) waiver because he had lawfully resided in the United States since September 12, 1994, when the government approved his I-140 visa petition. The immigration judge then exercised her discretion to grant Vila a waiver under section 212(h). The immigration judge found that Vila’s children would suffer extreme hardship if Vila were not permitted to remain in the United States to provide for them. On appeal, the Board ruled, based on its decision in In re Rotimi, 24 I. & N. Dec. 567 (BIA 2008), that Vila is statutorily ineligible for a section 212(h) waiver. The Board found that Vila had not lawfully resided in the United States until he became a lawful permanent resident on June 21, 2000. The Board vacated the immigration judge’s decision and ordered Vila removed to Peru. II. JURISDICTION We have jurisdiction to review the decision of the Board that Vila is statutorily ineligible for a waiver of inadmissibility. 8 U.S.C. § 1252(a)(2)(D); see also Quinchia v. U.S. Att’y Gen., 552 F.3d 1255, 1258 (11th Cir. 2008); Savoury v. U.S. Att’y Gen., 449 F.3d 1307, 1311–12 (11th Cir. 2006). III. STANDARD OF REVIEW We review issues of statutory interpretation de novo, but we defer to a reasonable interpretation of the statute by the agency that administers it. Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1350 (11th Cir. 2005) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–44, 104 S. Ct. 2778, 2781–83 (1984)). IV. DISCUSSION Vila argues that he is eligible for a section 212(h) waiver because he was lawfully residing in the United States from at least August 21, 1996, until his removal proceedings commenced on October 25, 2003. Vila argues that from August 21, 1996, until June 21, 2000, he was lawfully residing in the United States because he possessed both an approved I-140 visa petition and a pending I-485 application for adjustment of status. The parties do not dispute that from June 21, 2000, when the government approved Vila’s I-485 application to adjust status, until October 25, 2003, Vila was lawfully residing in the United States as a lawful permanent resident. The issue presented is whether Vila’s approved I-140 visa petition made him a lawful resident of the United States from August 21, 1996, until June 21, 2000. We hold that it did not. In Rotimi, the Board rejected an argument that an alien had resided lawfully in the United States under section 212(h) while his application for adjustment of status was pending. The Board reasoned that lawful residence “requires some formal action beyond a mere request for authorization or the existence of some impediment to actual physical removal.” In re Rotimi, 24 I. & N. Dec. at 574. “The lawfulness of an alien’s residence stems from the grant of a specific privilege to stay in this country, not the mere fact that he or she is an applicant for such a privilege.” Id. In Quinchia, we ruled that the decision of the Board in Rotimi is precedential and entitled to Chevron deference. 552 F.3d at 1259. Vila argues that, unlike the aliens in Quinchia and Rotimi, he held an approved I-140 visa petition while his application for adjustment of status was pending from August 14, 1996, until June 21, 2000, but Vila’s approved visa petition did not make him a lawful resident under section 212(h). The approval of Vila’s visa petition was nothing more than a preliminary step in his application for adjustment of status, Usmani v. U.S. Att’y Gen., 483 F.3d 1147, 1149 (11th Cir. 2007); Haswanee v. U.S. Att’y Gen., 471 F.3d 1212, 1215 (11th Cir. 2006), in the same way that the approval of an I-130 visa petition for an immediate relative was a preliminary step in Rotimi’s application for adjustment of status, Rotimi v. Holder, 577 F.3d 133, 134 (2d Cir. 2009), and in Quinchia’s application for adjustment of status, Quinchia, 552 F.3d at 1257. The instructions accompanying the I-140 petition itself make it clear that approval of the petition does not make a petitioner a lawful resident: Approval of a petition means you have established that the person you are filling [sic] for is eligible for the requested classification. This is the first step towards permanent residence. However, this does not in itself grant permanent residence or employment authorization. You will be given information about the requirements for the person to receive an immigrant visa or to adjust status after your petition is approved. U.S. Citizenship & Immigration Servs., Dep’t of Homeland Sec., OMB No. 1615- 0015, Instructions for I-140, Immigration Petition for Alien Worker 6 (2009), available at http://www.uscis.gov/files/form/i-140instr.pdf (all Internet materials as visited March 9, 2010, and available in Clerk of Court’s case file). Because Vila’s approved I-140 visa petition did not make him a lawful resident at any time before June 21, 2000, when the Immigration and Naturalization Service formally approved his application for adjustment, Vila did not lawfully reside continuously in the United States for the seven years preceding the initiation of his removal proceedings on October 25, 2003. The Board did not err in ruling that Vila is ineligible for relief under section 212(h). V. CONCLUSION The petition for review is DENIED.

[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 09-13613 ELEVENTH CIRCUIT MARCH 8, 2010 Non-Argument Calendar JOHN LEY ________________________ CLERK D. C. Docket No. 09-20411-CR-CMA UNITED STATES OF AMERICA, Plaintiff-Appellee, versus HOLGER-HELMUT BRUMMER, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (March 8, 2010) Before BLACK, CARNES and PRYOR, Circuit Judges. PER CURIAM: Holger-Helmut Brummer appeals the district court’s order that he forfeit two firearms and six rounds of ammunition pursuant to his conviction of knowingly and willfully failing to declare firearms to a common carrier in violation of 18 U.S.C. § 922(e). Specifically, Brummer argues that the forfeiture provision of 18 U.S.C. § 924(d)(1) does not apply to violations of § 922(e), or, in the alternative, that the district court may in its discretion refuse to order forfeiture under § 924(d)(1). The parties do not dispute the facts. A federal grand jury indicted Brummer with knowingly and willfully delivering a package containing firearms and ammunition to a common carrier, for transportation and shipment in foreign commerce, without providing written notice to the carrier that the firearms and ammunition were being transported and shipped, in violation of 18 U.S.C. § 922(e). The indictment also called for Brummer to forfeit to the United States one Smith and Wesson .357 caliber revolver, one Walther .380 caliber pistol, and six rounds of .380 caliber ammunition upon conviction, pursuant to 18 U.S.C. § 924(d)(1) and 28 U.S.C. § 2461(c). Brummer pleaded guilty to knowingly and willfully violating § 922(e). The district court, despite Brummer’s arguments to the contrary, concluded that the forfeiture provision of § 924(d)(1) applies to violations of § 922(e). The district court also stated that if it had the discretion to do so, it would deny the forfeiture of Brummer’s weapons, but that it lacked discretion to deny forfeiture. Brummer challenges those conclusions in this appeal. We review de novo questions of statutory interpretation. Chepstow Ltd. v. Hunt, 381 F.3d 1077 (11th Cir. 2004). The forfeiture provision at issue in this appeal provides in applicable part: Any firearm or ammunition involved in or used in any knowing violation of subsections (a)(4), (a)(6), (f), (g), (h), (i), (j), or (k) of section 922, or knowing importation or bringing into the United States or any possession thereof any firearm or ammunition in violation of section 922(l), or knowing violation of section 924, or willful violation of any other provision of this chapter or any rule or regulation promulgated thereunder, . . . shall be subject to seizure and forfeiture . . . . 18 U.S.C. § 924(d)(1). The statute under which Brummer was convicted, § 922(e), makes it unlawful for anyone: knowingly to deliver . . . to any common or contract carrier for transportation or shipment in . . . foreign commerce, to persons other than licensed importers, licensed manufacturers, licensed dealers, or licensed collectors, any package or other container in which there is any firearm or ammunition without written notice to the carrier that such firearm or ammunition is being transported or shipped . . . . Brummer argues that because § 922(e) is not contained in § 924(d)(1)’s list of “knowing” violations, a violation of § 922(e) does not fall within the ambit of the forfeiture provision of § 924(d)(1). Brummer’s argument misses the mark. The statute that provides the penalty for a violation of § 922(e) states in applicable part that “whoever . . . willfully violates any other provision of this chapter shall be fined under this title, imprisoned not more than five years, or both.” 18 U.S.C. § 924(a)(1)(D); see Bryan v. United States, 524 U.S. 184, 187-88, 118 S. Ct. 1939, 1943 (1998) (explaining § 924’s relation to the rest of Title 18, Chapter 44 of the United States Code). Willfulness is therefore an element of the offense under § 922(e). See United States v. Andrade, 135 F.3d 104, 108 n.2 (1st Cir. 1998); United States v. Ali, 68 F.3d 1468, 1473 (2d Cir. 1995). The indictment charged Brummer with knowingly and willfully violating § 922(e). During his plea colloquy, Brummer acknowledged that willfulness is an element of a § 922(e) violation, and he pleaded guilty to a willful violation of § 922(e). That provision falls within the same chapter as § 924(d)(1), which provides that “any firearm or ammunition involved in or used in any . . . willful violation of any other provision of this chapter . . . shall be subject to seizure and forfeiture . . . .” Under the plain language of § 924(d)(1), the forfeiture provision applies to willful violations of § 922(e). “If the meaning of the statutory language is plain, we go no further.” Wachovia Bank, N.A. v. United States, 455 F.3d 1261, 1267 (11th Cir. 2006). Brummer also argues that, even if the forfeiture provision contained in § 924(d)(1) applies to violations of § 922(e), the district court retains discretion to deny forfeiture. Brummer bases that argument on the fact that § 924(d)(1) provides that “[a]ny firearm or ammunition involved in or used in any [of the specified offenses] shall be subject to seizure and forfeiture,” not that such property “shall be forfeited.” Brummer’s argument is that the phrase “shall be subject to seizure and forfeiture” gives the district court discretion to return firearms and ammunition in appropriate cases. Again, Brummer’s argument misses. It completely ignores 28 U.S.C. § 2461(c), a provision cited in the part of the indictment containing the forfeiture allegations. Section 2461(c) provides: If a person is charged in a criminal case with a violation of an Act of Congress for which the civil or criminal forfeiture of property is authorized, the Government may include notice of the forfeiture in the indictment . . . pursuant to the Federal Rules of Criminal Procedure. If the defendant is convicted of the offense giving rise to the forfeiture, the court shall order the forfeiture of the property as part of the sentence in the criminal case pursuant to the Federal Rules of Criminal Procedure . . . . (emphasis added). “The word ‘shall’ does not convey discretion. It is not a leeway word.” United States v. Quirante, 486 F.3d 1273, 1275 (11th Cir. 2007). Brummer was charged with willfully violating § 922(e). As we explained earlier, § 924(d)(1)’s forfeiture provision applies to willful violations of § 922(e). The indictment charging Brummer with violating § 922(e) included a notice of forfeiture. Brummer pleaded guilty and was convicted. The district court therefore was required to order forfeiture of the property. 28 U.S.C. § 2461(c). The statute directs that the court do so “pursuant to the Federal Rules of Criminal Procedure.” Id. Fed. R. Crim P. 32.2(b)(1) requires that, “[a]s soon as practical after a . . . plea of guilty or nolo contendere is accepted, on any count in an indictment or information regarding which criminal forfeiture is sought, the court must determine what property is subject to forfeiture under the applicable statute.” Rule 32.2(b)(2) explains the next step: “If the court determines that the property is subject to forfeiture, it must promptly enter a preliminary order of forfeiture . . . directing forfeiture of the specific property . . . .” The district court properly determined that the two guns and six rounds of ammunition involved in Brummer’s willful violation of § 922(e) were subject to forfeiture under § 924(d)(1). Fed. R. Crim. P. 32.2 therefore required the district court to direct forfeiture of the guns and ammunition. The court lacked discretion to do otherwise. AFFIRMED.

[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT MAR 11, 2010 No. 09-11897 JOHN LEY ________________________ CLERK D. C. Docket No. 07-00022-CV-WLS-1 CHARLES A. REHBERG, Plaintiff-Appellee, versus JAMES P. PAULK, in his individual capacity, KENNETH B. HODGES, III, in his individual capacity and in his official capacity as District Attorney of Dougherty County KELLY R. BURKE, in his individual capacity, Defendants-Appellants, DOUGHERTY COUNTY, Defendant. ________________________ Appeal from the United States District Court for the Middle District of Georgia _________________________ (March 11, 2010) Before CARNES, HULL and ANDERSON, Circuit Judges. HULL, Circuit Judge: In this § 1983 action, Plaintiff Charles Rehberg sued former District Attorney Kenneth Hodges, specially appointed prosecutor Kelly Burke, and Chief Investigator James Paulk, alleging federal claims for malicious prosecution, retaliatory investigation and prosecution, evidence fabrication, and conspiracy to violate Rehberg’s constitutional rights. Defendants Hodges, Burke, and Paulk, in their individual capacities, appeal the district court’s denial of absolute and qualified immunities. After review and oral argument, we affirm in part and reverse in part. I. FACTUAL AND PROCEDURAL BACKGROUND We review Rehberg’s version of the events as alleged in his complaint, accepting them as true.1 In reviewing a Rule 12(b)(6) motion to dismiss, we accept as true the factual allegations in the complaint and all reasonable inferences therefrom. Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir. 1994). A. The Investigation From September 2003 to March 2004, Plaintiff Rehberg sent anonymous faxes to the management of Phoebe Putney Memorial Hospital (the “hospital”). The faxes criticized and parodied the management and activities of the hospital. Defendant Hodges, then the District Attorney of Dougherty County, Georgia, and Defendant Paulk, the Chief Investigator in the District Attorney’s Office, investigated Rehberg’s actions as a “favor” to the hospital, to which Hodges and Paulk are alleged to have political connections. Rehberg alleges Hodges and Paulk lacked probable cause to initiate a criminal investigation of him. From October 2003 to February 2004, Defendants Hodges and Paulk prepared a series of subpoenas on Hodges’s letterhead and issued the subpoenas to BellSouth and Alltel (later Sprint), requesting Rehberg’s telephone records, and to Exact Advertising, an Internet service provider, requesting Rehberg’s email records. Although no grand jury was impaneled at the time, the subpoenas purported to require appearance before a Dougherty County grand jury. Rehberg’s case was not presented to a grand jury until December 14, 2005. Defendant Paulk gave the results of the subpoenas, consisting of Rehberg’s personal emails and phone records, to private civilian investigators, who had directed the substance of the subpoenas. These civilian investigators paid the District Attorney’s Office for Rehberg’s information, often making payments directly to BellSouth and the other subpoenaed parties, allegedly to pay debts of the District Attorney’s Office. After receiving unfavorable press coverage of his relationships with the hospital, Hodges recused himself from prosecuting Rehberg. Burke was appointed a special prosecutor in Hodges’s place. Hodges continued to supervise Paulk and remained in communication with Burke throughout the investigation, but he “never served as the actual prosecutor of the charges against Mr. Rehberg before the Grand Jury.” B. First Indictment On December 14, 2005, a grand jury indicted Rehberg on charges of aggravated assault, burglary, and six counts of “harassing phone calls.” Burke was the prosecutor, and Paulk was the sole complaining witness against Rehberg before the grand jury. The first indictment alleged Rehberg assaulted Dr. James Hotz after unlawfully entering Dr. Hotz’s home. In fact, Rehberg has never been to Dr. Hotz’s home, and Dr. Hotz never reported an assault or burglary to law enforcement agencies. Paulk later admitted that he never interviewed any witnesses or gathered evidence indicating Rehberg committed an aggravated assault or burglary. And the alleged “harassing” phone calls to Dr. Hotz all were related to the faxes Rehberg had already sent criticizing the hospital. The City of Albany Police Department2 did not participate in the investigation. Paulk stated that he and Hodges initiated and handled the investigation because they lacked confidence in the police department’s ability to handle the investigation on its own. Rehberg contested the legal sufficiency of the first indictment. On February 2, 2006, Defendant Burke dismissed and nol-prossed the first indictment. C. Second Indictment On February 15, 2006, Defendants Burke and Paulk initiated charges before a second grand jury. Paulk and Dr. Hotz appeared as witnesses. The grand jury issued a second indictment, charging Rehberg with simple assault against Dr. Hotz on August 22, 2004 and five counts of harassing phone calls. Rehberg contested the sufficiency of the second indictment too. Rehberg alleged he was “nowhere near Dr. Hotz on August 22, 2004,” and “[t]here was no evidence whatsoever that Mr. Rehberg committed an assault on anybody as he was charged.” At a pretrial hearing on April 10, 2006, Defendant Burke announced the second indictment would be dismissed, but Burke did not dismiss it. On July 7, 2006, the state trial court ordered it dismissed. The City of Albany, Georgia, is in Dougherty County. D. Third Indictment On March 1, 2006, Defendants Burke and Paulk appeared before a third grand jury and secured a third indictment against Rehberg, charging him with simple assault and harassing telephone calls. At some unspecified time, Rehberg was arrested and briefly detained pursuant to an arrest warrant issued as a result of the second and third indictments. On May 1, 2006, the state trial court issued two orders dismissing all charges against Rehberg because the third indictment did not sufficiently charge Rehberg with a criminal offense. The three indictments against Rehberg were widely reported in the local press. Defendant Burke conducted interviews with the press and issued statements saying: (1) “[I]t is never free speech to assault or harass someone, no matter who they are and no matter how much you don’t like them,” and (2) “It would be ludicrous to say that an individual has the right to go onto someone else’s property and burn a cross under the guise of free speech, which is tantamount to what these defendants are claiming.” E. District Court Proceedings Plaintiff Rehberg filed a verified complaint against Defendants Hodges, Burke, and Paulk, in their individual capacities. Rehberg’s complaint alleges ten counts, including these four federal § 1983 claims at issue in this appeal:3 (1) malicious prosecution against Hodges and Paulk, in violation of Rehberg’s Fourth and Fourteenth Amendment rights (Count 6); (2) retaliatory investigation and prosecution against Hodges and Paulk, for their alleged retaliation against Rehberg because he exercised First Amendment free speech rights (Count 7); (3) participation in evidence fabrication, calling Paulk to give false testimony to the grand jury, and giving false statements to the media against Burke only (Count 8); and (4) conspiracy to violate Rehberg’s constitutional rights under the First, Fourth, and Fourteenth Amendments, against Hodges, Burke, and Paulk (Count 10).4 Defendants Hodges, Burke, and Paulk moved to dismiss these counts pursuant to Federal Rule of Civil Procedure 12(b)(6). They claimed absolute immunity, and, alternatively, qualified immunity. The district court denied the Rehberg’s complaint also alleges state law claims for negligence (Counts 1 & 2) and invasion of privacy (Counts 3 & 4) against Paulk, which the district court refused to dismiss. At this juncture, Defendant Paulk has not appealed the district court’s rulings on those state law claims. At oral argument, counsel for Defendant Paulk confirmed to the Court that the state law claims in Counts 1, 2, 3, and 4 against Paulk were not on appeal. Plaintiff Rehberg also sued Dougherty County and Hodges, in his official capacity. Rehberg withdrew Count 5 against Dougherty County in response to its claim of sovereign immunity. Rehberg has not appealed the district court’s dismissal of Count 9 against Dougherty County, which effectively dismissed Count 9 against Hodges because an official capacity claim against Hodges is another moniker for a claim against Dougherty County, Hodges’s employer. See Brown v. Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999). Thus only Counts 6, 7, 8, and 10 are involved in this appeal. Defendants’ motions. Defendants Hodges, Burke, and Paulk, in their individual capacities, appeal the district court’s denials of immunity as to Rehberg’s above four federal constitutional claims.5 We discuss absolute and qualified immunity and then Rehberg’s claims. II. IMMUNITY LAW A. Absolute Immunity Traditional common-law immunities for prosecutors apply to civil cases brought under § 1983. Imbler v. Pachtman, 424 U.S. 409, 427-28, 96 S. Ct. 984, 993-94 (1976). “[A]t common law, ‘[t]he general rule was, and is, that a prosecutor is absolutely immune from suit for malicious prosecution.’” Malley v. Briggs, 475 U.S. 335, 342, 106 S. Ct. 1092, 1097 (1986) (quoting Imbler, 424 U.S. at 437, 96 S. Ct. at 998). In § 1983 actions, prosecutors have absolute immunity for all activities that are “‘intimately associated with the judicial phase of the criminal process.’” Van de Kamp v. Goldstein, __ U.S. __, 129 S. Ct. 855, 860 (2009) (quoting Imbler, 424 U.S. at 430, 930 S. Ct. at 995); accord Jones, 174 F.3d The denial of absolute or qualified immunity on a motion to dismiss is an appealable interlocutory order. See Jones v. Cannon, 174 F.3d 1271, 1280-81 (11th Cir. 1999); Maggio v. Sipple, 211 F.3d 1346, 1350 (11th Cir. 2000) (citing Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817-18 (1985)). We review de novo the district court’s denial of a motion to dismiss on the basis of immunity and for failure to state a constitutional violation. Maggio, 211 F.3d at 1350; Swann v. S. Health Partners, Inc., 388 F.3d 834, 836 (11th Cir. 2004). at 1281. Absolute immunity does not depend entirely on a defendant’s job title, but involves a functional approach granting immunity based on conduct. Jones, 174 F.3d at 1282. This functional approach looks to “the nature of the function performed, not the identity of the actor who performed it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S. Ct. 2606, 2613 (1993); accord Imbler, 424 U.S. at 431 n. 33, 96 S. Ct. at 995 n. 33. Absolute immunity accordingly applies to the prosecutor’s actions “in initiating a prosecution and in presenting the State’s case.” Imbler, 424 U.S. at 431, 96 S. Ct. at 995. Prosecutors are immune for appearances in judicial proceedings, including prosecutorial conduct before grand juries, statements made during trial, examination of witnesses, and presentation of evidence in support of a search warrant during a probable cause hearing. Burns v. Reed, 500 U.S. 478, 490- 92, 111 S. Ct. 1934, 1942 (1991); Kalina v. Fletcher, 522 U.S. 118, 126, 118 S. Ct. 502, 507-08 (1997); see also Van de Kamp, 129 S. Ct. at 861. “A prosecutor enjoys absolute immunity from allegations stemming from the prosecutor’s function as advocate.” Jones, 174 F.3d at 1281. Such absolute immunity also “extends to a prosecutor’s acts undertaken . . . in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State.” Id. (quotation marks omitted); accord Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1279-80 (11th Cir. 2002) (holding prosecutor who proffered perjured testimony and fabricated exhibits at trial is entitled to absolute immunity, but a prosecutor who participated in the search of a suspect’s apartment is entitled to only qualified immunity). If a prosecutor functions in a capacity unrelated to his role as an advocate for the state, he is not protected by absolute immunity but enjoys only qualified immunity. Kalina, 522 U.S. at 121, 118 S. Ct. at 505 (concluding prosecutor was acting as a witness in personally attesting to truth of averments in a “Certification for Determination of Probable Cause” for an arrest warrant and was not absolutely immune for that witness act, but that prosecutor was absolutely immune for preparing and filing an “information charging respondent with burglary and a motion for an arrest warrant”); Buckley, 509 U.S. at 275-77, 113 S. Ct. at 2616-18 (concluding prosecutor’s pre-indictment fabrication of third-party expert testimony linking defendant’s boot to bootprint at murder scene and post-indictment participation in a press conference were not protected by absolute immunity); Burns, 500 U.S. at 496, 111 S. Ct. at 1944-45 (stating prosecutors do not enjoy absolute immunity for giving pre-indictment legal advice to the police). A prosecutor is not entitled to absolute immunity when he “performs the investigative functions normally performed by a detective or police officer.” Buckley, 509 U.S. at 273, 113 S. Ct. at 2616; accord Jones, 174 F.3d at 1281-82 (“Although absolutely immune for actions taken as an advocate, the prosecutor has only qualified immunity when performing a function that is not associated with his role as an advocate for the state”); see also Malley, 475 U.S. at 340-41, 106 S. Ct. at 1096 (concluding police officer was not absolutely immune for drafting “felony complaints” with malice and without probable cause and submitting them in support of an application for arrest warrants). B. Qualified Immunity Qualified immunity shields government officials who perform discretionary governmental functions from civil liability so long as their conduct does not violate any “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). A government agent is entitled to immunity unless his act is “so obviously wrong, in the light of pre-existing law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing.” Lassiter v. Ala. A&M Univ., 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc). To evaluate claims of qualified immunity, the Court considers whether (1) the plaintiff has alleged a violation of a constitutional right; and (2) whether the right was “clearly established” at the time of the defendant’s misconduct. This two-pronged analysis may be done in whatever order is deemed most appropriate for the case. Pearson v. Callahan, 555 U.S. ___, 129 S. Ct. 808, 821 (2009). With this immunity background, we turn to Rehberg’s claims. III. COUNT 6 – MALICIOUS PROSECUTION Count 6 alleges Defendants Hodges and Paulk violated Rehberg’s Fourth and Fourteenth Amendment rights through their “malicious prosecution” of him, resulting in his indictment and arrest.6 Rehberg alleges that (1) Hodges and Paulk knew there was no probable cause to indict him, and therefore they got together with malice, fabricated evidence (i.e., Paulk’s false testimony), and decided to present that fabricated evidence to the grand jury; (2) Paulk, at Hodges’s direction, then testified falsely before the grand jury, resulting in Rehberg’s indictment and arrest; and (3) Hodges and Paulk invaded Rehberg’s privacy by illegally issuing subpoenas to BellSouth, Alltel, and Exact Advertising, without any pending indictment and as a discovery device for private civilians. We first discuss Paulk’s false testimony before the grand jury and then the Defendants’ pre-indictment Rehberg alleges his arrest was an unreasonable seizure. The Fourth Amendment protection against “unreasonable” searches and seizures was made applicable to the States through the Fourteenth Amendment. Major League Baseball v. Crist, 331 F.3d 1177, 1179 n.4 (11th Cir. 2003). conduct and subpoenas. A. Paulk’s Grand Jury Testimony Even if Hodges and Paulk knew Paulk’s testimony was false, Paulk receives absolute immunity for the act of testifying to the grand jury. Briscoe v. LaHue, 460 U.S. 325, 326, 103 S. Ct. 1108, 1111-12 (1983) (affirming that common-law immunities granted to witnesses in judicial proceedings required giving absolute immunity from § 1983 suit to police officer accused of giving false testimony at trial); Burns, 500 U.S. at 492, 111 S. Ct. at 1942 (holding prosecutor was absolutely immune for “appearance in court in support of an application for a search warrant and the presentation of evidence at that hearing”); Jones, 174 F.3d at 1288 (“[P]rosecutors and witnesses have absolute immunity for claims of conspiracy to commit perjury based on a witness’s allegedly false testimony at trial, before a grand jury, or at a post-conviction hearing.”); Strength v. Hubert, 854 F.2d 421, 422-24 (11th Cir. 1988) (concluding investigator for state Attorney General’s office received absolute immunity for false testimony to a grand jury, at which the defendant investigator was the sole witness);7 Kelly v. Curtis, 21 F.3d 1544, 1553 (11th Cir. 1994) (holding detective immune for grand jury testimony). We recognize that Plaintiff Rehberg alleges Defendant Paulk was the sole Overruled on other grounds, Whiting v. Traylor, 85 F.3d 581 (11th Cir. 1996). “complaining witness” before the grand jury. However, in Jones, “we expressly reject[ed] carving out an exception to absolute immunity for grand jury testimony, even if false and even if [the detective] were construed to be a complaining witness.” Jones, 174 F.3d at 1287 n.10; see Rowe, 279 F.3d at 1285 (stating Jones “reject[ed] an exception for the testimony of ‘complaining witnesses’”). In Jones, this Court aligned itself with the Third Circuit’s decision in Kulwicki v. Dawson, 969 F.2d 1454, 1467 n.16 (3d Cir. 1992), which rejected the “complaining witness” exception to absolute immunity for false grand jury testimony. Jones, 174 F.3d at 1287 n.10. The Jones Court reasoned that allowing civil suits for false grand jury testimony would result in depositions, emasculate the confidential nature of grand jury testimony, and eviscerate the traditional absolute immunity for witness testimony in judicial proceedings: [T]his case vividly illustrates the serious problems with carving out such an exception and imposing civil liability for . . . false testimony deceiving the grand jury. To prove or to defend against such a claim would necessitate depositions from the prosecutor, the grand jury witnesses, and the grand jury members . . . [which], in effect, would emasculate both the absolute immunity for grand jury testimony and the confidential nature of grand jury proceedings. The remedy for false grand jury testimony is criminal prosecution for perjury and not expanded civil liability and damages. Jones, 174 F.3d at 1287 n.10.8 And the Supreme Court “consistently ha[s] recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings.” United States v. Sells Eng’g, Inc., 463 U.S. 418, 424, 103 S. Ct. 3133, 3138 (1983) (quotation marks omitted). Based on Jones, we reject Rehberg’s “complaining witness” exception to absolute immunity for false grand jury testimony.9 B. Hodges and Paulk’s Pre-Indictment Investigation Distilled to its essence, Defendants’ alleged pre-indictment conduct (excepting the subpoenas) is this: Hodges and Paulk, acting as investigators, got In Mastroianni v. Bowers, 173 F.3d 1363 (11th Cir. 1999), this Court declined to decide whether to adopt a “complaining witness” exception because there was no factual finding in that case that the defendant Georgia Bureau of Investigation officer was equivalent to a “complaining witness.” Id. at 1367 n.1. So Mastroianni did not answer the question presented here, but Jones did. Two circuits carved out a complaining-witness exception to absolute immunity for false grand jury testimony. See, e.g., Harris v. Roderick, 126 F.3d 1189, 1199 (9th Cir. 1997) (Deputy U.S. Marshals not absolutely immune for false testimony before a grand and petit jury); White v. Frank, 855 F.2d 956 (2d Cir. 1988) (police officer, as the “complaining witness,” was not absolutely immune for false grand jury testimony). These decisions rely on Malley v. Briggs, 475 U.S. at 340, 106 S. Ct. at 1096, which concluded that a police officer did not receive absolute immunity for drawing up “felony complaints” with malice and without probable cause and submitting them in support of an application for arrest warrants. The Supreme Court held similarly in Kalina v. Fletcher, 522 U.S. at 120, 129-31, 118 S. Ct. at 505, 509-10, finding a prosecutor was not absolutely immune for acting as a witness in personally attesting to the truth of averments in a certification affidavit supporting an application for probable cause for an arrest warrant. Acknowledging White v. Frank relies on Malley, the Jones Court noted that carving out an immunity exception for grand jury testimony would eviscerate the secrecy of grand jury proceedings, a concern not implicated by the “felony complaints” filed to support an arrest warrant in Malley and the personal certification for an arrest warrant in Kalina. together as a favor to the hospital, with malice and without probable cause, and made up a story about Rehberg, and then Paulk (at Hodges’s direction) told that fake story under oath to the grand jury, leading to Rehberg’s indictment and arrest. We already determined supra that Paulk receives absolute immunity for the actual grand jury testimony itself. The question before us now is whether absolute immunity applies to the alleged conspiracy decision in the investigative stage to make up and present Paulk’s false testimony to the grand jury. Our precedent answers this question too. See Mastroianni, 173 F.3d at 1367; Rowe, 279 F.3d at 1282; Jones, 174 F.3d at 1289. In Mastroianni, the plaintiff alleged defendant Yeomans, a Georgia Bureau of Investigation agent, “engaged in a pretestimonial conspiracy to present false evidence, for which neither absolute nor qualified immunity is available.” Mastroianni, 173 F.3d at 1367. This Court first stressed that “a witness has absolute immunity from civil liability based on his grand jury testimony. See Strength, 854 F.2d at 425, relying on Briscoe v. La Hue, 460 U.S. 325, 103 S. Ct. 1108 [ ] (1983).” Id. The Mastroianni Court then pointed out that while the plaintiff “contend[ed] that Yeomans committed numerous acts in furtherance of a conspiracy to present false testimony before the grand jury convened, the record itself support[ed] such an inference only if we consider as evidence Yeomans’ testimony as it relates back to Yeomans’ pretestimonial acts and statements.” Mastroianni, 173 F.3d at 1367. In other words, because the only evidence to show a conspiracy in the pre-indictment phase was Yeomans’s later false grand jury testimony, and because Yeomans was immune for that testimony, we concluded that Yeomans was absolutely immune for conspiracy to present or give grand jury testimony. Id. (“Because we may not consider such testimony as a factor upon which to base Yeomans’ potential liability, we conclude that Yeomans is entitled to absolute immunity for his actions in this case”). This Court subsequently applied Mastroianni in Jones and Rowe, in each case concluding that absolute immunity applied equally both to the false testimony itself and to the alleged conspiracies to present false testimony. Jones, 174 F.3d at 1289 (“To allow a § 1983 claim based on subornation of perjured testimony where the allegedly perjured testimony itself is cloaked in absolute immunity would be to permit through the back door what is prohibited through the front”); Rowe, 279 F.3d at 1282 (“It would be cold comfort for a prosecutor to know that he is absolutely immune from direct liability for actions taken as prosecutor, if those same actions could be used to prove him liable on a conspiracy theory involving conduct for which he was not immune”). Since Paulk receives absolute immunity for his false testimony before the grand jury, Hodges and Paulk are similarly immune for their alleged conspiracy to fabricate and present false testimony to the grand jury. Rowe, 279 F.3d at 1282 (“[A] witness’s absolute immunity from liability for testifying forecloses any use of that testimony as evidence of the witness’s membership in a conspiracy prior to his taking the stand”). It is important to point out that Hodges and Paulk generally would not receive absolute immunity for fabricating evidence, because investigating and gathering evidence falls outside the prosecutor’s role as an advocate. See Buckley, 509 U.S. at 262-64, 113 S. Ct. at 2610-11 (no immunity for prosecutor who fabricated expert testimony linking defendant’s boot with bootprint at murder scene); Rowe, 279 F.3d at 1281 (no immunity for fabrication of jump rope); Jones, 174 F.3d at 1289-90 (no immunity for fabrication of bootprint); Riley v. City of Montgomery, Ala., 104 F.3d 1247, 1253 (11th Cir. 1997) (no immunity for police officer’s planting of cocaine). All of these cases involved a particular discrete item of physical or expert evidence that was falsely created during the investigative stage to link the accused to a crime. In contrast, there is no allegation of any physical or expert evidence that Hodges or Paulk fabricated or planted. There is no allegation of a pre-indictment document such as a false affidavit or false certification. Rather, Hodges and Paulk are accused of fabricating together only the testimony Paulk later gave to the grand jury. No evidence existed until Paulk actually testified to the grand jury. Stated differently, the only evidence Rehberg alleges was fabricated is Paulk’s false grand jury testimony, for which Paulk receives absolute immunity.10 For all these reasons, we conclude Hodges and Paulk are entitled to absolute immunity for the pre-indictment conduct of conspiring to make up and present Paulk’s false testimony to the grand jury. C. Subpoenas During Investigation Rehberg’s allegations regarding the subpoenas to his telephone and Internet providers all recount pre-indictment investigative conduct by Hodges and Paulk. A prosecutor loses the cloak of absolute immunity by stepping out of his role as an advocate and performing “investigative” functions more commonly performed by law enforcement officers. Buckley, 509 U.S. at 273, 113 S. Ct. at 2616; Burns, 500 U.S. at 496, 111 S. Ct. at 1944-45; Rowe, 279 F.3d at 1280; Jones, 174 F.3d at 1285. Hodges and Paulk accordingly do not receive absolute immunity for preparing and filing subpoenas during the investigation of Rehberg. Hodges and Paulk, however, do receive qualified immunity because Rehberg does not allege, for instance, that Hodges and Paulk fabricated physical evidence linking him to Dr. Hotz’s house or convinced another witness to testify falsely about Rehberg’s involvement. The only evidence presented to the grand jury was Paulk’s testimony and Dr. Hotz’s testimony (which Rehberg does not allege was false). Rehberg’s subpoena allegations do not state a constitutional violation.11 The subpoenas covered information Rehberg had provided voluntarily to third parties and for which Rehberg did not have a legitimate expectation of privacy. Thus, the subpoenas did not violate Rehberg’s Fourth Amendment rights to be free of unreasonable search and seizure.12 In order for Fourth Amendment protections to apply, the person invoking the protection must have an objectively reasonable expectation of privacy in the place searched or item seized. Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 473 (1998); Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967). The Supreme Court “consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743-44, 99 S. Ct. 2577, 2582 (1979). “[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” United States v. Miller, 425 U.S. Rehberg’s complaint does not allege Defendant Burke participated in the issuance of the subpoenas. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. amend IV. 435, 443, 96 S. Ct. 1619, 1624 (1976). More specifically, a person does not have a legitimate expectation of privacy in the numerical information he conveys to a telephone company in the ordinary course of business. Smith, 442 U.S. at 743-44, 99 S. Ct. 2582 (“[E]ven if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not one that society is prepared to recognize as reasonable”) (quotation marks omitted); accord United States v. Thompson, 936 F.2d 1249, 1250 (11th Cir. 1991) (“The Supreme Court has held that the installation of a pen register does not constitute a search under the Fourth Amendment of the Constitution and does not warrant invocation of the exclusionary rule.”). Here, Rehberg lacks a reasonable expectation of privacy in the phone and fax numbers he dialed. Once he voluntarily provided that information to BellSouth and Alltel (later Sprint), Rehberg lacked any further valid expectation that those third parties would not turn the information over to law enforcement officers. Absent a valid right of privacy, Rehberg cannot state a constitutional violation regarding the subpoenas for his phone and fax information. A person also loses a reasonable expectation of privacy in emails, at least after the email is sent to and received by a third party. See Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001) (An individual sending an email loses “a legitimate expectation of privacy in an e-mail that had already reached its recipient”); United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (An individual may not “enjoy [] an expectation of privacy in transmissions over the Internet or e-mail that have already arrived at the recipient”); see also United States v. Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008) (“Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation”) (collecting cases). Rehberg’s voluntary delivery of emails to third parties constituted a voluntary relinquishment of the right to privacy in that information. Rehberg does not allege Hodges and Paulk illegally searched his home computer for emails, but alleges Hodges and Paulk subpoenaed the emails directly from the third-party Internet service provider to which Rehberg transmitted the messages. Lacking a valid expectation of privacy in that email information, Rehberg fails to state a Fourth Amendment violation for the subpoenas for his Internet records. Because Rehberg’s allegations related to the subpoenas do not state a violation of a constitutional right, the district court erred in denying qualified immunity to Hodges and Paulk on Rehberg’s subpoena claims. IV. COUNT 7 – RETALIATORY PROSECUTION In Count 7, Rehberg alleges Hodges and Paulk violated his First Amendment free speech rights by retaliating against him for his criticism of the hospital in his faxes. Rehberg alleges Hodges’s and Paulk’s decisions to investigate him, issue subpoenas, provide his information to paid civilians, and procure wrongful indictments were in retaliation for his faxes and criticism of the hospital and were all made without probable cause.13 We first review Hartman v. Moore, 547 U.S. 250, 126 S. Ct. 1695 (2006), which addresses retaliatory-prosecution claims. A. Hartman v. Moore In Hartman, plaintiff Moore brought a Bivens14 action against postal inspectors and a federal prosecutor for retaliatory prosecution.15 Because of Moore’s criticism of and lobbying to the U.S. Postal Service, postal inspectors launched criminal investigations against Moore and pressured the United States To the extent Rehberg relies on the Fourth Amendment, “there is no retaliation claim under the Fourth Amendment separate and distinct from [Rehberg’s] malicious prosecution . . . claim[].” Wood v. Kesler, 323 F.3d 872, 883 (11th Cir. 2003). “Instead, the only cause of action for retaliation that arguably applies here is retaliatory prosecution in violation of the First Amendment.” Id. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999 (1971). Moore’s company manufactured a multiline optical character reader useful in sorting mail. Hartman, 547 U.S. at 252, 126 S. Ct. at 1699. He lobbied the U.S. Postal Service to purchase multiline readers and criticized its reliance on single-line readers. Id. at 253, 126 S. Ct. at 1699. Attorney’s Office to indict him, “[n]otwithstanding very limited evidence.” Id. at 253-54, 126 S. Ct. at 1699-1700. Although they did not testify, the postal inspectors drafted “witness statements” for other witnesses and provided them to the prosecutor, who presented them to the grand jury. Moore v. United States, 213 F.3d 705, 707 (D.C. Cir. 2000). The district court dismissed the criminal charges against Moore for a “complete lack of direct evidence.” Hartman, 547 U.S. at 254, 126 S. Ct. at 1700. In Moore’s subsequent Bivens action for retaliatory prosecution, the district court granted absolute immunity to the prosecutor but denied qualified immunity to the postal inspectors. Id. at 255, 126 S. Ct. at 1701. As to the prosecutor, the D.C. Circuit affirmed absolute immunity for the retaliatory decision to prosecute Moore and the prosecutor’s concealment of exculpatory evidence from the grand jury, manipulation of evidence before the grand jury, and failure to disclose exculpatory material before trial. Moore, 213 F.3d at 708. As to the postal inspectors, the D.C. Circuit affirmed the denial of qualified immunity and allowed Moore’s retaliatory- prosecution claim to proceed against them, even though Moore had not shown an absence of probable cause for the criminal charges against him. In reversing the D.C. Circuit’s denial of qualified immunity to the postal inspectors, the Supreme Court in Hartman concluded that to bring a retaliatory- prosecution claim, the plaintiff must show an absence of probable cause for the prosecution. Hartman, 547 U.S. at 252, 126 S. Ct. at 1699. The Supreme Court first noted, “as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.” Id. at 256, 126 S. Ct. at 1701 (citations and quotation marks omitted). The Supreme Court, however, explained that a retaliatory-prosecution suit cannot be brought against the prosecutor, but only against the “non-prosecuting official” who successfully induced the prosecutor to bring charges that would not otherwise have been brought, as follows: A Bivens (or § 1983) action for retaliatory prosecution will not be brought against the prosecutor, who is absolutely immune from liability for the decision to prosecute. Instead, the defendant will be a nonprosecutor, an official, like an inspector here, who may have influenced the prosecutorial decision but did not himself make it, and the cause of action will not be strictly for retaliatory prosecution, but for successful retaliatory inducement to prosecute. The consequence is that a plaintiff like Moore must show that the nonprosecuting official acted in retaliation, and must also show that he induced the prosecutor to bring charges that would not have been initiated without his urging. Id. at 261-62, 126 S. Ct. at 1704-05 (emphasis added). To sue for retaliatory prosecution, a plaintiff must establish a “but-for” causal connection between the retaliatory animus of the non-prosecutor and the prosecutor’s decision to prosecute. See id. at 256, 261, 126 S. Ct. at 1701, 1704 (discussing “but-for cause” and “but- for basis” for the prosecutor’s decision to prosecute).16 And Hartman indicates that to establish a prima facie case of this but-for causal connection, a plaintiff must plead and prove both (1) a retaliatory motive on the part of the non-prosecutor official, and (2) the absence of probable cause supporting the prosecutor’s decision. Id. at 265, 126 S. Ct. at 1706; see also Wood, 323 F.3d at 883 (First Amendment retaliatory-prosecution claim is defeated by the existence of probable cause). A retaliatory motive on the part of a “non- prosecuting official” combined with an absence of probable cause will create “a prima facie inference that the unconstitutionally motivated inducement infected the prosecutor's decision to bring the charge.” Hartman, 547 U.S. at 265, 126 S. Ct. at 1706. Importantly, the absence of probable cause “is not necessarily dispositive” of whether the unconstitutionally motivated inducement succeeded, but will create a prima facie inference that it did. Id. The burden then shifts to the defendant official to show “that the action would have been taken anyway, independently of any retaliatory animus.” Id. at 261, 126 S. Ct. at 1704. In other words, the defendant official will not be liable if he can show the prosecutor would have taken In a footnote, the Supreme Court noted that Moore’s complaint charged the prosecutor with acting in both an investigatory and prosecutorial capacity, but that no appeal or claim against the prosecutor was before the Supreme Court. Hartman, 547 U.S. at 262 n.8, 126 S. Ct. at 1705 n.8. the action complained of anyway. Id. B. Rehberg’s Retaliatory-Prosecution Claims Hartman dictates the outcome of Rehberg’s retaliatory-prosecution claim in Count 7. First, as to Hodges, Rehberg alleges Hodges was in communication with Burke about the decision to prosecute, even after Hodges recused. Hodges’s alleged decision to prosecute Rehberg, even if made without probable cause and even if caused solely by Paulk’s and his unconstitutional retaliatory animus, is protected by absolute immunity. Hartman, 547 U.S. at 261-62, 126 S. Ct. at 1704- 05. As to Paulk, Rehberg must show investigator Paulk’s retaliation against Rehberg successfully induced the prosecution and was the “but-for” cause of the prosecution. Hartman, 547 U.S. at 265, 126 S. Ct. at 1701. Accordingly, Rehberg must show that prosecutor Burke (himself or with Hodges’s influence) would not have prosecuted Rehberg but for Paulk’s retaliatory motive and conduct.17 The very detailed allegations in Rehberg’s complaint satisfy the two requirements for a prima facie case of retaliatory prosecution: non-prosecutor Paulk’s retaliatory motive, and the absence of probable cause for prosecutor Burke Count 7 of Rehberg’s complaint does not name Burke as a defendant, but Count 7 claims Paulk’s retaliatory motive and actions “wrongfully influenced and instigated the prosecutorial decision to bring charges against Mr. Rehberg.” to bring charges. Hartman, 547 U.S. at 265, 126 S. Ct. at 1706. For example, Rehberg alleges “[t]here was no probable cause for the underlying criminal charges against Mr. Rehberg and such charges would not have been brought if there was no retaliatory motive.” Rehberg supports this alleged lack of probable cause by alleging Paulk admitted that “he never interviewed any witnesses or gathered any evidence indicating that Mr. Rehberg committed any aggravated assault or burglary,” and Paulk’s false testimony was the only evidence Burke presented in support of the first indictment. Without Paulk’s allegedly false testimony, Burke could not have procured the first indictment because there was no other evidence. Rehberg also alleges Hodges and Paulk acted in retaliation for Rehberg’s criticisms of the activities and financial management of a public hospital to which they had close political connections and personal relationships and that chilling Rehberg’s speech was a motivating factor in all of Hodges’s and Paulk’s conduct in investigating and prosecuting him. In sum, Rehberg sufficiently has alleged the requisite retaliatory motive, absence of probable cause, and but-for causation (i.e., that Burke would not have prosecuted Rehberg but for Paulk’s false testimony). Therefore, at this pleading juncture, the district court did not err in denying absolute and qualified immunity to Defendant Paulk on Rehberg’s retaliatory-prosecution claim. C. Retaliatory Investigation Claim Rehberg’s complaint also alleges a “retaliatory investigation” claim against Hodges and Paulk. For example, Rehberg’s complaint alleges Hodges and Paulk together decided to investigate Rehberg and took several steps during the investigation because each of them had retaliatory animus. These allegations of coordinated and joint actions are replete throughout the complaint. E.g., Compl. ¶ 99 (“Mr. Paulk and Mr. Hodges instituted an investigation . . .”), 124 (“Chilling his political speech was a substantial or motivating factor in the wrongful conduct of Mr. Paulk and Mr. Hodges in investigating Mr. Rehberg . . .”), ¶¶ 157-61 (conspiracy claim). Hartman does not help us with this claim because the Supreme Court pointedly did not decide whether “simply conducting retaliatory investigation with a view to promote prosecution is a constitutional tort.” Hartman, 547 U.S. at 262 n. 9, 126 S. Ct. at 1705 n. 9 (“Whether the expense or other adverse consequences of a retaliatory investigation would ever justify recognizing such an investigation as a distinct constitutional violation is not before us”).18 As noted above, only qualified immunity, not absolute immunity, applies to conduct taken in an investigatory capacity as opposed to a prosecutorial capacity. Rehberg does not allege he incurred any expenses in the investigation stage. The only actual investigatory conduct alleged is the issuance of subpoenas, which, as we already stated above, did not violate Rehberg’s Fourth Amendment rights. Because Hodges and Paulk’s issuance of the subpoenas did not violate Rehberg’s constitutional rights (Count 6), we are inclined to agree with the government that Hodges and Paulk’s retaliatory animus (Count 7) does not create a distinct constitutional tort.19 But even if we assume Rehberg has stated a constitutional violation by alleging that Hodges and Paulk initiated an investigation and issued subpoenas in retaliation for Rehberg’s exercise of First Amendment rights, Hodges and Paulk still receive qualified immunity because Rehberg’s right to be free from a retaliatory investigation is not clearly established. The Supreme Court has never defined retaliatory investigation, standing alone, as a constitutional tort, Hartman, 547 U.S. at 262 n.9, 126 S. Ct. at 1705 n.9, and neither has this Court. Without this sort of precedent, Rehberg cannot show that the retaliatory investigation alleged here violated his First Amendment rights. See Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009) (“In order to determine whether a right is clearly The initiation of a criminal investigation in and of itself does not implicate a federal constitutional right. The Constitution does not require evidence of wrongdoing or reasonable suspicion of wrongdoing by a suspect before the government can begin investigating that suspect. See United States v. Aibejeris, 28 F.3d 97, 99 (11th Cir. 1994). No § 1983 liability can attach merely because the government initiated a criminal investigation. established, we look to the precedent of the Supreme Court of the United States, this Court’s precedent, and the pertinent state’s supreme court precedent, interpreting and applying the law in similar circumstances”). Hodges and Paulk accordingly are entitled to qualified immunity for Rehberg’s retaliatory investigation claims in Count 7. D. Count 8 (Fabrication of Evidence and Press Statements Against Burke) Count 8 is against only Burke. Rehberg alleges Burke violated his “constitutional rights” by (1) “participat[ing] in fabricating evidence”; (2) presenting Paulk’s perjured testimony to the grand jury; and (3) making defamatory statements to the media which “damaged Mr. Rehberg’s reputation.”20 As a special prosecutor appointed to stand in for Hodges, Burke receives the full scope of absolute prosecutorial immunity and is absolutely immune for Rehberg’s claims of malicious prosecution and the presentation of perjured testimony to a grand jury. For the same reasons explained above, Burke also is absolutely immune for participating in the conspiracy to fabricate Paulk’s grand jury testimony against Rehberg. Burke’s statements to the media, however, are not cloaked in absolute immunity because “[c]omments to the media have no functional tie to the judicial Burke is not alleged to have participated in subpoenaing Rehberg’s telephone and Internet providers. process just because they are made by a prosecutor,” and they are not part of the prosecutor’s role as an advocate of the State. See Buckley, 509 U.S. at 277-78, 113 S. Ct. at 2618 (“The conduct of a press conference does not involve the initiation of a prosecution, the presentation of the state’s case in court, or actions preparatory for these functions”); Hart v. Hodges, 587 F.3d 1288, 1297 (11th Cir. 2009). Burke’s immunity for the alleged press statements must arise, if at all, through qualified immunity. A tort claim, such as Rehberg’s defamation allegation in Count 8, does not give rise to a § 1983 due process claim unless there is an additional constitutional injury alleged. Cypress Ins. Co. v. Clark, 144 F.3d 1435, 1438 (11th Cir. 1998). “The Supreme Court . . . held that injury to reputation, by itself, does not constitute the deprivation of a liberty or property interest protected under the Fourteenth Amendment.” Behrens v. Regier, 422 F.3d 1255, 1259 (11th Cir. 2005) (citing Paul v. Davis, 424 U.S. 693, 701-02, 96 S. Ct. 1155, 1060-61 (1976)).21 Damages to a plaintiff’s reputation “are only recoverable in a section 1983 action if those damages were incurred as a result of government action significantly altering the Rehberg does not specifically identify what constitutional provision Burke’s media statements violated. We assume Rehberg asserts a Fourteenth Amendment due process claim. See, e.g., Paul, 424 U.S. at 712, 96 S. Ct. at 1165-66; Cypress, 144 F.3d at 1436. Rehberg does not identify another constitutional theory that might support a § 1983 action for false statements to the media. plaintiff’s constitutionally recognized legal rights.” Cypress, 144 F.3d at 1438. This doctrine is known as the “stigma-plus” test, Cannon v. City of W. Palm Beach, 250 F.3d 1299, 1302 (11th Cir. 2001), and requires the plaintiff to show both a valid defamation claim (the stigma) and “the violation of some more tangible interest” (the plus). Behrens, 422 F.3d at 1260 (quotation marks omitted). “To establish a liberty interest sufficient to implicate the fourteenth amendment safeguards, the individual must be not only stigmatized but also stigmatized in connection with . . . [a] government official’s conduct [that] deprived the plaintiff of a previously recognized property or liberty interest in addition to damaging the plaintiff’s reputation.” Id. (citations and quotation marks omitted).22 The “stigma- plus” test requires not only allegations stating a common law defamation claim, but also an additional constitutional injury, tied to a previously recognized constitutional property or liberty interest, flowing from the defamation. Cypress, 144 F.3d at 1436-37. “While we have in a number of our prior cases pointed out the frequently drastic effect of the ‘stigma’ which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either ‘liberty’ or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause.” Paul, 424 U.S. at 701, 96 S. Ct. at 1160-61; see also Siegert v. Gilley, 500 U.S. 226, 234, 111 S. Ct. 1789, 1794 (1991) (“Most defamation plaintiffs attempt to show some sort of special damage and out-of-pocket loss which flows from the injury to their reputation. But so long as such damage flows from injury caused by the defendant to a plaintiff’s reputation, it may be recoverable under state tort law but it is not recoverable in a Bivens action.”). Rehberg’s complaint alleges damage to his reputation but does not allege the required deprivation of any previously recognized constitutional property or liberty interest. The only factual allegations Rehberg makes regarding Burke’s media statements are these: “Mr. Rehberg . . . was subjected to extensive publicity in the media where he was identified as being charged with multiple felonies and misdemeanors, and publicly identified by the acting District Attorney as having committed an assault and burglary. The damage of three indictments on his public record will remain with him and his wife and children for the rest of their lives.” He continues by alleging, “[t]hese wrongful indictments will always be associated with his name and have caused and will cause significant personal, professional and economic damages to Mr. Rehberg.” Rehberg alleges Burke’s media statements “wrongfully damaged [his] reputation.” In short, Rehberg’s defamation allegations are too generalized to show a previously recognized constitutional deprivation flowing from Burke’s alleged defamatory statements. Damage to reputation alone is insufficient to state a Fourteenth Amendment due process claim. Cypress, 144 F.3d at 1437-38 (“Indeed, [in Siegert v. Gilley, 500 U.S. 226, 111 S. Ct. 1789 (1991)] the [Supreme] Court specifically rejected the notion that defamation by a government actor that causes injury to professional reputation violates procedural due process”). The district court averted this settled law by connecting Burke’s media statements to “the alleged Fourteenth Amendment violation alleged by Plaintiff, i.e., violation of his right to be free from prosecution based upon false evidence/charges.” This was error. The “stigma-plus” test requires the plaintiff to show deprivation of a previously recognized Fourteenth Amendment property or liberty interest “in connection with” the claimed defamation. Even liberally construed, Rehberg’s complaint does not allege a procedural due process claim under the Fourteenth Amendment. See Albright v. Oliver, 510 U.S. 266, 272, 114 S. Ct. 807, 812 (1994). Rehberg does not allege Dougherty County or the individual defendants denied him the constitutionally required procedures necessary to challenge his indictments and arrest. Indeed, Rehberg’s successful challenges to the three indictments show otherwise. And, under the Fourteenth Amendment, there is no substantive due process right to be free from malicious prosecution without probable cause. Id. at 274, 114 S. Ct. at 813. A malicious prosecution claim arises under the Fourth Amendment, not Fourteenth Amendment substantive due process. Therefore, the only remaining “plus” Rehberg identifies is the right to be free from malicious prosecution and unreasonable detention under the Fourth Amendment. However, Rehberg’s complaint does not allege that Burke’s media statements caused Rehberg’s indictments and arrest.23 For example, there is no allegation that the grand jury relied on Burke’s press statements in indicting Rehberg or that the Defendants relied on Burke’s media statements as probable cause to arrest Rehberg. Paul’s “stigma-plus” test is not satisfied by simply alleging a constitutional violation somewhere in the case. The constitutional violation must itself flow from the alleged defamation.24 In any event, Rehberg cannot use the prosecution itself (the indictment and arrest) as the basis for constitutional injury supporting a § 1983 defamation claim. The Seventh Circuit considered this precise situation, concluding the plaintiff must point to some constitutional wrong, other than the indictment and related events, in order to support a § 1983 constitutional claim based on defamation. “Identifying the arrest and imprisonment as the loss of liberty does not assist [the plaintiff], however, because [the prosecutor] has absolute immunity from damages for these The complaint does not clearly state whether Burke made his media statements before Rehberg was indicted or after, but the complaint also does not allege any fact showing that Burke’s media statements caused Rehberg to be indicted. The district court cited Riley v. City of Montgomery, Ala., 104 F.3d at 1253, for the proposition that fabricating evidence violates an accused’s constitutional rights, and thus since Rehberg alleges fabrication in this case, he satisfied Paul’s “stigma-plus” test. Even assuming evidence was fabricated and that this fabrication was a constitutional violation, nothing in the complaint connects Hodges’s and Paulk’s alleged evidence fabrication to Burke’s press statements. events.” Buckley v. Fitzsimmons, 20 F.3d 789, 797 (7th Cir. 1994), cert. denied, 513 U.S. 1085, 115 S. Ct. 740 (1995) (rejecting plaintiff’s arrest as a sufficient “plus” under the stigma-plus test). The Seventh Circuit explained that, “the Supreme Court [] adopt[ed] a strict separation between the prosecutor’s role as advocate and the ancillary events (such as press conferences) surrounding the prosecution. It would be incongruous to treat the press conference and the prosecution as distinct for purposes of immunity but not for purposes of defining the actionable wrong.” Id. at 797-98. The Seventh Circuit concluded that, “a plaintiff who uses a ‘stigma plus’ approach to avoid Paul and Siegert must identify a ‘plus’ other than the indictment, trial, and related events for which the defendants possess absolute prosecutorial immunity.” Id. at 798. Therefore Rehberg failed to satisfy Paul’s “stigma-plus” test and fails to allege a constitutional claim based on the press statements. This lack of a constitutional claim means Burke receives qualified immunity for his press statements. The district court erred by not finding Burke immune for the allegations in Count 8. E. Count 10 (Conspiracy) Count 10 alleges Hodges, Burke, and Paulk engaged in a conspiracy to violate Rehberg’s constitutional rights under the First, Fourth, and Fourteenth Amendments. “A person may not be prosecuted for conspiring to commit an act that he may perform with impunity.” Jones, 174 F.3d at 1289 (citations omitted). A prosecutor cannot be liable for “conspiracy” to violate a defendant’s constitutional rights by prosecuting him if the prosecutor also is immune from liability for actually prosecuting the defendant. Rowe, 279 F.3d at 1282. And a witness’s absolute immunity for testifying prevents any use of that testimony as evidence of the witness’s membership in an unconstitutional conspiracy prior to his testimony. Id.; Mastroianni, 173 F.3d at 1367. Rehberg’s conspiracy allegations do not enlarge what he alleged previously in his complaint. This opinion has already explained why Hodges, Burke, and Paulk receive absolute or qualified immunity for all of the conduct alleged in Counts 6 and 8 and why Hodges receives absolute immunity for the retaliatory prosecution in Count 7. Rehberg cannot state a valid conspiracy claim by alleging the Defendants conspired to do things they already are immune from doing directly. The only portion of Count 7 that remains is Rehberg’s retaliatory prosecution claim against Paulk alone. The intracorporate conspiracy doctrine bars conspiracy claims against corporate or government actors accused of conspiring together within an organization, preventing Rehberg’s claim that Paulk “conspired” to initiate a retaliatory prosecution. Dickerson v. Alachua County Commission, 200 F.3d 761, 767 (11th Cir. 2000) (“[I]t is not possible for a single legal entity consisting of the corporation and its agents to conspire with itself, just as it is not possible for an individual person to conspire with himself”); Denny v. City of Albany, 247 F.3d 1172, 1190 (11th Cir. 2001) (applying intracorporate conspiracy doctrine to city, city fire chief, and city manager). Rehberg has not alleged that Paulk conspired with anyone outside of the District Attorney’s office. See Denny, 247 F.3d at 1191 (“the only two conspirators identified . . . are both City employees; no outsiders are alleged to be involved”). The “conspiracy” occurred only within a government entity, and thus the intracorporate conspiracy doctrine bars Count 10 against Paulk. The district court erred in not dismissing Count 10. F. Conclusion For the reasons explained above, Hodges and Paulk receive absolute immunity for Paulk’s grand jury testimony and for the related pre-indictment conspiracy conduct alleged in Count 6; Hodges and Paulk received qualified immunity for the issuance of subpoenas alleged in Count 6; Hodges receives absolute immunity for initiating a retaliatory prosecution as alleged in Count 7; Hodges and Paulk both receive qualified immunity for the retaliatory investigation alleged in Count 7; Burke receives absolute immunity for the allegations in Count 8, except for the alleged media statements, for which he receives qualified immunity; and Count 10’s conspiracy claim fails. The only surviving claim from this appeal is the retaliatory-prosecution claim in Count 7 against Paulk, for which the district court correctly denied absolute and qualified immunity. We reverse the district court’s order in part and remand this case for the district court to grant the Defendants’ motions to dismiss and to enter judgment in favor of all Defendants on Counts 6, 7, 8, and 10, except for the retaliatory-prosecution claim against Paulk in Count 7. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.